II. The Sources and Scope of International Law hires and (2) local-hires.
hires and (2) local-hires. The School employs four tests to determine
G.R. No. 128845 June 1, 2000
INTERNATIONAL SCHOOL ALLIANCE OF EDUCATORS
(ISAE), petitioner,
vs.
HON. LEONARDO A. QUISUMBING in his capacity as the
Secretary of Labor and Employment; HON. CRESENCIANO B.
TRAJANO in his capacity as the Acting Secretary of Labor and
Employment; DR. BRIAN MACCAULEY in his capacity as the
Superintendent of International School-Manila; and
INTERNATIONAL SCHOOL, INC., respondents.
KAPUNAN, J.:
Receiving salaries less than their counterparts hired abroad, the
local-hires of private respondent School, mostly Filipinos, cry
discrimination. We agree. That the local-hires are paid more than
their colleagues in other schools is, of course, beside the point. The
point is that employees should be given equal pay for work of equal
value. That is a principle long honored in this jurisdiction. That is a
principle that rests on fundamental notions of justice. That is the
principle we uphold today.
Private respondent International School, Inc. (the School, for short),
pursuant to Presidential Decree 732, is a domestic educational
institution established primarily for dependents of foreign diplomatic
personnel and other temporary residents.1 To enable the School to
continue carrying out its educational program and improve its
standard of instruction, Section 2(c) of the same decree authorizes
the School to employ its own teaching and management personnel
selected by it either locally or abroad, from Philippine or other
nationalities, such personnel being exempt from otherwise
applicable laws and regulations attending their employment, except
laws that have been or will be enacted for the protection of
employees.
Accordingly, the School hires both foreign and local teachers as
members of its faculty, classifying the same into two: (1) foreign-
whether a faculty member should be classified as a foreign-hire or a
local hire:
a. What is one's domicile?
b. Where is one's home economy?
c. To which country does one owe economic allegiance?
d. Was the individual hired abroad specifically to work in the
School and was the School responsible for bringing that
individual to the Philippines?2
Should the answer to any of these queries point to the Philippines,
the faculty member is classified as a local hire; otherwise, he or she
is deemed a foreign-hire.
The School grants foreign-hires certain benefits not accorded local-
hires.1avvphi1 These include housing, transportation, shipping
costs, taxes, and home leave travel allowance. Foreign-hires are also
paid a salary rate twenty-five percent (25%) more than local-hires.
The School justifies the difference on two "significant economic
disadvantages" foreign-hires have to endure, namely: (a) the
"dislocation factor" and (b) limited tenure. The School explains:
A foreign-hire would necessarily have to uproot himself from
his home country, leave his family and friends, and take the
risk of deviating from a promising career path — all for the
purpose of pursuing his profession as an educator, but this
time in a foreign land. The new foreign hire is faced with
economic realities: decent abode for oneself and/or for one's
family, effective means of transportation, allowance for the
education of one's children, adequate insurance against
illness and death, and of course the primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign hire is confronted
again with the same economic reality after his term: that he
will eventually and inevitably return to his home country
1
 where he will have to confront the uncertainty of obtaining
suitable employment after along period in a foreign land.
The compensation scheme is simply the School's adaptive
measure to remain competitive on an international level in
terms of attracting competent professionals in the field of
international education.3
When negotiations for a new collective bargaining agreement were
held on June 1995, petitioner International School Alliance of
Educators, "a legitimate labor union and the collective bargaining
representative of all faculty members"4 of the School, contested the
difference in salary rates between foreign and local-hires. This issue,
as well as the question of whether foreign-hires should be included
in the appropriate bargaining unit, eventually caused a deadlock
between the parties.
On September 7, 1995, petitioner filed a notice of strike. The failure
of the National Conciliation and Mediation Board to bring the parties
to a compromise prompted the Department of Labor and
Employment (DOLE) to assume jurisdiction over the dispute. On
June 10, 1996, the DOLE Acting Secretary, Crescenciano B. Trajano,
issued an Order resolving the parity and representation issues in
favor of the School. Then DOLE Secretary Leonardo A. Quisumbing
subsequently denied petitioner's motion for reconsideration in an
Order dated March 19, 1997. Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification employed by the
School is discriminatory to Filipinos and that the grant of higher
salaries to foreign-hires constitutes racial discrimination.
The School disputes these claims and gives a breakdown of its
faculty members, numbering 38 in all, with nationalities other than
Filipino, who have been hired locally and classified as local
hires.5 The Acting Secretary of Labor found that these non-Filipino
local-hires received the same benefits as the Filipino local-hires.
The compensation package given to local-hires has been
shown to apply to all, regardless of race. Truth to tell, there
are foreigners who have been hired locally and who are paid
equally as Filipino local hires.6
The Acting secretary upheld the point-of-hire classification for the
distinction in salary rates:
The Principle "equal pay for equal work" does not find
applications in the present case. The international character
of the School requires the hiring of foreign personnel to deal
with different nationalities and different cultures, among the
student population.
We also take cognizance of the existence of a system of
salaries and benefits accorded to foreign hired personnel
which system is universally recognized. We agree that certain
amenities have to be provided to these people in order to
entice them to render their services in the Philippines and in
the process remain competitive in the international market.
Furthermore, we took note of the fact that foreign hires have
limited contract of employment unlike the local hires who
enjoy security of tenure. To apply parity therefore, in wages
and other benefits would also require parity in other terms
and conditions of employment which include the employment
which include the employment contract.
A perusal of the parties' 1992-1995 CBA points us to the
conditions and provisions for salary and professional
compensation wherein the parties agree as follows:
All members of the bargaining unit shall be
compensated only in accordance with Appendix C
hereof provided that the Superintendent of the School
has the discretion to recruit and hire expatriate
teachers from abroad, under terms and conditions
that are consistent with accepted international
practice.
Appendix C of said CBA further provides:
2
 The new salary schedule is deemed at equity with the
Overseas Recruited Staff (OSRS) salary schedule. The
25% differential is reflective of the agreed value of
system displacement and contracted status of the
OSRS as differentiated from the tenured status of
Locally Recruited Staff (LRS).
To our mind, these provisions demonstrate the parties'
recognition of the difference in the status of two types of
employees, hence, the difference in their salaries.
The Union cannot also invoke the equal protection clause to
justify its claim of parity. It is an established principle of
constitutional law that the guarantee of equal protection of
the laws is not violated by legislation or private covenants
based on reasonable classification. A classification is
reasonable if it is based on substantial distinctions and apply
to all members of the same class. Verily, there is a substantial
distinction between foreign hires and local hires, the former
enjoying only a limited tenure, having no amenities of their
own in the Philippines and have to be given a good
compensation package in order to attract them to join the
teaching faculty of the School.7
We cannot agree.
That public policy abhors inequality and discrimination is beyond
contention. Our Constitution and laws reflect the policy against these
evils. The Constitution8 in the Article on Social Justice and Human
Rights exhorts Congress to "give highest priority to the enactment
of measures that protect and enhance the right of all people to
human dignity, reduce social, economic, and political inequalities."
The very broad Article 19 of the Civil Code requires every person,
"in the exercise of his rights and in the performance of his duties,
[to] act with justice, give everyone his due, and observe honesty
and good faith.
International law, which springs from general principles of
law,9 likewise proscribes discrimination. General principles of law
include principles of equity, 10 i.e., the general principles of fairness
and justice, based on the test of what is reasonable. 11 The Universal
Declaration of Human Rights, 12 the International Covenant on
Economic, Social, and Cultural Rights, 13 the International
Convention on the Elimination of All Forms of Racial
Discrimination, 14 the Convention against Discrimination in
Education, 15 the Convention (No. 111) Concerning Discrimination in
Respect of Employment and Occupation 16 — all embody the general
principle against discrimination, the very antithesis of fairness and
justice. The Philippines, through its Constitution, has incorporated
this principle as part of its national laws.
In the workplace, where the relations between capital and labor are
often skewed in favor of capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution 17 specifically provides that labor is entitled to
"humane conditions of work." These conditions are not restricted to
the physical workplace — the factory, the office or the field — but
include as well the manner by which employers treat their
employees.
The Constitution 18 also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor
Code 19 provides that the State shall "ensure equal work
opportunities regardless of sex, race or creed." It would be an affront
to both the spirit and letter of these provisions if the State, in spite
of its primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment. 20
Discrimination, particularly in terms of wages, is frowned upon by
the Labor Code. Article 135, for example, prohibits and
penalizes 21 the payment of lesser compensation to a female
employee as against a male employee for work of equal value. Article
248 declares it an unfair labor practice for an employer to
discriminate in regard to wages in order to encourage or discourage
membership in any labor organization.
Notably, the International Covenant on Economic, Social, and
Cultural Rights, supra, in Article 7 thereof, provides:
3
 The States Parties to the present Covenant recognize the
right of everyone to the enjoyment of just and favourable
conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a
minimum, with:
(i) Fair wages and equal remuneration for work
of equal value without distinction of any kind,
in particular women being guaranteed
conditions of work not inferior to those enjoyed
by men, with equal pay for equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this
jurisdiction the long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal qualifications, skill,
effort and responsibility, under similar conditions, should be paid
similar salaries. 22 This rule applies to the School, its "international
character" notwithstanding.
The School contends that petitioner has not adduced evidence that
local-hires perform work equal to that of foreign-hires. 23 The Court
finds this argument a little cavalier. If an employer accords
employees the same position and rank, the presumption is that these
employees perform equal work. This presumption is borne by logic
and human experience. If the employer pays one employee less than
the rest, it is not for that employee to explain why he receives less
or why the others receive more. That would be adding insult to
injury. The employer has discriminated against that employee; it is
for the employer to explain why the employee is treated unfairly.
The employer in this case has failed to discharge this burden. There
is no evidence here that foreign-hires perform 25% more efficiently
or effectively than the local-hires. Both groups have similar functions
and responsibilities, which they perform under similar working
conditions.
The School cannot invoke the need to entice foreign-hires to leave
their domicile to rationalize the distinction in salary rates without
violating the principle of equal work for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as "a reward
or recompense for services performed." Similarly, the Philippine
Legal Encyclopedia states that "salary" is the "[c]onsideration paid
at regular intervals for the rendering of services." In Songco
v. National Labor Relations Commission, 24 we said that:
"salary" means a recompense or consideration made to a
person for his pains or industry in another man's business.
Whether it be derived from "salarium," or more fancifully
from "sal," the pay of the Roman soldier, it carries with it the
fundamental idea of compensation for services rendered.
(Emphasis supplied.)
While we recognize the need of the School to attract foreign-hires,
salaries should not be used as an enticement to the prejudice of
local-hires. The local-hires perform the same services as foreign-
hires and they ought to be paid the same salaries as the latter. For
the same reason, the "dislocation factor" and the foreign-hires'
limited tenure also cannot serve as valid bases for the distinction in
salary rates. The dislocation factor and limited tenure affecting
foreign-hires are adequately compensated by certain benefits
accorded them which are not enjoyed by local-hires, such as
housing, transportation, shipping costs, taxes and home leave travel
allowances.
The Constitution enjoins the State to "protect the rights of workers
and promote their welfare," 25 "to afford labor full protection." 26 The
State, therefore, has the right and duty to regulate the relations
between labor and capital. 27 These relations are not merely
contractual but are so impressed with public interest that labor
contracts, collective bargaining agreements included, must yield to
the common good. 28 Should such contracts contain stipulations that
are contrary to public policy, courts will not hesitate to strike down
these stipulations.
4
In this case, we find the point-of-hire classification employed by
respondent School to justify the distinction in the salary rates of
foreign-hires and local hires to be an invalid classification. There is
no reasonable distinction between the services rendered by foreign-
hires and local-hires. The practice of the School of according higher
salaries to foreign-hires contravenes public policy and, certainly,
does not deserve the sympathy of this Court.1avvphi1
We agree, however, that foreign-hires do not belong to the same
bargaining unit as the local-hires.
WHEREFORE, the petition is GIVEN DUE COURSE. The petition is
hereby GRANTED IN PART. The Orders of the Secretary of Labor and
Employment dated June 10, 1996 and March 19, 1997, are hereby
REVERSED and SET ASIDE insofar as they uphold the practice of
respondent School of according foreign-hires higher salaries than
local-hires.
SO ORDERED.
G.R. No. 114974 June 16, 2004

A bargaining unit is "a group of employees of a given employer,

comprised of all or less than all of the entire body of employees,
STANDARD CHARTERED BANK EMPLOYEES UNION (NUBE),
consistent with equity to the employer, indicate to be the best suited
petitioner,
to serve the reciprocal rights and duties of the parties under the
collective bargaining provisions of the law." 29 The factors in vs.
determining the appropriate collective bargaining unit are (1) the
will of the employees (Globe Doctrine); (2) affinity and unity of the The Honorable MA. NIEVES R. CONFESOR, in her capacity as
employees' interest, such as substantial similarity of work and SECRETARY OF LABOR AND EMPLOYMENT; and the STANDARD
duties, or similarity of compensation and working conditions CHARTERED BANK, respondents.
(Substantial Mutual Interests Rule); (3) prior collective bargaining
history; and (4) similarity of employment status. 30 The basic test of
an asserted bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all DECISION
employees the exercise of their collective bargaining rights. 31

It does not appear that foreign-hires have indicated their intention CALLEJO, SR., J.:
to be grouped together with local-hires for purposes of collective
bargaining. The collective bargaining history in the School also
shows that these groups were always treated separately. Foreign-
This is a petition for certiorari under Rule 65 of the Rules of Court
hires have limited tenure; local-hires enjoy security of tenure.
filed by the Standard Chartered Bank Employees Union, seeking the
Although foreign-hires perform similar functions under the same
working conditions as the local-hires, foreign-hires are accorded nullification of the October 29, 1993 Order1 of then Secretary of
certain benefits not granted to local-hires. These benefits, such as Labor and Employment Nieves R. Confesor and her resolutions dated
housing, transportation, shipping costs, taxes, and home leave December 16, 1993 and February 10, 1994.
travel allowance, are reasonably related to their status as foreign-
hires, and justify the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-hires would not The Antecedents
assure either group the exercise of their respective collective
bargaining rights.

5
Standard Chartered Bank (the Bank, for brevity) is a foreign banking
corporation doing business in the Philippines. The exclusive
On March 12, 1993, the parties met and set the ground rules for the
bargaining agent of the rank and file employees of the Bank is the
negotiation. Diokno suggested that the negotiation be kept a "family
Standard Chartered Bank Employees Union (the Union, for brevity).
affair." The proposed non-economic provisions of the CBA were
discussed first.13 Even during the final reading of the non-economic
provisions on May 4, 1993, there were still provisions on which the
In August of 1990, the Bank and the Union signed a five-year
Union and the Bank could not agree. Temporarily, the notation
collective bargaining agreement (CBA) with a provision to
"DEFERRED" was placed therein. Towards the end of the meeting,
renegotiate the terms thereof on the third year. Prior to the
the Union manifested that the same should be changed to
expiration of the three-year period2 but within the sixty-day freedom
"DEADLOCKED" to indicate that such items remained unresolved.
period, the Union initiated the negotiations. On February 18, 1993,
Both parties agreed to place the notation
the Union, through its President, Eddie L. Divinagracia, sent a letter3
"DEFERRED/DEADLOCKED."14
containing its proposals4 covering political provisions5 and thirty-
four (34) economic provisions.6 Included therein was a list of the
names of the members of the Union’s negotiating panel.7
On May 18, 1993, the negotiation for economic provisions
commenced. A presentation of the basis of the Union’s economic
proposals was made. The next meeting, the Bank made a similar
In a Letter dated February 24, 1993, the Bank, through its Country
presentation. Towards the end of the Bank’s presentation, Umali
Manager Peter H. Harris, took note of the Union’s proposals. The
requested the Bank to validate the Union’s "guestimates," especially
Bank attached its counter-proposal to the non-economic provisions
the figures for the rank and file staff.15 In the succeeding meetings,
proposed by the Union.8 The Bank posited that it would be in a better
Umali chided the Bank for the insufficiency of its counter-proposal
position to present its counter-proposals on the economic items after
on the provisions on salary increase, group hospitalization, death
the Union had presented its justifications for the economic
assistance and dental benefits. He reminded the Bank, how the
proposals.9 The Bank, likewise, listed the members of its negotiating
Union got what it wanted in 1987, and stated that if need be, the
panel.10 The parties agreed to set meetings to settle their
Union would go through the same route to get what it wanted.16
differences on the proposed CBA.

Upon the Bank’s insistence, the parties agreed to tackle the

Before the commencement of the negotiation, the Union, through
economic package item by item. Upon the Union’s suggestion, the
Divinagracia, suggested to the Bank’s Human Resource Manager and
Bank indicated which provisions it would accept, reject, retain and
head of the negotiating panel, Cielito Diokno, that the bank lawyers
agree to discuss.17 The Bank suggested that the Union prioritize its
should be excluded from the negotiating team. The Bank acceded.11
economic proposals, considering that many of such economic
Meanwhile, Diokno suggested to Divinagracia that Jose P. Umali, Jr.,
provisions remained unresolved. The Union, however, demanded
the President of the National Union of Bank Employees (NUBE), the that the Bank make a revised itemized proposal.
federation to which the Union was affiliated, be excluded from the
Union’s negotiating panel.12 However, Umali was retained as a
member thereof.

6
In the succeeding meetings, the Union made the following proposals:
Wage Increase:
In the morning of the June 15, 1993 meeting, the Union suggested
that if the Bank would not make the necessary revisions on its
counter-proposal, it would be best to seek a third party
assistance.19 After the break, the Bank presented its revised
counter-proposal20 as follows:

1st Year – Reduced from 45% to 40%

Wage Increase : 1st Year – from ₱1,000 to ₱1,050.00

2nd Year - Retain at 20%

2nd Year – ₱800.00 – no change

Total = 60%
Group Hospitalization Insurance

Group Hospitalization Insurance:

From: ₱35,000.00 per illness

Maximum disability benefit reduced from ₱75,000.00 to ₱60,000.00

per illness annually To : ₱35,000.00 per illness per year

Death Assistance: Death Assistance – For employee

For the employee – Reduced from ₱50,000.00 to ₱45,000.00 From: ₱20,000.00

For Immediate Family Member – Reduced from ₱30,000.00 to To : ₱25,000.00

₱25,000.00

Dental Retainer – Original offer remains the same21

Dental and all others – No change from the original demand.18

The Union, for its part, made the following counter-proposal:

7
Wage Increase: 1st Year - 40%
2nd Year - 19.5%
Group Hospitalization Insurance
From: ₱60,000.00 per year
To : ₱50,000.00 per year
Dental:
Temporary Filling/ – ₱150.00
Tooth Extraction
Permanent Filling – 200.00
Prophylaxis – 250.00
Root Canal – From ₱2,000 per tooth
To: 1,800.00 per tooth
Death Assistance:
For Employees: From ₱45,000.00 to ₱40,000.00
For Immediate Family Member: From ₱25,000.00 to ₱20,000.00.22
The Union’s original proposals, aside from the above-quoted,
remained the same.
Another set of counter-offer followed:
Management Union
Wage Increase
1st Year – ₱1,050.00 40%
2nd Year - 850.00 19.0%23
Diokno stated that, in order for the Bank to make a better offer, the
Union should clearly identify what it wanted to be included in the
total economic package. Umali replied that it was impossible to do
so because the Bank’s counter-proposal was unacceptable. He
furthered asserted that it would have been easier to bargain if the
atmosphere was the same as before, where both panels trusted each
other. Diokno requested the Union panel to refrain from involving
personalities and to instead focus on the negotiations.24 He
suggested that in order to break the impasse, the Union should
prioritize the items it wanted to iron out. Divinagracia stated that the
Bank should make the first move and make a list of items it wanted
to be included in the economic package. Except for the provisions on
signing bonus and uniforms, the Union and the Bank failed to agree
8
on the remaining economic provisions of the CBA. The Union expired CBA not expressly modified or not passed upon herein are
declared a deadlock25 and filed a Notice of Strike before the National deemed retained while all new provisions which are being demanded
Conciliation and Mediation Board (NCMB) on June 21, 1993, by either party are deemed denied, but without prejudice to such
docketed as NCMB-NCR-NS-06-380-93.26 agreements as the parties may have arrived at in the meantime.

On the other hand, the Bank filed a complaint for Unfair Labor
Practice (ULP) and Damages before the Arbitration Branch of the
National Labor Relations Commission (NLRC) in Manila, docketed as
NLRC Case No. 00-06-04191-93 against the Union on June 28, 1993.
The Bank alleged that the Union violated its duty to bargain, as it did
not bargain in good faith. It contended that the Union demanded
"sky high economic demands," indicative of blue-sky bargaining.27
Further, the Union violated its no strike- no lockout clause by filing
a notice of strike before the NCMB. Considering that the filing of
notice of strike was an illegal act, the Union officers should be
dismissed. Finally, the Bank alleged that as a consequence of the
illegal act, the Bank suffered nominal and actual damages and was
forced to litigate and hire the services of the lawyer.28
The Bank’s charge for unfair labor practice which it originally filed
with the NLRC as NLRC-NCR Case No. 00-06-04191-93 but which is
deemed consolidated herein, is dismissed for lack of merit. On the
other hand, the Union’s charge for unfair labor practice is similarly
dismissed.
Let a copy of this order be furnished the Labor Arbiter in whose sala
NLRC-NCR Case No. 00-06-04191-93 is pending for his guidance and
appropriate action.29
The SOLE gave the following economic awards:

On July 21, 1993, then Secretary of Labor and Employment (SOLE)

1. Wage Increase:
Nieves R. Confesor, pursuant to Article 263(g) of the Labor Code,
issued an Order assuming jurisdiction over the labor dispute at the
Bank. The complaint for ULP filed by the Bank before the NLRC was
consolidated with the complaint over which the SOLE assumed a) To be incorporated to present salary rates:
jurisdiction. After the parties submitted their respective position
papers, the SOLE issued an Order on October 29, 1993, the
dispositive portion of which is herein quoted: Fourth year : 7% of basic monthly salary

WHEREFORE, the Standard Chartered Bank and the Standard Fifth year : 5% of basic monthly salary based on the 4th year
Chartered Bank Employees Union – NUBE are hereby ordered to adjusted salary
execute a collective bargaining agreement incorporating the
dispositions contained herein. The CBA shall be retroactive to 01
April 1993 and shall remain effective for two years thereafter, or b) Additional fixed amount:
until such time as a new CBA has superseded it. All provisions in the

9
 5. Optical Allowance

Fourth year : ₱600.00 per month

Fourth year: ₱2,000.00

Fifth year : ₱400.00 per month

Fifth year : ₱2,500.00

2. Group Insurance

6. Death Assistance

a) Hospitalization : ₱45,000.00

a) Employee : ₱30,000.00

b) Life : ₱130,000.00

b) Immediate Family Member : ₱5,000.00

c) Accident : ₱130,000.00

7. Emergency Leave – Five (5) days for each contingency

3. Medicine Allowance

8. Loans

Fourth year : ₱5,500.00

a) Car Loan : ₱200,000.00

Fifth year : ₱6,000.00

b) Housing Loan : It cannot be denied that the costs attendant to

having one’s own home have tremendously gone up. The need,
4. Dental Benefits
therefore, to improve on this benefit cannot be overemphasized.
Thus, the management is urged to increase the existing and
allowable housing loan that the Bank extends to its employees to an
Provision of dental retainer as proposed by the Bank, but without amount that will give meaning and substance to this CBA benefit.30
diminishing existing benefits

10
The SOLE dismissed the charges of ULP of both the Union and the
Bank, explaining that both parties failed to substantiate their claims.
Citing National Labor Union v. Insular-Yebana Tobacco
Corporation,31 the SOLE stated that ULP charges would prosper only
if shown to have directly prejudiced the public interest.
Dissatisfied, the Union filed a motion for reconsideration with
clarification, while the Bank filed a motion for reconsideration. On
December 16, 1993, the SOLE issued a Resolution denying the
motions. The Union filed a second motion for reconsideration, which
was, likewise, denied on February 10, 1994.
On March 22, 1994, the Bank and the Union signed the CBA.32
Immediately thereafter, the wage increase was effected and the
signing bonuses based on the increased wage were distributed to the
employees covered by the CBA.
The Present Petition
On April 28, 1994, the Union filed this petition for certiorari under
Rule 65 of the Rules of Procedure alleging as follows:
A. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
DISMISSING THE UNION’S CHARGE OF UNFAIR LABOR PRACTICE IN
VIEW OF THE CLEAR EVIDENCE OF RECORD AND ADMISSIONS
PROVING THE UNFAIR LABOR PRACTICES CHARGED.33
B. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
FAILING TO RULE ON OTHER UNFAIR LABOR PRACTICES
CHARGED.34
C. RESPONDENT HONORABLE SECRETARY COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
DISMISSING THE CHARGES OF UNFAIR LABOR PRACTICES ON THE
GROUND THAT NO PROOF OF INJURY TO THE PUBLIC INTEREST
WAS PRESENTED.35
The Union alleges that the SOLE acted with grave abuse of discretion
amounting to lack or excess of jurisdiction when it found that the
Bank did not commit unfair labor practice when it interfered with the
Union’s choice of negotiator. It argued that, Diokno’s suggestion that
the negotiation be limited as a "family affair" was tantamount to
suggesting that Federation President Jose Umali, Jr. be excluded
from the Union’s negotiating panel. It further argued that contrary
to the ruling of the public respondent, damage or injury to the public
interest need not be present in order for unfair labor practice to
prosper.
The Union, likewise, pointed out that the public respondent failed to
rule on the ULP charges arising from the Bank’s surface bargaining.
The Union contended that the Bank merely went through the motions
of collective bargaining without the intent to reach an agreement,
and made bad faith proposals when it announced that the parties
should begin from a clean slate. It argued that the Bank opened the
political provisions "up for grabs," which had the effect of diminishing
or obliterating the gains that the Union had made.
The Union also accused the Bank of refusing to disclose material and
necessary data, even after a request was made by the Union to
validate its "guestimates."
11

In its Comment, the Bank prayed that the petition be dismissed as
the Union was estopped, considering that it signed the Collective
Bargaining Agreement (CBA) on April 22, 1994. It asserted that
contrary to the Union’s allegations, it was the Union that committed
ULP when negotiator Jose Umali, Jr. hurled invectives at the Bank’s
head negotiator, Cielito Diokno, and demanded that she be excluded
from the Bank’s negotiating team. Moreover, the Union engaged in
blue-sky bargaining and isolated the no strike-no lockout clause of
the existing CBA.
The Office of the Solicitor General, in representation of the public
respondent, prayed that the petition be dismissed. It asserted that
the Union failed to prove its ULP charges and that the public
respondent did not commit any grave abuse of discretion in issuing
the assailed order and resolutions.
The Issues
The issues presented for resolution are the following: (a) whether or
not the Union was able to substantiate its claim of unfair labor
practice against the Bank arising from the latter’s alleged
"interference" with its choice of negotiator; surface bargaining;
making bad faith non-economic proposals; and refusal to furnish the
Union with copies of the relevant data; (b) whether or not the public
respondent acted with grave abuse of discretion amounting to lack
or excess of jurisdiction when she issued the assailed order and
resolutions; and, (c) whether or not the petitioner is estopped from
filing the instant action.
The Court’s Ruling
The petition is bereft of merit.
"Interference" under Article
248 (a) of the Labor Code
The petitioner asserts that the private respondent committed ULP,
i.e., interference in the selection of the Union’s negotiating panel,
when Cielito Diokno, the Bank’s Human Resource Manager,
suggested to the Union’s President Eddie L. Divinagracia that Jose P.
Umali, Jr., President of the NUBE, be excluded from the Union’s
negotiating panel. In support of its claim, Divinagracia executed an
affidavit, stating that prior to the commencement of the negotiation,
Diokno approached him and suggested the exclusion of Umali from
the Union’s negotiating panel, and that during the first meeting,
Diokno stated that the negotiation be kept a "family affair."
Citing the cases of U.S. Postal Service36 and Harley Davidson Motor
Co., Inc., AMF,37 the Union claims that interference in the choice of
the Union’s bargaining panel is tantamount to ULP.
In the aforecited cases, the alleged ULP was based on the employer’s
violation of Section 8(a)(1) and (5) of the National Labor Relations
Act (NLRA),38 which pertain to the interference, restraint or coercion
of the employer in the employees’ exercise of their rights to self-
organization and to bargain collectively through representatives of
their own choosing; and the refusal of the employer to bargain
collectively with the employees’ representatives. In both cases, the
National Labor Relations Board held that upon the employer’s refusal
to engage in negotiations with the Union for collective-bargaining
contract when the Union includes a person who is not an employee,
or one who is a member or an official of other labororganizations,
12
such employer is engaged in unfair labor practice under Section
8(a)(1) and (5) of the NLRA.
1. Workers’ and employers’ organizations shall enjoy adequate
protection against any acts or interference by each other or each
other’s agents or members in their establishment, functioning or
The Union further cited the case of Insular Life Assurance Co., Ltd.
administration.
Employees Association – NATU vs. Insular Life Assurance Co. Ltd.,39
wherein this Court said that the test of whether an employer has
interfered with and coerced employees in the exercise of their right
2. In particular, acts which are designed to promote the
to self-organization within the meaning of subsection (a)(1) is
establishment of workers’ organizations under the domination of
whether the employer has engaged in conduct which it may
employers or employers’ organizations or to support workers’
reasonably be said, tends to interfere with the free exercise of
organizations by financial or other means, with the object of placing
employees’ rights under Section 3 of the Act.40 Further, it is not
such organizations under the control of employers or employers’
necessary that there be direct evidence that any employee was in
organizations within the meaning of this Article.
fact intimidated or coerced by statements of threats of the employer
if there is a reasonable inference that anti-union conduct of the
employer does have an adverse effect on self-organization and
collective bargaining.41 The aforcited ILO Conventions are incorporated in our Labor Code,
particularly in Article 243 thereof, which provides:

Under the International Labor Organization Convention (ILO) No. 87

FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO
ORGANIZE to which the Philippines is a signatory, "workers and
employers, without distinction whatsoever, shall have the right to
establish and, subject only to the rules of the organization
concerned, to job organizations of their own choosing without
previous authorization."42
Workers’ and employers’ organizations shall have the right to draw
up their constitutions and rules, to elect their representatives in full
freedom to organize their administration and activities and to
formulate their programs.43 Article 2 of ILO Convention No. 98
pertaining to the Right to Organize and Collective Bargaining,
provides:
ART. 243. COVERAGE AND EMPLOYEES’ RIGHT TO SELF-
ORGANIZATION. – All persons employed in commercial, industrial
and agricultural enterprises and in religious, charitable, medical or
educational institutions whether operating for profit or not, shall
have the right to self-organization and to form, join, or assist labor
organizations of their own choosing for purposes of collective
bargaining. Ambulant, intermittent and itinerant workers, self-
employed people, rural workers and those without any definite
employers may form labor organizations for their mutual aid and
protection.
and Articles 248 and 249 respecting ULP of employers and labor
organizations.

Article 2
13
The said ILO Conventions were ratified on December 29, 1953.
However, even as early as the 1935 Constitution,44 the State had
already expressly bestowed protection to labor as part of the general
provisions. The 1973 Constitution,45 on the other hand, declared it
as a policy of the state to afford protection to labor, specifying that
the workers’ rights to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work would be
assured. For its part, the 1987 Constitution, aside from making it a
policy to "protect the rights of workers and promote their welfare,"46
devotes an entire section, emphasizing its mandate to afford
protection to labor, and highlights "the principle of shared
responsibility" between workers and employers to promote industrial
peace.47
Article 248(a) of the Labor Code, considers it an unfair labor practice
when an employer interferes, restrains or coerces employees in the
exercise of their right to self-organization or the right to form
association. The right to self-organization necessarily includes the
right to collective bargaining.
Parenthetically, if an employer interferes in the selection of its
negotiators or coerces the Union to exclude from its panel of
negotiators a representative of the Union, and if it can be inferred
that the employer adopted the said act to yield adverse effects on
the free exercise to right to self-organization or on the right to
collective bargaining of the employees, ULP under Article 248(a) in
connection with Article 243 of the Labor Code is committed.
In order to show that the employer committed ULP under the Labor
Code, substantial evidence is required to support the claim.
Substantial evidence has been defined as such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.48 In the case at bar, the Union bases its claim of
interference on the alleged suggestions of Diokno to exclude Umali
from the Union’s negotiating panel.
The circumstances that occurred during the negotiation do not show
that the suggestion made by Diokno to Divinagracia is an anti-union
conduct from which it can be inferred that the Bank consciously
adopted such act to yield adverse effects on the free exercise of the
right to self-organization and collective bargaining of the employees,
especially considering that such was undertaken previous to the
commencement of the negotiation and simultaneously with
Divinagracia’s suggestion that the bank lawyers be excluded from its
negotiating panel.
The records show that after the initiation of the collective bargaining
process, with the inclusion of Umali in the Union’s negotiating panel,
the negotiations pushed through. The complaint was made only on
August 16, 1993 after a deadlock was declared by the Union on June
15, 1993.
It is clear that such ULP charge was merely an afterthought. The
accusation occurred after the arguments and differences over the
economic provisions became heated and the parties had become
frustrated. It happened after the parties started to involve
personalities. As the public respondent noted, passions may rise, and
as a result, suggestions given under less adversarial situations may
be colored with unintended meanings.49 Such is what appears to
have happened in this case.
The Duty to Bargain
Collectively
14
 list of its counter-proposals on February 24, 1993. Thereafter,
meetings were set for the settlement of their differences. The
If at all, the suggestion made by Diokno to Divinagracia should be
minutes of the meetings show that both the Bank and the Union
construed as part of the normal relations and innocent
exchanged economic and non-economic proposals and counter-
communications, which are all part of the friendly relations between
proposals.
the Union and Bank.

The Union has not been able to show that the Bank had done acts,
The Union alleges that the Bank violated its duty to bargain; hence,
both at and away from the bargaining table, which tend to show that
committed ULP under Article 248(g) when it engaged in surface
it did not want to reach an agreement with the Union or to settle the
bargaining. It alleged that the Bank just went through the motions
differences between it and the Union. Admittedly, the parties were
of bargaining without any intent of reaching an agreement, as
not able to agree and reached a deadlock. However, it is herein
evident in the Bank’s counter-proposals. It explained that of the 34
emphasized that the duty to bargain "does not compel either party
economic provisions it made, the Bank only made 6 economic
to agree to a proposal or require the making of a concession."53
counterproposals. Further, as borne by the minutes of the meetings,
Hence, the parties’ failure to agree did not amount to ULP under
the Bank, after indicating the economic provisions it had rejected, Article 248(g) for violation of the duty to bargain.
accepted, retained or were open for discussion, refused to make a
list of items it agreed to include in the economic package.

We can hardly dispute this finding, for it finds support in the

evidence. The inference that respondents did not refuse to bargain
Surface bargaining is defined as "going through the motions of
collectively with the complaining union because they accepted some
negotiating" without any legal intent to reach an agreement.50 The
of the demands while they refused the others even leaving open
resolution of surface bargaining allegations never presents an easy
other demands for future discussion is correct, especially so when
issue. The determination of whether a party has engaged in unlawful
those demands were discussed at a meeting called by respondents
surface bargaining is usually a difficult one because it involves, at
themselves precisely in view of the letter sent by the union on April
bottom, a question of the intent of the party in question, and usually 29, 1960…54
such intent can only be inferred from the totality of the challenged
party’s conduct both at and away from the bargaining table.51 It
involves the question of whether an employer’s conduct
In view of the finding of lack of ULP based on Article 248(g), the
demonstrates an unwillingness to bargain in good faith or is merely
hard bargaining.52 accusation that the Bank made bad-faith provisions has no leg to
stand on. The records show that the Bank’s counterproposals on the
non-economic provisions or political provisions did not put "up for
grabs" the entire work of the Union and its predecessors. As can be
The minutes of meetings from March 12, 1993 to June 15, 1993 do
gleaned from the Bank’s counterproposal, there were many
not show that the Bank had any intention of violating its duty to
provisions which it proposed to be retained. The revisions on the
bargain with the Union. Records show that after the Union sent its
other provisions were made after the parties had come to an
proposal to the Bank on February 17, 1993, the latter replied with a
agreement. Far from buttressing the Union’s claim that the Bank

15
made bad-faith proposals on the non-economic provisions, all these,
on the contrary, disprove such allegations.
We, likewise, find that the Union failed to substantiate its claim that
the Bank refused to furnish the information it needed.
While the refusal to furnish requested information is in itself an unfair
labor practice, and also supports the inference of surface
bargaining,55 in the case at bar, Umali, in a meeting dated May 18,
1993, requested the Bank to validate its guestimates on the data of
the rank and file. However, Umali failed to put his request in writing
as provided for in Article 242(c) of the Labor Code:
Article 242. Rights of Legitimate Labor Organization…
(c) To be furnished by the employer, upon written request, with the
annual audited financial statements, including the balance sheet and
the profit and loss statement, within thirty (30) calendar days from
the date of receipt of the request, after the union has been duly
recognized by the employer or certified as the sole and exclusive
bargaining representatives of the employees in the bargaining unit,
or within sixty (60) calendar days before the expiration of the
existing collective bargaining agreement, or during the collective
negotiation;
The Union, did not, as the Labor Code requires, send a written
request for the issuance of a copy of the data about the Bank’s rank
and file employees. Moreover, as alleged by the Union, the fact that
the Bank made use of the aforesaid guestimates, amounts to a
validation of the data it had used in its presentation.
No Grave Abuse of Discretion
On the Part of the Public Respondent
The special civil action for certiorari may be availed of when the
tribunal, board, or officer exercising judicial or quasi-judicial
functions has acted without or in excess of jurisdiction and there is
no appeal or any plain, speedy, and adequate remedy in the ordinary
course of law for the purpose of annulling the proceeding.56 Grave
abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or where the power
is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility which must be so patent and gross as to amount
to an invasion of positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law. Mere abuse of
discretion is not enough.57
While it is true that a showing of prejudice to public interest is not a
requisite for ULP charges to prosper, it cannot be said that the public
respondent acted in capricious and whimsical exercise of judgment,
equivalent to lack of jurisdiction or excess thereof. Neither was it
shown that the public respondent exercised its power in an arbitrary
and despotic manner by reason of passion or personal hostility.
Estoppel not Applicable
In the Case at Bar
The respondent Bank argues that the petitioner is estopped from
raising the issue of ULP when it signed the new CBA.
16

Article 1431 of the Civil Code provides:
Through estoppel an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon.
A person, who by his deed or conduct has induced another to act in
a particular manner, is barred from adopting an inconsistent
position, attitude or course of conduct that thereby causes loss or
injury to another.58
In the case, however, the approval of the CBA and the release of
signing bonus do not necessarily mean that the Union waived its ULP
claim against the Bank during the past negotiations. After all, the
conclusion of the CBA was included in the order of the SOLE, while
the signing bonus was included in the CBA itself. Moreover, the Union
twice filed a motion for reconsideration respecting its ULP charges
against the Bank before the SOLE.
The Union Did Not Engage
In Blue-Sky Bargaining
We, likewise, do not agree that the Union is guilty of ULP for
engaging in blue-sky bargaining or making exaggerated or
unreasonable proposals.59 The Bank failed to show that the
economic demands made by the Union were exaggerated or
unreasonable. The minutes of the meeting show that the Union
based its economic proposals on data of rank and file employees and
the prevailing economic benefits received by bank employees from
other foreign banks doing business in the Philippines and other
branches of the Bank in the Asian region.
In sum, we find that the public respondent did not act with grave
abuse of discretion amounting to lack or excess of jurisdiction when
it issued the questioned order and resolutions. While the approval of
the CBA and the release of the signing bonus did not estop the Union
from pursuing its claims of ULP against the Bank, we find the latter
did not engage in ULP. We, likewise, hold that the Union is not guilty
of ULP.
IN LIGHT OF THE FOREGOING, the October 29, 1993 Order and
December 16, 1993 and February 10, 1994 Resolutions of then
Secretary of Labor Nieves R. Confesor are AFFIRMED. The Petition is
hereby DISMISSED.
SO ORDERED.
III. States and the International Community
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the
Regional Trial Court of Makati, Branch 61 and STARBRIGHT SALES
ENTERPRISES, INC., respondents.
Padilla Law Office for petitioner.
17
Siguion Reyna, Montecillo & Ongsiako for private respondent.
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of
Court to reverse and set aside the Orders dated June 20, 1991 and
September 19, 1991 of the Regional Trial Court, Branch 61, Makati,
Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of petitioner to
dismiss the complaint in Civil Case No. 90-183, while the Order dated
September 19, 1991 denied the motion for reconsideration of the
June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican
City in Rome, Italy, and is represented in the Philippines by the Papal
Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a domestic
corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters (Lot 5-A, Transfer Certificate of
Title No. 390440) located in the Municipality of Parañaque, Metro
Manila and registered in the name of petitioner.
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by
Transfer Certificates of Title Nos. 271108 and 265388 respectively
and registered in the name of the Philippine Realty Corporation
(PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A.
Cirilos, Jr., acting as agent to the sellers. Later, Licup assigned his
rights to the sale to private respondent.
In view of the refusal of the squatters to vacate the lots sold to
private respondent, a dispute arose as to who of the parties has the
responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner
of Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).
I
On January 23, 1990, private respondent filed a complaint with the
Regional Trial Court, Branch 61, Makati, Metro Manila for annulment
of the sale of the three parcels of land, and specific performance and
damages against petitioner, represented by the Papal Nuncio, and
three other defendants: namely, Msgr. Domingo A. Cirilos, Jr., the
PRC and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr.,
on behalf of petitioner and the PRC, agreed to sell to Ramon Licup
Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters;
(2) the agreement to sell was made on the condition that earnest
money of P100,000.00 be paid by Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the
same; (3) Licup paid the earnest money to Msgr. Cirilos; (4) in the
18
same month, Licup assigned his rights over the property to private
respondent and informed the sellers of the said assignment; (5)
thereafter, private respondent demanded from Msgr. Cirilos that the
sellers fulfill their undertaking and clear the property of squatters;
however, Msgr. Cirilos informed private respondent of the squatters'
refusal to vacate the lots, proposing instead either that private
respondent undertake the eviction or that the earnest money be
returned to the latter; (6) private respondent counterproposed that
if it would undertake the eviction of the squatters, the purchase price
of the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it seven days from
receipt of the letter to pay the original purchase price in cash; (8)
private respondent sent the earnest money back to the sellers, but
later discovered that on March 30, 1989, petitioner and the PRC,
without notice to private respondent, sold the lots to Tropicana, as
evidenced by two separate Deeds of Sale, one over Lot 5-A, and
another over Lots 5-B and 5-D; and that the sellers' transfer
certificate of title over the lots were cancelled, transferred and
registered in the name of Tropicana; (9) Tropicana induced
petitioner and the PRC to sell the lots to it and thus enriched itself
at the expense of private respondent; (10) private respondent
demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private respondent is
willing and able to comply with the terms of the contract to sell and
has actually made plans to develop the lots into a townhouse project,
but in view of the sellers' breach, it lost profits of not less than
P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds
of Sale between petitioner and the PRC on the one hand, and
Tropicana on the other; (2) the reconveyance of the lots in question;
(3) specific performance of the agreement to sell between it and the
owners of the lots; and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to
dismiss the complaint — petitioner for lack of jurisdiction based on
sovereign immunity from suit, and Msgr. Cirilos for being an
improper party. An opposition to the motion was filed by private
respondent.
On June 20, 1991, the trial court issued an order denying, among
others, petitioner's motion to dismiss after finding that petitioner
"shed off [its] sovereign immunity by entering into the business
contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the order.
On August 30, 1991, petitioner filed a "Motion for a Hearing for the
Sole Purpose of Establishing Factual Allegation for claim of Immunity
as a Jurisdictional Defense." So as to facilitate the determination of
its defense of sovereign immunity, petitioner prayed that a hearing
be conducted to allow it to establish certain facts upon which the
said defense is based. Private respondent opposed this motion as
well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring the
resolution on the motion for reconsideration until after trial on the
merits and directing petitioner to file its answer (Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only on its
own behalf and on behalf of its official representative, the Papal
Nuncio.
On December 9, 1991, a Motion for Intervention was filed before us
by the Department of Foreign Affairs, claiming that it has a legal
interest in the outcome of the case as regards the diplomatic
19
immunity of petitioner, and that it "adopts by reference, the
allegations contained in the petition of the Holy See insofar as they
refer to arguments relative to its claim of sovereign immunity from
suit" (Rollo, p. 87).
Private respondent opposed the intervention of the Department of
Foreign Affairs. In compliance with the resolution of this Court, both
parties and the Department of Foreign Affairs submitted their
respective memoranda.
II
A preliminary matter to be threshed out is the procedural issue of
whether the petition for certiorari under Rule 65 of the Revised Rules
of Court can be availed of to question the order denying petitioner's
motion to dismiss. The general rule is that an order denying a motion
to dismiss is not reviewable by the appellate courts, the remedy of
the movant being to file his answer and to proceed with the hearing
before the trial court. But the general rule admits of exceptions, and
one of these is when it is very clear in the records that the trial court
has no alternative but to dismiss the complaint (Philippine National
Bank v. Florendo, 206 SCRA 582 [1992]; Zagada v. Civil Service
Commission, 216 SCRA 114 [1992]. In such a case, it would be a
sheer waste of time and energy to require the parties to undergo the
rigors of a trial.
The other procedural question raised by private respondent is the
personality or legal interest of the Department of Foreign Affairs to
intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).
In Public International Law, when a state or international agency
wishes to plead sovereign or diplomatic immunity in a foreign court,
it requests the Foreign Office of the state where it is sued to convey
to the court that said defendant is entitled to immunity.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international
organization sued in an American court requests the Secretary of
State to make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit
to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the
Foreign Office issues a certification to that effect instead of
submitting a "suggestion" (O'Connell, I International Law 130
[1965]; Note: Immunity from Suit of Foreign Sovereign
Instrumentalities and Obligations, 50 Yale Law Journal 1088
[1941]).
In the Philippines, the practice is for the foreign government or the
international organization to first secure an executive endorsement
of its claim of sovereign or diplomatic immunity. But how the
Philippine Foreign Office conveys its endorsement to the courts
varies. In International Catholic Migration Commission v. Calleja,
190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a
letter directly to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be sued because
it enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent
the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1
(1974), the U.S. Embassy asked the Secretary of Foreign Affairs to
request the Solicitor General to make, in behalf of the Commander
of the United States Naval Base at Olongapo City, Zambales, a
"suggestion" to respondent Judge. The Solicitor General embodied
the "suggestion" in a Manifestation and Memorandum as amicus
curiae.
20
In the case at bench, the Department of Foreign Affairs, through the
Office of Legal Affairs moved with this Court to be allowed to
intervene on the side of petitioner. The Court allowed the said
Department to file its memorandum in support of petitioner's claim
of sovereign immunity.
In some cases, the defense of sovereign immunity was submitted
directly to the local courts by the respondents through their private
counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v.
Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of
America v. Guinto, 182 SCRA 644 [1990] and companion cases). In
cases where the foreign states bypass the Foreign Office, the courts
can inquire into the facts and make their own determination as to
the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has no
jurisdiction over petitioner, being a foreign state enjoying sovereign
immunity. On the other hand, private respondent insists that the
doctrine of non-suability is not anymore absolute and that petitioner
has divested itself of such a cloak when, of its own free will, it
entered into a commercial transaction for the sale of a parcel of land
located in the Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a brief
look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870, the Pope
was the monarch and he, as the Holy See, was considered a subject
of International Law. With the loss of the Papal States and the
limitation of the territory under the Holy See to an area of 108.7
acres, the position of the Holy See in International Law became
controversial (Salonga and Yap, Public International Law 36-37
[1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty,
where Italy recognized the exclusive dominion and sovereign
jurisdiction of the Holy See over the Vatican City. It also recognized
the right of the Holy See to receive foreign diplomats, to send its
own diplomats to foreign countries, and to enter into treaties
according to International Law (Garcia, Questions and Problems In
International Law, Public and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican City "for
the purpose of assuring to the Holy See absolute and visible
independence and of guaranteeing to it indisputable sovereignty also
in the field of international relations" (O'Connell, I International Law
311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to
determine whether the statehood is vested in the Holy See or in the
Vatican City. Some writers even suggested that the treaty created
two international persons — the Holy See and Vatican City (Salonga
and Yap, supra, 37).
The Vatican City fits into none of the established categories of states,
and the attribution to it of "sovereignty" must be made in a sense
different from that in which it is applied to other states (Fenwick,
International Law 124-125 [1948]; Cruz, International Law 37
[1991]). In a community of national states, the Vatican City
21
represents an entity organized not for political but for ecclesiastical
purposes and international objects. Despite its size and object, the
Vatican City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the Holy
See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests
and activities of the Vatican City are such as to make it in a sense
an "international state" (Fenwick, supra., 125; Kelsen, Principles of
International Law 160 [1956]).
One authority wrote that the recognition of the Vatican City as a
state has significant implication — that it is possible for any entity
pursuing objects essentially different from those pursued by states
to be invested with international personality (Kunz, The Status of the
Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).
Inasmuch as the Pope prefers to conduct foreign relations and enter
into transactions as the Holy See and not in the name of the Vatican
City, one can conclude that in the Pope's own view, it is the Holy See
that is the international person.
The Republic of the Philippines has accorded the Holy See the status
of a foreign sovereign. The Holy See, through its Ambassador, the
Papal Nuncio, has had diplomatic representations with the Philippine
government since 1957 (Rollo, p. 87). This appears to be the
universal practice in international relations.
B. Sovereign Immunity
As expressed in Section 2 of Article II of the 1987 Constitution, we
have adopted the generally accepted principles of International Law.
Even without this affirmation, such principles of International Law
are deemed incorporated as part of the law of the land as a condition
and consequence of our admission in the society of nations (United
States of America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity, each
widely held and firmly established. According to the classical or
absolute theory, a sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign. According to the
newer or restrictive theory, the immunity of the sovereign is
recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia
and Defensor-Santiago, Public International Law 194 [1984]).
Some states passed legislation to serve as guidelines for the
executive or judicial determination when an act may be considered
as jure gestionis. The United States passed the Foreign Sovereign
Immunities Act of 1976, which defines a commercial activity as
"either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that
the "commercial character of the activity shall be determined by
reference to the nature of the course of conduct or particular
transaction or act, rather than by reference to its purpose." The
Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial
activity" as any particular transaction, act or conduct or any regular
course of conduct that by reason of its nature, is of a "commercial
character."
The restrictive theory, which is intended to be a solution to the host
of problems involving the issue of sovereign immunity, has created
problems of its own. Legal treatises and the decisions in countries
22
which follow the restrictive theory have difficulty in characterizing
whether a contract of a sovereign state with a private party is an act
jure gestionis or an act jure imperii. In the absence of legislation defining what activities and transactions
shall be considered "commercial" and as constituting acts jure
gestionis, we have to come out with our own guidelines, tentative
they may be.
The restrictive theory came about because of the entry of sovereign
states into purely commercial activities remotely connected with the
discharge of governmental functions. This is particularly true with
Certainly, the mere entering into a contract by a foreign state with
respect to the Communist states which took control of nationalized
a private party cannot be the ultimate test. Such an act can only be
business activities and international trading.
the start of the inquiry. The logical question is whether the foreign
state is engaged in the activity in the regular course of business. If
the foreign state is not engaged regularly in a business or trade, the
This Court has considered the following transactions by a foreign
particular act or transaction must then be tested by its nature. If the
state with private parties as acts jure imperii: (1) the lease by a
act is in pursuit of a sovereign activity, or an incident thereof, then
foreign government of apartment buildings for use of its military
it is an act jure imperii, especially when it is not undertaken for gain
officers (Syquia v. Lopez, 84 Phil. 312 [1949]; (2) the conduct of
or profit.
public bidding for the repair of a wharf at a United States Naval
Station (United States of America v. Ruiz, supra.); and (3) the
change of employment status of base employees (Sanders v.
As held in United States of America v. Guinto, (supra):
Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following
transactions by a foreign state with private parties as acts jure
gestionis: (1) the hiring of a cook in the recreation center, consisting
of three restaurants, a cafeteria, a bakery, a store, and a coffee and
pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of
America v. Rodrigo, 182 SCRA 644 [1990]); and (2) the bidding for
the operation of barber shops in Clark Air Base in Angeles City
(United States of America v. Guinto, 182 SCRA 644 [1990]). The
operation of the restaurants and other facilities open to the general
public is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment contract
with the cook in the discharge of its proprietary function, the United
States government impliedly divested itself of its sovereign
immunity from suit.
There is no question that the United States of America, like any other
state, will be deemed to have impliedly waived its non-suability if it
has entered into a contract in its proprietary or private capacity. It
is only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied.
In the case at bench, if petitioner has bought and sold lands in the
ordinary course of a real estate business, surely the said transaction
can be categorized as an act jure gestionis. However, petitioner has
denied that the acquisition and subsequent disposal of Lot 5-A were
made for profit but claimed that it acquired said property for the site
of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.

23
Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for commercial
purpose, but for the use of petitioner to construct thereon the official
place of residence of the Papal Nuncio. The right of a foreign
sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic Relations
(Arts. 20-22). This treaty was concurred in by the Philippine Senate
and entered into force in the Philippines on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is granted
immunity from the civil and administrative jurisdiction of the
receiving state over any real action relating to private immovable
property situated in the territory of the receiving state which the
envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all
the more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal
thereof are likewise clothed with a governmental character.
Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same
because the squatters living thereon made it almost impossible for
petitioner to use it for the purpose of the donation. The fact that
squatters have occupied and are still occupying the lot, and that they
stubbornly refuse to leave the premises, has been admitted by
private respondent in its complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by the trial
court without going to trial in the light of the pleadings, particularly
the admission of private respondent. Besides, the privilege of
sovereign immunity in this case was sufficiently established by the
Memorandum and Certification of the Department of Foreign Affairs.
As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of 1987, Book IV, Title I, Sec. 3), the
Department of Foreign Affairs has formally intervened in this case
and officially certified that the Embassy of the Holy See is a duly
accredited diplomatic mission to the Republic of the Philippines
exempt from local jurisdiction and entitled to all the rights, privileges
and immunities of a diplomatic mission or embassy in this country
(Rollo, pp. 156-157). The determination of the executive arm of
government that a state or instrumentality is entitled to sovereign
or diplomatic immunity is a political question that is conclusive upon
the courts (International Catholic Migration Commission v. Calleja,
190 SCRA 130 [1990]). Where the plea of immunity is recognized
and affirmed by the executive branch, it is the duty of the courts to
accept this claim so as not to embarrass the executive arm of the
government in conducting the country's foreign relations (World
Health Organization v. Aquino, 48 SCRA 242 [1972]). As in
International Catholic Migration Commission and in World Health
Organization, we abide by the certification of the Department of
Foreign Affairs.
Ordinarily, the procedure would be to remand the case and order the
trial court to conduct a hearing to establish the facts alleged by
petitioner in its motion. In view of said certification, such procedure
would however be pointless and unduly circuitous (Ortigas & Co. Ltd.
Partnership v. Judge Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for the
redress of its grievances. Under both Public International Law and
Transnational Law, a person who feels aggrieved by the acts of a
foreign sovereign can ask his own government to espouse his cause
through diplomatic channels.
24

Private respondent can ask the Philippine government, through the
Foreign Office, to espouse its claims against the Holy See. Its first
task is to persuade the Philippine government to take up with the
Holy See the validity of its claims. Of course, the Foreign Office shall
first make a determination of the impact of its espousal on the
relations between the Philippine government and the Holy See
(Young, Remedies of Private Claimants Against Foreign States,
Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine government
decides to espouse the claim, the latter ceases to be a private cause.
According to the Permanent Court of International Justice, the
forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting to
diplomatic action or international judicial proceedings on his behalf,
a State is in reality asserting its own rights — its right to ensure, in
the person of its subjects, respect for the rules of international law
(The Mavrommatis Palestine Concessions, 1 Hudson, World Court
Reports 293, 302 [1924]).
WHEREFORE, the petition for certiorari is GRANTED and the
complaint in Civil Case No. 90-183 against petitioner is DISMISSED.
SO ORDERED.
G.R. No. 139325 April 12, 2005
PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B.
NARCISO, SR. MARIANI DIMARANAN, SFIC, and JOEL C. LAMANGAN
in their behalf and on behalf of the Class Plaintiffs in Class Action No.
MDL 840, United States District Court of Hawaii, Petitioner,
vs.
HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge
of Branch 137, Regional Trial Court, Makati City, and the ESTATE OF
FERDINAND E. MARCOS, through its court appointed legal
representatives in Class Action MDL 840, United States District Court
of Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr.,
Respondents.
DECISION
TINGA, J.:
Our martial law experience bore strange unwanted fruits, and we
have yet to finish weeding out its bitter crop. While the restoration
of freedom and the fundamental structures and processes of
democracy have been much lauded, according to a significant
number, the changes, however, have not sufficiently healed the
colossal damage wrought under the oppressive conditions of the
martial law period. The cries of justice for the tortured, the
murdered, and the desaparecidos arouse outrage and sympathy in
the hearts of the fair-minded, yet the dispensation of the appropriate
relief due them cannot be extended through the same caprice or
whim that characterized the ill-wind of martial rule. The damage
done was not merely personal but institutional, and the proper
rebuke to the iniquitous past has to involve the award of reparations
due within the confines of the restored rule of law.
25
The petitioners in this case are prominent victims of human rights
violations1 who, deprived of the opportunity to directly confront the
man who once held absolute rule over this country, have chosen to
do battle instead with the earthly representative, his estate. The
clash has been for now interrupted by a trial court ruling, seemingly
comported to legal logic, that required the petitioners to pay a
whopping filing fee of over Four Hundred Seventy-Two Million Pesos
(P472,000,000.00) in order that they be able to enforce a judgment
awarded them by a foreign court. There is an understandable
temptation to cast the struggle within the simplistic confines of a
morality tale, and to employ short-cuts to arrive at what might seem
the desirable solution. But easy, reflexive resort to the equity
principle all too often leads to a result that may be morally correct,
but legally wrong.
Nonetheless, the application of the legal principles involved in this
case will comfort those who maintain that our substantive and
procedural laws, for all their perceived ambiguity and susceptibility
to myriad interpretations, are inherently fair and just. The relief
sought by the petitioners is expressly mandated by our laws and
conforms to established legal principles. The granting of this petition
for certiorari is warranted in order to correct the legally infirm and
unabashedly unjust ruling of the respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a
complaint was filed with the United States District Court (US District
Court), District of Hawaii, against the Estate of former Philippine
President Ferdinand E. Marcos (Marcos Estate). The action was
brought forth by ten Filipino citizens2 who each alleged having
suffered human rights abuses such as arbitrary detention, torture
and rape in the hands of police or military forces during the Marcos
regime.3 The Alien Tort Act was invoked as basis for the US District
Court's jurisdiction over the complaint, as it involved a suit by aliens
for tortious violations of international law.4 These plaintiffs brought
the action on their own behalf and on behalf of a class of similarly
situated individuals, particularly consisting of all current civilian
citizens of the Philippines, their heirs and beneficiaries, who between
1972 and 1987 were tortured, summarily executed or had
disappeared while in the custody of military or paramilitary groups.
Plaintiffs alleged that the class consisted of approximately ten
thousand (10,000) members; hence, joinder of all these persons was
impracticable.
The institution of a class action suit was warranted under Rule 23(a)
and (b)(1)(B) of the US Federal Rules of Civil Procedure, the
provisions of which were invoked by the plaintiffs. Subsequently, the
US District Court certified the case as a class action and created
three (3) sub-classes of torture, summary execution and
disappearance victims.5 Trial ensued, and subsequently a jury
rendered a verdict and an award of compensatory and exemplary
damages in favor of the plaintiff class. Then, on 3 February 1995,
the US District Court, presided by Judge Manuel L. Real, rendered a
Final Judgment (Final Judgment) awarding the plaintiff class a total
of One Billion Nine Hundred Sixty Four Million Five Thousand Eight
Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90).
The Final Judgment was eventually affirmed by the US Court of
Appeals for the Ninth Circuit, in a decision rendered on 17 December
1996.6
On 20 May 1997, the present petitioners filed Complaint with the
Regional Trial Court, City of Makati (Makati RTC) for the enforcement
of the Final Judgment. They alleged that they are members of the
plaintiff class in whose favor the US District Court awarded
damages.7 They argued that since the Marcos Estate failed to file a
petition for certiorari with the US Supreme Court after the Ninth
Circuit Court of Appeals had affirmed the Final Judgment, the
decision of the US District Court had become final and executory,
and hence should be recognized and enforced in the Philippines,
pursuant to Section 50, Rule 39 of the Rules of Court then in force.8
26
On 5 February 1998, the Marcos Estate filed a motion to dismiss,
raising, among others, the non-payment of the correct filing fees. It
alleged that petitioners had only paid Four Hundred Ten Pesos
(P410.00) as docket and filing fees, notwithstanding the fact that
they sought to enforce a monetary amount of damages in the
amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7,
pertaining to the proper computation and payment of docket fees.
In response, the petitioners claimed that an action for the
enforcement of a foreign judgment is not capable of pecuniary
estimation; hence, a filing fee of only Four Hundred Ten Pesos
(P410.00) was proper, pursuant to Section 7(c) of Rule 141.9
On 9 September 1998, respondent Judge Santiago Javier Ranada10
of the Makati RTC issued the subject Order dismissing the complaint
without prejudice. Respondent judge opined that contrary to the
petitioners' submission, the subject matter of the complaint was
indeed capable of pecuniary estimation, as it involved a judgment
rendered by a foreign court ordering the payment of definite sums
of money, allowing for easy determination of the value of the foreign
judgment. On that score, Section 7(a) of Rule 141 of the Rules of
Civil Procedure would find application, and the RTC estimated the
proper amount of filing fees was approximately Four Hundred
Seventy Two Million Pesos, which obviously had not been paid.
Not surprisingly, petitioners filed a Motion for Reconsideration, which
Judge Ranada denied in an Order dated 28 July 1999. From this
denial, petitioners filed a Petition for Certiorari under Rule 65
assailing the twin orders of respondent judge.11 They prayed for the
annulment of the questioned orders, and an order directing the
reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.
Petitioners submit that their action is incapable of pecuniary
estimation as the subject matter of the suit is the enforcement of a
foreign judgment, and not an action for the collection of a sum of
money or recovery of damages. They also point out that to require
the class plaintiffs to pay Four Hundred Seventy Two Million Pesos
(P472,000,000.00) in filing fees would negate and render inutile the
liberal construction ordained by the Rules of Court, as required by
Section 6, Rule 1 of the Rules of Civil Procedure, particularly the
inexpensive disposition of every action.
Petitioners invoke Section 11, Article III of the Bill of Rights of the
Constitution, which provides that "Free access to the courts and
quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty," a mandate which is
essentially defeated by the required exorbitant filing fee. The
adjudicated amount of the filing fee, as arrived at by the RTC, was
characterized as indisputably unfair, inequitable, and unjust.
The Commission on Human Rights (CHR) was permitted to intervene
in this case.12 It urged that the petition be granted and a judgment
rendered, ordering the enforcement and execution of the District
Court judgment in accordance with Section 48, Rule 39 of the 1997
Rules of Civil Procedure. For the CHR, the Makati RTC erred in
interpreting the action for the execution of a foreign judgment as a
new case, in violation of the principle that once a case has been
decided between the same parties in one country on the same issue
with finality, it can no longer be relitigated again in another
country.13 The CHR likewise invokes the principle of comity, and of
vested rights.
The Court's disposition on the issue of filing fees will prove a useful
jurisprudential guidepost for courts confronted with actions
enforcing foreign judgments, particularly those lodged against an
estate. There is no basis for the issuance a limited pro hac vice ruling
27
based on the special circumstances of the petitioners as victims of 2. P 100,000.00 or more but less than P 150,000.00
martial law, or on the emotionally-charged allegation of human
rights abuses.
–

An examination of Rule 141 of the Rules of Court readily evinces that

the respondent judge ignored the clear letter of the law when he P 800.00
concluded that the filing fee be computed based on the total sum
claimed or the stated value of the property in litigation.
3. P 150,000.00 or more but less than P 200,000.00

In dismissing the complaint, the respondent judge relied on Section

7(a), Rule 141 as basis for the computation of the filing fee of over
–
P472 Million. The provision states:

P 1,000.00
SEC. 7. Clerk of Regional Trial Court.-

4. P 200,000.00 or more but less than P 250,000.00

(a) For filing an action or a permissive counterclaim or money claim
against an estate not based on judgment, or for filing with leave of
court a third-party, fourth-party, etc., complaint, or a complaint in
intervention, and for all clerical services in the same time, if the total –
sum claimed, exclusive of interest, or the started value of the
property in litigation, is:
P 1,500.00

1. Less than P 100,00.00

5. P 250,000.00 or more but less than P 300,00.00

–
–

P 500.00
P 1,750.00

28
6. P 300,000.00 or more but not more than P 400,000.00 whether the action filed with the lower court is a "money claim
against an estate not based on judgment."

–
Petitioners' complaint may have been lodged against an estate, but
it is clearly based on a judgment, the Final Judgment of the US
P 2,000.00 District Court. The provision does not make any distinction between
a local judgment and a foreign judgment, and where the law does
not distinguish, we shall not distinguish.
7. P 350,000.00 or more but not more than P400,000.00

A reading of Section 7 in its entirety reveals several instances

wherein the filing fee is computed on the basis of the amount of the
–
relief sought, or on the value of the property in litigation. The filing
fee for requests for extrajudicial foreclosure of mortgage is based on
the amount of indebtedness or the mortgagee's claim.14 In special
P 2,250.00 proceedings involving properties such as for the allowance of wills,
the filing fee is again based on the value of the property.15 The
aforecited rules evidently have no application to petitioners'
8. For each P 1,000.00 in excess of P 400,000.00 complaint.

– Petitioners rely on Section 7(b), particularly the proviso on actions

where the value of the subject matter cannot be estimated. The
provision reads in full:
P 10.00

SEC. 7. Clerk of Regional Trial Court.-

(Emphasis supplied)

(b) For filing

Obviously, the above-quoted provision covers, on one hand,
ordinary actions, permissive counterclaims, third-party, etc.
complaints and complaints-in-interventions, and on the other, 1. Actions where the value
money claims against estates which are not based on judgment.
Thus, the relevant question for purposes of the present petition is

29
of the subject matter adjudicated by the US District Court involves any real property of
the Marcos Estate.

cannot be estimated --- P 600.00

Thus, respondent judge was in clear and serious error when he
concluded that the filing fees should be computed on the basis of the
2. Special civil actions except schematic table of Section 7(a), as the action involved pertains to a
claim against an estate based on judgment. What provision, if any,
then should apply in determining the filing fees for an action to
enforce a foreign judgment?
judicial foreclosure which

To resolve this question, a proper understanding is required on the

shall be governed by
nature and effects of a foreign judgment in this jurisdiction.

paragraph (a) above --- P 600.00

3. All other actions not
involving property --- P 600.00
In a real action, the assessed value of the property, or if there is
none, the estimated value, thereof shall be alleged by the claimant
and shall be the basis in computing the fees.
It is worth noting that the provision also provides that in real actions,
the assessed value or estimated value of the property shall be
alleged by the claimant and shall be the basis in computing the fees.
Yet again, this provision does not apply in the case at bar. A real
action is one where the plaintiff seeks the recovery of real property
or an action affecting title to or recovery of possession of real
property.16 Neither the complaint nor the award of damages
The rules of comity, utility and convenience of nations have
established a usage among civilized states by which final judgments
of foreign courts of competent jurisdiction are reciprocally respected
and rendered efficacious under certain conditions that may vary in
different countries.17 This principle was prominently affirmed in the
leading American case of Hilton v. Guyot18 and expressly recognized
in our jurisprudence beginning with Ingenholl v. Walter E. Olsen &
Co.19 The conditions required by the Philippines for recognition and
enforcement of a foreign judgment were originally contained in
Section 311 of the Code of Civil Procedure, which was taken from
the California Code of Civil Procedure which, in turn, was derived
from the California Act of March 11, 1872.20 Remarkably, the
procedural rule now outlined in Section 48, Rule 39 of the Rules of
Civil Procedure has remained unchanged down to the last word in
nearly a century. Section 48 states:
SEC. 48. Effect of foreign judgments. — The effect of a
judgment of a tribunal of a foreign country, having jurisdiction to
pronounce the judgment is as follows:
30

(a) In case of a judgment upon a specific thing, the judgment is
conclusive upon the title to the thing;
(b) In case of a judgment against a person, the judgment is
presumptive evidence of a right as between the parties and their
successors in interest by a subsequent title;
In either case, the judgment or final order may be repelled by
evidence of a want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an
action in rem and one in personam. For an action in rem, the foreign
judgment is deemed conclusive upon the title to the thing, while in
an action in personam, the foreign judgment is presumptive, and not
conclusive, of a right as between the parties and their successors in
interest by a subsequent title.21 However, in both cases, the foreign
judgment is susceptible to impeachment in our local courts on the
grounds of want of jurisdiction or notice to the party,22 collusion,
fraud,23 or clear mistake of law or fact.24 Thus, the party aggrieved
by the foreign judgment is entitled to defend against the
enforcement of such decision in the local forum. It is essential that
there should be an opportunity to challenge the foreign judgment,
in order for the court in this jurisdiction to properly determine its
efficacy.25
It is clear then that it is usually necessary for an action to be filed in
order to enforce a foreign judgment26 , even if such judgment has
conclusive effect as in the case of in rem actions, if only for the
purpose of allowing the losing party an opportunity to challenge the
foreign judgment, and in order for the court to properly determine
its efficacy.27 Consequently, the party attacking a foreign judgment
has the burden of overcoming the presumption of its validity.28
The rules are silent as to what initiatory procedure must be
undertaken in order to enforce a foreign judgment in the Philippines.
But there is no question that the filing of a civil complaint is an
appropriate measure for such purpose. A civil action is one by which
a party sues another for the enforcement or protection of a right,29
and clearly an action to enforce a foreign judgment is in essence a
vindication of a right prescinding either from a "conclusive judgment
upon title" or the "presumptive evidence of a right."30 Absent
perhaps a statutory grant of jurisdiction to a quasi-judicial body, the
claim for enforcement of judgment must be brought before the
regular courts.31
There are distinctions, nuanced but discernible, between the cause
of action arising from the enforcement of a foreign judgment, and
that arising from the facts or allegations that occasioned the foreign
judgment. They may pertain to the same set of facts, but there is
an essential difference in the right-duty correlatives that are sought
to be vindicated. For example, in a complaint for damages against a
tortfeasor, the cause of action emanates from the violation of the
right of the complainant through the act or omission of the
respondent. On the other hand, in a complaint for the enforcement
of a foreign judgment awarding damages from the same tortfeasor,
for the violation of the same right through the same manner of
action, the cause of action derives not from the tortious act but from
the foreign judgment itself.
More importantly, the matters for proof are different. Using the
above example, the complainant will have to establish before the
court the tortious act or omission committed by the tortfeasor, who
in turn is allowed to rebut these factual allegations or prove
extenuating circumstances. Extensive litigation is thus conducted
31
on the facts, and from there the right to and amount of damages are
assessed. On the other hand, in an action to enforce a foreign
judgment, the matter left for proof is the foreign judgment itself,
and not the facts from which it prescinds.
As stated in Section 48, Rule 39, the actionable issues are generally
restricted to a review of jurisdiction of the foreign court, the service
of personal notice, collusion, fraud, or mistake of fact or law. The
limitations on review is in consonance with a strong and pervasive
policy in all legal systems to limit repetitive litigation on claims and
issues.32 Otherwise known as the policy of preclusion, it seeks to
protect party expectations resulting from previous litigation, to
safeguard against the harassment of defendants, to insure that the
task of courts not be increased by never-ending litigation of the same
disputes, and – in a larger sense – to promote what Lord Coke in the
Ferrer's Case of 1599 stated to be the goal of all law: "rest and
quietness."33 If every judgment of a foreign court were reviewable
on the merits, the plaintiff would be forced back on his/her original
cause of action, rendering immaterial the previously concluded
litigation.34
Petitioners appreciate this distinction, and rely upon it to support the
proposition that the subject matter of the complaint the
enforcement of a foreign judgment is incapable of pecuniary
estimation. Admittedly the proposition, as it applies in this case, is
counter-intuitive, and thus deserves strict scrutiny. For in all
practical intents and purposes, the matter at hand is capable of
pecuniary estimation, down to the last cent. In the assailed Order,
the respondent judge pounced upon this point without equivocation:
The Rules use the term "where the value of the subject matter
cannot be estimated." The subject matter of the present case is the
judgment rendered by the foreign court ordering defendant to pay
plaintiffs definite sums of money, as and for compensatory damages.
The Court finds that the value of the foreign judgment can be
estimated; indeed, it can even be easily determined. The Court is
not minded to distinguish between the enforcement of a judgment
and the amount of said judgment, and separate the two, for
purposes of determining the correct filing fees. Similarly, a plaintiff
suing on promissory note for P1 million cannot be allowed to pay
only P400 filing fees (sic), on the reasoning that the subject matter
of his suit is not the P1 million, but the enforcement of the
promissory note, and that the value of such "enforcement" cannot
be estimated.35
The jurisprudential standard in gauging whether the subject matter
of an action is capable of pecuniary estimation is well-entrenched.
The Marcos Estate cites Singsong v. Isabela Sawmill and Raymundo
v. Court of Appeals, which ruled:
[I]n determining whether an action is one the subject matter of
which is not capable of pecuniary estimation this Court has adopted
the criterion of first ascertaining the nature of the principal action or
remedy sought. If it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary estimation, and whether
jurisdiction is in the municipal courts or in the courts of first instance
would depend on the amount of the claim. However, where the basic
issue is something other than the right to recover a sum of money,
where the money claim is purely incidental to, or a consequence of,
the principal relief sought, this Court has considered such actions as
cases where the subject of the litigation may not be estimated in
terms of money, and are cognizable exclusively by courts of first
instance (now Regional Trial Courts).
On the other hand, petitioners cite the ponencia of Justice JBL Reyes
in Lapitan v. Scandia,36 from which the rule in Singsong and
Raymundo actually derives, but which incorporates this additional
nuance omitted in the latter cases:
32
 to an instance wherein a first level court such as the Municipal Trial
Court would have jurisdiction to enforce a foreign judgment. But
xxx However, where the basic issue is something other than the right
under the statute defining the jurisdiction of first level courts, B.P.
to recover a sum of money, where the money claim is purely
129, such courts are not vested with jurisdiction over actions for the
incidental to, or a consequence of, the principal relief sought, like in
enforcement of foreign judgments.
suits to have the defendant perform his part of the contract (specific
performance) and in actions for support, or for annulment of
judgment or to foreclose a mortgage, this Court has considered such
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial
actions as cases where the subject of the litigation may not be
Courts and Municipal Circuit Trial Courts in civil cases. —
estimated in terms of money, and are cognizable exclusively by
courts of first instance.37 Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:

Petitioners go on to add that among the actions the Court has

(1) Exclusive original jurisdiction over civil actions and probate
recognized as being incapable of pecuniary estimation include
proceedings, testate and intestate, including the grant of provisional
legality of conveyances and money deposits,38 validity of a
remedies in proper cases, where the value of the personal property,
mortgage,39 the right to support,40 validity of documents,41
estate, or amount of the demand does not exceed One hundred
rescission of contracts,42 specific performance,43 and validity or
thousand pesos (P100,000.00) or, in Metro Manila where such
annulment of judgments.44 It is urged that an action for
personal property, estate, or amount of the demand does not exceed
enforcement of a foreign judgment belongs to the same class.
Two hundred thousand pesos (P200,000.00) exclusive of interest
damages of whatever kind, attorney's fees, litigation expenses, and
costs, the amount of which must be specifically alleged: Provided,
This is an intriguing argument, but ultimately it is self-evident that
That where there are several claims or causes of action between the
while the subject matter of the action is undoubtedly the
same or different parties, embodied in the same complaint, the
enforcement of a foreign judgment, the effect of a providential award
amount of the demand shall be the totality of the claims in all the
would be the adjudication of a sum of money. Perhaps in theory,
causes of action, irrespective of whether the causes of action arose
such an action is primarily for "the enforcement of the foreign
out of the same or different transactions;
judgment," but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign
judgment will necessarily result in the award of a definite sum of
money. (2) Exclusive original jurisdiction over cases of forcible entry and
unlawful detainer: Provided, That when, in such cases, the defendant
raises the question of ownership in his pleadings and the question of
possession cannot be resolved without deciding the issue of
But before we insist upon this conclusion past beyond the point of
ownership, the issue of ownership shall be resolved only to
reckoning, we must examine its possible ramifications. Petitioners
determine the issue of possession.
raise the point that a declaration that an action for enforcement of
foreign judgment may be capable of pecuniary estimation might lead

33
(3) Exclusive original jurisdiction in all civil actions which involve title
to, or possession of, real property, or any interest therein where the
assessed value of the property or interest therein does not exceed
Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand
pesos (P50,000.00) exclusive of interest, damages of whatever kind,
attorney's fees, litigation expenses and costs: Provided, That value
of such property shall be determined by the assessed value of the
adjacent lots.45
Section 33 of B.P. 129 refers to instances wherein the cause of action
or subject matter pertains to an assertion of rights and interests over
property or a sum of money. But as earlier pointed out, the subject
matter of an action to enforce a foreign judgment is the foreign
judgment itself, and the cause of action arising from the adjudication
of such judgment.
An examination of Section 19(6), B.P. 129 reveals that the instant
complaint for enforcement of a foreign judgment, even if capable of
pecuniary estimation, would fall under the jurisdiction of the
Regional Trial Courts, thus negating the fears of the petitioners.
Indeed, an examination of the provision indicates that it can be relied
upon as jurisdictional basis with respect to actions for enforcement
of foreign judgments, provided that no other court or office is vested
jurisdiction over such complaint:
Sec. 19. Jurisdiction in civil cases. — Regional Trial Courts shall
exercise exclusive original jurisdiction:
xxx
(6) In all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising jurisdiction or any court, tribunal,
person or body exercising judicial or quasi-judicial functions.
Thus, we are comfortable in asserting the obvious, that the
complaint to enforce the US District Court judgment is one capable
of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the
ambit of Section 7(a) of Rule 141. What provision then governs the
proper computation of the filing fees over the instant complaint? For
this case and other similarly situated instances, we find that it is
covered by Section 7(b)(3), involving as it does, "other actions not
involving property."
Notably, the amount paid as docket fees by the petitioners on the
premise that it was an action incapable of pecuniary estimation
corresponds to the same amount required for "other actions not
involving property." The petitioners thus paid the correct amount of
filing fees, and it was a grave abuse of discretion for respondent
judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.
There is another consideration of supreme relevance in this case,
one which should disabuse the notion that the doctrine affirmed in
this decision is grounded solely on the letter of the procedural rule.
We earlier adverted to the the internationally recognized policy of
preclusion,46 as well as the principles of comity, utility and
convenience of nations47 as the basis for the evolution of the rule
calling for the recognition and enforcement of foreign judgments.
The US Supreme Court in Hilton v. Guyot48 relied heavily on the
concept of comity, as especially derived from the landmark treatise
of Justice Story in his Commentaries on the Conflict of Laws of
1834.49 Yet the notion of "comity" has since been criticized as one
"of dim contours"50 or suffering from a number of fallacies.51 Other
34
conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of
obligation.52 Salonga, whose treatise on private international law is of worldwide
renown, points out:

There have been attempts to codify through treaties or multilateral

Whatever be the theory as to the basis for recognizing foreign
agreements the standards for the recognition and enforcement of
judgments, there can be little dispute that the end is to protect the
foreign judgments, but these have not borne fruition. The members
reasonable expectations and demands of the parties. Where the
of the European Common Market accede to the Judgments
parties have submitted a matter for adjudication in the court of one
Convention, signed in 1978, which eliminates as to participating
state, and proceedings there are not tainted with irregularity, they
countries all of such obstacles to recognition such as reciprocity and
may fairly be expected to submit, within the state or elsewhere, to
révision au fond.53 The most ambitious of these attempts is the
the enforcement of the judgment issued by the court.58
Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters, prepared in 1966 by the
Hague Conference of International Law.54 While it has not received
the ratifications needed to have it take effect,55 it is recognized as There is also consensus as to the requisites for recognition of a
representing current scholarly thought on the topic.56 Neither the foreign judgment and the defenses against the enforcement thereof.
Philippines nor the United States are signatories to the Convention. As earlier discussed, the exceptions enumerated in Section 48, Rule
39 have remain unchanged since the time they were adapted in this
jurisdiction from long standing American rules. The requisites and
exceptions as delineated under Section 48 are but a restatement of
Yet even if there is no unanimity as to the applicable theory behind
generally accepted principles of international law. Section 98 of The
the recognition and enforcement of foreign judgments or a universal
Restatement, Second, Conflict of Laws, states that "a valid judgment
treaty rendering it obligatory force, there is consensus that the
rendered in a foreign nation after a fair trial in a contested
viability of such recognition and enforcement is essential. Steiner
proceeding will be recognized in the United States," and on its face,
and Vagts note:
the term "valid" brings into play requirements such notions as valid
jurisdiction over the subject matter and parties.59 Similarly, the
notion that fraud or collusion may preclude the enforcement of a
. . . The notion of unconnected bodies of national law on private
foreign judgment finds affirmation with foreign jurisprudence and
international law, each following a quite separate path, is not one
commentators,60 as well as the doctrine that the foreign judgment
conducive to the growth of a transnational community encouraging
must not constitute "a clear mistake of law or fact."61 And finally, it
travel and commerce among its members. There is a contemporary
has been recognized that "public policy" as a defense to the
resurgence of writing stressing the identity or similarity of the values
recognition of judgments serves as an umbrella for a variety of
that systems of public and private international law seek to further
concerns in international practice which may lead to a denial of
– a community interest in common, or at least reasonable, rules on recognition.62
these matters in national legal systems. And such generic principles
as reciprocity play an important role in both fields.57

35
The viability of the public policy defense against the enforcement of
a foreign judgment has been recognized in this jurisdiction.63 This
defense allows for the application of local standards in reviewing the
foreign judgment, especially when such judgment creates only a
presumptive right, as it does in cases wherein the judgment is
against a person.64 The defense is also recognized within the
international sphere, as many civil law nations adhere to a broad
public policy exception which may result in a denial of recognition
when the foreign court, in the light of the choice-of-law rules of the
recognizing court, applied the wrong law to the case.65 The public
policy defense can safeguard against possible abuses to the easy
resort to offshore litigation if it can be demonstrated that the original
claim is noxious to our constitutional values.
There is no obligatory rule derived from treaties or conventions that
requires the Philippines to recognize foreign judgments, or allow a
procedure for the enforcement thereof. However, generally
accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the
land even if they do not derive from treaty obligations.66 The
classical formulation in international law sees those customary rules
accepted as binding result from the combination two elements: the
established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it.67
While the definite conceptual parameters of the recognition and
enforcement of foreign judgments have not been authoritatively
established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of
international law.68 As earlier demonstrated, there is a widespread
practice among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations of varying
degrees. The fact that there is no binding universal treaty governing
the practice is not indicative of a widespread rejection of the
principle, but only a disagreement as to the imposable specific rules
governing the procedure for recognition and enforcement.
Aside from the widespread practice, it is indubitable that the
procedure for recognition and enforcement is embodied in the rules
of law, whether statutory or jurisprudential, adopted in various
foreign jurisdictions. In the Philippines, this is evidenced primarily
by Section 48, Rule 39 of the Rules of Court which has existed in its
current form since the early 1900s. Certainly, the Philippine legal
system has long ago accepted into its jurisprudence and procedural
rules the viability of an action for enforcement of foreign judgment,
as well as the requisites for such valid enforcement, as derived from
internationally accepted doctrines. Again, there may be distinctions
as to the rules adopted by each particular state,69 but they all
prescind from the premise that there is a rule of law obliging states
to allow for, however generally, the recognition and enforcement of
a foreign judgment. The bare principle, to our mind, has attained the
status of opinio juris in international practice.
This is a significant proposition, as it acknowledges that the
procedure and requisites outlined in Section 48, Rule 39 derive their
efficacy not merely from the procedural rule, but by virtue of the
incorporation clause of the Constitution. Rules of procedure are
promulgated by the Supreme Court,70 and could very well be
abrogated or revised by the high court itself. Yet the Supreme Court
is obliged, as are all State components, to obey the laws of the land,
including generally accepted principles of international law which
form part thereof, such as those ensuring the qualified recognition
and enforcement of foreign judgments.71
Thus, relative to the enforcement of foreign judgments in the
Philippines, it emerges that there is a general right recognized within
36
our body of laws, and affirmed by the Constitution, to seek
recognition and enforcement of foreign judgments, as well as a right
to defend against such enforcement on the grounds of want of
jurisdiction, want of notice to the party, collusion, fraud, or clear
mistake of law or fact.
The preclusion of an action for enforcement of a foreign judgment in
this country merely due to an exhorbitant assessment of docket fees
is alien to generally accepted practices and principles in international
law. Indeed, there are grave concerns in conditioning the amount of
the filing fee on the pecuniary award or the value of the property
subject of the foreign decision. Such pecuniary award will almost
certainly be in foreign denomination, computed in accordance with
the applicable laws and standards of the forum.72 The vagaries of
inflation, as well as the relative low-income capacity of the Filipino,
to date may very well translate into an award virtually unenforceable
in this country, despite its integral validity, if the docket fees for the
enforcement thereof were predicated on the amount of the award
sought to be enforced. The theory adopted by respondent judge and
the Marcos Estate may even lead to absurdities, such as if applied to
an award involving real property situated in places such as the
United States or Scandinavia where real property values are
inexorably high. We cannot very well require that the filing fee be
computed based on the value of the foreign property as determined
by the standards of the country where it is located.
As crafted, Rule 141 of the Rules of Civil Procedure avoids
unreasonableness, as it recognizes that the subject matter of an
action for enforcement of a foreign judgment is the foreign judgment
itself, and not the right-duty correlatives that resulted in the foreign
judgment. In this particular circumstance, given that the complaint
is lodged against an estate and is based on the US District Court's
Final Judgment, this foreign judgment may, for purposes of
classification under the governing procedural rule, be deemed as
subsumed under Section 7(b)(3) of Rule 141, i.e., within the class
of "all other actions not involving property." Thus, only the blanket
filing fee of minimal amount is required.
Finally, petitioners also invoke Section 11, Article III of the
Constitution, which states that "[F]ree access to the courts and
quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty." Since the provision is
among the guarantees ensured by the Bill of Rights, it certainly gives
rise to a demandable right. However, now is not the occasion to
elaborate on the parameters of this constitutional right. Given our
preceding discussion, it is not necessary to utilize this provision in
order to grant the relief sought by the petitioners. It is axiomatic
that the constitutionality of an act will not be resolved by the courts
if the controversy can be settled on other grounds73 or unless the
resolution thereof is indispensable for the determination of the
case.74
One more word. It bears noting that Section 48, Rule 39
acknowledges that the Final Judgment is not conclusive yet, but
presumptive evidence of a right of the petitioners against the Marcos
Estate. Moreover, the Marcos Estate is not precluded to present
evidence, if any, of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact. This ruling, decisive
as it is on the question of filing fees and no other, does not render
verdict on the enforceability of the Final Judgment before the courts
under the jurisdiction of the Philippines, or for that matter any other
issue which may legitimately be presented before the trial court.
Such issues are to be litigated before the trial court, but within the
confines of the matters for proof as laid down in Section 48, Rule 39.
On the other hand, the speedy resolution of this claim by the trial
court is encouraged, and contumacious delay of the decision on the
merits will not be brooked by this Court.
37
WHEREFORE, the petition is GRANTED. The assailed orders are
NULLIFIED and SET ASIDE, and a new order REINSTATING Civil Case
No. 97-1052 is hereby issued. No costs.
SO ORDERED.
G.R. No. 173034 October 9, 2007
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE
PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID
J. LOZADA, AND DR. NEMESIO T. GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best
nourishment for an infant is mother's milk. There is nothing greater
than for a mother to nurture her beloved child straight from her
bosom. The ideal is, of course, for each and every Filipino child to
enjoy the unequaled benefits of breastmilk. But how should this end
be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules
of Court, seeking to nullify Administrative Order (A.O.) No. 2006-
0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The "Milk Code,"
Relevant International Agreements, Penalizing Violations Thereof,
and for Other Purposes (RIRR). Petitioner posits that the RIRR is not
valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries,
and Assistant Secretaries of the Department of Health (DOH). For
purposes of herein petition, the DOH is deemed impleaded as a co-
respondent since respondents issued the questioned RIRR in their
capacity as officials of said executive agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon
Aquino on October 28, 1986 by virtue of the legislative powers
granted to the president under the Freedom Constitution. One of the
preambular clauses of the Milk Code states that the law seeks to give
effect to Article 112 of the International Code of Marketing of
Breastmilk Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted
several Resolutions to the effect that breastfeeding should be
supported, promoted and protected, hence, it should be ensured that
nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the
Rights of the Child. Article 24 of said instrument provides that State
Parties should take appropriate measures to diminish infant and child
mortality, and ensure that all segments of society, specially parents
and children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was
to take effect on July 7, 2006.
38
 2.1 Whether the RIRR is in accord with the provisions of Executive
Order No. 51 (Milk Code);
However, on June 28, 2006, petitioner, representing its members
that are manufacturers of breastmilk substitutes, filed the present
Petition for Certiorari and Prohibition with Prayer for the Issuance of
2.2 Whether pertinent international agreements1 entered into by the
a Temporary Restraining Order (TRO) or Writ of Preliminary
Philippines are part of the law of the land and may be implemented
Injunction.
by the DOH through the RIRR; If in the affirmative, whether the RIRR
is in accord with the international agreements;

The main issue raised in the petition is whether respondents officers

of the DOH acted without or in excess of jurisdiction, or with grave
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate
abuse of discretion amounting to lack or excess of jurisdiction, and
the due process clause and are in restraint of trade; and
in violation of the provisions of the Constitution in promulgating the
RIRR.3

2.4 Whether Section 13 of the RIRR on Total Effect provides

sufficient standards.
On August 15, 2006, the Court issued a Resolution granting a TRO
enjoining respondents from implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case
for oral arguments on June 19, 2007. The Court issued an Advisory
(Guidance for Oral Arguments) dated June 5, 2007, to wit:
The Court hereby sets the following issues:
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the
WHO and Unicef "2002 Global Strategy on Infant and Young Child
Feeding;" and (3) various World Health Assembly (WHA)
Resolutions.

The parties filed their respective memoranda.

1. Whether or not petitioner is a real party-in-interest;

The petition is partly imbued with merit.

2. Whether Administrative Order No. 2006-0012 or the Revised
Implementing Rules and Regulations (RIRR) issued by the
Department of Health (DOH) is not constitutional;
On the issue of petitioner's standing

39
With regard to the issue of whether petitioner may prosecute this
case as the real party-in-interest, the Court adopts the view
enunciated in Executive Secretary v. Court of Appeals,4 to wit:
The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
association with that of its members. An association has standing to
file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has standing to
assert the concerns of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the
respondent was organized x x x to act as the representative of any
individual, company, entity or association on matters related to the
manpower recruitment industry, and to perform other acts and
activities necessary to accomplish the purposes embodied therein.
The respondent is, thus, the appropriate party to assert the rights of
its members, because it and its members are in every practical sense
identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective
the expression of their voices and the redress of their grievances. 5
(Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v.
Yuipco,6 where the Court ruled that an association has the legal
personality to represent its members because the results of the case
will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a
similar provision just like in Executive Secretary, that the association
is formed "to represent directly or through approved representatives
the pharmaceutical and health care industry before the Philippine
Government and any of its agencies, the medical professions and
the general public."8 Thus, as an organization, petitioner definitely
has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the appropriate
course of action to bring to the attention of government agencies
and the courts any grievance suffered by its members which are
directly affected by the RIRR. Petitioner, which is mandated by its
Amended Articles of Incorporation to represent the entire industry,
would be remiss in its duties if it fails to act on governmental action
that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is
deemed fused with its members, should be considered as a real
party-in-interest which stands to be benefited or injured by any
judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments
adverted to by respondents are part of the law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions
of the Milk Code, thereby amending and expanding the coverage of
said law. The defense of the DOH is that the RIRR implements not
only the Milk Code but also various international instruments10
regarding infant and young child nutrition. It is respondents' position
that said international instruments are deemed part of the law of the
land and therefore the DOH may implement them through the RIRR.
The Court notes that the following international instruments invoked
by respondents, namely: (1) The United Nations Convention on the
40
Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination
of All Forms of Discrimination Against Women, only provide in
general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and
ensure that women are provided with services and nutrition in
connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of
breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various WHA
Resolutions.
Under the 1987 Constitution, international law can become part of
the sphere of domestic law either by transformation or
incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation
pursuant to Article VII, Section 21 of the Constitution which provides
that "[n]o treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
members of the Senate." Thus, treaties or conventional international
law must go through a process prescribed by the Constitution for it
to be transformed into municipal law that can be applied to domestic
conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not
been concurred in by at least two-thirds of all members of the Senate
as required under Section 21, Article VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had
been transformed into domestic law through local legislation, the
Milk Code. Consequently, it is the Milk Code that has the force and
effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but
it is well to emphasize at this point that the Code did not adopt the
provision in the ICMBS absolutely prohibiting advertising or other
forms of promotion to the general public of products within the scope
of the ICMBS. Instead, the Milk Code expressly provides that
advertising, promotion, or other marketing materials may be allowed
if such materials are duly authorized and approved by the Inter-
Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to
wit:
SECTION 2. The Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity
with all nations. (Emphasis supplied)
embodies the incorporation method.14
In Mijares v. Ranada,15 the Court held thus:
41
 Fr. Joaquin G. Bernas defines customary international law as follows:

[G]enerally accepted principles of international law, by virtue of the

incorporation clause of the Constitution, form part of the laws of the
Custom or customary international law means "a general and
land even if they do not derive from treaty obligations. The classical
consistent practice of states followed by them from a sense of legal
formulation in international law sees those customary rules accepted
obligation [opinio juris]." (Restatement) This statement contains the
as binding result from the combination [of] two elements: the
two basic elements of custom: the material factor, that is, how states
established, widespread, and consistent practice on the part of
behave, and the psychological or subjective factor, that is, why they
States; and a psychological element known as the opinion juris sive
behave the way they do.
necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory
by the existence of a rule of law requiring it.16 (Emphasis supplied)
xxxx

"Generally accepted principles of international law" refers to norms

of general or customary international law which are binding on all
states,17 i.e., renunciation of war as an instrument of national
policy, the principle of sovereign immunity,18 a person's right to life,
liberty and due process,19 and pacta sunt servanda,20 among
others. The concept of "generally accepted principles of law" has also
been depicted in this wise:
The initial factor for determining the existence of custom is the actual
behavior of states. This includes several elements: duration,
consistency, and generality of the practice of states.
The required duration can be either short or long. x x x

Some legal scholars and judges look upon certain "general principles xxxx
of law" as a primary source of international law because they have
the "character of jus rationale" and are "valid through all kinds of
human societies." (Judge Tanaka in his dissenting opinion in the Duration therefore is not the most important element. More
1966 South West Africa Case, 1966 I.C.J. 296). O'Connell holds that important is the consistency and the generality of the practice. x x x
certain priniciples are part of international law because they are
"basic to legal systems generally" and hence part of the jus gentium.
These principles, he believes, are established by a process of
xxxx
reasoning based on the common identity of all legal systems. If there
should be doubt or disagreement, one must look to state practice
and determine whether the municipal law principle provides a just
and acceptable solution. x x x 21 (Emphasis supplied) Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way they
do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of
42
courtesy? Opinio juris, or the belief that a certain form of behavior
is obligatory, is what makes practice an international rule. Without
it, practice is not law.22 (Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated into our
domestic system.23
WHA Resolutions have not been embodied in any local legislation.
Have they attained the status of customary law and should they then
be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international
specialized agencies allied with the United Nations (UN) by virtue of
Article 57,24 in relation to Article 6325 of the UN Charter. Under the
1946 WHO Constitution, it is the WHA which determines the policies
of the WHO,26 and has the power to adopt regulations concerning
"advertising and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter within the
competence of the Organization."28 The legal effect of its
regulations, as opposed to recommendations, is quite different.
Regulations, along with conventions and agreements, duly adopted
by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within the
competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or
agreements, which shall come into force for each Member when
accepted by it in accordance with its constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen
months after the adoption by the Health Assembly of a convention
or agreement, take action relative to the acceptance of such
convention or agreement. Each Member shall notify the Director-
General of the action taken, and if it does not accept such convention
or agreement within the time limit, it will furnish a statement of the
reasons for non-acceptance. In case of acceptance, each Member
agrees to make an annual report to the Director-General in
accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: (a) sanitary and quarantine requirements
and other procedures designed to prevent the international spread
of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to
diagnostic procedures for international use; (d) standards with
respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international
commerce; (e) advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come
into force for all Members after due notice has been given of their
adoption by the Health Assembly except for such Members as may
notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA
do not come into force for members, in the same way that
conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:
43
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter within the
competence of the Organization. (Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which
the recommendation would come into force for member states is
conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that
WHA recommendations are generally not binding, but they "carry
moral and political weight, as they constitute the judgment on a
health issue of the collective membership of the highest international
body in the field of health."29 Even the ICMBS itself was adopted as
a mere recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense
of Article 23 of the Constitution, the International Code of Marketing
of Breastmilk Substitutes annexed to the present resolution."
(Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the fourth draft
of the code, endorsed it, and unanimously recommended to the
Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation
rather than a regulation. x x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is
summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with
respect to recommendations made to it by the Organization, and
with respect to conventions, agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent
WHA Resolutions urging member states to implement the ICMBS are
merely recommendatory and legally non-binding. Thus, unlike what
has been done with the ICMBS whereby the legislature enacted most
of the provisions into law which is the Milk Code, the subsequent
WHA Resolutions,30 specifically providing for exclusive
breastfeeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions
of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or
non-binding norms, principles and practices that influence state
behavior.31
"Soft law" does not fall into any of the categories of international law
set forth in Article 38, Chapter III of the 1946 Statute of the
International Court of Justice.32 It is, however, an expression of
non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General
Assembly fall under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in
various cases, specifically, Government of Hongkong Special
Administrative Region v. Olalia,35 Mejoff v. Director of Prisons,36
Mijares v. Rañada37 and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..38
44
 the SARS outbreak has taught the lesson that participating in, and
enhancing, international cooperation on infectious disease controls
The World Intellectual Property Organization (WIPO), a specialized
is in a country's self-interest x x x if this warning is heeded, the "soft
agency attached to the UN with the mandate to promote and protect
law" in the SARS and IHR Resolution could inform the development
intellectual property worldwide, has resorted to soft law as a rapid
of general and consistent state practice on infectious disease
means of norm creation, in order "to reflect and respond to the
surveillance and outbreak response, perhaps crystallizing eventually
changing needs and demands of its constituents."39 Other
into customary international law on infectious disease prevention
international organizations which have resorted to soft law include
and control.41
the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40

In the Philippines, the executive department implemented certain

measures recommended by WHO to address the outbreaks of SARS
WHO has resorted to soft law. This was most evident at the time of
and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26,
the Severe Acute Respiratory Syndrome (SARS) and Avian flu
2003 and E.O. No. 280 on February 2, 2004, delegating to various
outbreaks.
departments broad powers to close down schools/establishments,
conduct health surveillance and monitoring, and ban importation of
poultry and agricultural products.
Although the IHR Resolution does not create new international law
binding on WHO member states, it provides an excellent example of
the power of "soft law" in international relations. International
It must be emphasized that even under such an international
lawyers typically distinguish binding rules of international law-"hard
emergency, the duty of a state to implement the IHR Resolution was
law"-from non-binding norms, principles, and practices that
still considered not binding or enforceable, although said resolutions
influence state behavior-"soft law." WHO has during its existence had great political influence.
generated many soft law norms, creating a "soft law regime" in
international governance for public health.

As previously discussed, for an international rule to be considered as

customary law, it must be established that such rule is being
The "soft law" SARS and IHR Resolutions represent significant steps
followed by states because they consider it obligatory to comply with
in laying the political groundwork for improved international
such rules (opinio juris). Respondents have not presented any
cooperation on infectious diseases. These resolutions clearly define
evidence to prove that the WHA Resolutions, although signed by
WHO member states' normative duty to cooperate fully with other
most of the member states, were in fact enforced or practiced by at
countries and with WHO in connection with infectious disease
least a majority of the member states; neither have respondents
surveillance and response to outbreaks.
proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.

This duty is neither binding nor enforceable, but, in the wake of the
SARS epidemic, the duty is powerful politically for two reasons. First,

45
Respondents failed to establish that the provisions of pertinent WHA
Resolutions are customary international law that may be deemed
part of the law of the land.
Consequently, legislation is necessary to transform the provisions of
the WHA Resolutions into domestic law. The provisions of the WHA
Resolutions cannot be considered as part of the law of the land that
can be implemented by executive agencies without the need of a law
enacted by the legislature.
Second, the Court will determine whether the DOH may implement
the provisions of the WHA Resolutions by virtue of its powers and
functions under the Revised Administrative Code even in the absence
of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of
1987 provides that the DOH shall define the national health policy
and implement a national health plan within the framework of the
government's general policies and plans, and issue orders and
regulations concerning the implementation of established health
policies.
It is crucial to ascertain whether the absolute prohibition on
advertising and other forms of promotion of breastmilk substitutes
provided in some WHA Resolutions has been adopted as part of the
national health policy.
Respondents submit that the national policy on infant and young
child feeding is embodied in A.O. No. 2005-0014, dated May 23,
2005. Basically, the Administrative Order declared the following
policy guidelines: (1) ideal breastfeeding practices, such as early
initiation of breastfeeding, exclusive breastfeeding for the first six
months, extended breastfeeding up to two years and beyond; (2)
appropriate complementary feeding, which is to start at age six
months; (3) micronutrient supplementation; (4) universal salt
iodization; (5) the exercise of other feeding options; and (6) feeding
in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy.
However, nowhere in A.O. No. 2005-0014 is it declared that as part
of such health policy, the advertisement or promotion of breastmilk
substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total ban on
advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a
total ban on the advertising and promotion of breastmilk substitutes,
but instead, specifically creates an IAC which will regulate said
advertising and promotion, it follows that a total ban policy could be
implemented only pursuant to a law amending the Milk Code passed
by the constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of
subsequent WHA Resolutions, can be validly implemented by the
DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the
RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk
Code, petitioner alleges the following:
46

1. The Milk Code limits its coverage to children 0-12 months old, but
the RIRR extended its coverage to "young children" or those from
ages two years old and beyond:
Section 5(ff). "Young Child" means a person from the age of more
than twelve (12) months up to the age of three (3) years (36
months).

2. The Milk Code recognizes that infant formula may be a proper and
possible substitute for breastmilk in certain instances; but the RIRR
MILK CODE
provides "exclusive breastfeeding for infants from 0-6 months" and
declares that "there is no substitute nor replacement for breastmilk":

RIRR
MILK CODE

WHEREAS, in order to ensure that safe and adequate nutrition for

infants is provided, there is a need to protect and promote RIRR
breastfeeding and to inform the public about the proper use of
breastmilk substitutes and supplements and related products
through adequate, consistent and objective information and
WHEREAS, in order to ensure that safe and adequate nutrition for
appropriate regulation of the marketing and distribution of the said
infants is provided, there is a need to protect and promote
substitutes, supplements and related products;
breastfeeding and to inform the public about the proper use of
breastmilk substitutes and supplements and related products
through adequate, consistent and objective information and
SECTION 4(e). "Infant" means a person falling within the age
appropriate regulation of the marketing and distribution of the said
bracket of 0-12 months.
substitutes, supplements and related products;

Section 2. Purpose – These Revised Rules and Regulations are

Section 4. Declaration of Principles – The following are the
hereby promulgated to ensure the provision of safe and adequate
underlying principles from which the revised rules and regulations
nutrition for infants and young children by the promotion, protection are premised upon:
and support of breastfeeding and by ensuring the proper use of
breastmilk substitutes, breastmilk supplements and related products
when these are medically indicated and only when necessary, on the
a. Exclusive breastfeeding is for infants from 0 to six (6) months.
basis of adequate information and through appropriate marketing
and distribution.

b. There is no substitute or replacement for breastmilk.

47
3. The Milk Code only regulates and does not impose unreasonable
requirements for advertising and promotion; RIRR imposes an
absolute ban on such activities for breastmilk substitutes intended
for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides
for a "total effect" in the promotion of products within the scope of
the Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Mothers. –
(a) No advertising, promotion or other marketing materials, whether
written, audio or visual, for products within the scope of this Code
shall be printed, published, distributed, exhibited and broadcast
unless such materials are duly authorized and approved by an inter-
agency committee created herein pursuant to the applicable
standards provided for in this Code.
Section 4. Declaration of Principles – The following are the
underlying principles from which the revised rules and regulations
are premised upon:
xxxx
f. Advertising, promotions, or sponsor-ships of infant formula,
breastmilk substitutes and other related products are prohibited.
Section 11. Prohibition – No advertising, promotions, sponsorships,
or marketing materials and activities for breastmilk substitutes
intended for infants and young children up to twenty-four (24)
months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and
breastfeeding or otherwise exaggerate breastmilk substitutes and/or
replacements, as well as related products covered within the scope
of this Code.
Section 13. "Total Effect" - Promotion of products within the scope
of this Code must be objective and should not equate or make the
product appear to be as good or equal to breastmilk or breastfeeding
in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or
indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony
or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following shall not be included
in advertising, promotional and marketing materials:
a. Texts, pictures, illustrations or information which discourage or
tend to undermine the benefits or superiority of breastfeeding or
which idealize the use of breastmilk substitutes and milk
supplements. In this connection, no pictures of babies and children
together with their mothers, fathers, siblings, grandparents, other
relatives or caregivers (or yayas) shall be used in any
advertisements for infant formula and breastmilk supplements;
48
b. The term "humanized," "maternalized," "close to mother's milk"
or similar words in describing breastmilk substitutes or milk
supplements;
c. Pictures or texts that idealize the use of infant and milk formula.
Section 16. All health and nutrition claims for products within the
scope of the Code are absolutely prohibited. For this purpose, any
phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not
be allowed.
4. The RIRR imposes additional labeling requirements not found in
the Milk Code:
MILK CODE
RIRR
SECTION 10. Containers/Label. –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English printed
on it, or on a label, which message can not readily become separated
from it, and which shall include the following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of
a health worker as to the need for its use and the proper methods
of use; and
(iv) instructions for appropriate preparation, and a warning against
the health hazards of inappropriate preparation.
Section 26. Content – Each container/label shall contain such
message, in both Filipino and English languages, and which message
cannot be readily separated therefrom, relative the following points:
(a) The words or phrase "Important Notice" or "Government
Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for breastmilk;
49
(d) A statement that the product shall be used only on the advice of
a health worker as to the need for its use and the proper methods
of use;
(e) Instructions for appropriate prepara-tion, and a warning against
the health hazards of inappropriate preparation; and
(f) The health hazards of unnecessary or improper use of infant
formula and other related products including information that
powdered infant formula may contain pathogenic microorganisms
and must be prepared and used appropriately.
5. The Milk Code allows dissemination of information on infant
formula to health professionals; the RIRR totally prohibits such
activity:
MILK CODE
RIRR
SECTION 7. Health Care System. –
(b) No facility of the health care system shall be used for the purpose
of promoting infant formula or other products within the scope of
this Code. This Code does not, however, preclude the dissemination
of information to health professionals as provided in Section 8(b).
SECTION 8. Health Workers. -
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottle-feeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).
Section 22. No manufacturer, distributor, or representatives of
products covered by the Code shall be allowed to conduct or be
involved in any activity on breastfeeding promotion, education and
production of Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating as speakers
in classes or seminars for women and children activities and to avoid
the use of these venues to market their brands or company names.
SECTION 16. All health and nutrition claims for products within the
scope of the Code are absolutely prohibited. For this purpose, any
phrase or words that connotes to increase emotional, intellectual
abilities of the infant and young child and other like phrases shall not
be allowed.
6. The Milk Code permits milk manufacturers and distributors to
extend assistance in research and continuing education of health
professionals; RIRR absolutely forbids the same.
MILK CODE
RIRR
50
SECTION 8. Health Workers –

7. The Milk Code regulates the giving of donations; RIRR absolutely

prohibits it.
(e) Manufacturers and distributors of products within the scope of
this Code may assist in the research, scholarships and continuing
education, of health professionals, in accordance with the rules and
MILK CODE
regulations promulgated by the Ministry of Health.

RIRR
Section 4. Declaration of Principles –

SECTION 6. The General Public and Mothers. –

The following are the underlying principles from which the revised
rules and regulations are premised upon:

(f) Nothing herein contained shall prevent donations from

manufacturers and distributors of products within the scope of this
i. Milk companies, and their representatives, should not form part of
Code upon request by or with the approval of the Ministry of Health.
any policymaking body or entity in relation to the advancement of
breasfeeding.

Section 51. Donations Within the Scope of This Code - Donations of

products, materials, defined and covered under the Milk Code and
SECTION 22. No manufacturer, distributor, or representatives of
these implementing rules and regulations, shall be strictly
products covered by the Code shall be allowed to conduct or be
prohibited.
involved in any activity on breastfeeding promotion, education and
production of Information, Education and Communication (IEC)
materials on breastfeeding, holding of or participating as speakers
in classes or seminars for women and children activities and to avoid Section 52. Other Donations By Milk Companies Not Covered by this
the use of these venues to market their brands or company names. Code. - Donations of products, equipments, and the like, not
otherwise falling within the scope of this Code or these Rules, given
by milk companies and their agents, representatives, whether in
kind or in cash, may only be coursed through the Inter Agency
SECTION 32. Primary Responsibility of Health Workers - It is the
Committee (IAC), which shall determine whether such donation be
primary responsibility of the health workers to promote, protect and
accepted or otherwise.
support breastfeeding and appropriate infant and young child
feeding. Part of this responsibility is to continuously update their
knowledge and skills on breastfeeding. No assistance, support,
logistics or training from milk companies shall be permitted. 8. The RIRR provides for administrative sanctions not imposed by
the Milk Code.
51

MILK CODE
RIRR
Section 46. Administrative Sanctions. – The following administrative
sanctions shall be imposed upon any person, juridical or natural,
found to have violated the provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation – Warning;
b) 2nd violation – Administrative fine of a minimum of Ten Thousand
(P10,000.00) to Fifty Thousand (P50,000.00) Pesos, depending on
the gravity and extent of the violation, including the recall of the
offending product;
c) 3rd violation – Administrative Fine of a minimum of Sixty
Thousand (P60,000.00) to One Hundred Fifty Thousand
(P150,000.00) Pesos, depending on the gravity and extent of the
violation, and in addition thereto, the recall of the offending product,
and suspension of the Certificate of Product Registration (CPR);
d) 4th violation –Administrative Fine of a minimum of Two Hundred
Thousand (P200,000.00) to Five Hundred (P500,000.00) Thousand
Pesos, depending on the gravity and extent of the violation; and in
addition thereto, the recall of the product, revocation of the CPR,
suspension of the License to Operate (LTO) for one year;
e) 5th and succeeding repeated violations – Administrative Fine of
One Million (P1,000,000.00) Pesos, the recall of the offending
product, cancellation of the CPR, revocation of the License to
Operate (LTO) of the company concerned, including the blacklisting
of the company to be furnished the Department of Budget and
Management (DBM) and the Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thou-sand Five Hundred (P2,500.00)
Pesos per day shall be made for every day the violation continues
after having received the order from the IAC or other such
appropriate body, notifying and penalizing the company for the
infraction.
For purposes of determining whether or not there is "repeated"
violation, each product violation belonging or owned by a company,
including those of their subsidiaries, are deemed to be violations of
the concerned milk company and shall not be based on the specific
violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner
seriatim.
52
1. Petitioner is mistaken in its claim that the Milk Code's coverage is
limited only to children 0-12 months old. Section 3 of the Milk Code
states:
SECTION 3. Scope of the Code – The Code applies to the marketing,
and practices related thereto, of the following products: breastmilk
substitutes, including infant formula; other milk products, foods and
beverages, including bottle-fed complementary foods, when
marketed or otherwise represented to be suitable, with or without
modification, for use as a partial or total replacement of breastmilk;
feeding bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age
of the child but on the kind of product being marketed to the public.
The law treats infant formula, bottle-fed complementary food, and
breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk
substitute x x x to satisfy the normal nutritional requirements of
infants up to between four to six months of age, and adapted to their
physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or
locally prepared, suitable as a complement to breastmilk or infant
formula, when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a person
falling within the age bracket 0-12 months. It is the nourishment of
this group of infants or children aged 0-12 months that is sought to
be promoted and protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined
under Section 4(a) as "any food being marketed or otherwise
presented as a partial or total replacement for breastmilk, whether
or not suitable for that purpose." This section conspicuously lacks
reference to any particular age-group of children. Hence, the
provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes
may also be intended for young children more than 12 months of
age. Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of children
more than 12 months old.
Evidently, as long as what is being marketed falls within the scope
of the Milk Code as provided in Section 3, then it can be subject to
regulation pursuant to said law, even if the product is to be used by
children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and
5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the
Milk Code, does not recognize that breastmilk substitutes may be a
proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof,
must be considered and construed together. As held in De Luna v.
Pascual,44 "[t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the
meaning of any of its parts and in order to produce a harmonious
whole."
Section 7 of the RIRR provides that "when medically indicated and
only when necessary, the use of breastmilk substitutes is proper if
based on complete and updated information." Section 8 of the RIRR
53
also states that information and educational materials should include
information on the proper use of infant formula when the use thereof
is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in
certain cases, the use of breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446
together as they are interlinked with each other.
To resolve the question of whether the labeling requirements and
advertising regulations under the RIRR are valid, it is important to
deal first with the nature, purpose, and depth of the regulatory
powers of the DOH, as defined in general under the 1987
Administrative Code,47 and as delegated in particular under the Milk
Code.
Health is a legitimate subject matter for regulation by the DOH (and
certain other administrative agencies) in exercise of police powers
delegated to it. The sheer span of jurisprudence on that matter
precludes the need to further discuss it..48 However, health
information, particularly advertising materials on apparently non-
toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine
Islands,50 health information was already within the ambit of the
regulatory powers of the predecessor of DOH.51 Section 938 thereof
charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic
information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of
preventing and combating dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked
respondent DOH to carry out the state policy pronounced under
Section 15, Article II of the 1987 Constitution, which is "to protect
and promote the right to health of the people and instill health
consciousness among them."52 To that end, it was granted under
Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the population on important health,
medical and environmental matters which have health
implications."53
When it comes to information regarding nutrition of infants and
young children, however, the Milk Code specifically delegated to the
Ministry of Health (hereinafter referred to as DOH) the power to
ensure that there is adequate, consistent and objective information
on breastfeeding and use of breastmilk substitutes, supplements and
related products; and the power to control such information. These
are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring –
xxxx
(b) The Ministry of Health shall be principally responsible for the
implementation and enforcement of the provisions of this Code. For
this purpose, the Ministry of Health shall have the following powers
and functions:
54
(1) To promulgate such rules and regulations as are necessary or
proper for the implementation of this Code and the accomplishment
of its purposes and objectives.
xxxx
(4) To exercise such other powers and functions as may be
necessary for or incidental to the attainment of the purposes and
objectives of this Code.
SECTION 5. Information and Education –
(a) The government shall ensure that objective and consistent
information is provided on infant feeding, for use by families and
those involved in the field of infant nutrition. This responsibility shall
cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis
supplied)
Further, DOH is authorized by the Milk Code to control the content
of any information on breastmilk vis-à-vis breastmilk substitutes,
supplement and related products, in the following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods or feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers –
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such information
shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5(b).
SECTION 10. Containers/Label –
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the products,
and in such a way as not to discourage breastfeeding.
55
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not
be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the information
and to whom such information may be disseminated under Sections
6 through 9 of the Milk Code54 to ensure that the information that
would reach pregnant women, mothers of infants, and health
professionals and workers in the health care system is restricted to
scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk
Code to control information regarding breastmilk vis-a-vis
breastmilk substitutes is not absolute as the power to control does
not encompass the power to absolutely prohibit the advertising,
marketing, and promotion of breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally
indicate that the control over information given to the DOH is not
absolute and that absolute prohibition is not contemplated by the
Code:
a) Section 2 which requires adequate information and appropriate
marketing and distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code – The aim of the Code is to contribute
to the provision of safe and adequate nutrition for infants by the
protection and promotion of breastfeeding and by ensuring the
proper use of breastmilk substitutes and breastmilk supplements
when these are necessary, on the basis of adequate information and
through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the
marketing of and practices related to breastmilk substitutes,
including infant formula, and to information concerning their use;
c) Section 5(a) which provides that the government shall ensure that
objective and consistent information is provided on infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any picture or
text which may idealize the use of breastmilk substitutes and should
include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and
empowers the IAC to review and examine advertising, promotion,
and other marketing materials;
f) Section 8(b) which states that milk companies may provide
information to health professionals but such information should be
restricted to factual and scientific matters and shall not imply or
create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not
contain information that would discourage breastfeeding and idealize
the use of infant formula.
56
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR
contain some labeling requirements, specifically: a) that there be a
statement that there is no substitute to breastmilk; and b) that there
be a statement that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used
appropriately. Section 1657 of the RIRR prohibits all health and
nutrition claims for products within the scope of the Milk Code, such
as claims of increased emotional and intellectual abilities of the
infant and young child.
These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers -
xxxx
(b) Information provided by manufacturers and distributors to health
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters, and such information
shall not imply or create a belief that bottlefeeding is equivalent or
superior to breastfeeding. It shall also include the information
specified in Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of
the terms "humanized," "maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that
would imply or create a belief that there is any milk product
equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of
breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to
information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd
situation in which milk companies and distributors are forbidden to
claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the
containers and labels of their products the exact opposite message.
That askewed interpretation of the Milk Code is precisely what
Section 5(a) thereof seeks to avoid by mandating that all information
regarding breastmilk vis-a-vis breastmilk substitutes be consistent,
at the same time giving the government control over planning,
provision, design, and dissemination of information on infant
feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels
to state that the product offered is not a substitute for breastmilk, is
a reasonable means of enforcing Section 8(b) of the Milk Code and
deterring circumvention of the protection and promotion of
breastfeeding as embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling
requirement. It implements Section 5(b) of the Milk Code which
reads:
57
SECTION 5. x x x possibility of contamination with pathogenic microorganisms is in
accordance with Section 5(b) of the Milk Code.

xxxx
The authority of DOH to control information regarding breastmilk vis-
a-vis breastmilk substitutes and supplements and related products
(b) Informational and educational materials, whether written, audio, cannot be questioned. It is its intervention into the area of
or visual, dealing with the feeding of infants and intended to reach advertising, promotion, and marketing that is being assailed by
pregnant women and mothers of infants, shall include clear petitioner.
information on all the following points: x x x (5) where needed, the
proper use of infant formula, whether manufactured industrially or
home-prepared. When such materials contain information about the In furtherance of Section 6(a) of the Milk Code, to wit:
use of infant formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of SECTION 6. The General Public and Mothers. –
unnecessary or improper use of infant formula and other breastmilk
substitutes. Such materials shall not use any picture or text which
may idealize the use of breastmilk substitutes. (Emphasis supplied)
(a) No advertising, promotion or other marketing materials, whether
written, audio or visual, for products within the scope of this Code
shall be printed, published, distributed, exhibited and broadcast
The label of a product contains information about said product unless such materials are duly authorized and approved by an inter-
intended for the buyers thereof. The buyers of breastmilk substitutes agency committee created herein pursuant to the applicable
are mothers of infants, and Section 26 of the RIRR merely adds a standards provided for in this Code.
fair warning about the likelihood of pathogenic microorganisms being
present in infant formula and other related products when these are
prepared and used inappropriately.
the Milk Code invested regulatory authority over advertising,
promotional and marketing materials to an IAC, thus:

Petitioner’s counsel has admitted during the hearing on June 19,

2007 that formula milk is prone to contaminations and there is as
SECTION 12. Implementation and Monitoring -
yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination.62

(a) For purposes of Section 6(a) of this Code, an inter-agency

committee composed of the following members is hereby created:
Ineluctably, the requirement under Section 26(f) of the RIRR for the
label to contain the message regarding health hazards including the

58
Minister of Health The members may designate their duly authorized representative to
every meeting of the Committee.

-------------------
The Committee shall have the following powers and functions:

Chairman
(1) To review and examine all advertising. promotion or other
marketing materials, whether written, audio or visual, on products
Minister of Trade and Industry within the scope of this Code;

------------------- (2) To approve or disapprove, delete objectionable portions from and

prohibit the printing, publication, distribution, exhibition and
broadcast of, all advertising promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this
Member
Code;

Minister of Justice
(3) To prescribe the internal and operational procedure for the
exercise of its powers and functions as well as the performance of
its duties and responsibilities; and
-------------------

(4) To promulgate such rules and regulations as are necessary or

Member proper for the implementation of Section 6(a) of this Code. x x x
(Emphasis supplied)

Minister of Social Services and Development

However, Section 11 of the RIRR, to wit:

-------------------
SECTION 11. Prohibition – No advertising, promotions,
sponsorships, or marketing materials and activities for breastmilk
Member substitutes intended for infants and young children up to twenty-
four (24) months, shall be allowed, because they tend to convey or

59
give subliminal messages or impressions that undermine breastmilk
and breastfeeding or otherwise exaggerate breastmilk substitutes
SOLICITOR GENERAL DEVANADERA:
and/or replacements, as well as related products covered within the
scope of this Code.

prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with the
RIRR’s declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles –
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself
not only the regulatory authority given to the IAC but also imposed
absolute prohibition on advertising, promotion, and marketing.
xxxx
x x x Now, the crux of the matter that is being questioned by
Petitioner is whether or not there is an absolute prohibition on
advertising making AO 2006-12 unconstitutional. We maintained
that what AO 2006-12 provides is not an absolute prohibition
because Section 11 while it states and it is entitled prohibition it
states that no advertising, promotion, sponsorship or marketing
materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because
this is the standard they tend to convey or give subliminal messages
or impression undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections because
the other Section, Section 12, provides for the inter agency
committee that is empowered to process and evaluate all the
advertising and promotion materials.

xxxx
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement
of the Milk Code in Section 6 thereof for prior approval by IAC of all
advertising, marketing and promotional materials prior to
What AO 2006-12, what it does, it does not prohibit the sale and
dissemination.
manufacture, it simply regulates the advertisement and the
promotions of breastfeeding milk substitutes.

Even respondents, through the OSG, acknowledged the authority of

IAC, and repeatedly insisted, during the oral arguments on June 19,
xxxx
2007, that the prohibition under Section 11 is not actually
operational, viz:

60
Now, the prohibition on advertising, Your Honor, must be taken as the content of materials under Section 13 and 15 of the rules and
together with the provision on the Inter-Agency Committee that regulations?
processes and evaluates because there may be some information
dissemination that are straight forward information dissemination.
What the AO 2006 is trying to prevent is any material that will SOLICITOR GENERAL DEVANADERA:
undermine the practice of breastfeeding, Your Honor.

Your Honor, please, first we would like to stress that there is no total
xxxx absolute ban. Second, the Inter-Agency Committee is under the
Department of Health, Your Honor.

ASSOCIATE JUSTICE SANTIAGO:

xxxx

Madam Solicitor General, under the Milk Code, which body has
authority or power to promulgate Rules and Regulations regarding ASSOCIATE JUSTICE NAZARIO:
the Advertising, Promotion and Marketing of Breastmilk Substitutes?

x x x Did I hear you correctly, Madam Solicitor, that there is no

SOLICITOR GENERAL DEVANADERA: absolute ban on advertising of breastmilk substitutes in the Revised
Rules?

Your Honor, please, it is provided that the Inter-Agency Committee,

Your Honor. SOLICITOR GENERAL DEVANADERA:

xxxx Yes, your Honor.

ASSOCIATE JUSTICE SANTIAGO: ASSOCIATE JUSTICE NAZARIO:

x x x Don't you think that the Department of Health overstepped its But, would you nevertheless agree that there is an absolute ban on
rule making authority when it totally banned advertising and advertising of breastmilk substitutes intended for children two (2)
promotion under Section 11 prescribed the total effect rule as well years old and younger?

61
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-
Agency Committee that can evaluate some advertising and
promotional materials, subject to the standards that we have stated
earlier, which are- they should not undermine breastfeeding, Your
Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in
relation with the other Sections, particularly 12 and 13 and 15, Your
Honor, because it is recognized that the Inter-Agency Committee
has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on
advertisement regarding milk substitute regarding infants two (2)
years below?
SOLICITOR GENERAL DEVANADERA:
We can proudly say that the general rule is that there is a prohibition,
however, we take exceptions and standards have been set. One of
which is that, the Inter-Agency Committee can allow if the
advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk
Code.
However, although it is the IAC which is authorized to promulgate
rules and regulations for the approval or rejection of advertising,
promotional, or other marketing materials under Section 12(a) of
the Milk Code, said provision must be related to Section 6 thereof
which in turn provides that the rules and regulations must be
"pursuant to the applicable standards provided for in this Code." Said
standards are set forth in Sections 5(b), 8(b), and 10 of the Code,
which, at the risk of being repetitious, and for easy reference, are
quoted hereunder:
SECTION 5. Information and Education –
xxxx
(b) Informational and educational materials, whether written, audio,
or visual, dealing with the feeding of infants and intended to reach
pregnant women and mothers of infants, shall include clear
information on all the following points: (1) the benefits and
superiority of breastfeeding; (2) maternal nutrition, and the
preparation for and maintenance of breastfeeding; (3) the negative
effect on breastfeeding of introducing partial bottlefeeding; (4) the
difficulty of reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether manufactured
industrially or home-prepared. When such materials contain
information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of
inappropriate foods of feeding methods; and, in particular, the
health hazards of unnecessary or improper use of infant formula and
62
other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes.
(i) the words "Important Notice" or their equivalent;

xxxx
(ii) a statement of the superiority of breastfeeding;

SECTION 8. Health Workers. –

(iii) a statement that the product shall be used only on the advice of
a health worker as to the need for its use and the proper methods
of use; and
xxxx

(iv) instructions for appropriate preparation, and a warning against

(b) Information provided by manufacturers and distributors to health
the health hazards of inappropriate preparation.
professionals regarding products within the scope of this Code shall
be restricted to scientific and factual matters and such information
shall not imply or create a belief that bottle feeding is equivalent or
Section 12(b) of the Milk Code designates the DOH as the principal
superior to breastfeeding. It shall also include the information
specified in Section 5(b). implementing agency for the enforcement of the provisions of the
Code. In relation to such responsibility of the DOH, Section 5(a) of
the Milk Code states that:

xxxx

SECTION 5. Information and Education –

SECTION 10. Containers/Label –

(a) The government shall ensure that objective and consistent

information is provided on infant feeding, for use by families and
(a) Containers and/or labels shall be designed to provide the
those involved in the field of infant nutrition. This responsibility shall
necessary information about the appropriate use of the products,
cover the planning, provision, design and dissemination of
and in such a way as not to discourage breastfeeding.
information, and the control thereof, on infant nutrition. (Emphasis
supplied)

(b) Each container shall have a clear, conspicuous and easily

readable and understandable message in Pilipino or English printed
Thus, the DOH has the significant responsibility to translate into
on it, or on a label, which message can not readily become separated
operational terms the standards set forth in Sections 5, 8, and 10 of
from it, and which shall include the following points:
63
the Milk Code, by which the IAC shall screen advertising,
promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided
for Section 13 in the RIRR which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope
of this Code must be objective and should not equate or make the
product appear to be as good or equal to breastmilk or breastfeeding
in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or
indirectly suggest that buying their product would produce better
individuals, or resulting in greater love, intelligence, ability, harmony
or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations
on advertising, promotion, and marketing. Through that single
provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-
a-vis breastmilk substitutes, supplements and other related
products. It also sets a viable standard against which the IAC may
screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64
the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards
the following: "public interest," "justice and equity," "public
convenience and welfare," and "simplicity, economy and welfare."65
In this case, correct information as to infant feeding and nutrition is
infused with public interest and welfare.
4. With regard to activities for dissemination of information to health
professionals, the Court also finds that there is no inconsistency
between the provisions of the Milk Code and the RIRR. Section
7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same
Code, allows dissemination of information to health professionals but
such information is restricted to scientific and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not
prohibit the giving of information to health professionals on scientific
and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in
activities for the promotion, education and production of
Information, Education and Communication (IEC) materials
regarding breastfeeding that are intended for women and children.
Said provision cannot be construed to encompass even the
dissemination of information to health professionals, as restricted by
the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code
permits milk manufacturers and distributors to extend assistance in
research and in the continuing education of health professionals,
while Sections 22 and 32 of the RIRR absolutely forbid the same.
Petitioner also assails Section 4(i)69 of the RIRR prohibiting milk
manufacturers' and distributors' participation in any policymaking
body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their
representatives should not form part of any policymaking body or
entity in relation to the advancement of breastfeeding. The Court
finds nothing in said provisions which contravenes the Milk Code.
64
Note that under Section 12(b) of the Milk Code, it is the DOH which
shall be principally responsible for the implementation and
Petitioner complains that Section 3273 of the RIRR prohibits milk
enforcement of the provisions of said Code. It is entirely up to the
companies from giving assistance, support, logistics or training to
DOH to decide which entities to call upon or allow to be part of
health workers. This provision is within the prerogative given to the
policymaking bodies on breastfeeding. Therefore, the RIRR's
DOH under Section 8(e)74 of the Milk Code, which provides that
prohibition on milk companies’ participation in any policymaking
manufacturers and distributors of breastmilk substitutes may assist
body in relation to the advancement of breastfeeding is in accord
in researches, scholarships and the continuing education, of health
with the Milk Code.
professionals in accordance with the rules and regulations
promulgated by the Ministry of Health, now DOH.

Petitioner is also mistaken in arguing that Section 22 of the RIRR

prohibits milk companies from giving reasearch assistance and
6. As to the RIRR's prohibition on donations, said provisions are also
continuing education to health professionals. Section 2270 of the
consistent with the Milk Code. Section 6(f) of the Milk Code provides
RIRR does not pertain to research assistance to or the continuing
that donations may be made by manufacturers and distributors of
education of health professionals; rather, it deals with breastfeeding
breastmilk substitutes upon the request or with the approval of the
promotion and education for women and children. Nothing in Section
DOH. The law does not proscribe the refusal of donations. The Milk
22 of the RIRR prohibits milk companies from giving assistance for
Code leaves it purely to the discretion of the DOH whether to request
research or continuing education to health professionals; hence,
or accept such donations. The DOH then appropriately exercised its
petitioner's argument against this particular provision must be struck
discretion through Section 5175 of the RIRR which sets forth its
down.
policy not to request or approve donations from manufacturers and
distributors of breastmilk substitutes.

It is Sections 971 and 1072 of the RIRR which govern research

assistance. Said sections of the RIRR provide that research
It was within the discretion of the DOH when it provided in Section
assistance for health workers and researchers may be allowed upon
52 of the RIRR that any donation from milk companies not covered
approval of an ethics committee, and with certain disclosure
by the Code should be coursed through the IAC which shall
requirements imposed on the milk company and on the recipient of
determine whether such donation should be accepted or refused. As
the research award.
reasoned out by respondents, the DOH is not mandated by the Milk
Code to accept donations. For that matter, no person or entity can
be forced to accept a donation. There is, therefore, no real
The Milk Code endows the DOH with the power to determine how
inconsistency between the RIRR and the law because the Milk Code
such research or educational assistance may be given by milk
does not prohibit the DOH from refusing donations.
companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations
on the kind of research done or extent of assistance given by milk
companies are completely in accord with the Milk Code.

65
7. With regard to Section 46 of the RIRR providing for administrative
sanctions that are not found in the Milk Code, the Court upholds
petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air
Lines, Inc.76 is misplaced. The glaring difference in said case and
the present case before the Court is that, in the Civil Aeronautics
Board, the Civil Aeronautics Administration (CAA) was expressly
granted by the law (R.A. No. 776) the power to impose fines and
civil penalties, while the Civil Aeronautics Board (CAB) was granted
by the same law the power to review on appeal the order or decision
of the CAA and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the Court
upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the
Philippines, Inc.,77 the Court upheld the Department of Energy
(DOE) Circular No. 2000-06-10 implementing Batas Pambansa
(B.P.) Blg. 33. The circular provided for fines for the commission of
prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by
B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or impose
administrative fines. Thus, without any express grant of power to fix
or impose such fines, the DOH cannot provide for those fines in the
RIRR. In this regard, the DOH again exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR. Said
provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and
regulations. Section 12(b) (3) of the Milk Code authorizes the DOH
to "cause the prosecution of the violators of this Code and other
pertinent laws on products covered by this Code." Section 13 of the
Milk Code provides for the penalties to be imposed on violators of
the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
SECTION 13. Sanctions –
(a) Any person who violates the provisions of this Code or the rules
and regulations issued pursuant to this Code shall, upon conviction,
be punished by a penalty of two (2) months to one (1) year
imprisonment or a fine of not less than One Thousand Pesos
(P1,000.00) nor more than Thirty Thousand Pesos (P30,000.00) or
both. Should the offense be committed by a juridical person, the
chairman of the Board of Directors, the president, general manager,
or the partners and/or the persons directly responsible therefor,
shall be penalized.
(b) Any license, permit or authority issued by any government
agency to any health worker, distributor, manufacturer, or
marketing firm or personnel for the practice of their profession or
occupation, or for the pursuit of their business, may, upon
recommendation of the Ministry of Health, be suspended or revoked
in the event of repeated violations of this Code, or of the rules and
regulations issued pursuant to this Code. (Emphasis supplied)
8. Petitioner’s claim that Section 57 of the RIRR repeals existing laws
that are contrary to the RIRR is frivolous.
Section 57 reads:
66
SECTION 57. Repealing Clause - All orders, issuances, and rules and
regulations or parts thereof inconsistent with these revised rules and
implementing regulations are hereby repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but
only orders, issuances and rules and regulations. Thus, said
provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative
or rule-making power or the power to make rules and regulations
which results in delegated legislation that is within the confines of
the granting statute and the Constitution, and subject to the doctrine
of non-delegability and separability of powers.78 Such express grant
of rule-making power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow administrative
agencies flexibility in formulating and adjusting the details and
manner by which they are to implement the provisions of a law,80
in order to make it more responsive to the times. Hence, it is a
standard provision in administrative rules that prior issuances of
administrative agencies that are inconsistent therewith are declared
repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the
authority of the DOH to promulgate and in contravention of the Milk
Code and, therefore, null and void. The rest of the provisions of the
RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive to the
due process clause of the Constitution, insofar as the same is in
restraint of trade and because a provision therein is inadequate to
provide the public with a comprehensible basis to determine whether
or not they have committed a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86
32,87 46,88 and 5289 as the provisions that suppress the trade of
milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be
subjected to some form of regulation for the public good. Public
interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide
Authority,91 it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut
Desiccators v. Philippine Coconut Authority, despite the fact that
"our present Constitution enshrines free enterprise as a policy, it
nonetheless reserves to the government the power to intervene
whenever necessary to promote the general welfare." There can be
no question that the unregulated use or proliferation of pesticides
would be hazardous to our environment. Thus, in the aforecited
case, the Court declared that "free enterprise does not call for
removal of ‘protective regulations’." x x x It must be clearly
explained and proven by competent evidence just exactly how such
protective regulation would result in the restraint of trade.
[Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk
manufacturers’ participation in any policymaking body (Section
4(i)), classes and seminars for women and children (Section 22); the
giving of assistance, support and logistics or training (Section 32);
and the giving of donations (Section 52) would unreasonably hamper
67
the trade of breastmilk substitutes. Petitioner has not established
that the proscribed activities are indispensable to the trade of
breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and
oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the
RIRR is unreasonable and oppressive. Said section provides for the
definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner,
manufacturer, distributor of infant formula, follow-up milk, milk
formula, milk supplement, breastmilk substitute or replacement, or
by any other description of such nature, including their
representatives who promote or otherwise advance their commercial
interests in marketing those products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in
the public or private sector engaged in the business (whether directly
or indirectly) of marketing at the wholesale or retail level a product
within the scope of this Code. A "primary distributor" is a
manufacturer's sales agent, representative, national distributor or
broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public
or private sector engaged in the business or function (whether
directly or indirectly or through an agent or and entity controlled by
or under contract with it) of manufacturing a products within the
scope of this Code.
Notably, the definition in the RIRR merely merged together under
the term "milk company" the entities defined separately under the
Milk Code as "distributor" and "manufacturer." The RIRR also
enumerated in Section 5(w) the products manufactured or
distributed by an entity that would qualify it as a "milk company,"
whereas in the Milk Code, what is used is the phrase "products within
the scope of this Code." Those are the only differences between the
definitions given in the Milk Code and the definition as re-stated in
the RIRR.
Since all the regulatory provisions under the Milk Code apply equally
to both manufacturers and distributors, the Court sees no harm in
the RIRR providing for just one term to encompass both entities. The
definition of "milk company" in the RIRR and the definitions of
"distributor" and "manufacturer" provided for under the Milk Code
are practically the same.
The Court is not convinced that the definition of "milk company"
provided in the RIRR would bring about any change in the treatment
or regulation of "distributors" and "manufacturers" of breastmilk
substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the
RIRR are in consonance with the objective, purpose and intent of the
Milk Code, constituting reasonable regulation of an industry which
affects public health and welfare and, as such, the rest of the RIRR
do not constitute illegal restraint of trade nor are they violative of
the due process clause of the Constitution.
68
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11
and 46 of Administrative Order No. 2006-0012 dated May 12, 2006
are declared NULL and VOID for being ultra vires. The Department
of Health and respondents are PROHIBITED from implementing said
provisions.
The Temporary Restraining Order issued on August 15, 2006 is
LIFTED insofar as the rest of the provisions of Administrative Order
No. 2006-0012 is concerned.
SO ORDERED.
G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL
PIÑOL, for and in his own behalf, petitioners,
vs.
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 duly-
appointed Presidential Adviser on the Peace Process (OPAPP) or the
so-called Office of the Presidential Adviser on the Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
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 of Zamboanga, petitioners,
vs.
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
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE
LLUCH CRUZ, petitioner,
vs.
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.
69
 ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
x--------------------------------------------x
vs.

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE

G.R. No. 183951 October 14, 2008
NEGOTIATING PANEL, represented by its Chairman RODOLFO C.
GARCIA, and the MORO ISLAMIC LIBERATION FRONT PEACE
NEGOTIATING PANEL, represented by its Chairman MOHAGHER
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as IQBAL, respondents.
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 x--------------------------------------------x
Panlalawigan, HON. CECILIA JALOSJOS CARREON, Congresswoman,
1st Congressional District, HON. CESAR G. JALOSJOS, Congressman,
3rd Congressional District, and Members of the Sangguniang
FRANKLIN M. DRILON and ADEL ABBAS TAMANO, petitioners-in-
Panlalawigan of the Province of Zamboanga del Norte, namely, HON.
intervention.
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. x--------------------------------------------x
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO,
petitioners, SEN. MANUEL A. ROXAS, petitioners-in-intervention.

vs.

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE x--------------------------------------------x

NEGOTIATING PANEL [GRP], as represented by HON. RODOLFO C.
GARCIA and HON. HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process, respondents. MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor
NOEL N. DEANO, petitioners-in-intervention,

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

G.R. No. 183962 October 14, 2008

THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR
CHERRYLYN P. SANTOS-AKBAR, petitioners-in-intervention.
70

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
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF,
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
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of
the President in pursuing the peace process. While the facts
surrounding this controversy center on the armed conflict in
Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in
the country where there has been a long-standing armed conflict.
Yet again, the Court is tasked to perform a delicate balancing act. It
must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts
the 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
71
 respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat
On August 5, 2008, the Government of the Republic of the
or force to attain undue advantage while the peace negotiations on
Philippines (GRP) and the MILF, through the Chairpersons of their
the substantive agenda are on-going.2
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. Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end of
1999 up to early 2000, the MILF attacked a number of municipalities
in Central Mindanao and, in March 2000, it took control of the town
The MILF is a rebel group which was established in March 1984 when,
hall of Kauswagan, Lanao del Norte.3 In response, then President
under the leadership of the late Salamat Hashim, it splintered from
Joseph Estrada declared and carried out an "all-out-war" against the
the Moro National Liberation Front (MNLF) then headed by Nur MILF.
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
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The MILF,
The signing of the MOA-AD between the GRP and the MILF was not
according to a leading MILF member, initially responded with deep
to materialize, however, for upon motion of petitioners, specifically
reservation, but when President Arroyo asked the Government of
those who filed their cases before the scheduled signing of the MOA-
Malaysia through Prime Minister Mahathir Mohammad to help
AD, this Court issued a Temporary Restraining Order enjoining the
convince the MILF to return to the negotiating table, the MILF
GRP from signing the same.
convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4

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

concluding of several prior agreements between the two parties
The parties met in Kuala Lumpur on March 24, 2001, with the talks
beginning in 1996, when the GRP-MILF peace negotiations began.
being facilitated by the Malaysian government, the parties signing
On July 18, 1997, the GRP and MILF Peace Panels signed the
on the same date the Agreement on the General Framework for the
Agreement on General Cessation of Hostilities. The following year,
Resumption of Peace Talks Between the GRP and the MILF. The MILF
they signed the General Framework of Agreement of Intent on
thereafter suspended all its military actions.5
August 27, 1998.

Formal peace talks between the parties were held in Tripoli, Libya
The Solicitor General, who represents respondents, summarizes the
from June 20-22, 2001, the outcome of which was the GRP-MILF
MOA-AD by stating that the same contained, among others, the
Tripoli Agreement on Peace (Tripoli Agreement 2001) containing the
commitment of the parties to pursue peace negotiations, protect and
basic principles and agenda on the following aspects of the
72
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the
Commonly impleaded as respondents are the GRP Peace Panel on
parties in Tripoli Agreement 2001 simply agreed "that the same be
Ancestral Domain7 and the Presidential Adviser on the Peace Process
discussed further by the Parties in their next meeting."
(PAPP) Hermogenes Esperon, Jr.

A second round of peace talks was held in Cyberjaya, Malaysia on

On July 23, 2008, the Province of North Cotabato8 and Vice-
August 5-7, 2001 which ended with the signing of the Implementing
Governor Emmanuel Piñol filed a petition, docketed as G.R. No.
Guidelines on the Security Aspect of the Tripoli Agreement 2001
183591, for Mandamus and Prohibition with Prayer for the Issuance
leading to a ceasefire status between the parties. This was followed
of Writ of Preliminary Injunction and Temporary Restraining Order.9
by the Implementing Guidelines on the Humanitarian Rehabilitation
Invoking the right to information on matters of public concern,
and Development Aspects of the Tripoli Agreement 2001, which was
petitioners seek to compel respondents to disclose and furnish them
signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there
the complete and official copies of the MOA-AD including its
were many incidence of violence between government forces and
attachments, and to prohibit the slated signing of the MOA-AD,
the MILF from 2002 to 2003.
pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.10
Meanwhile, then MILF Chairman Salamat Hashim passed away on
July 13, 2003 and he was replaced by Al Haj Murad, who was then
the chief peace negotiator of the MILF. Murad's position as chief
This initial petition was followed by another one, docketed as G.R.
peace negotiator was taken over by Mohagher Iqbal.6
No. 183752, also for Mandamus and Prohibition11 filed by the City
of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar injunctive
In 2005, several exploratory talks were held between the parties in
reliefs. Petitioners herein moreover pray that the City of Zamboanga
Kuala Lumpur, eventually leading to the crafting of the draft MOA-
be excluded from the Bangsamoro Homeland and/or Bangsamoro
AD in its final form, which, as mentioned, was set to be signed last
Juridical Entity and, in the alternative, that the MOA-AD be declared
August 5, 2008.
null and void.

II. STATEMENT OF THE PROCEEDINGS

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

73
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
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,
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep.
Cesar Jalosjos, and the members18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as
G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared
null and void and without operative effect, and that respondents be
enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20 docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the MOA-
AD and or any 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 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
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan
Kudarat22 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
Jagmis, all of Palawan City. The Muslim Legal Assistance Foundation,
Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and
Development (MMMPD) filed their respective Comments-in-
Intervention.
By subsequent Resolutions, the Court ordered the consolidation of
the petitions. Respondents filed Comments on the petitions, while
some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008,
stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met
with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29,
2008 that tackled the following principal issues:
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;
74
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-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's 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;
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 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, as well as the two comments-in-intervention in favor
of the MOA-AD, the Court takes an overview of the MOA.
75
The MOA-AD identifies the Parties to it as the GRP and the MILF.

As Muslim States entered into treaties with their neighbors, even

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 Independent Countries
in relation to the UN Declaration on the Rights of the Indigenous
Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of
"compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory
under peace agreement) that partakes the nature of a treaty
device."
with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-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-mua'hada (land of compact) and dar-ul-sulh (land of
treaty) referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom
of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating
from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to
all other agreements between the MILF and the Philippine
government - the 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 agreement in writing that sets
out understandings, obligations, and benefits for both parties which
provides for a framework that elaborates the principles declared in
the [MOA-AD]."29

The MOA-AD states that the Parties "HAVE AGREED AND

During the height of the Muslim Empire, early Muslim jurists tended ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
to see the world through a simple dichotomy: there was the dar-ul-
Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The
first referred to those lands where Islamic laws held sway, while the
The main body of the MOA-AD is divided into four strands, namely,
second denoted those lands where Muslims were persecuted or
Concepts and Principles, Territory, Resources, and Governance.
where Muslim laws were outlawed or ineffective.27 This way of
viewing the world, however, became more complex through the
centuries as the Islamic world became part of the international
A. CONCEPTS AND PRINCIPLES
community of nations.

76
This strand begins with the statement that it is "the birthright of all
Moros and all Indigenous peoples of Mindanao to identify themselves
and be accepted as ‘Bangsamoros.'" It defines "Bangsamoro people"
as the natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of
conquest or colonization, and their descendants whether mixed or of
full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the
MOA-AD, includes not only "Moros" as traditionally understood even
by Muslims,31 but all indigenous peoples of Mindanao and its
adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice
consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people
by virtue of their prior rights of occupation.32 Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of
the public domain.33
The Bangsamoro people are acknowledged as having the right to
self-governance, which right is said to be rooted on ancestral
territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates
were described as states or "karajaan/kadatuan" resembling a body
politic endowed with all the elements of a nation-state in the modern
sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the sultanates.
As gathered, the territory defined as the Bangsamoro homeland was
ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of
independent principalities (pangampong) each ruled by datus and
sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the
‘First Nation' with defined territory and with a system of government
having entered into treaties of amity and commerce with foreign
nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally
entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."36 To that extent,
the MOA-AD, by identifying the Bangsamoro people as "the First
Nation" - suggesting its exclusive entitlement to that designation -
departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro
Juridical Entity" (BJE) to which it grants the authority and jurisdiction
over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains,
including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.38
77
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, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi
City. Significantly, this core also includes certain municipalities of
Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to be
subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, 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 called "Special Intervention
Areas," on the other hand, are to be subjected to a plebiscite twenty-
five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41
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 west of
mainland Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all
natural resources.43 Notably, the jurisdiction over the internal
waters is not similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the
territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among
which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of
police and safety measures.45 There is no similar provision on the
sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have
the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include
aggression against the 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 Central Government. The Central Government is also bound
to "take necessary steps to ensure the BJE's 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
With regard to the right of exploring for, producing, and obtaining
all potential sources of energy, petroleum, fossil fuel, mineral oil and
natural gas, the jurisdiction and control thereon is to be vested in
the BJE "as the party having control within its territorial jurisdiction."
This right carries the proviso that, "in times of national emergency,
when public interest so requires," the Central Government may, for
78
a fixed period and under reasonable terms as may be agreed upon
by both Parties, assume or direct the operation of such resources.48
The "associative" relationship

between the Central Government

The sharing between the Central Government and the BJE of total
and the BJE
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
responsibility. And it states that the structure of governance is to be
people arising from any unjust dispossession of their territorial and
based on executive, legislative, judicial, and administrative
proprietary rights, customary land tenures, or their marginalization
institutions with defined powers and functions in the Comprehensive
shall be acknowledged. Whenever restoration is no longer possible,
Compact.
reparation is to be in such form as mutually determined by the
Parties.50

The MOA-AD provides that its provisions requiring "amendments to

the existing legal framework" shall take effect upon signing of the
The BJE may modify or cancel the forest concessions, timber
Comprehensive Compact and upon effecting the aforesaid
licenses, contracts or agreements, mining concessions, Mineral
amendments, with due regard to the non-derogation of prior
Production and Sharing Agreements (MPSA), Industrial Forest
agreements and within the stipulated timeframe to be contained in
Management Agreements (IFMA), and other land tenure instruments
the Comprehensive Compact. As will be discussed later, much of the
granted by the Philippine Government, including those issued by the
present controversy hangs on the legality of this provision.
present ARMM.51

D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to
observe and monitor the implementation of the Comprehensive
Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides
that the participation of the third party shall not in any way affect
the status of the relationship between the Central Government and
the BJE.52
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of
which shall be discussed in the negotiation of the comprehensive
compact.
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
79
signatories as "the representatives of the Parties," meaning the GRP
and MILF themselves, and not merely of the negotiating panels.53
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 Affairs of RP and Dato' Seri Utama Dr.
Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom
were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to
resolve 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
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 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 prerequisite that something had then been accomplished or
performed by either branch before a court may come into the
picture,60 and the petitioner must allege the existence of an
immediate or threatened injury to itself as a result of the challenged
action.61 He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act
complained of.62
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
80
In the cases at bar, it is respectfully submitted that this Honorable Comprehensive Compact within fifteen (15) months from the signing
Court has no authority to pass upon issues based on hypothetical or of the MOA-AD.
feigned constitutional 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' xxxx
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
GOVERNANCE
imaginary and illusory apart from being unfounded and based on
mere conjectures. (Underscoring supplied)

xxxx

The Solicitor General cites63 the following provisions of the MOA-

AD:
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
TERRITORY
occur effectively.

xxxx
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
2. Toward this end, the Parties enter into the following stipulations: 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)
xxxx

The Solicitor General's arguments fail to persuade.

d. 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 Concrete acts under the MOA-AD are not necessary to render the
the MOA-AD, a plebiscite covering the areas as enumerated in the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court
list and depicted in the map as Category A attached herein (the held:
"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

81
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 Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's 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 effect until January 1, 1996,
because the parties agreed that New York had to take immediate
action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted by law
when 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 appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive
Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said
executive order requires that "[t]he government's policy framework
for peace, including the systematic approach and the administrative
structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
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. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD
violate the Constitution. The MOA-AD provides that "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," 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
82
another violation of its authority. Again, these points will be
discussed in more detail later.
For a taxpayer, one is allowed to sue where there is an assertion
that public funds are illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public funds through the
As the petitions allege acts or omissions on the part of respondent
enforcement of an invalid or unconstitutional law.82 The Court
that exceed their authority, by violating their duties under E.O. No.
retains discretion whether or not to allow a taxpayer's suit.83
3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus,
and an actual case or controversy ripe for adjudication exists. When
In the case of a legislator or member of Congress, an act of the
an act of a branch of government is seriously alleged to have
Executive that injures the institution of Congress causes a derivative
infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute.77 but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing
to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in his office.84
B. LOCUS STANDI

An organization may be granted standing to assert the rights of its

For a party to have locus standi, one must allege "such a personal
members,85 but the mere invocation by the Integrated Bar of the
stake in the outcome of the controversy as to assure that concrete
Philippines or any member of the legal profession of the duty to
adverseness which sharpens the presentation of issues upon which preserve the rule of law does not suffice to clothe it with standing.86
the court so largely depends for illumination of difficult constitutional
questions."78

As regards a local government unit (LGU), it can seek relief in order

to protect or vindicate an interest of its own, and of the other
Because constitutional cases are often public actions in which the
LGUs.87
relief sought is likely to affect other persons, a preliminary question
frequently arises as to this interest in the constitutional question
raised.79
Intervenors, meanwhile, may be given legal standing upon showing
of facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or
When suing as a citizen, the person complaining must allege that he
in the success of either of the parties.
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
In any case, the Court has discretion to relax the procedural
When the issue concerns a public right, it is sufficient that the
technicality on locus standi, given the liberal attitude it has
petitioner is a citizen and has an interest in the execution of the
exercised, highlighted in the case of David v. Macapagal-Arroyo,89
laws.81
83
where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in
view of their seriousness, novelty and weight as precedents.90 The
Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.91
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 petitioners-in-intervention Province of Sultan Kudarat,
City of 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, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they
did not vote for their inclusion in the ARMM which would be expanded
to form the BJE territory. Petitioners' legal standing is thus beyond
doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and
Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some
right or privilege or there would be wastage of public funds. The fact
that they are a former Senator, an incumbent mayor of Makati City,
and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their
standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite
to delineate the BJE territory. On that score alone, they can be given
legal standing. Their allegation that the issues involved in these
petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these
petitions.
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 respondents of the public's constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the
parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B. Gomez, et al., as members of
the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of
Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the
Court exercises its discretion to relax the procedural technicality on
locus standi given the paramount public interest in the issues at
hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace
and Development, an advocacy group for justice and the attainment
of peace and prosperity in Muslim Mindanao; and Muslim Legal
84
Assistance Foundation Inc., a non-government organization of
Muslim lawyers, allege that they stand to be benefited or prejudiced,
as the case may be, in the resolution of the petitions concerning the
MOA-AD, and prays for the denial of the petitions on the grounds
therein stated. Such legal interest suffices to clothe them with
standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered
moot with the satisfaction of all the reliefs prayed for by petitioners
and the subsequent 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.93
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 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
repetition yet evading review.98
Another exclusionary circumstance that may be considered is where
there is 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
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.
Romulo100 and Manalo v. Calderon101 where the Court similarly
decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing
of the 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 Court's
issuance of a Temporary Restraining Order.
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 "consensus points," foremost of
which is the creation of the BJE.
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
85
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-going and future negotiations and agreements
necessary for its realization. The petitions have not, 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
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory
and the wide-ranging political modifications of affected LGUs. The
assertion that the MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not
"pontificat[e] on issues which no longer legitimately constitute an
actual case or controversy [as this] will do more harm than good to
the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily,
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
parties-the government and a private foreign corporation. As the
issues therein involved specific government procurement policies
and standard principles on contracts, the majority opinion in Suplico
found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the
controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a
series of agreements necessary to carry out the Tripoli Agreement
2001. The MOA-AD which dwells on the Ancestral Domain Aspect of
said Tripoli Agreement is the third such component to be undertaken
following the implementation of the Security Aspect in August 2001
and the Humanitarian, Rehabilitation and Development Aspect in
May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that "no matter
what the Supreme Court ultimately decides[,] the government will
not sign the MOA[-AD]," mootness will not set in in light of the terms
of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will
be drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the
word of the Executive Secretary that the government "is committed
to securing an 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 on the merits in the present
petitions to formulate controlling principles to guide the bench, the
bar, the public and, most especially, the government in negotiating
with the MILF regarding Ancestral Domain.
86

Respondents invite the Court's attention to the separate opinion of
then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in
which he stated that the doctrine of "capable of repetition yet
evading review" can override 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.
The present petitions all contain prayers for Prohibition over which
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 jurisdiction over most if not the rest of the
petitions.
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 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 future as
respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions
have become moot, respondents having, by Compliance of August
7, 2008, provided this Court and petitioners with official copies of
the final draft of the MOA-AD and its annexes. Too, intervenors have
been furnished, or have procured for themselves, copies of the MOA-
AD.
V. SUBSTANTIVE ISSUES
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 provisions, viz:
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?
2. Do the contents of the MOA-AD violate the Constitution and the
laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on 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
87

As early as 1948, in Subido v. Ozaeta,108 the Court has recognized
the statutory right to examine and inspect public records, a right
which was eventually accorded constitutional status.
manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains
responsive to the changes desired by the people.113

The MOA-AD is a matter of public concern

The right of access to public documents, as enshrined in both the

1973 Constitution and the 1987 Constitution, has been recognized
That the subject of the information sought in the present cases is a
as a self-executory constitutional right.109
matter of public concern114 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
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court
transactions entered in the Register of Deeds,116 the need for
ruled that access to public records is predicated on the right of the
adequate notice to the public of the various laws,117 the civil service
people to acquire information on matters of public concern since,
eligibility of a public employee,118 the proper management of GSIS
undoubtedly, in a democracy, the pubic has a legitimate interest in
funds allegedly used to grant loans to public officials,119 the
matters of social and political significance.
recovery of the Marcoses' alleged ill-gotten wealth,120 and the
identity of party-list nominees,121 among others, are matters of
public concern. Undoubtedly, the MOA-AD subject of the present
x x x The incorporation of this right in the Constitution is a cases is of public concern, involving as it does the sovereignty and
recognition of the fundamental role of free exchange of information territorial integrity of the State, which directly affects the lives of the
in a democracy. There can be no realistic perception by the public of public at large.
the nation's 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
Matters of public concern covered by the right to information include
the exigencies of the times. As has been aptly observed:
steps and negotiations leading to the consummation of the contract.
"Maintaining the flow of such information depends on protection for
In not distinguishing as to the executory nature or commercial
both its acquisition and its dissemination since, if either process is
character of agreements, the Court has categorically ruled:
interrupted, the flow inevitably ceases." x x x111

x x x [T]he right to information "contemplates inclusion of

In the same way that free discussion enables members of society to
negotiations leading to the consummation of the transaction."
cope with the exigencies of their time, access to information of
Certainly, a consummated contract is not a requirement for the
general interest aids the people in democratic decision-making by
exercise of the right to information. Otherwise, the people can never
giving them a better perspective of the vital issues confronting the
exercise the right if no contract is consummated, and if one is
nation112 so that they may be able to criticize and participate in the consummated, it may be too late for the public to expose its defects.
affairs of the government in a responsible, reasonable and effective

88

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)
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 the Constitution reading:
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
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 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 people's 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.
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.128
The following discourse, after Commissioner Hilario Davide, Jr.,
sought clarification on the issue, is enlightening.
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 self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, 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"
89
MR. DAVIDE. But as worded, does it not mean that this will mechanisms so that the people can participate and can react where
immediately take effect and Congress may provide for reasonable the existing media facilities are not able to provide full feedback
safeguards on the sole ground national interest? mechanisms to the government? I suppose this will be part of the
government implementing operational mechanisms.

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)
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
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 MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
safeguards." The complete and effective exercise of the right to sentence?
information necessitates that its complementary provision on public
disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader130
I think when we talk about the feedback network, we are not talking
right to information on matters of public concern is already
about public officials but also network of private business o[r]
enforceable while the correlative duty of the State to disclose its
community-based organizations that will be reacting. As a matter of
transactions involving public interest is not enforceable until there is
fact, we will put more credence or credibility on the private network
an enabling law. Respondents cannot thus point to the absence of
of volunteers and voluntary community-based organizations. So I do
an implementing legislation as an excuse in not effecting such policy.
not think we are afraid that there will be another OMA in the
making.132 (Emphasis supplied)

An essential element of these freedoms is to keep open a continuing

dialogue or process of communication between the government and
The imperative of a public consultation, as a species of the right to
the people. It is in the interest of the State that the channels for free
information, is evident in the "marching orders" to respondents. The
political discussion be maintained to the end that the government
mechanics for the duty to disclose information and to conduct public
may perceive and be responsive to the people's will.131 Envisioned
consultation regarding the peace agenda and process is manifestly
to be corollary to the twin rights to information and disclosure is the
provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
design for feedback mechanisms.
declares that there is a need to further enhance the contribution of
civil society to the comprehensive peace process by institutionalizing
the people's participation.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the
people be able to participate? Will the government provide feedback
90
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the
The PAPP committed grave abuse of discretion when he failed to
sentiments, values and principles important to all Filipinos" and
carry out the pertinent consultation. The furtive process by which
"shall be defined not by the government alone, nor by the different
the MOA-AD was designed and crafted runs contrary to and in excess
contending groups only, but by all Filipinos as one community."134
of the legal authority, and amounts to a whimsical, capricious,
Included as a component of the comprehensive peace process is
oppressive, arbitrary and despotic exercise thereof.
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 mobilization and
facilitation of people's participation in the peace process."135 The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require
him to comply with the law and discharge the functions within the
authority granted by the President.139
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite
to effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Petitioners are not claiming a seat at the negotiating table, contrary
to respondents' retort in justifying the denial of petitioners' right to
be consulted. Respondents' stance manifests the manner by which
Further, E.O. No. 3 enumerates the functions and responsibilities of
they treat the salient provisions of E.O. No. 3 on people's
the PAPP, one of which is to "[c]onduct regular dialogues with the
participation. Such disregard of the express mandate of the
National Peace Forum (NPF) and other peace partners to seek
President is not much different from superficial conduct toward token
relevant information, comments, recommendations as well as to
provisos that border on classic lip service.140 It illustrates a gross
render appropriate and timely reports on the progress of the
evasion of positive duty and a virtual refusal to perform the duty
comprehensive peace process."137 E.O. No. 3 mandates the
enjoined.
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 for respondents' invocation of the doctrine of executive privilege,
as well as for government[-]civil society dialogue and consensus- it is not tenable under the premises. The argument defies sound
building on peace agenda and initiatives."138 reason when contrasted with E.O. No. 3's explicit provisions on
continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the
public's right even before the GRP makes its official
In fine, E.O. No. 3 establishes petitioners' right to be consulted on
recommendations or before the government proffers its definite
the peace agenda, as a corollary to the constitutional right to
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit
information and disclosure.
relevant advice, information, comments and recommendations from
the people through dialogue.

PAPP Esperon committed grave abuse of discretion

91
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a
manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991
declares it a State policy to "require all national agencies and offices
to conduct periodic consultations with appropriate local government
units, non-governmental and people's organizations, and other
concerned sectors of the community before any project or program
is implemented in their respective jurisdictions"142 is well-taken.
The LGC chapter on intergovernmental relations puts flesh into this
avowed policy:
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)
In Lina, Jr. v. Hon. Paño,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 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 unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their
total environment.
With respect to the indigenous cultural communities/indigenous
peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and 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 d'etre 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
provisions requiring changes to the legal framework, such clause is
itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance.
This has to be so if the country is to remain democratic, with
92
sovereignty residing in the people and all government authority
emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
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 upon how
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 powers conceded therein to the BJE. Petitioners assert that
the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that
would have been vested in the 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 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 mentioned provision, however, that the MOA-AD most clearly
uses it to describe the envisioned relationship between the BJE and
the Central Government.
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)
The nature of the "associative" relationship may have been intended
to be defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of "association"
in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an
international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative"
in the MOA-AD.
Keitner and Reisman state that
[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 x150 (Emphasis and underscoring supplied)
93
 and each party may terminate the association consistent with the
right of independence. It has been said that, with the admission of
For purposes of illustration, the Republic of the Marshall Islands and
the U.S.-associated states to the UN in 1990, the UN recognized that
the Federated States of Micronesia (FSM), formerly part of the U.S.-
the American model of free association is actually based on an
administered Trust Territory of the Pacific Islands,151 are associated
underlying status of independence.152
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,
In international practice, the "associated state" arrangement has
which is a mark of their statehood. Their international legal status
usually been used as a transitional device of former colonies on their
as states was confirmed by the UN Security Council and by their
admission to UN membership. way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent
and Grenada. All have since become independent states.153
According to their compacts of free association, the Marshall Islands
and the FSM generally have the capacity to conduct foreign affairs
in their own name and right, such capacity extending to matters such
Back to the MOA-AD, it contains many provisions which are
as the law of the sea, marine resources, trade, banking, postal, civil
consistent with the international legal concept of association,
aviation, and cultural relations. The U.S. government, when
specifically the following: the BJE's capacity to enter into economic
conducting its foreign affairs, is obligated to consult with the
and trade relations with foreign countries, the commitment of the
governments of the Marshall Islands or the FSM on matters which it
Central Government to ensure the BJE's participation in meetings
(U.S. government) regards as relating to or affecting either
and events in the ASEAN and the specialized UN agencies, and the
government.
continuing responsibility of the Central Government over external
defense. Moreover, the BJE's right to participate in Philippine official
missions bearing on negotiation of border agreements,
In the event of attacks or threats against the Marshall Islands or the
environmental protection, and sharing of revenues pertaining to the
FSM, the U.S. government has the authority and obligation to defend
bodies of water adjacent to or between the islands forming part of
them as if they were part of U.S. territory. The U.S. government,
the ancestral domain, resembles the right of the governments of
moreover, has the option of establishing and using military areas
FSM and the Marshall Islands to be consulted by the U.S.
and facilities within these associated states and has the right to bar government on any foreign affairs matter affecting them.
the military personnel of any third country from having access to
these territories for military purposes.

These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state or,
It bears noting that in U.S. constitutional and international practice,
at any rate, a status closely approximating it.
free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty
which is subordinate to the associated nation's national constitution,

94
The concept of association is not recognized under the present entity than the autonomous region
Constitution
recognized in the 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
relationship with the national government being fundamentally
national government. Indeed, the concept implies powers that go
different from that of the ARMM. Indeed, BJE is a state in all but
beyond anything ever granted by the Constitution to any local or
name as it meets the criteria of a state laid down in the Montevideo
regional government. It also implies the recognition of the
Convention,154 namely, a permanent population, a defined
associated entity as a state. The Constitution, however, does not
territory, a government, and a capacity to enter into relations with
contemplate any state in this jurisdiction other than the Philippine
other states.
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 -
Even the mere concept animating many of the MOA-AD's provisions,
which has betrayed itself by its use of the concept of association -
therefore, already requires for its validity the amendment of
runs counter to the national sovereignty and territorial integrity of
constitutional provisions, specifically the following provisions of
the Republic.
Article X:

The defining concept underlying the relationship between the

SECTION 1. The territorial and political subdivisions of the Republic
national government and the BJE being itself contrary to the present
of the Philippines are the provinces, cities, municipalities, and
Constitution, it is not surprising that many of the specific provisions
barangays. There shall be autonomous regions in Muslim Mindanao
of the MOA-AD on the formation and powers of the BJE are in conflict
and the Cordilleras as hereinafter provided.
with the Constitution and the laws.

SECTION 15. There shall be created autonomous regions in Muslim

Article X, Section 18 of the Constitution provides that "[t]he creation
Mindanao and in the Cordilleras consisting of provinces, cities,
of the autonomous region shall be effective when approved by a
municipalities, and geographical areas sharing common and
majority of the votes cast by the constituent units in a plebiscite
distinctive historical and cultural heritage, economic and social
called for the purpose, provided that only provinces, cities, and
structures, and other relevant characteristics within the framework
geographic areas voting favorably in such plebiscite shall be included
of this Constitution and the national sovereignty as well as territorial
in the autonomous region." (Emphasis supplied)
integrity of the Republic of the Philippines.

The BJE is a far more powerful

95
As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term
(3) Ancestral domain and natural resources;
"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 2(e), the present geographic area
of the ARMM and, in addition, the municipalities of Lanao del Norte (4) Personal, family, and property relations;
which voted for inclusion in the ARMM during the 2001 plebiscite -
Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another plebiscite, in (5) Regional urban and rural planning development;
contrast to the areas under Categories A and B mentioned earlier in
the overview. That the present components of the ARMM and the
above-mentioned municipalities voted for inclusion therein in 2001, (6) Economic, social, and tourism development;
however, does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for then was
their inclusion in the ARMM, not the BJE.
(7) Educational policies;

The MOA-AD, moreover, would not

(8) Preservation and development of the cultural heritage; and
comply with Article X, Section 20 of

the Constitution
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;
(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)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of new
legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the
BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to
merely pass legislation vesting the BJE with treaty-making power in
order to accommodate paragraph 4 of the strand on RESOURCES
which states: "The BJE is free to enter into any economic cooperation
and trade relations with foreign countries: provided, however, that
such relationships and understandings do not include aggression
96
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 Secretary155 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 treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
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
associative arrangement does not uphold national unity. While there
may be a semblance of unity because of 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 practice, has
generally been a preparation for independence, is certainly not
conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are R.A.
No. 9054156 or the Organic Act of the ARMM, and the IPRA.157
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 MOA-
AD. Paragraph 1 on Concepts and Principles states:
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)
This use of the term Bangsamoro sharply contrasts with that found
in the Article X, Section 3 of the Organic Act, which, rather than
lumping together the identities of the Bangsamoro and other
indigenous peoples 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."
97
 all times include genuine involvement and participation by the
members of the communities concerned;
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's
manner of delineating the ancestral domain of the Bangsamoro
d) Proof Required. - Proof of Ancestral Domain Claims shall include
people is a clear departure from that procedure. By paragraph 1 of
the testimony of elders or community under oath, and other
Territory, the Parties simply agree that, subject to the delimitations
documents directly or indirectly attesting to the possession or
in the agreed Schedules, "[t]he Bangsamoro homeland and historic
occupation of the area since time immemorial by such ICCs/IPs in
territory refer to the land mass as well as the maritime, terrestrial,
the concept of owners which shall be any one (1) of the following
fluvial and alluvial domains, and the aerial domain, the atmospheric
authentic documents:
space above it, embracing the Mindanao-Sulu-Palawan geographic
region."

1) Written accounts of the ICCs/IPs customs and traditions;

Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:
2) Written accounts of the ICCs/IPs political structure and
institution;
SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures: 3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;

xxxx
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
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; 5) Survey plans and sketch maps;

c) Delineation Proper. - The official delineation of ancestral domain 6) Anthropological data;

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 7) Genealogical surveys;
be done in coordination with the community concerned and shall at
98

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."
99
Applying this provision of the Constitution, the Court, in Mejoff v. "(ii) Scope of the Right to Self-determination
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 126. The recognized sources of international law establish that the
deportation order had not been executed even after two years. right to self-determination of a people is normally fulfilled through
Similarly, the Court in Agustin v. Edu159 applied the aforesaid internal self-determination - a people's pursuit of its political,
constitutional provision to the 1968 Vienna Convention on Road economic, social and cultural development within the framework of
Signs and Signals. 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,
International law has long recognized the right to self-determination under carefully defined circumstances. x x x
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 External self-determination can be defined as in the following
Canada, the Canadian Supreme Court in REFERENCE RE SECESSION statement from the Declaration on Friendly Relations, supra, as
OF QUEBEC160 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
The establishment of a sovereign and independent State, the free
beyond ‘convention' and is considered a general principle of
association or integration with an independent State or the
international law."
emergence into any other political status freely determined by a
people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)
Among the conventions referred to are the International Covenant
on Civil and Political Rights161 and the International Covenant on
Economic, Social and Cultural Rights162 which state, in Article 1 of
127. The international law principle of self-determination has
both covenants, that all peoples, by virtue of the right of self-
evolved within a framework of respect for the territorial integrity of
determination, "freely determine their political status and freely
existing states. The various international documents that support the
pursue their economic, social, and cultural development."
existence of a people's 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
The people's right to self-determination should not, however, be existing state's territorial integrity or the stability of relations
understood as extending to a unilateral right of secession. A between sovereign states.
distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is again
instructive:
x x x x (Emphasis, italics and underscoring supplied)

100
The Canadian Court went on to discuss the exceptional cases in
which the right to external self-determination can arise, namely,
where a people is 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 to internal 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 institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified
in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS ON
THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.163
There, Sweden presented to the Council of the League of Nations the
question of whether the inhabitants of the Aaland Islands should 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:
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)
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
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.
101
Turning now to the more specific category of indigenous peoples, Indigenous peoples have the right to self-determination. By virtue of
this term has been used, in scholarship as well as international, that right they freely determine their political status and freely
regional, and state practices, to refer to groups with distinct cultures, pursue their economic, social and cultural development.
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 Article 4
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
Indigenous peoples, in exercising their right to self-determination,
engulfed by settler societies born of the forces of empire and
have the right to autonomy or self-government in matters relating
conquest.164 Examples of groups who have been regarded as
to their internal and local affairs, as well as ways and means for
indigenous peoples are the Maori of New Zealand and the aboriginal
financing their autonomous functions.
peoples of Canada.

As with the broader category of "peoples," indigenous peoples
situated within 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 was discussed above as the right
to internal self-determination.
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.

In a historic development last September 13, 2007, the UN General

Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly Resolution
61/295. The vote was 143 to 4, the Philippines being included among
those 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 self-government, to wit:
Self-government, as used in international legal discourse pertaining
to indigenous peoples, has been understood as equivalent to
"internal self-determination."166 The extent of self-determination
provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:

Article 8
Article 3

1. Indigenous peoples and individuals have the right not to be

subjected to forced assimilation or destruction of their culture.

102
2. States shall provide effective mechanisms for prevention of, and the rights and special needs of indigenous elders, women, youth,
redress for: children and persons with disabilities.

(a) Any action which has the aim or effect of depriving them of their Article 26
integrity as distinct peoples, or of their cultural values or ethnic
identities;
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
(b) Any action which has the aim or effect of dispossessing them of otherwise used or acquired.
their lands, territories or resources;

2. Indigenous peoples have the right to own, use, develop and

(c) Any form of forced population transfer which has the aim or effect control the lands, territories and resources that they possess by
of violating or undermining any of their rights; reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.

(d) Any form of forced assimilation or integration;

3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
(e) Any form of propaganda designed to promote or incite racial or due respect to the customs, traditions and land tenure systems of
ethnic discrimination directed against them. the indigenous peoples concerned.

Article 21 Article 30

1. Indigenous peoples have the right, without discrimination, to the 1. Military activities shall not take place in the lands or territories of
improvement of their economic and social conditions, including, inter indigenous peoples, unless justified by a relevant public interest or
alia, in the areas of education, employment, vocational training and otherwise freely agreed with or requested by the indigenous peoples
retraining, housing, sanitation, health and social security. concerned.

2. States shall take effective measures and, where appropriate, 2. States shall undertake effective consultations with the indigenous
special measures to ensure continuing improvement of their peoples concerned, through appropriate procedures and in particular
economic and social conditions. Particular attention shall be paid to
103
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.
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 application by the
different States.
There is, for instance, no requirement in the UN DRIP that States
now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts like
the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential
to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less
significant to them as such peoples would also be the duty of States.
Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space.
What it upholds, in Article 26 thereof, is the right of indigenous
104
peoples to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous
peoples to autonomy, does not obligate States to grant indigenous
peoples the near-independent status of an associated state. All the
rights recognized in that 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.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions
that cannot be reconciled with the Constitution and the laws as
presently worded. Respondents proffer, however, that the signing of
the MOA-AD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent with the laws shall
not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE 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 broad enough to include the Constitution.
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.
105
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.
It bears noting that the GRP Peace Panel, in exploring lasting
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 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 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).
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 President's power
to conduct peace negotiations.
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. In Sanlakas v. Executive
106
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: 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 nation's
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
constitutional structure is required. The observations of Dr. Kirsti
thesis into jurisprudence. There, the Court, by a slim 8-7 margin, Samuels are enlightening, to wit:
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
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
. . . unstated residual powers which are implied from the grant of
years, conflict cessation without modification of the political
executive power and which are necessary for her to comply with her
environment, even where state-building is undertaken through
duties under the Constitution. The powers of the President are not
technical electoral assistance and institution- or capacity-building, is
limited to what are expressly enumerated in the article on the
unlikely to succeed. On average, more than 50 percent of states
Executive Department and in scattered provisions of the
emerging from conflict return to conflict. Moreover, a substantial
Constitution. This is so, notwithstanding the avowed intent of the
proportion of transitions have resulted in weak or limited
members of the Constitutional Commission of 1986 to limit the
democracies.
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. The design of a constitution and its constitution-making 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
Thus, the President's authority to declare a state of rebellion springs
get there. The constitution can be partly a peace agreement and
in the main from her powers as chief executive and, at the same
partly a framework setting up the rules by which the new democracy
time, draws strength from her Commander-in-Chief powers. x x x
will operate.170
(Emphasis and underscoring supplied)

In the same vein, Professor Christine Bell, in her article on the nature
Similarly, the President's power to conduct peace negotiations is
and legal status of peace agreements, observed that the typical way
implicitly included in her powers as Chief Executive and Commander-
that peace agreements establish or confirm mechanisms for
in-Chief. As Chief Executive, the President has the general
demilitarization and demobilization is by linking them to new
responsibility to promote public peace, and as Commander-in-Chief,
constitutional structures addressing governance, elections, and legal
she has the more specific duty to prevent and suppress rebellion and
and human rights institutions.171
lawless violence.169
107

In the Philippine experience, the link between peace agreements and
constitution-making has been recognized by no less than the framers
of the Constitution. Behind the provisions of the Constitution on
autonomous regions172 is the framers' intention to implement a
particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF Chairman Nur
Misuari.
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 Tripoli
Agreement 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)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly
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 is to be expected to find means for bringing
this conflict to an end and to achieve lasting peace in Mindanao, then
she must be given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution
for their implementation. Being uniquely vested with the power to
conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances
which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be prevented
from submitting them as recommendations to Congress, which could
then, if it is minded, act upon them pursuant to the legal procedures
for constitutional 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 constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President
Marcos, it will be recalled, never convened the interim National
Assembly. The majority upheld the President's act, holding that "the
urges of absolute necessity" compelled the President as the agent of
the people to act as he did, there being no interim National Assembly
108
to propose constitutional amendments. Against this ruling, Justices
Teehankee and Muñoz Palma vigorously dissented. The Court's
concern at present, however, is not with regard to the point on which
it was then divided in that controversial case, but on that which was
not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he
disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion
is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim
National Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:
"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 President's
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)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may
validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if
the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the
power to directly propose amendments through initiative and
referendum, the 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 Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit
being formally proposed through initiative.
These recommendations, however, may amount to nothing more
than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may
vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds
from the people. As the Court stated in Lambino v. COMELEC:177
"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."
It will be observed that the President has authority, as stated in her
oath of office,178 only to preserve and defend the Constitution. Such
presidential power does not, however, extend to allowing her to
change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure
for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
109
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted
practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is
in the yearly State of the Nation Address of the President to
Congress. Moreover, the annual general appropriations bill has
always been based on the budget prepared by the President, which
- for all intents and purposes - is a proposal for new legislation
coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-
discussed standards
Given the limited nature of the President's 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 as recommendations either to Congress or the
people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all
provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary changes
to the legal framework." This stipulation does not bear the marks of
a suspensive condition - defined in civil law as a future and uncertain
event - but of a term. It is not a question of whether the necessary
changes to the legal framework will be effected, but when. That
there is no uncertainty being contemplated is plain from what
follows, for the paragraph goes on to state that the contemplated
changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact."
Pursuant 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,
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.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes to
the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted
to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with
a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
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 new administrative
structures through Executive Order, such as the Special Zone of
Peace and Development (SZOPAD) and the Southern Philippines
110
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. No. 6734, which was then the
Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the MOA-
AD. There is, however, a 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] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
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 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 community that it would grant to
the Bangsamoro people all the concessions therein stated. Neither
ground finds sufficient support in international law, however.
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 examination of the
prevailing principles in international law, however, leads to the
contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180
(the Lomé Accord case) of the Special Court of Sierra Leone is
enlightening. The Lomé 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 which were the Government of
the Togolese Republic, the Economic 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 Lomé 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 Lomé 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, not in international law.
111
Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"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 Lomé 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 Lomé
Agreement created neither rights nor obligations capable of being
regulated by international law. An agreement such as the Lomé
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 Lomé 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
112
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 France's 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 bound-the 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.
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 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)
113
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 be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.
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
Mali's President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject
thereof, to wit:
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)
Assessing the MOA-AD in light of the above criteria, it would not
have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel
did not draft the same with the clear intention of being bound
thereby to the international 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
Lomé 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.
114
In one important respect, the circumstances surrounding the MOA-
AD are closer to that of Burkina Faso wherein, as already discussed,
the Mali President's 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 legally
bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating
states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that
prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not
enter into such a formal agreement suggests that it had no intention
to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines
under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that Congress and
the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue
influence or interference with that process.
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 inconsistent with what, in international law, is known
as Jus Cogens.184 Respondents, however, may not preempt it in
that decision.
SUMMARY
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 amendments to the Constitution. Any
alleged violation of the Constitution by any branch of government is
a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents
the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel mooted
the present petitions, the Court finds that the present petitions
provide an exception to the "moot and academic" principle in view
of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and 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 capable of
repetition yet evading review.
115
 An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and
The MOA-AD is a significant part of a series of agreements necessary
the people. Corollary to these twin rights is the design for feedback
to carry out the GRP-MILF Tripoli Agreement on Peace signed by the
mechanisms. The right to public consultation was envisioned to be a
government and the MILF back in June 2001. Hence, the present
species of these public rights.
MOA-AD can be renegotiated or another one drawn up that could
contain similar or significantly dissimilar provisions compared to the
original.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the
Court and the petitioners with the official copy of the final draft of
the MOA-AD and its annexes. One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the
Presidential Adviser on the Peace Process to conduct regular
The people's right to information on matters of public concern under
dialogues to seek relevant information, comments, advice, and
Sec. 7, Article III of the Constitution is in splendid symmetry with
recommendations from peace partners and concerned sectors of
the state policy of full public disclosure of all its transactions society.
involving public interest under Sec. 28, Article II of the Constitution.
The right to information guarantees the right of the people to
demand information, while Section 28 recognizes the duty of
Two, Republic Act No. 7160 or the Local Government Code of 1991
officialdom to give information even if nobody demands. The
requires all national offices to conduct consultations before any
complete and effective exercise of the right to information
project or program critical to the environment and human ecology
necessitates that its complementary provision on public disclosure
including those that may call for the eviction of a particular group of
derive the same self-executory nature, subject only to reasonable
people residing in such locality, is implemented therein. The MOA-
safeguards or limitations as may be provided by law.
AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of
The contents of the MOA-AD is a matter of paramount public concern
a great number of inhabitants from their total environment.
involving public interest in the highest order. In declaring that the
right to information contemplates steps and negotiations leading to
the consummation of the contract, jurisprudence finds no distinction
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act
as to the executory nature or commercial character of the
agreement. of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the
116
statute 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 invocation of the doctrine of executive privilege as a defense to
the general right to information or the specific right to consultation
is untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived such
defense after it unconditionally disclosed the official copies of the
final draft of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed
grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess of
the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and
laws. Not only its specific provisions but the very concept underlying
them, namely, the associative relationship envisioned between the
GRP and the BJE, are unconstitutional, for the concept presupposes
that the associated entity is a state and implies that the same is on
its way to independence.
While there is a clause in the MOA-AD stating that the provisions
thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure
its defect. The inclusion of provisions in the MOA-AD establishing an
associative relationship between the BJE and the Central
Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the
GRP Peace Panel nor the President herself is authorized to make such
a guarantee. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue
influence or interference with that process.
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.
G.R. No. 142396 February 11, 2003
117
KHOSROW MINUCHER, petitioner,
vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of
Republic Act No. 6425, otherwise also known as the "Dangerous
Drugs Act of 1972," was filed against petitioner Khosrow Minucher
and one Abbas Torabian with the Regional Trial Court, Branch 151,
of Pasig City. The criminal charge followed a "buy-bust operation"
conducted by the Philippine police narcotic agents in the house of
Minucher, an Iranian national, where a quantity of heroin, a
prohibited drug, was said to have been seized. The narcotic agents
were accompanied by private respondent Arthur Scalzo who would,
in due time, become one of the principal witnesses for the
prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino
rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before
the Regional Trial Court (RTC), Branch 19, of Manila for damages on
account of what he claimed to have been trumped-up charges of
drug trafficking made by Arthur Scalzo. The Manila RTC detailed
what it had found to be the facts and circumstances surrounding the
case.
"The testimony of the plaintiff disclosed that he is an Iranian
national. He came to the Philippines to study in the University of the
Philippines in 1974. In 1976, under the regime of the Shah of Iran,
he was appointed Labor Attaché for the Iranian Embassies in Tokyo,
Japan and Manila, Philippines. When the Shah of Iran was deposed
by Ayatollah Khomeini, plaintiff became a refugee of the United
Nations and continued to stay in the Philippines. He headed the
Iranian National Resistance Movement in the Philippines.
"He came to know the defendant on May 13, 1986, when the latter
was brought to his house and introduced to him by a certain Jose
Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo,
on the other hand, was met by plaintiff at the office of Atty. Crisanto
Saruca, a lawyer for several Iranians whom plaintiff assisted as head
of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon
the introduction of Jose Iñigo, the defendant expressed his interest
in buying caviar. As a matter of fact, he bought two kilos of caviar
from plaintiff and paid P10,000.00 for it. Selling caviar, aside from
that of Persian carpets, pistachio nuts and other Iranian products
was his business after the Khomeini government cut his pension of
over $3,000.00 per month. During their introduction in that meeting,
the defendant gave the plaintiff his calling card, which showed that
he is working at the US Embassy in the Philippines, as a special agent
of the Drug Enforcement Administration, Department of Justice, of
the United States, and gave his address as US Embassy, Manila. At
the back of the card appears a telephone number in defendant’s own
handwriting, the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his
desire to obtain a US Visa for his wife and the wife of a countryman
named Abbas Torabian. The defendant told him that he [could] help
plaintiff for a fee of $2,000.00 per visa. Their conversation, however,
was more concentrated on politics, carpets and caviar. Thereafter,
the defendant promised to see plaintiff again.
118
 defendant was inside his bedroom. The defendant came out of the
bedroom and out from defendant's attaché case, he took something
"On May 19, 1986, the defendant called the plaintiff and invited the
and placed it on the table in front of the plaintiff. They also took
latter for dinner at Mario's Restaurant at Makati. He wanted to buy
plaintiff's wife who was at that time at the boutique near his house
200 grams of caviar. Plaintiff brought the merchandize but for the
and likewise arrested Torabian, who was playing chess with him in
reason that the defendant was not yet there, he requested the
the bedroom and both were handcuffed together. Plaintiff was not
restaurant people to x x x place the same in the refrigerator.
told why he was being handcuffed and why the privacy of his house,
Defendant, however, came and plaintiff gave him the caviar for
especially his bedroom was invaded by defendant. He was not
which he was paid. Then their conversation was again focused on
allowed to use the telephone. In fact, his telephone was unplugged.
politics and business.
He asked for any warrant, but the defendant told him to `shut up.’
He was nevertheless told that he would be able to call for his lawyer
who can defend him.
"On May 26, 1986, defendant visited plaintiff again at the latter's
residence for 18 years at Kapitolyo, Pasig. The defendant wanted to
buy a pair of carpets which plaintiff valued at $27,900.00. After some
"The plaintiff took note of the fact that when the defendant invited
haggling, they agreed at $24,000.00. For the reason that defendant
him to come out to meet his cousin, his safe was opened where he
did not yet have the money, they agreed that defendant would come
kept the $24,000.00 the defendant paid for the carpets and another
back the next day. The following day, at 1:00 p.m., he came back
$8,000.00 which he also placed in the safe together with a bracelet
with his $24,000.00, which he gave to the plaintiff, and the latter, in
worth $15,000.00 and a pair of earrings worth $10,000.00. He also
turn, gave him the pair of carpets.1awphi1.nét
discovered missing upon his release his 8 pieces hand-made Persian
carpets, valued at $65,000.00, a painting he bought for P30,000.00
together with his TV and betamax sets. He claimed that when he
"At about 3:00 in the afternoon of May 27, 1986, the defendant came was handcuffed, the defendant took his keys from his wallet. There
back again to plaintiff's house and directly proceeded to the latter's was, therefore, nothing left in his house.
bedroom, where the latter and his countryman, Abbas Torabian,
were playing chess. Plaintiff opened his safe in the bedroom and
obtained $2,000.00 from it, gave it to the defendant for the latter's
"That his arrest as a heroin trafficker x x x had been well publicized
fee in obtaining a visa for plaintiff's wife. The defendant told him that
throughout the world, in various newspapers, particularly in
he would be leaving the Philippines very soon and requested him to
Australia, America, Central Asia and in the Philippines. He was
come out of the house for a while so that he can introduce him to
identified in the papers as an international drug trafficker. x x x
his cousin waiting in a cab. Without much ado, and without putting
on his shirt as he was only in his pajama pants, he followed the
defendant where he saw a parked cab opposite the street. To his
In fact, the arrest of defendant and Torabian was likewise on
complete surprise, an American jumped out of the cab with a drawn
television, not only in the Philippines, but also in America and in
high-powered gun. He was in the company of about 30 to 40 Filipino
Germany. His friends in said places informed him that they saw him
soldiers with 6 Americans, all armed. He was handcuffed and after
on TV with said news.
about 20 minutes in the street, he was brought inside the house by
the defendant. He was made to sit down while in handcuffs while the
119
 91173, to this Court. The petition, however, was denied for its failure
to comply with SC Circular No. 1-88; in any event, the Court added,
"After the arrest made on plaintiff and Torabian, they were brought
Scalzo had failed to show that the appellate court was in error in its
to Camp Crame handcuffed together, where they were detained for
questioned judgment.
three days without food and water."1

Meanwhile, at the court a quo, an order, dated 09 February 1990,

During the trial, the law firm of Luna, Sison and Manas, filed a special
was issued (a) declaring Scalzo in default for his failure to file a
appearance for Scalzo and moved for extension of time to file an
responsive pleading (answer) and (b) setting the case for the
answer pending a supposed advice from the United States
reception of evidence. On 12 March 1990, Scalzo filed a motion to
Department of State and Department of Justice on the defenses to
set aside the order of default and to admit his answer to the
be raised. The trial court granted the motion. On 27 October 1988,
complaint. Granting the motion, the trial court set the case for pre-
Scalzo filed another special appearance to quash the summons on
trial. In his answer, Scalzo denied the material allegations of the
the ground that he, not being a resident of the Philippines and the
complaint and raised the affirmative defenses (a) of Minucher’s
action being one in personam, was beyond the processes of the
failure to state a cause of action in his complaint and (b) that Scalzo
court. The motion was denied by the court, in its order of 13
had acted in the discharge of his official duties as being merely an
December 1988, holding that the filing by Scalzo of a motion for
agent of the Drug Enforcement Administration of the United States
extension of time to file an answer to the complaint was a voluntary
Department of Justice. Scalzo interposed a counterclaim of
appearance equivalent to service of summons which could likewise P100,000.00 to answer for attorneys' fees and expenses of litigation.
be construed a waiver of the requirement of formal notice. Scalzo
filed a motion for reconsideration of the court order, contending that
a motion for an extension of time to file an answer was not a
Then, on 14 June 1990, after almost two years since the institution
voluntary appearance equivalent to service of summons since it did
of the civil case, Scalzo filed a motion to dismiss the complaint on
not seek an affirmative relief. Scalzo argued that in cases involving
the ground that, being a special agent of the United States Drug
the United States government, as well as its agencies and officials,
Enforcement Administration, he was entitled to diplomatic immunity.
a motion for extension was peculiarly unavoidable due to the need
He attached to his motion Diplomatic Note No. 414 of the United
(1) for both the Department of State and the Department of Justice
States Embassy, dated 29 May 1990, addressed to the Department
to agree on the defenses to be raised and (2) to refer the case to a
of Foreign Affairs of the Philippines and a Certification, dated 11 June
Philippine lawyer who would be expected to first review the case.
1990, of Vice Consul Donna Woodward, certifying that the note is a
The court a quo denied the motion for reconsideration in its order of
15 October 1989. true and faithful copy of its original. In an order of 25 June 1990,
the trial court denied the motion to dismiss.

Scalzo filed a petition for review with the Court of Appeals, there
On 27 July 1990, Scalzo filed a petition for certiorari with injunction
docketed CA-G.R. No. 17023, assailing the denial. In a decision,
with this Court, docketed G.R. No. 94257 and entitled "Arthur W.
dated 06 October 1989, the appellate court denied the petition and
Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the
affirmed the ruling of the trial court. Scalzo then elevated the
complaint in Civil Case No. 88-45691 be ordered dismissed. The case
incident in a petition for review on certiorari, docketed G.R. No.
120
was referred to the Court of Appeals, there docketed CA-G.R. SP No.
22505, per this Court’s resolution of 07 August 1990. On 31 October
1990, the Court of Appeals promulgated its decision sustaining the
diplomatic immunity of Scalzo and ordering the dismissal of the
complaint against him. Minucher filed a petition for review with this
Court, docketed G.R. No. 97765 and entitled "Khosrow Minucher vs.
the Honorable Court of Appeals, et. al." (cited in 214 SCRA 242),
appealing the judgment of the Court of Appeals. In a decision, dated
24 September 1992, penned by Justice (now Chief Justice) Hilario
Davide, Jr., this Court reversed the decision of the appellate court
and remanded the case to the lower court for trial. The remand was
ordered on the theses (a) that the Court of Appeals erred in granting
the motion to dismiss of Scalzo for lack of jurisdiction over his person
without even considering the issue of the authenticity of Diplomatic
Note No. 414 and (b) that the complaint contained sufficient
allegations to the effect that Scalzo committed the imputed acts in
his personal capacity and outside the scope of his official duties and,
absent any evidence to the contrary, the issue on Scalzo’s diplomatic
immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17
November 1995, the trial court reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations,
judgment is hereby rendered for the plaintiff, who successfully
established his claim by sufficient evidence, against the defendant in
the manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory
damages of P520,000.00; moral damages in the sum of P10 million;
exemplary damages in the sum of P100,000.00; attorney's fees in
the sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take
note of the lien of the Court on this judgment to answer for the
unpaid docket fees considering that the plaintiff in this case
instituted this action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the
evidence presented by him that he was a diplomatic agent entitled
to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official
duties. On appeal, the Court of Appeals reversed the decision of the
trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty
and thereby immune from the criminal and civil jurisdiction of the
"Receiving State" pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review
raises a two-fold issue: (1) whether or not the doctrine of
conclusiveness of judgment, following the decision rendered by this
Court in G.R. No. 97765, should have precluded the Court of Appeals
from resolving the appeal to it in an entirely different manner, and
(2) whether or not Arthur Scalzo is indeed entitled to diplomatic
immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res
judicata, would require 1) the finality of the prior judgment, 2) a
valid jurisdiction over the subject matter and the parties on the part
of the court that renders it, 3) a judgment on the merits, and 4) an
identity of the parties, subject matter and causes of action.3 Even
while one of the issues submitted in G.R. No. 97765 - "whether or
not public respondent Court of Appeals erred in ruling that private
respondent Scalzo is a diplomat immune from civil suit conformably
with the Vienna Convention on Diplomatic Relations" - is also a
pivotal question raised in the instant petition, the ruling in G.R. No.
121
97765, however, has not resolved that point with finality. Indeed,
the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself,
in his Pre-trial Brief filed on 13 June 1990, unequivocally states that
he would present documentary evidence consisting of DEA records
on his investigation and surveillance of plaintiff and on his position
and duties as DEA special agent in Manila. Having thus reserved his
right to present evidence in support of his position, which is the basis
for the alleged diplomatic immunity, the barren self-serving claim in
the belated motion to dismiss cannot be relied upon for a reasonable,
intelligent and fair resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations,
to which the Philippines is a signatory, grants him absolute immunity
from suit, describing his functions as an agent of the United States
Drugs Enforcement Agency as "conducting surveillance operations
on suspected drug dealers in the Philippines believed to be the
source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic
agents (to) make the actual arrest." Scalzo has submitted to the trial
court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated
11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal
Adviser, Department of Foreign Affairs, dated 27 June 1990
forwarding Embassy Note No. 414 to the Clerk of Court of RTC
Manila, Branch 19 (the trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st
Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the
Protocol, Department of Foreign Affairs, through Asst. Sec.
Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United
States Embassy accordingly advised the Executive Department of
the Philippine Government that Scalzo was a member of the
diplomatic staff of the United States diplomatic mission from his
arrival in the Philippines on 14 October 1985 until his departure on
10 August 1988; (2) that the United States Government was firm
from the very beginning in asserting the diplomatic immunity of
Scalzo with respect to the case pursuant to the provisions of the
Vienna Convention on Diplomatic Relations; and (3) that the United
States Embassy repeatedly urged the Department of Foreign Affairs
to take appropriate action to inform the trial court of Scalzo’s
diplomatic immunity. The other documentary exhibits were
presented to indicate that: (1) the Philippine government itself,
through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial
Department" of his diplomatic status and his entitlement to all
122
diplomatic privileges and immunities under the Vienna Convention;
and (2) the Department of Foreign Affairs itself authenticated
Diplomatic Note No. 414. Scalzo additionally presented Exhibits "9"
to "13" consisting of his reports of investigation on the surveillance
and subsequent arrest of Minucher, the certification of the Drug
Enforcement Administration of the United States Department of
Justice that Scalzo was a special agent assigned to the Philippines at
all times relevant to the complaint, and the special power of attorney
executed by him in favor of his previous counsel6 to show (a) that
the United States Embassy, affirmed by its Vice Consul,
acknowledged Scalzo to be a member of the diplomatic staff of the
United States diplomatic mission from his arrival in the Philippines
on 14 October 1985 until his departure on 10 August 1988, (b) that,
on May 1986, with the cooperation of the Philippine law enforcement
officials and in the exercise of his functions as member of the
mission, he investigated Minucher for alleged trafficking in a
prohibited drug, and (c) that the Philippine Department of Foreign
Affairs itself recognized that Scalzo during his tour of duty in the
Philippines (14 October 1985 up to 10 August 1988) was listed as
being an Assistant Attaché of the United States diplomatic mission
and accredited with diplomatic status by the Government of the
Philippines. In his Exhibit 12, Scalzo described the functions of the
overseas office of the United States Drugs Enforcement Agency, i.e.,
(1) to provide criminal investigative expertise and assistance to
foreign law enforcement agencies on narcotic and drug control
programs upon the request of the host country, 2) to establish and
maintain liaison with the host country and counterpart foreign law
enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies which
affect the interests of the United States.
The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law and, by the time of its ratification on 18
April 1961, its rules of law had long become stable. Among the city
states of ancient Greece, among the peoples of the Mediterranean
before the establishment of the Roman Empire, and among the
states of India, the person of the herald in time of war and the person
of the diplomatic envoy in time of peace were universally held
sacrosanct.7 By the end of the 16th century, when the earliest
treatises on diplomatic law were published, the inviolability of
ambassadors was firmly established as a rule of customary
international law.8 Traditionally, the exercise of diplomatic
intercourse among states was undertaken by the head of state
himself, as being the preeminent embodiment of the state he
represented, and the foreign secretary, the official usually entrusted
with the external affairs of the state. Where a state would wish to
have a more prominent diplomatic presence in the receiving state, it
would then send to the latter a diplomatic mission. Conformably with
the Vienna Convention, the functions of the diplomatic mission
involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving
state.9
The Convention lists the classes of heads of diplomatic missions to
include (a) ambassadors or nuncios accredited to the heads of
state,10 (b) envoys,11 ministers or internuncios accredited to the
heads of states; and (c) charges d' affairs12 accredited to the
ministers of foreign affairs.13 Comprising the "staff of the
(diplomatic) mission" are the diplomatic staff, the administrative
staff and the technical and service staff. Only the heads of missions,
as well as members of the diplomatic staff, excluding the members
of the administrative, technical and service staff of the mission, are
accorded diplomatic rank. Even while the Vienna Convention on
Diplomatic Relations provides for immunity to the members of
diplomatic missions, it does so, nevertheless, with an understanding
that the same be restrictively applied. Only "diplomatic agents,"
under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. The Convention
defines "diplomatic agents" as the heads of missions or members of
the diplomatic staff, thus impliedly withholding the same privileges
from all others. It might bear stressing that even consuls, who
represent their respective states in concerns of commerce and
navigation and perform certain administrative and notarial duties,
such as the issuance of passports and visas, authentication of
123
documents, and administration of oaths, do not ordinarily enjoy the
traditional diplomatic immunities and privileges accorded diplomats,
mainly for the reason that they are not charged with the duty of
representing their states in political matters. Indeed, the main
yardstick in ascertaining whether a person is a diplomat entitled to
immunity is the determination of whether or not he performs duties
of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was
an Assistant Attaché of the United States diplomatic mission and was
accredited as such by the Philippine Government. An attaché belongs
to a category of officers in the diplomatic establishment who may be
in charge of its cultural, press, administrative or financial affairs.
There could also be a class of attaches belonging to certain ministries
or departments of the government, other than the foreign ministry
or department, who are detailed by their respective ministries or
departments with the embassies such as the military, naval, air,
commercial, agricultural, labor, science, and customs attaches, or
the like. Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to observe,
analyze and interpret trends and developments in their respective
fields in the host country and submit reports to their own ministries
or departments in the home government.14 These officials are not
generally regarded as members of the diplomatic mission, nor are
they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented
Diplomatic Notes Nos. 414, 757 and 791, all issued post litem
motam, respectively, on 29 May 1990, 25 October 1991 and 17
November 1992. The presentation did nothing much to alleviate the
Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public
respondent gravely abused its discretion in dismissing Civil Case No.
88-45691 on the basis of an erroneous assumption that simply
because of the diplomatic note, the private respondent is clothed
with diplomatic immunity, thereby divesting the trial court of
jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the
private respondent. Setting aside for the moment the issue of
authenticity raised by the petitioner and the doubts that surround
such claim, in view of the fact that it took private respondent one
(1) year, eight (8) months and seventeen (17) days from the time
his counsel filed on 12 September 1988 a Special Appearance and
Motion asking for a first extension of time to file the Answer because
the Departments of State and Justice of the United States of America
were studying the case for the purpose of determining his defenses,
before he could secure the Diplomatic Note from the US Embassy in
Manila, and even granting for the sake of argument that such note
is authentic, the complaint for damages filed by petitioner cannot be
peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts
imputed to him were done in his official capacity. Nothing supports
this self-serving claim other than the so-called Diplomatic Note. x x
x. The public respondent then should have sustained the trial court's
denial of the motion to dismiss. Verily, it should have been the most
proper and appropriate recourse. It should not have been
overwhelmed by the self-serving Diplomatic Note whose belated
issuance is even suspect and whose authenticity has not yet been
proved. The undue haste with which respondent Court yielded to the
private respondent's claim is arbitrary."
124
 descriptive job title to that which currently applies to the duties
performed. The Office of the Protocol would then assign each
A significant document would appear to be Exhibit No. 08, dated 08 individual to the appropriate functional category.19
November 1992, issued by the Office of Protocol of the Department
of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would)
But while the diplomatic immunity of Scalzo might thus remain
show that Mr. Arthur W. Scalzo, Jr., during his term of office in the
contentious, it was sufficiently established that, indeed, he worked
Philippines (from 14 October 1985 up to 10 August 1988) was listed
for the United States Drug Enforcement Agency and was tasked to
as an Assistant Attaché of the United States diplomatic mission and
conduct surveillance of suspected drug activities within the country
was, therefore, accredited diplomatic status by the Government of
on the dates pertinent to this case. If it should be ascertained that
the Philippines." No certified true copy of such "records," the
Arthur Scalzo was acting well within his assigned functions when he
supposed bases for the belated issuance, was presented in evidence.
committed the acts alleged in the complaint, the present controversy
could then be resolved under the related doctrine of State Immunity
from Suit.
Concededly, vesting a person with diplomatic immunity is a
prerogative of the executive branch of the government. In World
Health Organization vs. Aquino,15 the Court has recognized that, in
The precept that a State cannot be sued in the courts of a foreign
such matters, the hands of the courts are virtually tied. Amidst
state is a long-standing rule of customary international law then
apprehensions of indiscriminate and incautious grant of immunity,
closely identified with the personal immunity of a foreign sovereign
designed to gain exemption from the jurisdiction of courts, it should
from suit20 and, with the emergence of democratic states, made to
behoove the Philippine government, specifically its Department of
attach not just to the person of the head of state, or his
Foreign Affairs, to be most circumspect, that should particularly be
representative, but also distinctly to the state itself in its sovereign
no less than compelling, in its post litem motam issuances. It might
capacity.21 If the acts giving rise to a suit are those of a foreign
be recalled that the privilege is not an immunity from the observance
government done by its foreign agent, although not necessarily a
of the law of the territorial sovereign or from ensuing legal liability;
diplomatic personage, but acting in his official capacity, the
it is, rather, an immunity from the exercise of territorial
complaint could be barred by the immunity of the foreign sovereign
jurisdiction.16 The government of the United States itself, which
from suit without its consent. Suing a representative of a state is
Scalzo claims to be acting for, has formulated its standards for
believed to be, in effect, suing the state itself. The proscription is not
recognition of a diplomatic agent. The State Department policy is to
accorded for the benefit of an individual but for the State, in whose
only concede diplomatic status to a person who possesses an
service he is, under the maxim - par in parem, non habet imperium
acknowledged diplomatic title and "performs duties of diplomatic
- that all states are sovereign equals and cannot assert jurisdiction
nature."17 Supplementary criteria for accreditation are the
over one another.22 The implication, in broad terms, is that if the
possession of a valid diplomatic passport or, from States which do
judgment against an official would require the state itself to perform
not issue such passports, a diplomatic note formally representing the
an affirmative act to satisfy the award, such as the appropriation of
intention to assign the person to diplomatic duties, the holding of a
the amount needed to pay the damages decreed against him, the
non-immigrant visa, being over twenty-one years of age, and
suit must be regarded as being against the state itself, although it
performing diplomatic functions on an essentially full-time basis.18
has not been formally impleaded.23
Diplomatic missions are requested to provide the most accurate and
125
 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
In United States of America vs. Guinto,24 involving officers of the
that, while claiming to act for the State, he violates or invades the
United States Air Force and special officers of the Air Force Office of
personal and property rights of the plaintiff, under an
Special Investigators charged with the duty of preventing the
unconstitutional act or under an assumption of authority which he
distribution, possession and use of prohibited drugs, this Court has
does not have, is not a suit against the State within the constitutional
ruled -
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.
"While the doctrine (of state immunity) 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 "x x x x x x x x x
performed by them in the discharge of their duties. x x x. It cannot
for a moment be imagined that they were acting in their private or
unofficial capacity when they apprehended and later testified against
"(T)he doctrine of immunity from suit will not apply and may not be
the complainant. It follows that for discharging their duties as agents
invoked where the public official is being sued in his private and
of the United States, they cannot be directly impleaded for acts
personal capacity as an ordinary citizen. The cloak of protection
imputable to their principal, which has not given its consent to be
afforded the officers and agents of the government is removed the
sued. x x x As they have acted on behalf of the government, and
moment they are sued in their individual capacity. This situation
within the scope of their authority, it is that government, and not
the petitioners personally, [who were] responsible for their acts."25 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
This immunity principle, however, has its limitations. Thus, Shauf vs.
malice and in bad faith or beyond the scope of his authority and
Court of Appeals26 elaborates:
jurisdiction."27

"It is a different matter where the public official is made to account

A foreign agent, operating within a territory, can be cloaked with
in his capacity as such for acts contrary to law and injurious to the
immunity from suit but only as long as it can be established that he
rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
is acting within the directives of the sending state. The consent of
Director of the Bureau of Telecommunications, et al., vs. Aligaen, et
the host state is an indispensable requirement of basic courtesy
al. (33 SCRA 368): `Inasmuch as the State authorizes only legal
between the two sovereigns. Guinto and Shauf both involve officers
acts by its officers, unauthorized acts of government officials or
and personnel of the United States, stationed within Philippine
officers are not acts of the State, and an action against the officials
territory, under the RP-US Military Bases Agreement. While evidence
or officers by one whose rights have been invaded or violated by
is wanting to show any similar agreement between the governments
such acts, for the protection of his rights, is not a suit against the
of the Philippines and of the United States (for the latter to send its
State within the rule of immunity of the State from suit. In the same
agents and to conduct surveillance and related activities of

126
suspected drug dealers in the Philippines), the consent or imprimatur
of the Philippine government to the activities of the United States
G.R. No. 82631 February 23, 1995
Drug Enforcement Agency, however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two
countries, certifications from officials of both the Philippine SOUTHEAST ASIAN FISHERIES DEVELOPMENT CENTER, petitioner,
Department of Foreign Affairs and the United States Embassy, as
vs.
well as the participation of members of the Philippine Narcotics
Command in the "buy-bust operation" conducted at the residence of NATIONAL LABOR RELATIONS COMMISSION and YONG CHAN KIM,
Minucher at the behest of Scalzo, may be inadequate to support the respondents.
"diplomatic status" of the latter but they give enough indication that
the Philippine government has given its imprimatur, if not consent,
to the activities within Philippine territory of agent Scalzo of the
United States Drug Enforcement Agency. The job description of
Scalzo has tasked him to conduct surveillance on suspected drug QUIASON, J.:
suppliers and, after having ascertained the target, to inform local
law enforcers who would then be expected to make the arrest. In
conducting surveillance activities on Minucher, later acting as the This is a petition for certiorari under Rule 65 of the Revised Rules of
poseur-buyer during the buy-bust operation, and then becoming a Court to reverse and set aside the Decision and Resolution of the
principal witness in the criminal case against Minucher, Scalzo hardly National Labor Relations Commission, (NLRC) dated August 20, 1987
can be said to have acted beyond the scope of his official function or and February 15, 1988 respectively, in RAB Case No. 0093-83.
duties.

We grant the petition.

All told, this Court is constrained to rule that respondent Arthur
Scalzo, an agent of the United States Drug Enforcement Agency
allowed by the Philippine government to conduct activities in the
country to help contain the problem on the drug traffic, is entitled to
the defense of state immunity from suit.
On June 10, 1983, private respondent Yong Chan Kim (Yong) filed a
complaint for illegal dismissal against petitioner Southeast Asian
Fisheries Development Center (SEAFDEC).

WHEREFORE, on the foregoing premises, the petition is DENIED. No On June 16, 1986, the Labor Arbiter rendered a decision ordering
costs. petitioner ". . . to reinstate complainant [respondent Yong] to his
former

SO ORDERED. position . . . with full back wages . . . and to pay complainant moral
damages in the amount of P50,000.00 (Rollo, p. 65).

127

Petitioner appealed the decision to the NLRC. Respondent Yong
likewise filed a partial appeal wherein he sought to increase the
award of moral damages to P200, 000.00.
On August 20, 1987, NLRC affirmed the decision of the Labor Arbiter
but increased the moral damages to P200,000.00, added P50,000.00
as exemplary damages and awarded ten percent of the total
monetary awards as attorney's fees (Rollo, p. 84).
The motion for reconsideration was denied by NLRC in its Resolution
dated February 15, 1988, which prompted petitioner to elevate the
matter to this Court through a petition for review on certiorari.
(Rollo, pp. 119-153).
On May 9, 1988, petitioner filed an urgent motion for the issuance
of an order restraining NLRC from issuing a writ of execution in
connection with its August 20, 1987 Decision.
In a resolution dated May 12, 1988, this Court, without giving due
course to the petition, issued a temporary restraining order.
On July 12, 1989, we resolved to give due course to the petition and
required the parties to submit their respective memoranda.
On February 14, 1992, this Court, in Southeast Asian Fisheries
Development Center-Aquaculture Department v. National Labor
Relations Commission, 206 SCRA 283 (1992) held that NLRC had no
jurisdiction over petitioner, the latter being "an international agency
beyond the jurisdiction of the courts or local agencies of the
Philippine Government."
By reason of this Court's pronouncement in the aforementioned
case, petitioner filed a supplemental petition on May 16, 1992,
raising the issue of lack of jurisdiction on the part of NLRC to hear
and decide the case.
In opposition to the supplemental petition, private respondent Yong
argued that petitioner was precluded from raising the issue of
jurisdiction in view of the latter's failure to do so before the Labor
Arbiter or even before the Commission. In support of his argument,
he invoked the doctrine of estoppel in Tijam v. Sibonghanoy, 23
SCRA 29 (1968), which justified the departure from the accepted
concept of non-waivability of objection to jurisdiction.
The Southeast Asian Fisheries Development Center-Aquaculture
Department (SEAFDEC-AQD) was established by the Government of
Burma, the Kingdom of Cambodia, the Republic of Indonesia, Japan,
the Kingdom of Laos, Malaysia, the Republic of the Philippines, the
Republic of Singapore, the Kingdom of Thailand and the Republic of
Vietnam. The Philippines was a signatory to the Agreement
establishing SEAFDEC (Lacanilao v. de Leon, 147 SCRA 286 [1987]).
The purpose of establishing said international organization is to
contribute to the promotion of the fisheries development in
Southeast Asia by mutual co-operation among the member
governments of the Center, and governments external to the Center
(Agreement Establishing the SEAFDEC, Art. 1).
In Southeast Asian Fisheries Development Center-Aquaculture
Department v. Danilo Acosta, Resolution, 226 SCRA 49 (1993), we
128
reiterated our rulings in Southeast Asia Center, supra, and Lacanilao
v. de Leon, 147 SCRA 286 (1987) that SEAFDEC, as an international
agency, enjoys diplomatic immunity.
In Opinion No. 139, Series of 1984, the Minister of Justice explained
the concept of the immunity of international organizations from the
jurisdiction of local courts, thus:
4. One of the basic immunities of an international organization is
immunity from local jurisdiction, i.e., that it is immune from the legal
writs and processes issued by the tribunals of the court where it is
found. (See Jenks; Id., pp. 37-44) The obvious reason for this is that
the subjection of such an organization to the authority of the local
courts would afford a convenient medium thru which the host
government may interfere in their operations or even influence or
control its policies and decisions of the organization; besides, such
subjection to local jurisdiction would impair the capacity of such body
to discharge its responsibilities impartially, on behalf of its member-
states. In the case at bar, for instance, the entertainment by the
National Labor Relations Commission of Mr. Madamba's
reinstatement cases would amount to interference by the Philippine
Government in the management decisions of the SEARCA governing
board; even worse, it could compromise the desired impartiality of
the organization since it will have to suit its actuations to the
requirements of Philippine law, which may not necessarily coincide
with the interests of the other member-states. It is precisely to
forestall these possibilities that in cases where the extent of the
immunity is specified in the enabling instruments of international
organizations, (jurisdictional immunity, is specified in the enabling
instruments of international organizations) jurisdictional immunity
from the host country is invariably among the first accorded. (See
Jenks, Id; See Bowett. The Law of International Institutions, pp.
284-285).
Private respondent Yong's invocation of estoppel is unavailing. The
issue of estoppel on the part of petitioner to timely raise the question
of jurisdiction has been squarely passed upon in Southeast Asian
Fisheries Development Center-Aquaculture Department v. National
Labor Relations Commission, 206 SCRA 283 (1992). In said case, we
reiterated the general rule that estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause of action. As we
explained in, Calimlim v. Ramirez, 118 SCRA 399 (1982), there were
exceptional circumstances involved in the Tijam case which justified
the exception to the general rule enunciated therein. In the Tijam
case, a complaint for the collection of P1,908.00 was filed on July
19, 1948 in the Court of First Instance of Cebu when under the
Judiciary Act of 1948, it was the Municipal Court that had jurisdiction
thereof. It was only in 1963 or long after the decision of the trial
court had become final and executory that a motion to dismiss the
complaint was filed.
At any rate, we rule that the Tijam case applies only to ordinary
litigants and not to parties which enjoy sovereign or diplomatic
immunity. With respect to foreign states and international
organizations, the immunity from suit or the jurisdiction of local
courts can only be waived expressly by said entities and not by the
employees or agents (Salonga and Yap, Public International Law
114-115 [5th ed.]; Akehurst, A Modern Introduction to International
Law 118 [5th ed.]).
WHEREFORE, the petition is GRANTED. The restraining order is made
PERMANENT.
SO ORDERED.
G.R. No. L-35131 November 29, 1972
129
THE WORLD HEALTH ORGANIZATION and DR. LEONCE VERSTUYFT,
petitioners,
vs.
HON. BENJAMIN H. AQUINO, as Presiding Judge of Branch VIII,
Court of First Instance of Rizal, MAJOR WILFREDO CRUZ, MAJOR
ANTONIO G. RELLEVE, and CAPTAIN PEDRO S. NAVARRO of the
Constabulary Offshore Action Center (COSAC), respondents.
Sycip, Salazar, Luna, Manalo and Feliciano for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:p
An original action for certiorari and prohibition to set aside
respondent judge's refusal to quash a search warrant issued by him
at the instance of respondents COSAC (Constabulary Offshore Action
Center) officers for the search and seizure of the personal effects of
petitioner official of the WHO (World Health Organization)
notwithstanding his being entitled to diplomatic immunity, as duly
recognized by the executive branch of the Philippine Government
and to prohibit respondent judge from further proceedings in the
matter.
Upon filing of the petition, the Court issued on June 6, 1972 a
restraining order enjoining respondents from executing the search
warrant in question.
Respondents COSAC officers filed their answer joining issue against
petitioners and seeking to justify their act of applying for and
securing from respondent judge the warrant for the search and
seizure of ten crates consigned to petitioner Verstuyft and stored at
the Eternit Corporation warehouse on the ground that they "contain
large quantities of highly dutiable goods" beyond the official needs
of said petitioner "and the only lawful way to reach these articles and
effects for purposes of taxation is through a search warrant." 1
The Court thereafter called for the parties' memoranda in lieu of oral
argument, which were filed on August 3, 1972 by respondents and
on August 21, 1972 by petitioners, and the case was thereafter
deemed submitted for decision.
It is undisputed in the record that petitioner Dr. Leonce Verstuyft,
who was assigned on December 6, 1971 by the WHO from his last
station in Taipei to the Regional Office in Manila as Acting Assistant
Director of Health Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on July 22, 1951 between
the Philippine Government and the World Health Organization.
Such diplomatic immunity carries with it, among other diplomatic
privileges and immunities, personal inviolability, inviolability of the
official's properties, exemption from local jurisdiction, and
exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects contained in twelve (12)
crates entered the Philippines as unaccompanied baggage on
January 10, 1972, they were accordingly allowed free entry from
duties and taxes. The crates were directly stored at the Eternit
Corporation's warehouse at Mandaluyong, Rizal, "pending his
130
relocation into permanent quarters upon the offer of Mr. Berg, Vice
President of Eternit who was once a patient of Dr. Verstuyft in the
Congo." 2 At the hearing thereof held on May 8, 1972, the Office of the Solicitor
General appeared and filed an extended comment stating the official
position of the executive branch of the Philippine Government that
petitioner Verstuyft is entitled to diplomatic immunity, he did not
Nevertheless, as above stated, respondent judge issued on March 3,
abuse his diplomatic immunity, 5 and that court proceedings in the
1972 upon application on the same date of respondents COSAC
receiving or host State are not the proper remedy in the case of
officers search warrant No. 72-138 for alleged violation of Republic
abuse of diplomatic immunity. 6
Act 4712 amending section 3601 of the Tariff and Customs Code 3
directing the search and seizure of the dutiable items in said crates.

The Solicitor General accordingly joined petitioner Verstuyft's prayer

for the quashal of the search warrant. Respondent judge
Upon protest of March 6, 1972 of Dr. Francisco Dy, WHO Regional
nevertheless summarily denied quashal of the search warrant per
Director for the Western Pacific with station in Manila, Secretary of
his order of May 9, 1972 "for the same reasons already stated in
Foreign Affairs Carlos P. Romulo, personally wired on the same date
(his) aforesaid order of March 16, 1972" disregarding Foreign
respondent Judge advising that "Dr. Verstuyft is entitled to immunity
Secretary Romulo's plea of diplomatic immunity on behalf of Dr.
from search in respect of his personal baggage as accorded to Verstuyft.
members of diplomatic missions" pursuant to the Host Agreement
and requesting suspension of the search warrant order "pending
clarification of the matter from the ASAC."
Hence, the petition at bar. Petitioner Verstuyft has in this Court been
joined by the World Health Organization (WHO) itself in full assertion
of petitioner Verstuyft's being entitled "to all privileges and
Respondent judge set the Foreign Secretary's request for hearing
immunities, exemptions and facilities accorded to diplomatic envoys
and heard the same on March 16, 1972, but notwithstanding the
in accordance with international law" under section 24 of the Host
official plea of diplomatic immunity interposed by a duly authorized
Agreement.
representative of the Department of Foreign Affairs who furnished
the respondent judge with a list of the articles brought in by
petitioner Verstuyft, respondent judge issued his order of the same
The writs of certiorari and prohibition should issue as prayed for.
date maintaining the effectivity of the search warrant issued by him,
unless restrained by a higher court. 4

1. The executive branch of the Philippine Government has expressly

Petitioner Verstuyft's special appearance on March 24, 1972 for the
limited purpose of pleading his diplomatic immunity and motion to
quash search warrant of April 12, 1972 failed to move respondent
judge.
recognized that petitioner Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the Host Agreement. The
Department of Foreign Affairs formally advised respondent judge of
the Philippine Government's official position that accordingly "Dr.
Verstuyft cannot be the subject of a Philippine court summons

131
without violating an obligation in international law of the Philippine
Government" and asked for the quashal of the search warrant, since
his personal effects and baggages after having been allowed free
entry from all customs duties and taxes, may not be baselessly
claimed to have been "unlawfully imported" in violation of the tariff
and customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government, 7
likewise expressly affirmed said petitioner's right to diplomatic
immunity and asked for the quashal of the search warrant.
It is a recognized principle of international law and under our system
of separation of powers that diplomatic immunity is essentially a
political question and courts should refuse to look beyond a
determination by the executive branch of the government, 8 and
where the plea of diplomatic immunity is recognized and affirmed by
the executive branch of the government as in the case at bar, it is
then the duty of the courts to accept the claim of immunity upon
appropriate suggestion by the principal law officer of the
government, the Solicitor General in this case, or other officer acting
under his direction.9 Hence, in adherence to the settled principle
that courts may not so exercise their jurisdiction by seizure and
detention of property, as to embarrass the executive arm of the
government in conducting foreign relations, it is accepted doctrine
that "in such cases the judicial department of (this) government
follows the action of the political branch and will not embarrass the
latter by assuming an antagonistic jurisdiction." 10
2. The unfortunate fact that respondent judge chose to rely on the
suspicion of respondents COSAC officers "that the other remaining
crates unopened contain contraband items" 11 rather than on the
categorical assurance of the Solicitor-General that petitioner
Verstuyft did not abuse his diplomatic immunity, 12 which was based
in turn on the official positions taken by the highest executive
officials with competence and authority to act on the matter, namely,
the Secretaries of Foreign Affairs and of Finance, could not justify
respondent judge's denial of the quashal of the search warrant.
As already stated above, and brought to respondent court's
attention, 13 the Philippine Government is bound by the procedure
laid down in Article VII of the Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations 14 for
consultations between the Host State and the United Nations agency
concerned to determine, in the first instance the fact of occurrence
of the abuse alleged, and if so, to ensure that no repetition occurs
and for other recourses. This is a treaty commitment voluntarily
assumed by the Philippine Government and as such, has the force
and effect of law.
Hence, even assuming arguendo as against the categorical
assurance of the executive branch of government that respondent
judge had some ground to prefer respondents COSAC officers'
suspicion that there had been an abuse of diplomatic immunity, the
continuation of the search warrant proceedings before him was not
the proper remedy. He should, nevertheless, in deference to the
exclusive competence and jurisdiction of the executive branch of
government to act on the matter, have acceded to the quashal of
the search warrant, and forwarded his findings or grounds to believe
that there had been such abuse of diplomatic immunity to the
Department of Foreign Affairs for it to deal with, in accordance with
the aforementioned Convention, if so warranted.
3. Finally, the Court has noted with concern the apparent lack of
coordination between the various departments involved in the
subject-matter of the case at bar, which made it possible for a small
unit, the COSAC, to which respondents officers belong, seemingly to
disregard and go against the authoritative determination and
pronouncements of both the Secretaries of Foreign Affairs and of
Finance that petitioner Verstuyft is entitled to diplomatic immunity,
132
as confirmed by the Solicitor-General as the principal law officer of The clerk of court is hereby directed to furnish a copy of this decision
the Government. Such executive determination properly to the Secretary of Justice for such action as he may find appropriate
implemented should have normally constrained respondents officers with regard to the matters mentioned in paragraph 3 hereof. So
themselves to obtain the quashal of the search warrant secured by ordered.
them rather than oppose such quashal up to this Court, to the
G.R. No. 146710-15 March 2, 2001
embarrassment of said department heads, if not of the Philippine
Government itself vis a vis the petitioners. 15

JOSEPH E. ESTRADA, petitioner,

The seriousness of the matter is underscored when the provisions of
Republic Act 75 enacted since October 21, 1946 to safeguard the
jurisdictional immunity of diplomatic officials in the Philippines are
taken into account. Said Act declares as null and void writs or
processes sued out or prosecuted whereby inter alia the person of
an ambassador or public minister is arrested or imprisoned or his
goods or chattels are seized or attached and makes it a penal offense
for "every person by whom the same is obtained or prosecuted,
whether as party or as attorney, and every officer concerned in
executing it" to obtain or enforce such writ or process. 16
vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION,
GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.
----------------------------------------

The Court, therefore, holds that respondent judge acted without G.R. No. 146738 March 2, 2001
jurisdiction and with grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in disregard of the
diplomatic immunity of petitioner Verstuyft. JOSEPH E. ESTRADA, petitioner,

vs.
ACCORDINGLY, the writs of certiorari and prohibition prayed for are GLORIA MACAPAGAL-ARROYO, respondent.
hereby granted, and the temporary restraining order heretofore
issued against execution or enforcement of the questioned search
warrant, which is hereby declared null and void, is hereby made
PUNO, J.:
permanent. The respondent court is hereby commanded to desist
from further proceedings in the matter. No costs, none having been
prayed for.
On the line in the cases at bar is the office of the President. Petitioner
Joseph Ejercito Estrada alleges that he is the President on leave
while respondent Gloria Macapagal-Arroyo claims she is the

133
President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular
issue involves the relationship between the ruler and the ruled in a
democracy, Philippine style.
First, we take a view of the panorama of events that precipitated the
crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was
elected President while respondent Gloria Macapagal-Arroyo was
elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year term
commencing on June 30, 1998.
From the beginning of his term, however, petitioner was plagued by
a plethora of problems that slowly but surely eroded his popularity.
His sharp descent from power started on October 4, 2000. Ilocos Sur
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner,
went on air and accused the petitioner, his family and friends of
receiving millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The next day,
October 5, 2000, Senator Teofisto Guingona, Jr., then the Senate
Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220
million in jueteng money from Governor Singson from November
1998 to August 2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes intended
for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the Committee on Justice
(then headed by Senator Renato Cayetano) for joint investigation.2
The House of Representatives did no less. The House Committee on
Public Order and Security, then headed by Representative Roilo
Golez, decided to investigate the exposẻ of Governor Singson. On
the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On October
11, Archbishop Jaime Cardinal Sin issued a pastoral statement in
behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral
authority to govern.3 Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17,
former President Corazon C. Aquino also demanded that the
petitioner take the "supreme self-sacrifice" of resignation.5 Former
President Fidel Ramos also joined the chorus. Early on, or on October
12, respondent Arroyo resigned as Secretary of the Department of
Social Welfare and Services6 and later asked for petitioner's
resignation.7 However, petitioner strenuously held on to his office
and refused to resign.
The heat was on. On November 1, four (4) senior economic advisers,
members of the Council of Senior Economic Advisers, resigned. They
were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip.8 On
November 2, Secretary Mar Roxas II also resigned from the
Department of Trade and Industry.9 On November 3, Senate
President Franklin Drilon, and House Speaker Manuel Villar, together
with some 47 representatives defected from the ruling coalition,
Lapian ng Masang Pilipino.10
134
The month of November ended with a big bang. In a tumultuous
session on November 13, House Speaker Villar transmitted the
Articles of Impeachment11 signed by 115 representatives, or more
than 1/3 of all the members of the House of Representatives to the
Senate. This caused political convulsions in both houses of Congress.
Senator Drilon was replaced by Senator Pimentel as Senate
President. Speaker Villar was unseated by Representative
Fuentebella.12 On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took
their oath as judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.13
The political temperature rose despite the cold December. On
December 7, the impeachment trial started.14 The battle royale was
fought by some of the marquee names in the legal profession.
Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto
Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib
Baterina, Roan Libarios, Oscar Rodriguez, Clavel Martinez and
Antonio Nachura. They were assisted by a battery of private
prosecutors led by now Secretary of Justice Hernando Perez and now
Solicitor General Simeon Marcelo. Serving as defense counsel were
former Chief Justice Andres Narvasa, former Solicitor General and
Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila
Jose Flaminiano, former Deputy Speaker of the House Raul Daza,
Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The
day to day trial was covered by live TV and during its course enjoyed
the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of
the December hearings was the testimony of Clarissa Ocampo,
senior vice president of Equitable-PCI Bank. She testified that she
was one foot away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500 million
investment agreement with their bank on February 4, 2000.15
After the testimony of Ocampo, the impeachment trial was
adjourned in the spirit of Christmas. When it resumed on January 2,
2001, more bombshells were exploded by the prosecution. On
January 11, Atty. Edgardo Espiritu who served as petitioner's
Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante
Tan who was facing charges of insider trading.16 Then came the
fateful day of January 16, when by a vote of 11-1017 the senator-
judges ruled against the opening of the second envelope which
allegedly contained evidence showing that petitioner held P3.3 billion
in a secret bank account under the name "Jose Velarde." The public
and private prosecutors walked out in protest of the ruling. In
disgust, Senator Pimentel resigned as Senate President.18 The
ruling made at 10:00 p.m. was met by a spontaneous outburst of
anger that hit the streets of the metropolis. By midnight, thousands
had assembled at the EDSA Shrine and speeches full of sulphur were
delivered against the petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter to Speaker
Fuentebella tendering their collective resignation. They also filed
their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19 Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the
House of Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the call for
petitioner's resignation. A 10-kilometer line of people holding lighted
candles formed a human chain from the Ninoy Aquino Monument on
Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
people's solidarity in demanding petitioner's resignation. Students
and teachers walked out of their classes in Metro Manila to show
their concordance. Speakers in the continuing rallies at the EDSA
135
Shrine, all masters of the physics of persuasion, attracted more and
more people.21
On January 19, the fall from power of the petitioner appeared
inevitable. At 1:20 p.m., the petitioner informed Executive Secretary
Edgardo Angara that General Angelo Reyes, Chief of Staff of the
Armed Forces of the Philippines, had defected. At 2:30 p.m.,
petitioner agreed to the holding of a snap election for President
where he would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado
and General Reyes, together with the chiefs of all the armed services
went to the EDSA Shrine.22 In the presence of former Presidents
Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your
Armed Forces, the 130,000 strong members of the Armed Forces,
we wish to announce that we are withdrawing our support to this
government."23 A little later, PNP Chief, Director General Panfilo
Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries,
assistant secretaries, and bureau chiefs quickly resigned from their
posts.25 Rallies for the resignation of the petitioner exploded in
various parts of the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the opening of
the highly controversial second envelope.26 There was no turning
back the tide. The tide had become a tsunami.
January 20 turned to be the day of surrender. At 12:20 a.m., the
first round of negotiations for the peaceful and orderly transfer of
power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive
Secretary Ramon Bagatsing, Political Adviser Angelito Banayo, Asst.
Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner.
Respondent Arroyo was represented by now Executive Secretary
Renato de Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.27 Outside the palace, there
was a brief encounter at Mendiola between pro and anti-Estrada
protesters which resulted in stone-throwing and caused minor
injuries. The negotiations consumed all morning until the news broke
out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered the oath to
respondent Arroyo as President of the Philippines.28 At 2:30 p.m.,
petitioner and his family hurriedly left Malacañang Palace.29 He
issued the following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Macapagal-
Arroyo took her oath as President of the Republic of the Philippines.
While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of
her proclamation as President, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to
136
our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in to promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed
the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice-President shall be the Acting
President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker Fuentebella at 8:30
a.m. on January 20.23 Another copy was transmitted to Senate
President Pimentel on the same day although it was received only at
9:00 p.m.33
On January 22, the Monday after taking her oath, respondent Arroyo
immediately discharged the powers the duties of the Presidency. On
the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria
Macapagal-Arroyo to Take her Oath of Office as President of the
Republic of the Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-Arroyo to be
sworn in as President of the Republic of the Philippines, addressed
to the Chief Justice and confirmed by a letter to the Court, dated
January 20, 2001, which request was treated as an administrative
matter, the court Resolve unanimously to confirm the authority
given by the twelve (12) members of the Court then present to the
Chief Justice on January 20, 2001 to administer the oath of office of
Vice President Gloria Macapagal-Arroyo as President of the
Philippines, at noon of January 20, 2001.1âwphi1.nêt
This resolution is without prejudice to the disposition of any
justiciable case that may be filed by a proper party."
Respondent Arroyo appointed members of her Cabinet as well as
ambassadors and special envoys.34 Recognition of respondent
Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacañang, led by
the Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco,
more than a hundred foreign diplomats recognized the government
of respondent Arroyo.35 US President George W. Bush gave the
respondent a telephone call from the White House conveying US
recognition of her government.36
137
 that the Senate had failed to decide on the impeachment case and
that the resolution left open the question of whether Estrada was
On January 24, Representative Feliciano Belmonte was elected new still qualified to run for another elective post.48
Speaker of the House of Representatives.37 The House then passed
Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria
Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's
Macapagal-Arroyo, President of the Philippines."38 It also approved
public acceptance rating jacked up from 16% on January 20, 2001
Resolution No. 176 "expressing the support of the House of
to 38% on January 26, 2001.49 In another survey conducted by the
Representatives to the assumption into office by Vice President
ABS-CBN/SWS from February 2-7, 2001, results showed that 61%
Gloria Macapagal-Arroyo as President of the Republic of the
of the Filipinos nationwide accepted President Arroyo as replacement
Philippines, extending its congratulations and expressing its support
of petitioner Estrada. The survey also revealed that President Arroyo
for her administration as a partner in the attainment of the nation's
is accepted by 60% in Metro Manila, by also 60% in the balance of
goals under the Constitution."39
Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all
social classes: 58% in the ABC or middle-to-upper classes, 64% in
On January 26, the respondent signed into law the Solid Waste the D or mass class, and 54% among the E's or very poor class.50
Management Act.40 A few days later, she also signed into law the
Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto
Guingona, Jr., as her Vice President.42 The next day, February 7,
the Senate adopted Resolution No. 82 confirming the nomination of
Senator Guingona, Jr.43 Senators Miriam Defensor-Santiago, Juan
Ponce Enrile, and John Osmena voted "yes" with reservations, citing
as reason therefor the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court. Senators
Teresa Aquino-Oreta and Robert Barbers were absent.44 The House
of Representatives also approved Senator Guingona's nomination in
Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice
President two (2) days later.46
On February 7, the Senate passed Resolution No. 83 declaring that
the impeachment court is functus officio and has been terminated.47
Senator Miriam Defensor-Santiago stated "for the record" that she
voted against the closure of the impeachment court on the grounds
After his fall from the pedestal of power, the petitioner's legal
problems appeared in clusters. Several cases previously filed against
him in the Office of the Ombudsman were set in motion. These are:
(1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on
October 23, 2000 for bribery and graft and corruption; (2) OMB Case
No. 0-00-1754 filed by the Volunteers Against Crime and Corruption
on November 17, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct, violation of the Code of
Conduct for Government Employees, etc; (3) OMB Case No. 0-00-
1755 filed by the Graft Free Philippines Foundation, Inc. on
November 24, 2000 for plunder, forfeiture, graft and corruption,
bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756
filed by Romeo Capulong, et al., on November 28, 2000 for
malversation of public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera,
et al., on November 28, 2000 for bribery, plunder, indirect bribery,
violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB
Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December
4, 2000 for plunder, graft and corruption.

138
 motion of petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have
A special panel of investigators was forthwith created by the
"compromised themselves by indicating that they have thrown their
respondent Ombudsman to investigate the charges against the
weight on one side" but nonetheless inhibited themselves.
petitioner. It is chaired by Overall Deputy Ombudsman Margarito P.
Thereafter, the parties were given the short period of five (5) days
Gervasio with the following as members, viz: Director Andrew
to file their memoranda and two (2) days to submit their
Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty.
simultaneous replies.
Emmanuel Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the affidavits
of his witnesses as well as other supporting documents in answer to
the aforementioned complaints against him. In a resolution dated February 20, acting on the urgent motion for
copies of resolution and press statement for "Gag Order" on
respondent Ombudsman filed by counsel for petitioner in G.R. No.
146738, the Court resolved:
Thus, the stage for the cases at bar was set. On February 5,
petitioner filed with this Court GR No. 146710-15, a petition for
prohibition with a prayer for a writ of preliminary injunction. It
"(1) to inform the parties that the Court did not issue a resolution
sought to enjoin the respondent Ombudsman from "conducting any
on January 20, 2001 declaring the office of the President vacant and
further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756,
that neither did the Chief Justice issue a press statement justifying
1757 and 1758 or in any other criminal complaint that may be filed
the alleged resolution;
in his office, until after the term of petitioner as President is over and
only if legally warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for
judgment "confirming petitioner to be the lawful and incumbent (2) to order the parties and especially their counsel who are officers
President of the Republic of the Philippines temporarily unable to of the Court under pain of being cited for contempt to refrain from
discharge the duties of his office, and declaring respondent to have making any comment or discussing in public the merits of the cases
taken her oath as and to be holding the Office of the President, only at bar while they are still pending decision by the Court, and
in an acting capacity pursuant to the provisions of the Constitution."
Acting on GR Nos. 146710-15, the Court, on the same day, February
6, required the respondents "to comment thereon within a non- (3) to issue a 30-day status quo order effective immediately
extendible period expiring on 12 February 2001." On February 13, enjoining the respondent Ombudsman from resolving or deciding the
the Court ordered the consolidation of GR Nos. 146710-15 and GR criminal cases pending investigation in his office against petitioner,
No. 146738 and the filing of the respondents' comments "on or Joseph E. Estrada and subject of the cases at bar, it appearing from
before 8:00 a.m. of February 15." news reports that the respondent Ombudsman may immediately
resolve the cases against petitioner Joseph E. Estrada seven (7) days
after the hearing held on February 15, 2001, which action will make
On February 15, the consolidated cases were orally argued in a four- the cases at bar moot and academic."53
hour hearing. Before the hearing, Chief Justice Davide, Jr.51 and
Associate Justice Artemio Panganiban52 recused themselves on
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The parties filed their replies on February 24. On this date, the cases
at bar were deemed submitted for decision.
The bedrock issues for resolution of this Court are:
I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy,
whether petitioner Estrada is a President on leave while respondent
Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition
precedent for the criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is still President,
whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on
the ground of prejudicial publicity.
We shall discuss the issues in seriatim.
I
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the cases at bar
pose a political question, and hence, are beyond the jurisdiction of
this Court to decide. They contend that shorn of its embroideries,
the cases at bar assail the "legitimacy of the Arroyo administration."
They stress that respondent Arroyo ascended the presidency
through people power; that she has already taken her oath as the
14th President of the Republic; that she has exercised the powers of
the presidency and that she has been recognized by foreign
governments. They submit that these realities on ground constitute
the political thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure, courts here
and abroad, have tried to lift the shroud on political question but its
exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests
on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills of constitutional
law.55 In the United States, the most authoritative guidelines to
determine whether a question is political were spelled out by Mr.
Justice Brennan in the 1962 case or Baker v. Carr,56 viz:
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"x x x Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on
question. Unless one of these formulations is inextricable from the
case at bar, there should be no dismissal for non justiciability on the
ground of a political question's presence. The doctrine of which we
treat is one of 'political questions', not of 'political cases'."
In the Philippine setting, this Court has been continuously confronted
with cases calling for a firmer delineation of the inner and outer
perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto
Concepcion, held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary
authority has been delegated to the legislative or executive branch
of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure." To a great degree, the
1987 Constitution has narrowed the reach of the political question
doctrine when it expanded the power of judicial review of this court
not only to settle actual controversies involving rights which are
legally demandable and enforceable but also to determine whether
or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality
of government.59 Heretofore, the judiciary has focused on the "thou
shalt not's" of the Constitution directed against the exercise of its
jurisdiction.60 With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing.
In sync and symmetry with this intent are other provisions of the
1987 Constitution trimming the so called political thicket. Prominent
of these provisions is section 18 of Article VII which empowers this
Court in limpid language to "x x x review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the privilege of
the writ (of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a Better
Philippines and/or Oliver A. Lozano v. President Corazon C. Aquino,
et al.61 and related cases62 to support their thesis that since the
cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral
reading of the cited cases will show that they are inapplicable. In the
cited cases, we held that the government of former President Aquino
was the result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom Constitution63
declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the
provisions of the 1973 Constitution, as amended." In is familiar
learning that the legitimacy of a government sired by a successful
revolution by people power is beyond judicial scrutiny for that
government automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine
is the oath under the 1987 Constitution.64 In her oath, she
categorically swore to preserve and defend the 1987 Constitution.
Indeed, she has stressed that she is discharging the powers of the
presidency under the authority of the 1987 Constitution.
In fine, the legal distinction between EDSA People Power I EDSA
People Power II is clear. EDSA I involves the exercise of the people
power of revolution which overthrew the whole government. EDSA
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II is an exercise of people power of freedom of speech and freedom
of assembly to petition the government for redress of grievances
which only affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II
is intra constitutional and the resignation of the sitting President that
it caused and the succession of the Vice President as President are
subject to judicial review. EDSA I presented a political question;
EDSA II involves legal questions. A brief discourse on freedom of
speech and of the freedom of assembly to petition the government
for redress of grievance which are the cutting edge of EDSA People
Power II is not inappropriate.
Freedom of speech and the right of assembly are treasured by
Filipinos. Denial of these rights was one of the reasons of our 1898
revolution against Spain. Our national hero, Jose P. Rizal, raised the
clarion call for the recognition of freedom of the press of the Filipinos
and included it as among "the reforms sine quibus non."65 The
Malolos Constitution, which is the work of the revolutionary Congress
in 1898, provided in its Bill of Rights that Filipinos shall not be
deprived (1) of the right to freely express his ideas or opinions, orally
or in writing, through the use of the press or other similar means;
(2) of the right of association for purposes of human life and which
are not contrary to public means; and (3) of the right to send
petitions to the authorities, individually or collectively." These
fundamental rights were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to the Second
Philippine Commission of April 7, 1900 issued by President McKinley,
it is specifically provided "that no law shall be passed abridging the
freedom of speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for redress of
grievances." The guaranty was carried over in the Philippine Bill, the
Act of Congress of July 1, 1902 and the Jones Law, the Act of
Congress of August 29, 1966.66
Thence on, the guaranty was set in stone in our 1935 Constitution,67
and the 197368 Constitution. These rights are now safely ensconced
in section 4, Article III of the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances."
The indispensability of the people's freedom of speech and of
assembly to democracy is now self-evident. The reasons are well put
by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for
advancing knowledge and discovering truth; third, it is essential to
provide for participation in decision-making by all members of
society; and fourth, it is a method of achieving a more adaptable
and hence, a more stable community of maintaining the precarious
balance between healthy cleavage and necessary consensus."69 In
this sense, freedom of speech and of assembly provides a framework
in which the "conflict necessary to the progress of a society can take
place without destroying the society."70 In Hague v. Committee for
Industrial Organization,71 this function of free speech and assembly
was echoed in the amicus curiae filed by the Bill of Rights Committee
of the American Bar Association which emphasized that "the basis of
the right of assembly is the substitution of the expression of opinion
and belief by talk rather than force; and this means talk for all and
by all."72 In the relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed that "… it should be
clear even to those with intellectual deficits that when the sovereign
people assemble to petition for redress of grievances, all should
listen. For in a democracy, it is the people who count; those who are
deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not political
questions. The principal issues for resolution require the proper
142
interpretation of certain provisions in the 1987 Constitution, notably
section 1 of Article II,74 and section 875 of Article VII, and the
allocation of governmental powers under section 1176 of Article VII.
The issues likewise call for a ruling on the scope of presidential
immunity from suit. They also involve the correct calibration of the
right of petitioner against prejudicial publicity. As early as the 1803
case of Marbury v. Madison,77 the doctrine has been laid down that
"it is emphatically the province and duty of the judicial department
to say what the law is . . ." Thus, respondent's in vocation of the
doctrine of political question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
and Vice President, the President of the Senate or, in case of his
inability, the Speaker of the House of Representatives, shall then act
as President until the President or Vice President shall have been
elected and qualified.
x x x."
The issue then is whether the petitioner resigned as President or
should be considered resigned as of January 20, 2001 when
respondent took her oath as the 14th President of the Public.
Resignation is not a high level legal abstraction. It is a factual
question and its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by acts of
relinquishment.78 The validity of a resignation is not government by
any formal requirement as to form. It can be oral. It can be written.
It can be express. It can be implied. As long as the resignation is
clear, it must be given legal effect.

We now slide to the second issue. None of the parties considered

this issue as posing a political question. Indeed, it involves a legal
In the cases at bar, the facts show that petitioner did not write any
question whose factual ingredient is determinable from the records
formal letter of resignation before he evacuated Malacañang Palace
of the case and by resort to judicial notice. Petitioner denies he
in the afternoon of January 20, 2001 after the oath-taking of
resigned as President or that he suffers from a permanent disability.
respondent Arroyo. Consequently, whether or not petitioner
Hence, he submits that the office of the President was not vacant
resigned has to be determined from his act and omissions before,
when respondent Arroyo took her oath as President.
during and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
The issue brings under the microscope the meaning of section 8,
Article VII of the Constitution which provides:
Using this totality test, we hold that petitioner resigned as President.

"Sec. 8. In case of death, permanent disability, removal from office

or resignation of the President, the Vice President shall become the
To appreciate the public pressure that led to the resignation of the
President to serve the unexpired term. In case of death, permanent
petitioner, it is important to follow the succession of events after the
disability, removal from office, or resignation of both the President
exposẻ of Governor Singson. The Senate Blue Ribbon Committee
143
investigated. The more detailed revelations of petitioner's alleged
misgovernance in the Blue Ribbon investigation spiked the hate
against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the signatures
of 115 representatives or more than 1/3 of the House of
Representatives. Soon, petitioner's powerful political allies began
deserting him. Respondent Arroyo quit as Secretary of Social
Welfare. Senate President Drilon and former Speaker Villar defected
with 47 representatives in tow. Then, his respected senior economic
advisers resigned together with his Secretary of Trade and Industry.
As the political isolation of the petitioner worsened, the people's call
for his resignation intensified. The call reached a new crescendo
when the eleven (11) members of the impeachment tribunal refused
to open the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the EDSA Shrine
was swarming with people crying for redress of their grievance. Their
number grew exponentially. Rallies and demonstration quickly
spread to the countryside like a brush fire.
As events approached January 20, we can have an authoritative
window on the state of mind of the petitioner. The window is
provided in the "Final Days of Joseph Ejercito Estrada," the diary of
Executive Secretary Angara serialized in the Philippine Daily
Inquirer.79 The Angara Diary reveals that in the morning of January
19, petitioner's loyal advisers were worried about the swelling of the
crowd at EDSA, hence, they decided to create an ad hoc committee
to handle it. Their worry would worsen. At 1:20 p.m., petitioner
pulled Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas na si Angelo
(Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour later
or at 2:30 p.m., the petitioner decided to call for a snap presidential
election and stressed he would not be a candidate. The proposal for
a snap election for president in May where he would not be a
candidate is an indicium that petitioner had intended to give up the
presidency even at that time. At 3:00 p.m., General Reyes joined
the sea of EDSA demonstrators demanding the resignation of the
petitioner and dramatically announced the AFP's withdrawal of
support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked Senator
Pimentel to advise petitioner to consider the option of "dignified exit
or resignation."81 Petitioner did not disagree but listened intently.82
The sky was falling fast on the petitioner. At 9:30 p.m., Senator
Pimentel repeated to the petitioner the urgency of making a graceful
and dignified exit. He gave the proposal a sweetener by saying that
petitioner would be allowed to go abroad with enough funds to
support him and his family.83 Significantly, the petitioner expressed
no objection to the suggestion for a graceful and dignified exit but
said he would never leave the country.84 At 10:00 p.m., petitioner
revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I
would have five days to a week in the palace."85 This is proof that
petitioner had reconciled himself to the reality that he had to resign.
His mind was already concerned with the five-day grace period he
could stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former President
Ramos called up Secretary Angara and requested, "Ed, magtulungan
tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful
and orderly transfer of power."86 There was no defiance to the
request. Secretary Angara readily agreed. Again, we note that at this
stage, the problem was already about a peaceful and orderly transfer
of power. The resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer of power
immediately started at 12:20 a.m. of January 20, that fateful
Saturday. The negotiation was limited to three (3) points: (1) the
transition period of five days after the petitioner's resignation; (2)
the guarantee of the safety of the petitioner and his family, and (3)
144
the agreement to open the second envelope to vindicate the name
of the petitioner.87 Again, we note that the resignation of petitioner
was not a disputed point. The petitioner cannot feign ignorance of
this fact. According to Secretary Angara, at 2:30 a.m., he briefed
the petitioner on the three points and the following entry in the
Angara Diary shows the reaction of the petitioner, viz:
"x x x
I explain what happened during the first round of negotiations. The
President immediately stresses that he just wants the five-day
period promised by Reyes, as well as to open the second envelope
to clear his name.
If the envelope is opened, on Monday, he says, he will leave by
Monday.
The President says. "Pagod na pagod na ako. Ayoko na masyado
nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am
very tired. I don't want any more of this – it's too painful. I'm tired
of the red tape, the bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner has resigned.
The intent to resign is clear when he said "x x x Ayoko na masyado
nang masakit." "Ayoko na" are words of resignation.
The second round of negotiation resumed at 7:30 a.m. According to
the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's
spokesperson) Rene Corona. For this round, I am accompanied by
Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day,
20 January 2001, that will be effective on Wednesday, 24 January
2001, on which day the Vice President will assume the Presidency of
the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the
assumption of the new administration shall commence, and persons
designated by the Vice President to various positions and offices of
the government shall start their orientation activities in coordination
with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National
Police shall function under the Vice President as national military and
police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff,
shall guarantee the security of the President and his family as
145
approved by the national military and police authority (Vice
President).
5. It is to be noted that the Senate will open the second envelope in
connection with the alleged savings account of the President in the
Equitable PCI Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective
principals, agree and undertake as follows:
'1. A transition will occur and take place on Wednesday, 24 January
2001, at which time President Joseph Ejercito Estrada will turn over
the presidency to Vice President Gloria Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed
security and safety of their person and property throughout their
natural lifetimes. Likewise, President Estrada and his families are
guarantee freedom from persecution or retaliation from government
and the private sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the
Philippines (AFP) through the Chief of Staff, as approved by the
national military and police authorities – Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as
an impeachment court will authorize the opening of the second
envelope in the impeachment trial as proof that the subject savings
account does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001
and 24 January 2001 (the 'Transition Period"), the incoming Cabinet
members shall receive an appropriate briefing from the outgoing
Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National
Police (PNP) shall function Vice President (Macapagal) as national
military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director
general shall obtain all the necessary signatures as affixed to this
agreement and insure faithful implementation and observance
thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public
statement in the form and tenor provided for in "Annex A" heretofore
attached to this agreement."89
The second round of negotiation cements the reading that the
petitioner has resigned. It will be noted that during this second round
of negotiation, the resignation of the petitioner was again treated as
a given fact. The only unsettled points at that time were the
measures to be undertaken by the parties during and after the
transition period.
146
According to Secretary Angara, the draft agreement, which was
premised on the resignation of the petitioner was further refined. It
was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary narrates
the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm
agreement on the five points to effect a peaceful transition. I can
hear the general clearing all these points with a group he is with. I
hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20
January 2001, which resignation shall be effective on 24 January
2001, on which day the Vice President will assume the presidency of
the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new
administration shall commence on 20 January 2001, wherein
persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.
'3. The Armed Forces of the Philippines through its Chief of Staff,
shall guarantee the safety and security of the President and his
families throughout their natural lifetimes as approved by the
national military and police authority – Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function
under the Vice President as national military and police authorities.
'5. Both parties request the impeachment court to open the second
envelope in the impeachment trial, the contents of which shall be
offered as proof that the subject savings account does not belong to
the President.
The Vice President shall issue a public statement in the form and
tenor provided for in Annex "B" heretofore attached to this
agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel
our agreement, signed by our side and awaiting the signature of the
United opposition.
And then it happens. General Reyes calls me to say that the Supreme
Court has decided that Gloria Macapagal-Arroyo is President and will
be sworn in at 12 noon.
147
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why
couldn't you wait? What about the agreement)?' I asked.
Final meal

Reyes answered: 'Wala na, sir (it's over, sir).'

12 noon – Gloria takes her oath as president of the Republic of the
Philippines.

I ask him: Di yung transition period, moot and academic na?'

12:20 p.m. – The PSG distributes firearms to some people inside the
compound.
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes,
we're deleting the part).'

The president is having his final meal at the presidential Residence

with the few friends and Cabinet members who have gathered.
Contrary to subsequent reports, I do not react and say that there
was a double cross.

But I immediately instruct Macel to delete the first provision on
resignation since this matter is already moot and academic. Within
moments, Macel erases the first provision and faxes the documents,
which have been signed by myself, Dondon and Macel, to Nene
Pimentel and General Reyes.
By this time, demonstrators have already broken down the first line
of defense at Mendiola. Only the PSG is there to protect the Palace,
since the police and military have already withdrawn their support
for the President.
1 p.m. – The President's personal staff is rushing to pack as many
of the Estrada family's personal possessions as they can.

I direct Demaree Ravel to rush the original document to General

Reyes for the signatures of the other side, as it is important that the
During lunch, Ronnie Puno mentions that the president needs to
provisions on security, at least, should be respected.
release a final statement before leaving Malacañang.

I then advise the President that the Supreme Court has ruled that
Chief Justice Davide will administer the oath to Gloria at 12 noon.
The President is too stunned for words:
The statement reads: At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as President of the Republic
of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as President, I do not wish to

148
be a factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacañang Palace, the seat of
the presidency of this country, for the sake of peace and in order to
begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to
our people. I will not shirk from any future challenges that may come
ahead in the same service of our country.
I call on all my supporters and followers to join me in the promotion
of a constructive national spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner cannot be
doubted. It was confirmed by his leaving Malacañang. In the press
release containing his final statement, (1) he acknowledged the
oath-taking of the respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was leaving the
Palace, the seat of the presidency, for the sake of peace and in order
to begin the healing process of our nation. He did not say he was
leaving the Palace due to any kind inability and that he was going to
re-assume the presidency as soon as the disability disappears: (3)
he expressed his gratitude to the people for the opportunity to serve
them. Without doubt, he was referring to the past opportunity given
him to serve the people as President (4) he assured that he will not
shirk from any future challenge that may come ahead in the same
service of our country. Petitioner's reference is to a future challenge
after occupying the office of the president which he has given up;
and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly,
the national spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The press release was
petitioner's valedictory, his final act of farewell. His presidency is
now in the part tense.
It is, however, urged that the petitioner did not resign but only took
a temporary leave dated January 20, 2001 of the petitioner sent to
Senate President Pimentel and Speaker Fuentebella is cited. Again,
we refer to the said letter, viz:
"Sir.
By virtue of the provisions of Section II, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By operation
of law and the Constitution, the Vice President shall be the Acting
president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in mystery.91 The
pleadings filed by the petitioner in the cases at bar did not discuss,
may even intimate, the circumstances that led to its preparation.
Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as
strange that the letter, despite its legal value, was never referred to
149
by the petitioner during the week-long crisis. To be sure, there was
not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern and that he
was leaving the reins of government to respondent Arroyo for the
time bearing. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was
prepared before the press release of the petitioner clearly as a later
act. If, however, it was prepared after the press released, still, it
commands scant legal significance. Petitioner's resignation from the
presidency cannot be the subject of a changing caprice nor of a
whimsical will especially if the resignation is the result of his
reputation by the people. There is another reason why this Court
cannot given any legal significance to petitioner's letter and this shall
be discussed in issue number III of this Decision.
After petitioner contended that as a matter of fact he did not resign,
he also argues that he could not resign as a matter of law. He relies
on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to resign or retire pending
an investigation, criminals or administrative, or pending a
prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will hardly provide
any comfort to the petitioner. RA No. 3019 originated form Senate
Bill No. 293. The original draft of the bill, when it was submitted to
the Senate, did not contain a provision similar to section 12 of the
law as it now stands. However, in his sponsorship speech, Senator
Arturo Tolentino, the author of the bill, "reserved to propose during
the period of amendments the inclusion of a provision to the effect
that no public official who is under prosecution for any act of graft
or corruption, or is under administrative investigation, shall be
allowed to voluntarily resign or retire."92 During the period of
amendments, the following provision was inserted as section 15:
"Sec. 15. Termination of office – No public official shall be allowed to
resign or retire pending an investigation, criminal or administrative,
or pending a prosecution against him, for any offense under the Act
or under the provisions of the Revised Penal Code on bribery.
The separation or cessation of a public official form office shall not
be a bar to his prosecution under this Act for an offense committed
during his incumbency."93
The bill was vetoed by then President Carlos P. Garcia who
questioned the legality of the second paragraph of the provision and
insisted that the President's immunity should extend after his tenure.
Senate Bill No. 571, which was substantially similar Senate Bill No.
293, was thereafter passed. Section 15 above became section 13
under the new bill, but the deliberations on this particular provision
mainly focused on the immunity of the President, which was one of
the reasons for the veto of the original bill. There was hardly any
debate on the prohibition against the resignation or retirement of a
public official with pending criminal and administrative cases against
him. Be that as it may, the intent of the law ought to be obvious. It
is to prevent the act of resignation or retirement from being used by
a public official as a protective shield to stop the investigation of a
pending criminal or administrative case against him and to prevent
his prosecution under the Anti-Graft Law or prosecution for bribery
under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his
constitutional right.94 A public official has the right not to serve if
he really wants to retire or resign. Nevertheless, if at the time he
150
resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings
against him. He cannot use his resignation or retirement to avoid
prosecution.
There is another reason why petitioner's contention should be
rejected. In the cases at bar, the records show that when petitioner
resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-
1756, 0-00-1757 and 0-00-1758. While these cases have been filed,
the respondent Ombudsman refrained from conducting the
preliminary investigation of the petitioner for the reason that as the
sitting President then, petitioner was immune from suit. Technically,
the said cases cannot be considered as pending for the Ombudsman
lacked jurisdiction to act on them. Section 12 of RA No. 3019 cannot
therefore be invoked by the petitioner for it contemplates of cases
whose investigation or prosecution do not suffer from any
insuperable legal obstacle like the immunity from suit of a sitting
President.
Petitioner contends that the impeachment proceeding is an
administrative investigation that, under section 12 of RA 3019, bars
him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo
that it is an administrative proceeding, it can not be considered
pending at the time petitioner resigned because the process already
broke down when a majority of the senator-judges voted against the
opening of the second envelope, the public and private prosecutors
walked out, the public prosecutors filed their Manifestation of
Withdrawal of Appearance, and the proceedings were postponed
indefinitely. There was, in effect, no impeachment case pending
against petitioner when he resigned.
III
Whether or not the petitioner Is only temporarily unable to Act as
President.
We shall now tackle the contention of the petitioner that he is merely
temporarily unable to perform the powers and duties of the
presidency, and hence is a President on leave. As aforestated, the
inability claim is contained in the January 20, 2001 letter of
petitioner sent on the same day to Senate President Pimentel and
Speaker Fuentebella.
Petitioner postulates that respondent Arroyo as Vice President has
no power to adjudge the inability of the petitioner to discharge the
powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of article VII."95
This contention is the centerpiece of petitioner's stance that he is a
President on leave and respondent Arroyo is only an Acting
President.
An examination of section 11, Article VII is in order. It provides:
"SEC. 11. Whenever the President transmits to the President of the
Senate and the Speaker of the House of Representatives his written
declaration that he is unable to discharge the powers and duties of
his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-
President as Acting President.
151
Whenever a majority of all the Members of the Cabinet transmit to
the President of the Senate and to the Speaker of the House of
Representatives their written declaration that the President is unable
to discharge the powers and duties of his office, the Vice-President
shall immediately assume the powers and duties of the office as
Acting President.
Thereafter, when the President transmits to the President of the
Senate and to the Speaker of the House of Representatives his
written declaration that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, should a majority of all
the Members of the Cabinet transmit within five days to the President
of the Senate and to the Speaker of the House of Representatives
their written declaration that the President is unable to discharge the
powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and without
need of call.
If the Congress, within ten days after receipt of the last written
declaration, or, if not in session, within twelve days after it is
required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge
the powers and duties of his office, the Vice-President shall act as
President; otherwise, the President shall continue exercising the
powers and duties of his office."
That is the law. Now, the operative facts:
Petitioner, on January 20, 2001, sent the above letter claiming
inability to the Senate President and Speaker of the House;
Unaware of the letter, respondent Arroyo took her oath of office as
President on January 20, 2001 at about 12:30 p.m.;
Despite receipt of the letter, the House of Representatives passed
on January 24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives passed House
Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on
the ability of former President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the Philippine National
Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme
Court, Vice President Gloria Macapagal-Arroyo was sworn in as
President of the Philippines on 20 January 2001 before Chief Justice
Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international
community had extended their recognition to Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines;
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WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
espoused a policy of national healing and reconciliation with justice
for the purpose of national unity and development;
WHEREAS, it is axiomatic that the obligations of the government
cannot be achieved if it is divided, thus by reason of the
constitutional duty of the House of Representatives as an institution
and that of the individual members thereof of fealty to the supreme
will of the people, the House of Representatives must ensure to the
people a stable, continuing government and therefore must remove
all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives
to exert all efforts to unify the nation, to eliminate fractious tension,
to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative
of the various segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for the
attainment of all the foregoing, for the House of Representatives to
extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest
demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to
the assumption into office by Vice President Gloria Macapagal-Arroyo
as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as
a partner in the attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of Representatives on
January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed
House Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYO'S NOMINATION OF SENATOR TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due
to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a
majority vote of all members of both Houses voting separately;
153
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has (Sgd.) ROBERTO P. NAZARENO
nominated Senate Minority Leader Teofisto T. Guingona Jr., to the
Secretary General"
position of Vice President of the Republic of the Philippines;

(4) Also, despite receipt of petitioner's letter claiming inability, some

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant
twelve (12) members of the Senate signed the following:
endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;

"RESOLUTION
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling
qualities of true statesmanship, having served the government in
various capacities, among others, as Delegate to the Constitutional WHEREAS, the recent transition in government offers the nation an
Convention, Chairman of the Commission on Audit, Executive opportunity for meaningful change and challenge;
Secretary, Secretary of Justice, Senator of the Philippines – qualities
which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it WHEREAS, to attain desired changes and overcome awesome
challenges the nation needs unity of purpose and resolve cohesive
resolute (sic) will;
Resolved as it is hereby resolved by the House of Representatives,
That the House of Representatives confirms the nomination of
Senator Teofisto T. Guingona, Jr. as the Vice President of the WHEREAS, the Senate of the Philippines has been the forum for vital
Republic of the Philippines. legislative measures in unity despite diversities in perspectives;

Adopted, WHEREFORE, we recognize and express support to the new

government of President Gloria Macapagal-Arroyo and resolve to
discharge and overcome the nation's challenges." 99
(Sgd.) FELICIANO BELMONTE JR.

Speaker
On February 7, the Senate also passed Senate Resolution No. 82100
which states:

This Resolution was adopted by the House of Representatives on

February 7, 2001.

154
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL Resolved, as it is hereby resolved, That the Senate confirm the
ARROYO'S NOMINATION OF SEM. TEOFISTO T. GUINGONA, JR. AS nomination of Sen. Teofisto T. Guingona, Jr. as Vice President of the
VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES Republic of the Philippines.

WHEREAS, there is vacancy in the Office of the Vice President due Adopted,
to the assumption to the Presidency of Vice President Gloria
Macapagal-Arroyo;
(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the
President in the event of such vacancy shall nominate a Vice
President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a This Resolution was adopted by the Senate on February 7, 2001.
majority vote of all members of both Houses voting separately;

(Sgd.) LUTGARDO B. BARBO

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has
Secretary of the Senate"
nominated Senate Minority Leader Teofisto T. Guingona, Jr. to the
position of Vice President of the Republic of the Philippines;

On the same date, February 7, the Senate likewise passed Senate

Resolution No. 83101 which states:
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant
endowed with integrity, competence and courage; who has served
the Filipino people with dedicated responsibility and patriotism;
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS
FUNCTUS OFFICIO

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities

of true statemanship, having served the government in various
capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the land - which qualities
merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it
Resolved, as it is hereby resolved. That the Senate recognize that
the Impeachment Court is functus officio and has been terminated.
Resolved, further, That the Journals of the Impeachment Court on
Monday, January 15, Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.

155

Resolved, further, That the records of the Impeachment Court
including the "second envelope" be transferred to the Archives of the
Senate for proper safekeeping and preservation in accordance with
the Rules of the Senate. Disposition and retrieval thereof shall be
made only upon written approval of the Senate president.
Resolved, finally. That all parties concerned be furnished copies of
this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution No. 84
"certifying to the existence of vacancy in the Senate and calling on
the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the
Senatorial candidate garnering the thirteenth (13th) highest number
of votes shall serve only for the unexpired term of Senator Teofisto
T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to be signed into
law by respondent Arroyo as President.
(7) Despite the lapse of time and still without any functioning
Cabinet, without any recognition from any sector of government, and
without any support from the Armed Forces of the Philippines and
the Philippine National Police, the petitioner continues to claim that
his inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is that both houses
of Congress have recognized respondent Arroyo as the President.
Implicitly clear in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review the
claim of temporary inability of petitioner Estrada and thereafter
revise the decision of both Houses of Congress recognizing
respondent Arroyo as president of the Philippines. Following Tañada
v. Cuenco,102 we hold that this Court cannot exercise its judicial
power or this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative xxx branch of the
government." Or to use the language in Baker vs. Carr,103 there is
a "textually demonstrable or a lack of judicially discoverable and
manageable standards for resolving it." Clearly, the Court cannot
pass upon petitioner's claim of inability to discharge the power and
duties of the presidency. The question is political in nature and
addressed solely to Congress by constitutional fiat. It is a political
issue, which cannot be decided by this Court without transgressing
the principle of separation of powers.
In fine, even if the petitioner can prove that he did not resign, still,
he cannot successfully claim that he is a President on leave on the
156
ground that he is merely unable to govern temporarily. That claim
has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of
government cannot be reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from suit.
Assuming he enjoys immunity, the extent of the immunity
Petitioner Estrada makes two submissions: first, the cases filed
against him before the respondent Ombudsman should be prohibited
because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit,
whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our legal history
executive immunity will be most enlightening. The doctrine of
executive immunity in this jurisdiction emerged as a case law. In the
1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the
respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron
Forbes, Governor-General of the Philippine Islands. J.E. Harding and
C.R. Trowbridge, Chief of Police and Chief of the Secret Service of
the City of Manila, respectively, for damages for allegedly conspiring
to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:
" The principle of nonliability, as herein enunciated, does not mean
that the judiciary has no authority to touch the acts of the Governor-
General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk
defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean,
either that a person injured by the executive authority by an act
unjustifiable under the law has n remedy, but must submit in silence.
On the contrary, it means, simply, that the governors-general, like
the judges if the courts and the members of the Legislature, may
not be personally mulcted in civil damages for the consequences of
an act executed in the performance of his official duties. The
judiciary has full power to, and will, when the mater is properly
presented to it and the occasion justly warrants it, declare an act of
the Governor-General illegal and void and place as nearly as possible
in status quo any person who has been deprived his liberty or his
property by such act. This remedy is assured to every person,
however humble or of whatever country, when his personal or
property rights have been invaded, even by the highest authority of
the state. The thing which the judiciary can not do is mulct the
Governor-General personally in damages which result from the
performance of his official duty, any more than it can a member of
the Philippine Commission of the Philippine Assembly. Public policy
forbids it.
Neither does this principle of nonliability mean that the chief
executive may not be personally sued at all in relation to acts which
he claims to perform as such official. On the contrary, it clearly
appears from the discussion heretofore had, particularly that portion
which touched the liability of judges and drew an analogy between
such liability and that of the Governor-General, that the latter is
liable when he acts in a case so plainly outside of his power and
authority that he can not be said to have exercised discretion in
determining whether or not he had the right to act. What is held here
is that he will be protected from personal liability for damages not
only when he acts within his authority, but also when he is without
authority, provided he actually used discretion and judgement, that
is, the judicial faculty, in determining whether he had authority to
157
act or not. In other words, in determining the question of his
authority. If he decide wrongly, he is still protected provided the
question of his authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he s not
protected if the lack of authority to act is so plain that two such men
could not honestly differ over its determination. In such case, be
acts, not as Governor-General but as a private individual, and as
such must answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if the Chief
Executive was not granted immunity from suit, viz "xxx. Action upon
important matters of state delayed; the time and substance of the
chief executive spent in wrangling litigation; disrespect engendered
for the person of one of the highest officials of the state and for the
office he occupies; a tendency to unrest and disorder resulting in a
way, in distrust as to the integrity of government itself."105
Our 1935 Constitution took effect but it did not contain any specific
provision on executive immunity. Then came the tumult of the
martial law years under the late President Ferdinand E. Marcos and
the 1973 Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity. Section 17, Article
VII stated:
"The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by him
or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incumbent
President referred to in Article XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture entitled,
"Presidential Immunity and All The King's Men: The Law of Privilege
As a Defense To Actions For Damages,"106 petitioner's learned
counsel, former Dean of the UP College of Law, Atty. Pacificao
Agabin, brightened the modifications effected by this constitutional
amendment on the existing law on executive privilege. To quote his
disquisition:
"In the Philippines, though, we sought to do the Americans one
better by enlarging and fortifying the absolute immunity concept.
First, we extended it to shield the President not only form civil claims
but also from criminal cases and other claims. Second, we enlarged
its scope so that it would cover even acts of the President outside
the scope of official duties. And third, we broadened its coverage so
as to include not only the President but also other persons, be they
government officials or private individuals, who acted upon orders of
the President. It can be said that at that point most of us were
suffering from AIDS (or absolute immunity defense syndrome)."
The Opposition in the then Batasan Pambansa sought the repeal of
this Marcosian concept of executive immunity in the 1973
Constitution. The move was led by them Member of Parliament, now
Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the
principle that a public office is a public trust. He denounced the
immunity as a return to the anachronism "the king can do no
wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President Marcos was
ousted from office by the People Power revolution in 1986. When the
1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following
explanation was given by delegate J. Bernas vis:108
158
"Mr. Suarez. Thank you.
The last question is with reference to the Committee's omitting in
the draft proposal the immunity provision for the President. I agree
with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original
provision on immunity from suit under the 1973 Constitution. But
would the Committee members not agree to a restoration of at least
the first sentence that the President shall be immune from suit
during his tenure, considering that if we do not provide him that kind
of an immunity, he might be spending all his time facing litigation's,
as the President-in-exile in Hawaii is now facing litigation's almost
daily?
Fr. Bernas. The reason for the omission is that we consider it
understood in present jurisprudence that during his tenure he is
immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before. The only
innovation made by the 1973 Constitution was to make that explicit
and to add other things.
Mr. Suarez. On that understanding, I will not press for any more
query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the light of this
history. We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was
aborted by the walkout of the prosecutors and by the events that led
to his loss of the presidency. Indeed, on February 7, 2001, the
Senate passed Senate Resolution No. 83 "Recognizing that the
Impeachment Court is Functus Officio."109 Since, the Impeachment
Court is now functus officio, it is untenable for petitioner to demand
that he should first be impeached and then convicted before he can
be prosecuted. The plea if granted, would put a perpetual bar against
his prosecution. Such a submission has nothing to commend itself
for it will place him in a better situation than a non-sitting President
who has not been subjected to impeachment proceedings and yet
can be the object of a criminal prosecution. To be sure, the debates
in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the resignation
of the President, the proper criminal and civil cases may already be
filed against him, viz:110
"xxx
Mr. Aquino. On another point, if an impeachment proceeding has
been filed against the President, for example, and the President
resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the
impeachment proceeding? Will it be necessarily dropped?
Mr. Romulo. If we decide the purpose of impeachment to remove
one from office, then his resignation would render the case moot and
academic. However, as the provision says, the criminal and civil
aspects of it may continue in the ordinary courts."
159

This is in accord with our ruling In Re: Saturnino Bermudez111 that
'incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and
thereafter he lost the presidency, petitioner Estrada cannot demand
as a condition sine qua non to his criminal prosecution before the
Ombudsman that he be convicted in the impeachment proceedings.
His reliance on the case of Lecaroz vs. Sandiganbayan112 and
related cases113 are inapropos for they have a different factual
milieu.
We now come to the scope of immunity that can be claimed by
petitioner as a non-sitting President. The cases filed against
petitioner Estrada are criminal in character. They involve plunder,
bribery and graft and corruption. By no stretch of the imagination
can these crimes, especially plunder which carries the death penalty,
be covered by the alleged mantle of immunity of a non-sitting
president. Petitioner cannot cite any decision of this Court licensing
the President to commit criminal acts and wrapping him with post-
tenure immunity from liability. It will be anomalous to hold that
immunity is an inoculation from liability for unlawful acts and
conditions. The rule is that unlawful acts of public officials are not
acts of the State and the officer who acts illegally is not acting as
such but stands in the same footing as any trespasser.114
Indeed, critical reading of current literature on executive immunity
will reveal a judicial disinclination to expand the privilege especially
when it impedes the search for truth or impairs the vindication of a
right. In the 1974 case of US v. Nixon,115 US President Richard
Nixon, a sitting President, was subpoenaed to produce certain
recordings and documents relating to his conversations with aids and
advisers. Seven advisers of President Nixon's associates were facing
charges of conspiracy to obstruct Justice and other offenses, which
were committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during the 972
presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the
subpoena on the ground, among others, that the President was not
subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial
proceedings. The claim was rejected by the US Supreme Court. It
concluded that "when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is based only
on the generalized interest in confidentiality, it cannot prevail over
the fundamental demands of due process of law in the fair
administration of criminal justice." In the 1982 case of Nixon v.
Fitzgerald,116 the US Supreme Court further held that the immunity
of the president from civil damages covers only "official acts."
Recently, the US Supreme Court had the occasion to reiterate this
doctrine in the case of Clinton v. Jones117 where it held that the US
President's immunity from suits for money damages arising out of
their official acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to appeals to stretch
the scope of executive immunity in our jurisdiction. One of the great
themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain
honesty and integrity in the public service and take positive and
effective measures against graft and corruptio."119 it ordained that
"public officers and employees must at all times be accountable to
the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover
properties unlawfully acquired by public officials or employees, from
them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the
Sandiganbayan as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers, among which
is to "investigate on its own, or on complaint by any person, any act
or omission of any public official, employee, office or agency, when
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such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal
autonomy.124 These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys
immunity from suit for criminal acts committed during his
incumbency.
V impartial trial due to prejudicial publicity. It is true that the print and
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial publicity
Petitioner also contends that the respondent Ombudsman should be
stopped from conducting the investigation of the cases filed against
him due to the barrage of prejudicial publicity on his guilt. He
submits that the respondent Ombudsman has developed bias and is
all set file the criminal cases violation of his right to due process.
There are two (2) principal legal and philosophical schools of thought
on how to deal with the rain of unrestrained publicity during the
investigation and trial of high profile cases.125 The British approach
the problem with the presumption that publicity will prejudice a jury.
Thus, English courts readily stay and stop criminal trials when the
right of an accused to fair trial suffers a threat.126 The American
approach is different. US courts assume a skeptical approach about
the potential effect of pervasive publicity on the right of an accused
to a fair trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of irreparable harm,
strong likelihood, clear and present danger, etc.
This is not the first time the issue of trial by publicity has been raised
in this Court to stop the trials or annul convictions in high profile
criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated
in the case of Larranaga vs. court of Appeals, et al.,129 we laid down
the doctrine that:
"We cannot sustain appellant's claim that he was denied the right to
broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule
that the right of an accused to a fair trial is not incompatible to a
free press. To be sure, responsible reporting enhances accused's
right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the criminal field xxx. The press does not
simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and
judicial processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused
to fair trial. The mere fact that the trial of appellant was given a day-
to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members
of the bench from pre-trial and other off-court publicity of
sensational criminal cases. The state of the art of our communication
system brings news as they happen straight to our breakfast tables
and right to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, our idea of a fair
and impartial judge is not that of a hermit who is out of touch with
the world. We have not installed the jury system whose members
are overly protected from publicity lest they lose there impartially.
xxx xxx xxx. Our judges are learned in the law and trained to
disregard off-court evidence and on-camera performances of parties
to litigation. Their mere exposure to publications and publicity stunts
does not per se fatally infect their impartiality.
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 industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of
At best, appellant can only conjure possibility of prejudice on the
the case at bar. Our daily diet of facts and fiction about the case
part of the trial judge due to the barrage of publicity that
continues unabated even today. Commentators still bombard the
characterized the investigation and trial of the case. In Martelino, et
public with views not too many of which are sober and sublime.
al. v. Alejandro, et al., we rejected this standard of possibility of
Indeed, even the principal actors in the case – the NBI, the
prejudice and adopted the test of actual prejudice as we ruled that
respondents, their lawyers and their sympathizers have participated
to warrant a finding of prejudicial publicity, there must be allegation
in this media blitz. The possibility of media abuses and their threat
and proof that the judges have been unduly influenced, not simply
to a fair trial notwithstanding, criminal trials cannot be completely
that they might be, by the barrage of publicity. In the case at a bar,
closed to the press and public. In the seminal case of Richmond
the records do not show that the trial judge developed actual bias
Newspapers, Inc. v. Virginia, it was
against appellants as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge
xxx
acquired a fixed opinion as a result of prejudicial publicity, which is
incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not
discharged the burden.' The historical evidence of the evolution of the criminal trial in Anglo-
American justice demonstrates conclusively that at the time this
Nation's organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance
We expounded further on this doctrine in the subsequent case of
that the proceedings were conducted fairly to all concerned and
Webb vs. Hon. Raul de Leon, etc.130 and its companion cases, viz:
discouraging perjury, the misconduct of participants, or decisions
based on secret bias or partiality. In addition, the significant
community therapeutic value of public trials was recognized when a
"Again petitioners raise the effect of prejudicial publicity on their
shocking crime occurs a community reaction of outrage and public
right to due process while undergoing preliminary investigation. We
protest often follows, and thereafter the open processes of justice
find no procedural impediment to its early invocation considering the
serve an important prophylactic purpose, providing an outlet for
substantial risk to their liberty while undergoing a preliminary
community concern, hostility and emotion. To work effectively, it is
investigation.
important that society's criminal process satisfy the appearance of
justice,' Offutt v. United States, 348 US 11, 14, 99 L ED 11, 75 S Ct
11, which can best be provided by allowing people to observe such
xxx process. From this unbroken, uncontradicted history, supported by
reasons as valid today as in centuries past, it must be concluded that
a presumption of openness inheres in the very nature of a criminal
The democratic settings, media coverage of trials of sensational trial under this Nation's system of justice, Cf., e,g., Levine v. United
cases cannot be avoided and oftentimes, its excessiveness has been States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
aggravated by kinetic developments in the telecommunications

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The freedoms of speech. Press and assembly, expressly guaranteed
by the First Amendment, share a common core purpose of assuring
freedom of communication on matters relating to the functioning of
government. In guaranteeing freedom such as those of speech and
press, the First Amendment can be read as protecting the right of
everyone to attend trials so as give meaning to those explicit
guarantees; the First Amendment right to receive information and
ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily
closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise
of the other First Amendment rights with which the draftsmen
deliberately linked it. A trial courtroom is a public place where the
people generally and representatives of the media have a right to be
present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
Even though the Constitution contains no provision which be its
terms guarantees to the public the right to attend criminal trials,
various fundamental rights, not expressly guaranteed, have been
recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the
First Amendment: without the freedom to attend such trials, which
people have exercised for centuries, important aspects of freedom
of speech and of the press be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his
due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro,
et al., we held that to warrant a finding of prejudicial publicity there
must be allegation and proof that the judges have been unduly
influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and
impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ
Panel, for these are basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an Assistant Chief State
Prosecutor and Senior State Prosecutors. Their long experience in
criminal investigation is a factor to consider in determining whether
they can easily be blinded by the klieg lights of publicity. Indeed,
their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence
except evidence properly adduced by the parties. The length of time
the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of
petitioners speak well of their fairness. At no instance, we note, did
petitioners seek the disqualification of any member of the DOJ Panel
on the ground of bias resulting from their bombardment of
prejudicial publicity." (emphasis supplied)
Applying the above ruling, we hold that there is not enough evidence
to warrant this Court to enjoin the preliminary investigation of the
petitioner by the respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of proof.131 He
needs to show more weighty social science evidence to successfully
prove the impaired capacity of a judge to render a bias-free decision.
Well to note, the cases against the petitioner are still undergoing
preliminary investigation by a special panel of prosecutors in the
office of the respondent Ombudsman. No allegation whatsoever has
been made by the petitioner that the minds of the members of this
special panel have already been infected by bias because of the
pervasive prejudicial publicity against him. Indeed, the special panel
has yet to come out with its findings and the Court cannot second
guess whether its recommendation will be unfavorable to the
petitioner.1âwphi1.nêt
The records show that petitioner has instead charged respondent
Ombudsman himself with bias. To quote petitioner's submission, the
respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and
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pressures directed at him by the mobs."132 News reports have also
been quoted to establish that the respondent Ombudsman has
already prejudged the cases of the petitioner133 and it is postulated
that the prosecutors investigating the petitioner will be influenced by
this bias of their superior.
Again, we hold that the evidence proffered by the petitioner is
insubstantial. The accuracy of the news reports referred to by the
petitioner cannot be the subject of judicial notice by this Court
especially in light of the denials of the respondent Ombudsman as to
his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is entitled.
Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that the prejudice of respondent Ombudsman flows to his
subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make their own
findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled
cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to file
the cases against the petitioner and the latter believes that the
findings of probable cause against him is the result of bias, he still
has the remedy of assailing it before the proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases against the
petitioner will now acquire a different dimension and then move to a
new stage - - - the Office of the Ombudsman. Predictably, the call
from the majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more threatening. It is
the sacred duty of the respondent Ombudsman to balance the right
of the State to prosecute the guilty and the right of an accused to a
fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."135 To be sure, the duty of a
prosecutor is more to do justice and less to prosecute. His is the
obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the
restraint against what Lord Bryce calls "the impatient vehemence of
the majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are rights
necessarily resolved by the power of number for in a democracy, the
dogmatism of the majority is not and should never be the definition
of the rule of law. If democracy has proved to be the best form of
government, it is because it has respected the right of the minority
to convince the majority that it is wrong. Tolerance of multiformity
of thoughts, however offensive they may be, is the key to man's
progress from the cave to civilization. Let us not throw away that
key just to pander to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada
challenging the respondent Gloria Macapagal-Arroyo as the de jure
14th President of the Republic are DISMISSED.
SO ORDERED.
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