Republic of the Philippines and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the
SUPREME COURT
Manila
EN BANC  common and general interest not just to several, but to all citizens of the
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN,
JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO, 
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
SAENZ, minors, represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN,
all surnamed KING, minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
ABAYA, minors, represented by their parents ANTONIO and MARICA
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA,
minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents JOSE MAX and
VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,  incorporated in the fundamental law.
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the
Secretary of the Department of Environment and Natural Resources,
RTC, Makati, Branch 66, respondents.
Remedial Law; Actions; Class Suit; The subject matter of the complaint is of
Philippines; All the requisites for the filing of a valid class suit under Section 12
Rule 3 of the Revised Rules of Court are present. —Petitioners instituted Civil
Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule
that the said civil case is indeed a class suit. The subject matter of the complaint
is of common and general interest not just to several, but to all citizens of the
Philippines. Consequently, since the parties are so numerous, it becomes
impracticable, if not totally impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and representative
enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the
Revised Rules of Court are present both in the said civil case and in the instant
petition, the latter being but an incident to the former.
Same; Same; Same; Same; Petitioners’ personality to sue in behalf of the
succeeding generations can only be based on the concept of intergenerational
responsibility insofar as the right to a balanced and healthful ecology is
concerned.—This case, however, has a special and novel element. Petitioners
minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of
their generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based on
the concept of intergenerational responsibility insofar as the right to a balanced
and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers the “rhythm and harmony of nature.”
Same; Same; Same; Same; Same; The minors’ assertion of their right to a sound
environment constitutes at the same time the performance of their obligation to
ensure the protection of that right for the generation to come. —Needless to say,
every generation has a responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful ecology. Put a little
differently, the minors’ assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the
protection of that right for the generations to come.
Constitutional Law; The complaint focuses on one specific fundamental legal
right; The right to a balanced and healthful ecology. —The complaint focuses on
one specific fundamental legal right—the right to a balanced and healthful
ecology which, for the first time in our nation’s constitutional history, is solemnly
Same; Same; The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. —The right to a
1
balanced and healthful ecology carries with it the correlative duty to refrain from
impairing the environment.
Same; Same; The right of the petitioners to a balanced and healthful ecology is
as clear as the DENR’s duty to protect and advance the said right. —Thus, the
right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR’s duty—under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the Administrative Code of 1987—
to protect and advance the said right.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a balanced
and healthful ecology which the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and "inter-generational justice."
Specifically, it touches on the issue of whether the said petitioners have a cause
of action to "prevent the misappropriation or impairment" of Philippine
rainforests and "arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."

Same; Political Question; The political question doctrine is no longer the

The controversy has its genesis in Civil Case No. 90-77 which was filed before
insurmountable obstacle to the exercise of judicial power or the impenetrable
Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC), National
shield that protects executive and legislative actions from judicial inquiry or
Capital Judicial Region. The principal plaintiffs therein, now the principal
review.—The foregoing considered, Civil Case No. 90-777 cannot be said to raise
petitioners, are all minors duly represented and joined by their respective
a political question. Policy formulation or determination by the executive or
parents. Impleaded as an additional plaintiff is the Philippine Ecological Network,
legislative branches of Government is not squarely put in issue. What is
Inc. (PENI), a domestic, non-stock and non-profit corporation organized for the
principally involved is the enforcement of a right vis-a-vis policies already
purpose of, inter alia, engaging in concerted action geared for the protection of
formulated and expressed in legislation. It must, nonetheless, be emphasized
our environment and natural resources. The original defendant was the
that the political question doctrine is no longer the insurmountable obstacle to
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of
the exercise of judicial power or the impenetrable shield that protects executive
Environment and Natural Resources (DENR). His substitution in this petition by
and legislative actions from judicial inquiry or review.
the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners.1 The complaint2 was instituted as a
Same; Contracts; Non-impairment Clause; A timber license is not a contract,
taxpayers' class suit3 and alleges that the plaintiffs "are all citizens of the
property or a property right protected by the due process clause of the
Republic of the Philippines, taxpayers, and entitled to the full benefit, use and
Constitution.—Needless to say, all licenses may thus be revoked or rescinded by
enjoyment of the natural resource treasure that is the country's virgin tropical
executive action. It is not a contract, property or a property right protected by
forests." The same was filed for themselves and others who are equally
the due process clause of the Constitution.
concerned about the preservation of said resource but are "so numerous that it
is impracticable to bring them all before the Court." The minors further
Same; Same; Same; Same; The granting of license does not create irrevocable
asseverate that they "represent their generation as well as generations yet
rights, neither is it property or property rights. —A license is merely a permit or
unborn."4 Consequently, it is prayed for that judgment be rendered:
privilege to do what otherwise would be unlawful, and is not a contract between
the authority, federal, state, or municipal, granting it and the person to whom it
is granted; neither is it property or a property right, nor does it create a vested . . . ordering defendant, his agents, representatives and other
right; nor is it taxation’ (37 C.J. 168). Thus, this Court held that the granting of persons acting in his behalf to —
license does not create irrevocable rights, neither is it property or property
rights. (1) Cancel all existing timber license agreements in the
Same; Same; Same; Same; Timber licenses are not contracts, the non- country;
impairment clause cannot be invoked.—Since timber licenses are not contracts,
the non-impairment clause, cannot be invoked.
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
Same; Same; Same; Same; Same; The non-impairment clause must yield to the
police power of the state. —In short, the non-impairment clause must yield to the
police power of the state. and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."5
Oposa Law Office for petitioners.
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
The Solicitor General for respondents.
2
hectares and is endowed with rich, lush and verdant rainforests in which varied, 8. Twenty-five (25) years ago, the Philippines had some
rare and unique species of flora and fauna may be found; these rainforests sixteen (16) million hectares of rainforests constituting roughly
contain a genetic, biological and chemical pool which is irreplaceable; they are 53% of the country's land mass.
also the habitat of indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence reveals that in order to 9. Satellite images taken in 1987 reveal that there remained no
maintain a balanced and healthful ecology, the country's land area should be more than 1.2 million hectares of said rainforests or four per
utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and cent (4.0%) of the country's land area.
forty-six per cent (46%) for agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this balance as a consequence of
10. More recent surveys reveal that a mere 850,000 hectares
deforestation have resulted in a host of environmental tragedies, such as (a)
of virgin old-growth rainforests are left, barely 2.8% of the
water shortages resulting from drying up of the water table, otherwise known as
entire land mass of the Philippine archipelago and about 3.0
the "aquifer," as well as of rivers, brooks and streams, (b) salinization of the
million hectares of immature and uneconomical secondary
water table as a result of the intrusion therein of salt water, incontrovertible
growth forests.
examples of which may be found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion 11. Public records reveal that the defendant's, predecessors
(1,000,000,000) cubic meters per annum — approximately the size of the entire have granted timber license agreements ('TLA's') to various
island of Catanduanes, (d) the endangering and extinction of the country's corporations to cut the aggregate area of 3.89 million hectares
unique, rare and varied flora and fauna, (e) the disturbance and dislocation of for commercial logging purposes.
cultural communities, including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and consequential destruction of A copy of the TLA holders and the corresponding areas
corals and other aquatic life leading to a critical reduction in marine resource covered is hereto attached as Annex "A".
productivity, (g) recurrent spells of drought as is presently experienced by the
entire country, (h) increasing velocity of typhoon winds which result from the
12. At the present rate of deforestation, i.e. about 200,000
absence of windbreakers, (i) the floodings of lowlands and agricultural plains
hectares per annum or 25 hectares per hour — nighttime,
arising from the absence of the absorbent mechanism of forests, (j) the siltation
Saturdays, Sundays and holidays included — the Philippines
and shortening of the lifespan of multi-billion peso dams constructed and
will be bereft of forest resources after the end of this ensuing
operated for the purpose of supplying water for domestic uses, irrigation and the
decade, if not earlier.
generation of electric power, and (k) the reduction of the earth's capacity to
process carbon dioxide gases which has led to perplexing and catastrophic
climatic changes such as the phenomenon of global warming, otherwise known 13. The adverse effects, disastrous consequences, serious
as the "greenhouse effect." injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a
Plaintiffs further assert that the adverse and detrimental consequences of
matter of fact, the environmental damages enumerated in
continued and deforestation are so capable of unquestionable demonstration that
paragraph 6 hereof are already being felt, experienced and
the same may be submitted as a matter of judicial notice. This notwithstanding,
suffered by the generation of plaintiff adults.
they expressed their intention to present expert witnesses as well as
documentary, photographic and film evidence in the course of the trial.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
As their cause of action, they specifically allege that:
damage and irreparable injury to plaintiffs — especially plaintiff
minors and their successors — who may never see, use,
CAUSE OF ACTION benefit from and enjoy this rare and unique natural resource
treasure.
7. Plaintiffs replead by reference the foregoing allegations.

3
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust
for the benefit of plaintiff minors and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced
and healthful ecology and are entitled to protection by the
State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits in
the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and extreme
prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs, especially
plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part, states
that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable
harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is
conductive to a life of dignity and well-being. (P.D. 1151, 6
June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional
policy of the State to —
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of natural
resources (sic)." (Section 1, Article XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony
of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind — the natural law — and violative of plaintiffs' right
to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion
to Dismiss the complaint based on two (2) grounds, namely: (1) the plaintiffs
have no cause of action against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative or executive branches
of Government. In their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and unmistakable cause of action,
(2) the motion is dilatory and (3) the action presents a justiciable question as it
involves the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting the aforementioned
motion to dismiss.7 In the said order, not only was the defendant's claim — that
the complaint states no cause of action against him and that it raises a political
question — sustained, the respondent Judge further ruled that the granting of
the relief prayed for would result in the impairment of contracts which is
prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of
the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
4
discretion in dismissing the action. Again, the parents of the plaintiffs-minors not
only represent their children, but have also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the petition and required the
parties to submit their respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the respondents and the petitioners
filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of
action as it contains sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192 creating the DENR,
Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine Environmental
Policy), Section 16, Article II of the 1987 Constitution recognizing the right of the
people to a balanced and healthful ecology, the concept of generational genocide
in Criminal Law and the concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard
the people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave
abuse of discretion in granting Timber License Agreements (TLAs) to cover more
areas for logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that they may still be
revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege in
their complaint a specific legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing in the complaint but vague
and nebulous allegations concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state in its capacity as  parens
patriae." Such allegations, according to them, do not reveal a valid cause of
action. They then reiterate the theory that the question of whether logging
should be permitted in the country is a political question which should be
properly addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to court,
but to lobby before Congress for the passage of a bill that would ban logging
totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued, a
TLA remains effective for a certain period of time — usually for twenty-five (25)
years. During its effectivity, the same can neither be revised nor cancelled unless
the holder has been found, after due notice and hearing, to have violated the
terms of the agreement or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately cancelled without the requisite
hearing would be violative of the requirements of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original defendant
and the present respondents did not take issue with this matter. Nevertheless,
We hereby rule that the said civil case is indeed a class suit. The subject matter
of the complaint is of common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to bring all of them before the
court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests.
Hence, all the requisites for the filing of a valid class suit under Section 12, Rule
3 of the Revised Rules of Court are present both in the said civil case and in the
instant petition, the latter being but an incident to the former.
This case, however, has a special and novel element. Petitioners minors assert
that they represent their generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for others of their generation
and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers 
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and
other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future
generations. 10Needless to say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now
proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by the
parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave abuse of
5
discretion amounting to lack of jurisdiction. The pertinent portions of the said
order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified data.
In fine, plaintiffs fail to state a cause of action in its Complaint
against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter
of public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation of
Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific legal
wrong committed, and that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the complaint itself belies
these conclusions.
The complaint focuses on one specific fundamental legal right — the right to a
balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law. Section
16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for
in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the petitioners — the advancement
of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for
they are assumed to exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is because of the well-founded
fear of its framers that unless the rights to a balanced and healthful ecology and
to health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present
generation, but also for those to come — generations which stand to inherit
nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it the correlative duty
to refrain from impairing the environment. During the debates on this right in
one of the plenary sessions of the 1986 Constitutional Commission, the following
exchange transpired between Commissioner Wilfrido Villacorta and Commissioner
Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful
(sic) environment necessarily carries with it
6
 the correlative duty of not impairing the
same and, therefore, sanctions may be
provided for impairment of environmental
balance. 12
The said right implies, among many other things, the judicious management and
conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology and
the right to health, as well as the other related provisions of the Constitution
concerning the conservation, development and utilization of the country's natural
resources, 13 then President Corazon C. Aquino promulgated on 10 June 1987
E.O. No. 192, 14 Section 4 of which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary government agency
responsible for the conservation, management, development and proper use of
the country's environment and natural resources, specifically forest and grazing
lands, mineral, resources, including those in reservation and watershed areas,
and lands of the public domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order to ensure equitable
sharing of the benefits derived therefrom for the welfare of the present and
future generations of Filipinos." Section 3 thereof makes the following statement
of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the policy
of the State to ensure the sustainable use, development,
management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural
resources, including the protection and enhancement of the
quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value
system including social and environmental cost implications
relative to their utilization, development and conservation of
our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for
the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of
maintaining a sound ecological balance and protecting and
enhancing the quality of the environment and the objective of
making the exploration, development and utilization of such
natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound ecological
balance and protecting and enhancing the quality of the environment." Section 2
of the same Title, on the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of the agency's being
subject to law and higher authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of
carrying out the State's constitutional mandate to control and
supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives
which will serve as the bases for policy formulation, and have defined the powers
and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152 (Philippine
Environment Code) were issued. The former "declared a continuing policy of the
State (a) to create, develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony with each other, (b)
to fulfill the social, economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of an environmental
quality that is conducive to a life of dignity and well-being." 16 As its goal, it
speaks of the "responsibilities of each generation as trustee and guardian of the
environment for succeeding generations." 17 The latter statute, on the other
hand, gave flesh to the said policy.
7
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty — under its mandate and by
virtue of its powers and functions under E.O. No. 192 and the Administrative
Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs should
be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are legal
right of the plaintiff, correlative obligation of the defendant,
and act or omission of the defendant in violation of said legal
right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted to
the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth of
falsity of the said allegations is beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in such a case is:
admitting such alleged facts to be true, may the court render a valid judgment in
accordance with the prayer in the complaint? 20 In Militante vs. Edrosolano, 21 this
Court laid down the rule that the judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the ground of the
absence thereof [cause of action] lest, by its failure to manifest a correct
appreciation of the facts alleged and deemed hypothetically admitted, what the
law grants or recognizes is effectively nullified. If that happens, there is a blot on
the legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements
under the introductory affirmative allegations, as well as the specific averments
under the sub-heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On the basis thereof,
they may thus be granted, wholly or partly, the reliefs prayed for. It bears
stressing, however, that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally involved
is the enforcement of a right vis-a-vis policies already formulated and expressed
in legislation. It must, nonetheless, be emphasized that the political question
doctrine is no longer, the insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects executive and legislative actions
from judicial inquiry or review. The second paragraph of section 1, Article VIII of
the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of the
authority represents a broadening of judicial power to enable
the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of
the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess of
jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes
even less tenable and decisive. The reason is that, even if we
were to assume that the issue presented before us was
political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon us
that now covers, in proper cases, even the political question.
Article VII, Section 1, of the Constitution clearly provides: . . .
8
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a
quo  declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs prayed
for by the plaintiffs, i.e., to cancel all existing timber license
agreements in the country and to cease and desist from
receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount
to "impairment of contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by
such a sweeping pronouncement. In the first place, the respondent Secretary did
not, for obvious reasons, even invoke in his motion to dismiss the non-
impairment clause. If he had done so, he would have acted with utmost infidelity
to the Government by providing undue and unwarranted benefits and
advantages to the timber license holders because he would have forever bound
the Government to strictly respect the said licenses according to their terms and
conditions regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners, into every
timber license must be read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any contract,
concession, permit, licenses or any other form of privilege
granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is not
a contract within the purview of the due process clause; it is
only a license or privilege, which can be validly withdrawn
whenever dictated by public interest or public welfare as in this
case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the
authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting
of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy
Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See  Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall be
passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts, the
instant case does not involve a law or even an executive issuance declaring the
cancellation or modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless, granting further that
a law has actually been passed mandating cancellations or modifications, the
same cannot still be stigmatized as a violation of the non-impairment clause. This
is because by its very nature and purpose, such as law could have only been
passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting
their health and enhancing the general welfare. In Abe vs. Foster Wheeler 
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
9
 subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other
words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety,
moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insuran/ce Co. vs. Auditor General ,30 to wit:

Under our form of government the use of property and the

making of contracts are normally matters of private and not of
public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the
citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the
public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the
state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent Secretary
from receiving, accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would have as of yet existed in
the other instances. Moreover, with respect to renewal, the holder is not entitled
to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby

GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and
Quiason, JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.

EN BANC
10
[G.R. No. 122156. February 3, 1997]
MANILA PRINCE HOTEL, petitioner, vs. GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
Constitutional Law; Statutes; Contracts; Words and Phrases; A constitution is a
system of fundamental laws for the governance and administration of a nation —
it is supreme, imperious, absolute and unalterable except by the authority from
which it emanates. Since the Constitution is the fundamental, paramount and
supreme Iaw of the nation, it is deemed written in every statute and contract.—
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. lt prescribes the
permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all public
authority administered. Under the doctrine of constitutional supremacy, if a law
or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
Same; Same; Statutory Construction; A constitutional provision is self-executing
if the nature and extent of the right conferred and the liability imposed are fixed
by the constitution itself, so that they can be determined by an examination
and.construction of its terms, and there is no language indicating that the
subject is referred to the legislature for action.— Admittedly, some constitutions
are merely declarations of policies and principles. Their provisions command the
legislature to enact laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different departments of the
governmental machinery and securing certain fundamental and inalienable rights
of citizens. A provision which lays down a general principle, such as those found
in Art. II of the 1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-
executing. Thus a constitutional provision is selfexecuting if the nature and
extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject is
referred to the legislature for action.
Same; Same; Same; Unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing.—As against constitutions of the
past, modern constitutions have been generally drafted upon a different principle
and have often become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory enactments, and
the function of constitutional conventions has evolved into one more like that of
a legislative body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional provisions
are treated as requiring legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify the mandate of the
fundamental law. This can be cataclysmic.
Same; Same; Same; Minor details may be left to the legislature without
impairing the self-executing nature of constitutional provi sions.—Quite
apparently, Sec. 10, second par., of Art. XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting further laws to enforce
the constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without impairing the
self-executing nature of constitutional provisions.
Same; Same; Same; The omission from a constitution of any express provision
for a remedy for enforcing a right or liability is not necessarily an indication that
it was not intended to be self-executing —the rule is that a self-executing
provision of the constitution does not necessarily exhaust legislative power on
the subject, but any legislation must be in harmony with the constitution, further
the exercise of constitutional right and make it more available. —In self-executing
constitutional provisions, the legislature may still enact legislation to facilitate the
exercise of powers directly granted by the constitution, further the operation of
such a provision, prescribe a practice to be used for its enforcement, provide a
convenient remedy for the protection of the rights secured or the determination
thereof, or place reasonable safeguards around the exercise of the right. The
mere fact that legislation may supplement and add to or prescribe a penalty for
the violation of a self-executing constitutional provision does not render such a
provision ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or liability
is not necessarily an indication that it was not intended to be self-executing. The
rule is that a self-executing provision of the constitution does not necessarily
exhaust legislative power on the subject, but any legislation must be in harmony
with the constitution, further the exercise of constitutional right and make it
more available. Subsequent legislation however does not necessarily mean that
the subject constitutional provision is not, by itself, fully enforceable.
Same; Same; Same; A constitutional provision may be selfexecuting in one part
and non-self-executing in another. —Respondents also argue that the non-self-
11
executing nature of Sec. 10, second par., of Art. XII is implied from the tenor of
the first and third paragraphs of the same section which undoubtedly are not
selfexecuting. The argument is flawed. If the first and third paragraphs are not
self-executing because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to regulate and exercise authority
over foreign investments within its national jurisdiction, as in the third
paragraph, then a fortiori, by the same logic, the second paragraph can only be
selfexecuting as it does not by its language require any legislation in order to
give preference to qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A constitutional
provision may be self-executing in one part and non-self-executing in another.
Same; National Economy and Patrimony; When the Constitution mandates that
in the grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos, it means just
that—qualified Filipinos shall be preferred.— On the other hand, Sec. 10, second
par., Art. XII of the 1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or implementing laws or
rules for its enforcement. From its very words the provision does not require any
legislation to put it in operation. It is per se judicially enforceable. When our
Constitution mandates that [i]n the grant of rights, privileges, and concessions
covering national economy and patrimony, the State shall give preference to
qualified Filipinos, it means just that—qualified Filipinos shall be preferred.
Same; Same; When the Constitution declares that a right exists in certain
specified circumstances, an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject —such right
enforces itself by its own inherent potency and puissance. —And when our
Constitution declares that a right exists in certain specified circumstances an
action may be maintained to enforce such right notwithstanding the absence of
any legislation on the subject; consequently, if there is no statute especially
enacted to enforce such constitutional right, such right enforces itself by its own
inherent potency and puissance, and from which all legislations must take their
bearings. Where there is a right there is a remedy. Ubi jus ibi remedium.
Same; Same; Words and Phrases; When the Constitution speaks of “national
patrimony,” it refers not only to the natural resources of the Philippines but also
to the cultural heritage of the Filipinos.—In its plain and ordinary meaning, the
term patrimony pertains to heritage. When the Constitution speaks of national
patrimony, it refers not only to the natural resources of the Philippines, as the
Constitution could have very well used the term natural resources, but also to
the cultural heritage of the Filipinos.
Same; Same; Manila Hotel; Manila Hotel has become a landmark—a living
testimonial of Philippine heritage.—Manila Hotel has become a landmark—a living
testimonial of Philippine heritage. While it was restrictively an American hotel
when it first opened in 1912, it immediately evolved to be truly Filipino. Formerly
a concourse for the elite, it has since then become the venue of various
significant events which have shaped Philippine history. It was called the Cultural
Center of the 1930’s. It was the site of the festivities during the inauguration of
the Philippine Commonwealth, Dubbed as the Official Guest House of the
Philippine Government it plays host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality.
Same; Same; Same; Verily, Manila Hotel has become part of our national
economy and patrimony.—For more than eight (8) decades Manila Hotel has
bore mute witness to the triumphs and failures, loves and frustrations of the
Filipinos; its existence is impressed with public interest; its own historicity
associated with our struggle for sovereignty, independence and nationhood.
Verily, Manila Hotel has become part of our national economy and patrimony. For
sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that
anyone who acquires or owns the 51% will have actual control and management
of the hotel. In this instance, 51% of the MHC cannot be disassociated from the
hotel and the land on which the hotel edifice stands.
Same; Same; Same; Filipino First Policy; Words and Phrases; The term “qualified
Filipinos” as used in the Constitution also includes corporations at least 60% of
which is owned by Filipinos.— Consequently, we cannot sustain respondents’
claim that the Filipino First Policy provision is not applicable since what is being
sold is only 51% of the outstanding shares of the corporation, not the Hotel
building nor the land upon which the building stands. The argument is pure
sophistry. The term qualified Filipinos as used in our Constitution also includes
corporations at least 60% of which is owned by Filipinos. This is very clear from
the proceedings of the 1986 Constitutional Commission.
Same; Statutory Construction; Even some of the provisions of the Constitution
which evidently need implementing legislation have juridical life of their own and
can be the source of judicial remedy. — The penchant to try to whittle away the
mandate of the Constitution by arguing that the subject provision is not self-
executory and requires implementing legislation is quite disturbing. The attempt
to violate a clear constitutional provision—by the government itself—is only too
distressing. To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution, For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life of
their own and can be the source of a judicial remedy. We cannot simply afford
the government a defense that arises out of the failure to enact further enabling,
implementing or guiding legislation.
Same; Same; Words and Phrases; In constitutional jurisprudence, the acts of a
person distinct from the government are considered “state action” covered by
the Constitution (1) when the activity it engages in is a “public function”; (2)
when the government is so significantly involved with the private actor as to
12
make the government responsible for his action; and, (3) when the government
has approved or authorized the action.—Respondents further argue that the
constitutional provision is addressed to the State, not to respondent GSIS which
by itself possesses a separate and distinct personality. This argument again is at
best specious. It is undisputed that the sale of 51% of the MHC could only be
carried out with the prior approval of the State acting through respondent
Committee on Privatization. As correctly pointed out by Fr. Joaquin G. Bernas,
S.J., this fact alone makes the sale of the assets of respondents GSIS and MHC a
“state action.” In constitutional jurisprudence, the acts of persons distinct from
the government are considered “state action” covered by the Constitution (1)
when the activity it engages in is a “public function”; (2) when the government is
so significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and third
categories of “state action.” Without doubt therefore the transaction, although
entered into by respondent GSIS, is in fact a transaction of the State and
therefore subject to the constitutional command.
Same; Same; Same; When the Constitution addresses the State it refers not only
to the people but also to the government as elements of the State.—When the
Constitution addresses the State it refers not only to the people but also to the
government as elements of the State. After all, government is composed of three
(3) divisions of power—legislative, executive and judicial. Accordingly, a
constitutional mandate directed to the State is correspondingly directed to the
three (3) branches of government. It is undeniable that in this case the subject
constitutional injunction is addressed among others to the Executive Department
and respondent GSIS, a government instrumentality deriving its authority from
the State.
Same; National Economy and Patrimony; Filipino First Policy; Bids and Bidding;
Since the Filipino First Policy provision of the Constitution bestows preference on
qualified Filipinos, the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. —It should be stressed
that while the Malaysian firm offered the higher bid it is not yet the winning
bidder. The bidding rules expressly provide that the highest bidder shall only be
declared the winning bidder after it has negotiated and executed the necessary
contracts, and secured the requisite approvals. Since the Filipino First Policy
provision of the Constitution bestows preference on qualified Filipinos the mere
tending of the highest bid is not an assurance that the highest bidder will be
declared the winning bidder. Resultantly, respondents are not bound to make the
award yet, nor are they under obligation to enter into one with the highest
bidder. For in choosing the awardee respondents are mandated to abide by the
dictates of the 1987 Constitution the provisions of which are presumed to be
known to all the bidders and other interested parties.
Same; Same; Same; Same; Adhering to the doctrine of constitutional
supremacy, the Filipino First Policy constitutional provision is, as it should be,
impliedly written in the bidding rules issued by GSIS, lest the bidding rules be
nullified for being violative of the Constitution. —Adhering to the doctrine of
constitutional supremacy, the subject constitutional provision is, as it should be,
impliedly written in the bidding rules issued by respondent GSIS, lest the bidding
rules be nullified for being violative of the Constitution. It is a basic principle in
constitutional law that all laws and contracts must conform with the fundamental
law of the land. Those which violate the Constitution lose their reason for being.
Same; Same; Same; Same; Certainly, the constitutional mandate itself is reason
enough not to award the block of shares immediately to the foreign bidder
notwithstanding its submission of a higher, or even the highest, bid—Paragraph
V.J.1 of the bidding rules provides that [i]f for any reason the Highest Bidder
cannot be awarded the Block of Shares, GSIS may offer this to other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders
are willing to match the highest bid in terms of price per share. Certainly, the
constitutional mandate itself is reason enough not to award the block of shares
immediately to the foreign bidder notwithstanding its submission of a higher, or
even the highest, bid. In fact, we cannot conceive of a stronger reason than the
constitutional injunction itself.
Same; Same; Same; Where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be allowed to match the bid of the
foreign entity.—ln the instant case, where a foreign firm submits the highest bid
in a public bidding concerning the grant of rights, privileges and concessions
covering the national economy and patrimony, thereby exceeding the bid of a
Filipino, there is no question that the Filipino will have to be allowed to match
the bid of the foreign entity. And if the Filipino matches the bid of a foreign firm
the award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For, while
this may neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.
Same; Any person desiring to do business in the Philippines or with any of its
agencies or instrumentalities is presumed to know his rights and obligations
under the Constitution and the laws of the forum.— This Court does not discount
the apprehension that this policy may discourage foreign investors. But the
Constitution and laws of the Philippines are understood to be always open to
public scrutiny. These are given factors which investors must consider when
venturing into business in a foreign jurisdiction. Any person therefore desiring to
do business in the Philippines or with any of its agencies or instrumentalities is
presumed to know his rights and obligations under the Constitution and the laws
of the forum.
13

Same; Statutory Construction; The miscomprehension of the Constitution is
regrettable, thus the Supreme Court would rather remedy the indiscretion while
there is still an opportunity to do so than let the government develop the habit
of forgetting that the Constitution lays down the basic conditions and parameters
for its actions.—Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To insist on selling
the Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The miscomprehension of
the Constitution is regrettable. Thus we would rather remedy the indiscretion
while there is still an opportunity to do so than let the government develop the
habit of forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Same; Same; National Economy and Patrimony; Filipino First Policy; Nationalism;
The Filipino First Policy is a product of Philippine nationalism, embodied in the
1987 Constitution not merely to be used as a guideline for future legislation but
primarily to be enforced—so must it be enforced.—The Filipino First Policy is a
product of Philippine nationalism. lt is embodied in the 1987 Constitution not
merely to be used as a guideline for future legislation but primarily to be
enforced; so must it be enforced. This Court as the ultimate guardian of the
Constitution will never shun, under any reasonable circumstance, the duty of
upholding the majesty of the Constitution which it is tasked to defend. It is worth
emphasizing that it is not the intention of this Court to impede and diminish,
much less undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but avowedly sanctions
the preference for Filipinos whenever such preference is ordained by the
Constitution.
Same; Same; Same; The Supreme Court will always defer to the Constitution in
the proper governance of a free society, after all, there is nothing so sacrosanct
in any economic policy as to draw itself beyond judicial review when the
Constitution is involved.—Privatization of a business asset for purposes of
enhancing its business viability and preventing further losses, regardless of the
character of the asset, should not take precedence over non-material values. A
commercial, nay even a budgetary, objective should not be pursued at the
expense of national pride and dignity. For the Constitution enshrines higher and
nobler non-material values. Indeed, the Court will always defer to the
Constitution in the proper governance of a free society; after all, there is nothing
so sacrosanct in any economic policy as to draw itself beyond judicial review
when the Constitution is involved.
Same; Same; Same; Nationalism; Nationalism is inherent in the very concept of
the Philippines being a democratic and republican state, with sovereignty
residing in the Filipino people and from whom all government authority
emanates.—Nationalism is inherent in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino people
and from whom all government authority emanates. In nationalism, the
happiness and welfare of the people must be the goal. The nation-state can have
no higher purpose. Any interpretation of any constitutional provision must adhere
to such basic concept. Protection of foreign investments, while laudible, is merely
a policy. It cannot override the demands of nationalism.
Same; Same; Same; Same; Manila Hotel; Manila Hotel has played and
continues to play a significant role as an authentic repository of twentieth
century Philippine history and culture, and in this sense, it has become truly a
reflection of the Filipino soul —a place with a history of grandeur, a most
historical setting that has played a part in the shaping of a country.—The Manila
Hotel or, for that matter, 51% of the MHC, is not just any commodity to be sold
to the highest bidder solely for the sake of privatization. We are not talking about
an ordinary piece of property in a commercial district. We are talking about a
historic relic that has hosted many of the most important events in the short
history of the Philippines as a nation. We are talking about a hotel where heads
of states would prefer to be housed as a strong manifestation of their desire to
cloak the dignity of the highest state function to their official visits to the
Philippines. Thus the Manila Hotel has played and continues to play a significant
role as an authentic repository of twentieth century Philippine history and
culture. In this sense, it has become truly a reflection of the Filipino soul— a
place with a history of grandeur; a most historical setting that has played a part
in the shaping of a country.
Same; Same; Same; Same; Same; The conveyance of Manila Hotel, an epic
exponent of the Filipino psyche, to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of a
nation’s soul for some pieces of foreign silver.— This Court cannot extract rhyme
nor reason from the determined efforts of respondents to sell the historical
landmark—this Grand Old Dame of hotels in Asia—to a total stranger. For,
indeed, the conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever manner viewed,
a veritable alienation of a nation’s soul for some pieces of foreign silver. And so
we ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos if Manila Hotel—and all that it stands for—
is sold to a non-Filipino? How much of national pride will vanish if the nation’s
cultural heritage is entrusted to a foreign entity? On the other hand, how much
dignity will be preserved and realized if the national patrimony is safekept in the
hands of a qualified, zealous and wellmeaning Filipino? This is the plain and
simple meaning of the Filipino First Policy provision of the Philippine Constitution.
And this Court, heeding the clarion call of the Constitution and accepting the
duty of being the elderly watchman of the nation, will continue to respect and
protect the sanctity of the Constitution.
DECISION
14
BELLOSILLO, J.:
The Filipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of
rights, privileges, and concessions covering the national economy and patrimony,
the State shall give preference to qualified Filipinos,[1] is invoked by petitioner in
its bid to acquire 51% of the shares of the Manila Hotel Corporation (MHC) which
owns the historic Manila Hotel. Opposing, respondents maintain that the
provision is not self-executing but requires an implementing legislation for its
enforcement. Corollarily, they ask whether the 51% shares form part of the
national economy and patrimony covered by the protective mantle of the
Constitution.
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government
under Proclamation No. 50 dated 8 December 1986, decided to sell through
public bidding 30% to 51% of the issued and outstanding shares of respondent
MHC. The winning bidder, or the eventual strategic partner, is to provide
management expertise and/or an international marketing/reservation system,
and financial support to strengthen the profitability and performance of the
Manila Hotel.[2] In a close bidding held on 18 September 1995 only two (2)
bidders participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000 shares
at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as
its hotel operator, which bid for the same number of shares at P44.00 per share,
or P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state -
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC -
1. The Highest Bidder must comply with the conditions set forth below by
October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose the
right to purchase the Block of Shares and GSIS will instead offer the Block of
Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract or
other type of contract specified by the Highest Bidder in its strategic plan for the
Manila Hotel x x x x
b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with
GSIS x x x x
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER -
The Highest Bidder will be declared the Winning Bidder/Strategic Partner after
the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than October
23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/ OGCC (Office of the Government Corporate Counsel) are obtained.
[3]
Pending the declaration of Renong Berhard as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00 per
share tendered by Renong Berhad.[4] In a subsequent letter dated 10 October
1995 petitioner sent a managers check issued by Philtrust Bank for Thirty-three
Million Pesos (P33,000,000.00) as Bid Security to match the bid of the Malaysian
Group, Messrs. Renong Berhad x x x x[5] which respondent GSIS refused to
accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the MHC
may be hastened by respondent GSIS and consummated with Renong Berhad,
petitioner came to this Court on prohibition and mandamus. On 18 October 1995
the Court issued a temporary restraining order enjoining respondents from
perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after
it was referred to it by the First Division. The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which reflects
the vibrancy of Philippine heritage and culture. It is a proud legacy of an earlier
generation of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full potential of the
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.[6]Petitioner also argues that since 51% of the shares of the MHC
carries with it the ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is
unquestionably a part of the national economy. Thus, any transaction involving
51% of the shares of stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987 Constitution, applies. [7]
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the Malaysian
firm. For the bidding rules mandate that if for any reason, the Highest Bidder
15
cannot be awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that these Qualified
Bidders are willing to match the highest bid in terms of price per share. [8]
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of
the 1987 Constitution is merely a statement of principle and policy since it is not
a self-executing provision and requires implementing legislation(s) x x x x Thus,
for the said provision to operate, there must be existing laws to lay down
conditions under which business may be done.[9]
Second, granting that this provision is self-executing, Manila Hotel does not fall
under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the first
and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According to
respondents, while petitioner speaks of the guests who have slept in the hotel
and the events that have transpired therein which make the hotel historic, these
alone do not make the hotel fall under the patrimony of the nation. What is
more, the mandate of the Constitution is addressed to the State, not to
respondent GSIS which possesses a personality of its own separate and distinct
from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building nor
the land upon which the building stands. Certainly, 51% of the equity of the MHC
cannot be considered part of the national patrimony.Moreover, if the disposition
of the shares of the MHC is really contrary to the Constitution, petitioner should
have questioned it right from the beginning and not after it had lost in the
bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
which provides that if for any reason, the Highest Bidder cannot be awarded the
Block of Shares, GSIS may offer this to the other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are willing to match
the highest bid in terms of price per share , is misplaced. Respondents postulate
that the privilege of submitting a matching bid has not yet arisen since it only
takes place if for any reason, the Highest Bidder cannot be awarded the Block of
Shares. Thus the submission by petitioner of a matching bid is premature since
Renong Berhad could still very well be awarded the block of shares and the
condition giving rise to the exercise of the privilege to submit a matching bid had
not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should
fail since respondent GSIS did not exercise its discretion in a capricious,
whimsical manner, and if ever it did abuse its discretion it was not so patent and
gross as to amount to an evasion of a positive duty or a virtual refusal to
perform a duty enjoined by law. Similarly, the petition for mandamus should fail
as petitioner has no clear legal right to what it demands and respondents do not
have an imperative duty to perform the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation.[10] It prescribes the
permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in other
words is that it is a supreme law to which all other laws must conform and in
accordance with which all private rights must be determined and all public
authority administered.[11] Under the doctrine of constitutional supremacy, if a
law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by
private persons for private purposes is null and void and without any force and
effect. Thus, since the Constitution is the fundamental, paramount and supreme
law of the nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry out
the purposes of the framers who merely establish an outline of government
providing for the different departments of the governmental machinery and
securing certain fundamental and inalienable rights of citizens. [12] A provision
which lays down a general principle, such as those found in Art. II of the 1987
Constitution, is usually not self-executing. But a provision which is complete in
itself and becomes operative without the aid of supplementary or enabling
legislation, or that which supplies sufficient rule by means of which the right it
grants may be enjoyed or protected, is self-executing.Thus a constitutional
provision is self-executing if the nature and extent of the right conferred and the
liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no
language indicating that the subject is referred to the legislature for action.[13]
As against constitutions of the past, modern constitutions have been generally
drafted upon a different principle and have often become in effect extensive
codes of laws intended to operate directly upon the people in a manner similar to
that of statutory enactments, and the function of constitutional conventions has
evolved into one more like that of a legislative body.Hence, unless it is expressly
provided that a legislative act is necessary to enforce a constitutional mandate,
the presumption now is that all provisions of the constitution are self-executing.If
the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify
16
the mandate of the fundamental law.[14] This can be cataclysmic. That is why the
prevailing view is, as it has always been, that -
x x x x in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing x x x x Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a contrary
rule would give the legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute. [15]
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution
is clearly not self-executing, as they quote from discussions on the floor of the
1986 Constitutional Commission -
MR. RODRIGO. Madam President, I am asking this question as the Chairman of
the Committee on Style. If the wording of PREFERENCE is given to QUALIFIED
FILIPINOS, can it be understood as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we not make it clear? To qualified
Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to remove
the word QUALIFIED?
MR. RODRIGO. No, no, but say definitely TO QUALIFIED FILIPINOS as against
whom? As against aliens or over aliens ?
MR. NOLLEDO. Madam President, I think that is understood. We use the word
QUALIFIED because the existing laws or prospective laws will always lay down
conditions under which business may be done. For example, qualifications on
capital, qualifications on the setting up of other financial structures,  et
cetera (underscoring supplied by respondents).
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO. Yes.[16]
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as
not to make it appear that it is non-self-executing but simply for purposes of
style. But, certainly, the legislature is not precluded from enacting further laws to
enforce the constitutional provision so long as the contemplated statute squares
with the Constitution. Minor details may be left to the legislature without
impairing the self-executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the constitution,
further the operation of such a provision, prescribe a practice to be used for its
enforcement, provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable safeguards around the
exercise of the right. The mere fact that legislation may supplement and add to
or prescribe a penalty for the violation of a self-executing constitutional provision
does not render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express provision for a
remedy for enforcing a right or liability is not necessarily an indication that it was
not intended to be self-executing. The rule is that a self-executing provision of
the constitution does not necessarily exhaust legislative power on the subject,
but any legislation must be in harmony with the constitution, further the exercise
of constitutional right and make it more available. [17] Subsequent legislation
however does not necessarily mean that the subject constitutional provision is
not, by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second
par., of Art. XII is implied from the tenor of the first and third paragraphs of the
same section which undoubtedly are not self-executing.[18] The argument is
flawed. If the first and third paragraphs are not self-executing because Congress
is still to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and the State still
needs legislation to regulate and exercise authority over foreign investments
within its national jurisdiction, as in the third paragraph, then a fortiori, by the
same logic, the second paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to qualified Filipinos
in the grant of rights, privileges and concessions covering the national economy
and patrimony. A constitutional provision may be self-executing in one part and
non-self-executing in another. [19]
Even the cases cited by respondents holding that certain constitutional provisions
are merely statements of principles and policies, which are basically not self-
executing and only placed in the Constitution as moral incentives to legislation,
not as judicially enforceable rights - are simply not in point. Basco v. Philippine
Amusements and Gaming Corporation[20] speaks of constitutional provisions on
personal dignity,[21] the sanctity of family life,[22] the vital role of the youth in
nation-building,[23] the promotion of social justice,[24] and the values of education.
[25]
Tolentino v. Secretary of Finance[26] refers to constitutional provisions on social
justice and human rights[27] and on education.[28] Lastly, Kilosbayan, Inc. v.
Morato[29] cites provisions on the promotion of general welfare, [30] the sanctity of
family life,[31] the vital role of the youth in nation-building[32] and the promotion of
total human liberation and development.[33] A reading of these provisions indeed
clearly shows that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions manifest that
they are only principles upon which legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no
further guidelines or implementing laws or rules for its enforcement. From its
17
very words the provision does not require any legislation to put it in operation. It
is per se judicially enforceable. When our Constitution mandates that [i]n the
grant of rights, privileges, and concessions covering national economy and
patrimony, the State shall give preference to qualified Filipinos,  it means just
that - qualified Filipinos shall be preferred. And when our Constitution declares
that a right exists in certain specified circumstances an action may be maintained
to enforce such right notwithstanding the absence of any legislation on the
subject; consequently, if there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent potency and
puissance, and from which all legislations must take their bearings. Where there
is a right there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission[34] explains -
The patrimony of the Nation that should be conserved and developed refers not
only to our rich natural resources but also to the cultural heritage of our race. It
also refers to our intelligence in arts, sciences and letters. Therefore, we should
develop not only our lands, forests, mines and other natural resources but also
the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage.[35] When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could have
very well used the term natural resources, but also to the cultural heritage of the
Filipinos.
Manila Hotel has become a landmark - a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino. Formerly a concourse for the
elite, it has since then become the venue of various significant events which
have shaped Philippine history. It was called the Cultural Center of the 1930s. It
was the site of the festivities during the inauguration of the Philippine
Commonwealth. Dubbed as the Official Guest House of the Philippine
Government it plays host to dignitaries and official visitors who are accorded the
traditional Philippine hospitality.[36]
The history of the hotel has been chronicled in the book The Manila Hotel: The
Heart and Memory of a City.[37] During World War II the hotel was converted by
the Japanese Military Administration into a military headquarters. When the
American forces returned to recapture Manila the hotel was selected by the
Japanese together with Intramuros as the two (2) places for their final
stand. Thereafter, in the 1950s and 1960s, the hotel became the center of
political activities, playing host to almost every political convention. In 1970 the
hotel reopened after a renovation and reaped numerous international
recognitions, an acknowledgment of the Filipino talent and ingenuity. In 1986 the
hotel was the site of a failed coup d etat where an aspirant for vice-president
was proclaimed President of the Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle for
sovereignty, independence and nationhood. Verily, Manila Hotel has become part
of our national economy and patrimony. For sure, 51% of the equity of the MHC
comes within the purview of the constitutional shelter for it comprises the
majority and controlling stock, so that anyone who acquires or owns the 51%
will have actual control and management of the hotel. In this instance, 51% of
the MHC cannot be disassociated from the hotel and the land on which the hotel
edifice stands. Consequently, we cannot sustain respondents claim that
the Filipino First Policy provision is not applicable since what is being sold is only
51% of the outstanding shares of the corporation, not the Hotel building nor the
land upon which the building stands.[38]
The argument is pure sophistry. The term qualified Filipinos as used in our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission -
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
QUALIFIED FILIPINOS with the following: CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE CAPITAL OR CONTROLLING STOCK
IS WHOLLY OWNED BY SUCH CITIZENS.
xxxx
MR. MONSOD. Madam President, apparently the proponent is agreeable, but we
have to raise a question. Suppose it is a corporation that is 80-percent Filipino,
do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino. What
about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that the
preference should only be 100-percent Filipino.
MR. DAVIDE. I want to get that meaning clear because QUALIFIED FILIPINOS
may refer only to individuals and not to juridical personalities or entities.
18
MR. MONSOD. We agree, Madam President.[39]
xxxx
MR. RODRIGO. Before we vote, may I request that the amendment be read
again.
MR. NOLLEDO. The amendment will read: IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS. And the word Filipinos here, as intended by the proponents, will
include not only individual Filipinos but also Filipino-controlled entities or entities
fully-controlled by Filipinos.[40]
The phrase preference to qualified Filipinos was explained thus -
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to
please restate his amendment so that I can ask a question.
MR. NOLLEDO. IN THE GRANT OF RIGHTS, PRIVILEGES AND CONCESSIONS
COVERING THE NATIONAL ECONOMY AND PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO QUALIFIED FILIPINOS.
MR. FOZ. In connection with that amendment, if a foreign enterprise is qualified
and a Filipino enterprise is also qualified, will the Filipino enterprise still be given
a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is yes.
MR. FOZ. Thank you.[41]
Expounding further on the Filipino First Policy  provision Commissioner Nolledo
continues
MR. NOLLEDO. Yes, Madam President. Instead of MUST, it will be SHALL - THE
STATE SHALL GIVE PREFERENCE TO QUALIFIED FILIPINOS. This embodies the
so-called Filipino First policy.That means that Filipinos should be given
preference in the grant of concessions, privileges and rights covering the national
patrimony.[42]
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo[43] -
Paragraph 2 of Section 10 explicitly mandates the Pro-Filipino bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy x x x x This
provision was never found in previous Constitutions x x x x
The term qualified Filipinos simply means that preference shall be given to those
citizens who can make a viable contribution to the common good, because of
credible competence and efficiency. It certainly does NOT mandate the
pampering and preferential treatment to Filipino citizens or organizations that are
incompetent or inefficient, since such an indiscriminate preference would be
counterproductive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a choice
has to be made between a qualified foreigner and a qualified Filipino, the latter
shall be chosen over the former.
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-
qualified by respondent GSIS in accordance with its own guidelines so that the
sole inference here is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant equity
ownership in another hotel company, or it has an overall management and
marketing proficiency to successfully operate the Manila Hotel.[44]
The penchant to try to whittle away the mandate of the Constitution by arguing
that the subject provision is not self-executory and requires implementing
legislation is quite disturbing.The attempt to violate a clear constitutional
provision - by the government itself - is only too distressing. To adopt such a line
of reasoning is to renounce the duty to ensure faithfulness to the
Constitution. For, even some of the provisions of the Constitution which evidently
need implementing legislation have juridical life of their own and can be the
source of a judicial remedy.We cannot simply afford the government a defense
that arises out of the failure to enact further enabling, implementing or guiding
legislation. In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt -
The executive department has a constitutional duty to implement laws, including
the Constitution, even before Congress acts - provided that there are
discoverable legal standards for executive action. When the executive acts, it
must be guided by its own understanding of the constitutional command and of
applicable laws. The responsibility for reading and understanding the Constitution
and the laws is not the sole prerogative of Congress. If it were, the executive
would have to ask Congress, or perhaps the Court, for an interpretation every
time the executive is confronted by a constitutional command. That is not how
constitutional government operates. [45]
Respondents further argue that the constitutional provision is addressed to the
State, not to respondent GSIS which by itself possesses a separate and distinct
19
personality. This argument again is at best specious. It is undisputed that the
sale of 51% of the MHC could only be carried out with the prior approval of the
State acting through respondent Committee on Privatization. As correctly pointed
out by Fr. Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
respondents GSIS and MHC a state action. In constitutional jurisprudence, the
acts of persons distinct from the government are considered state action covered
by the Constitution (1) when the activity it engages in is a public function; (2)
when the government is so significantly involved with the private actor as to
make the government responsible for his action; and, (3) when the government
has approved or authorized the action. It is evident that the act of respondent
GSIS in selling 51% of its share in respondent MHC comes under the second and
third categories of state action. Without doubt therefore the transaction,
although entered into by respondent GSIS, is in fact a transaction of the State
and therefore subject to the constitutional command. [46]
When the Constitution addresses the State it refers not only to the people but
also to the government as elements of the State. After all, government is
composed of three (3) divisions of power - legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three (3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not
yet the winning bidder. The bidding rules expressly provide that the highest
bidder shall only be declared the winning bidder after it has negotiated and
executed the necessary contracts, and secured the requisite approvals. Since
the Filipino First Policy provision of the Constitution bestows preference
on qualified Filipinos the mere tending of the highest bid is not an assurance that
the highest bidder will be declared the winning bidder. Resultantly, respondents
are not bound to make the award yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the awardee respondents are
mandated to abide by the dictates of the 1987 Constitution the provisions of
which are presumed to be known to all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by
respondent GSIS, lest the bidding rules be nullified for being violative of the
Constitution. It is a basic principle in constitutional law that all laws and contracts
must conform with the fundamental law of the land.Those which violate the
Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [i]f for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to
other Qualified Bidders that have validly submitted bids provided that these
Qualified Bidders are willing to match the highest bid in terms of price per share.
[47]
 Certainly, the constitutional mandate itself is reason enough  not to award the
block of shares immediately to the foreign bidder notwithstanding its submission
of a higher, or even the highest, bid. In fact, we cannot conceive of
a strongerreason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering the
national economy and patrimony, thereby exceeding the bid of a Filipino, there is
no question that the Filipino will have to be allowed to match the bid of the
foreign entity. And if the Filipino matches the bid of a foreign firm the award
should go to the Filipino. It must be so if we are to give life and meaning to
the Filipino First Policy provision of the 1987 Constitution. For, while this may
neither be expressly stated nor contemplated in the bidding rules, the
constitutional fiat is omnipresent to be simply disregarded. To ignore it would be
to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage
foreign investors. But the Constitution and laws of the Philippines are understood
to be always open to public scrutiny. These are given factors which investors
must consider when venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under the
Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning
the sale to Renong Berhad since petitioner was well aware from the beginning
that a foreigner could participate in the bidding is meritless. Undoubtedly,
Filipinos and foreigners alike were invited to the bidding. But foreigners may be
awarded the sale only if no Filipino qualifies, or if the qualified Filipino fails to
match the highest bid tendered by the foreign entity. In the case before us,
while petitioner was already preferred at the inception of the bidding because of
the constitutional mandate, petitioner had not yet matched the bid offered by
Renong Berhad. Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by respondent GSIS of
petitioners matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless
perhaps the award has been finally made. To insist on selling the Manila Hotel to
foreigners when there is a Filipino group willing to match the bid of the foreign
group is to insist that government be treated as any other ordinary market
player, and bound by its mistakes or gross errors of judgment, regardless of the
consequences to the Filipino people. The miscomprehension of the Constitution
is regrettable. Thus we would rather remedy the indiscretion while there is still
an opportunity to do so than let the government develop the habit of forgetting
20
that the Constitution lays down the basic conditions and parameters for its
actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to
award to petitioner the block of shares of MHC and to execute the necessary
agreements and documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as well. The refusal
of respondent GSIS to execute the corresponding documents with petitioner as
provided in the bidding rules after the latter has matched the bid of the
Malaysian firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in
the 1987 Constitution not merely to be used as a guideline for future legislation
but primarily to be enforced; so must it be enforced. This Court as the ultimate
guardian of the Constitution will never shun, under any reasonable circumstance,
the duty of upholding the majesty of the Constitution which it is tasked to
defend. It is worth emphasizing that it is not the intention of this Court to
impede and diminish, much less undermine, the influx of foreign
investments. Far from it, the Court encourages and welcomes more business
opportunities but avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the Court on this
matter could have not been more appropriately articulated by Chief Justice
Narvasa -
As scrupulously as it has tried to observe that it is not its function to substitute
its judgment for that of the legislature or the executive about the wisdom and
feasibility of legislation economic in nature, the Supreme Court has not been
spared criticism for decisions perceived as obstacles to economic progress and
development x x x x in connection with a temporary injunction issued by the
Courts First Division against the sale of the Manila Hotel to a Malaysian Firm and
its partner, certain statements were published in a major daily to the effect that
that injunction again demonstrates that the Philippine legal system can be a
major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the Court
to intervene in contracts of the kind referred to or set itself up as the judge of
whether they are viable or attainable, it is its bounden duty to make sure that
they do not violate the Constitution or the laws, or are not adopted or
implemented with grave abuse of discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism.[48]
Privatization of a business asset for purposes of enhancing its business viability
and preventing further losses, regardless of the character of the asset, should
not take precedence over non-material values. A commercial, nay even a
budgetary, objective should not be pursued at the expense of national pride and
dignity. For the Constitution enshrines higher and nobler non-material
values. Indeed, the Court will always defer to the Constitution in the proper
governance of a free society; after all, there is nothing so sacrosanct in any
economic policy as to draw itself beyond judicial review when the Constitution is
involved.[49]
Nationalism is inherent in the very concept of the Philippines being a democratic
and republican state, with sovereignty residing in the Filipino people and from
whom all government authority emanates. In nationalism, the happiness and
welfare of the people must be the goal. The nation-state can have no higher
purpose. Any interpretation of any constitutional provision must adhere to such
basic concept. Protection of foreign investments, while laudible, is merely a
policy. It cannot override the demands of nationalism. [50]
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity
to be sold to the highest bidder solely for the sake of privatization. We are not
talking about an ordinary piece of property in a commercial district. We are
talking about a historic relic that has hosted many of the most important events
in the short history of the Philippines as a nation. We are talking about a hotel
where heads of states would prefer to be housed as a strong manifestation of
their desire to cloak the dignity of the highest state function to their official visits
to the Philippines. Thus the Manila Hotel has played and continues to play a
significant role as an authentic repository of twentieth century Philippine history
and culture. In this sense, it has become truly a reflection of the Filipino soul - a
place with a history of grandeur; a most historical setting that has played a part
in the shaping of a country.[51]
This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark - this Grand Old Dame  of hotels in
Asia - to a total stranger. For, indeed, the conveyance of this epic exponent of
the Filipino psyche to alien hands cannot be less than mephistophelian for it is, in
whatever manner viewed, a veritable alienation of a nations soul for some pieces
of foreign silver. And so we ask: What advantage, which cannot be equally
drawn from a qualified Filipino, can be gained by the Filipinos if Manila Hotel -
and all that it stands for - is sold to a non-Filipino? How much of national pride
will vanish if the nations cultural heritage is entrusted to a foreign entity? On the
other hand, how much dignity will be preserved and realized if the national
patrimony is safekept in the hands of a qualified,  zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policyprovision
of the Philippine Constitution. And this Court, heeding the clarion call of the
Constitution and accepting the duty of being the elderly watchman of the nation,
will continue to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
21
OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and
DESIST from selling 51% of the shares of the Manila Hotel Corporation to
RENONG BERHAD, and to ACCEPT the matching bid of petitioner MANILA
PRINCE HOTEL CORPORATION to purchase the subject 51% of the shares of the
Manila Hotel Corporation at P44.00 per share and thereafter to execute the
necessary agreements and documents to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the
purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco,  and Hermosisima, Jr.,

JJ,  concur.

Narvasa, C.J., (Chairman), and Melo, J.,  joins J. Puno in his dissent.

Tanada v. Angara GR 118295 May 2, 1997 (See Separation of Powers)

EN BANC

G.R. No. 161872             April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner, 

vs.
COMMISSION ON ELECTIONS, respondent.

Election Law; Equal Access to Public Office; There is no constitutional right to

run for or hold public office and, particularly, to seek the presidency—what is
recognized is merely a privilege subject to limitations imposed by law .—Implicit
in the petitioner’s invocation of the constitutional provision ensuring “equal
access to opportunities for public office” is the claim that there is a constitutional
right to run for or hold public office and, particularly in his case, to seek the
presidency. There is none. What is recognized is merely a privilege subject to
limitations imposed by law. Section 26, Article II of the Constitution neither
bestows such a right nor elevates the privilege to the level of an enforceable
right. There is nothing in the plain language of the provision which suggests such
a thrust or justifies an interpretation of the sort.

22
Same; Same; Constitutional Law; Declaration of Principles and State Policies;
The provisions under the Article are generally considered not self-executing, and
there is no plausible reason for according a different treatment to the “equal
access” provision—like the rest of the policies enumerated in Article II, the
provision does not contain any judicially enforceable constitutional right but
merely specifies a guideline for legislative or executive action .—The “equal
access” provision is a subsumed part of Article II of the Constitution, entitled
“Declaration of Principles and State Policies.” The provisions under the Article are
generally considered not self-executing, and there is no plausible reason for
according a different treatment to the “equal access” provision. Like the rest of
the policies enumerated in Article II, the provision does not contain any judicially
enforceable constitutional right but merely specifies a guideline for legislative or
executive action. The disregard of the provision does not give rise to any cause
of action before the courts.
Same; Same; Same; Same; Statutory Construction; Words and Phrases; Words
and phrases such as “equal access,” “opportunities,” and “public service” are
susceptible to countless interpretations owing to their inherent impreciseness .—
The provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the
absence of legislation since its effective means and reach are not properly
defined. Broadly written, the myriad of claims that can be subsumed under this
rubric appear to be entirely open-ended. Words and phrases such as “equal
access” “opportunities” and “public service” are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was not the
intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
Same; Same; The privilege of equal access to opportunities to public office may
be subjected to limitations; Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded
to file a certificate of candidacy.—As earlier noted, the privilege of equal access
to opportunities to public office may be subjected to limitations. Some valid
limitations specifically on the privilege to seek elective office are found in the
provisions of the Omnibus Election Code on “Nuisance Candidates” and
COMELEC Resolution No. 6452 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or cancel a
Certificate of Candidacy. As long as the limitations apply to everybody equally
without discrimination, however, the equal access clause is not violated. Equality
is not sacrificed as long as the burdens engendered by the limitations are meant
to be borne by any one who is minded to file a certificate of candidacy. In the
case at bar, there is no showing that any person is exempt from the limitations
or the burdens which they create.
Same; Same; Nuisance Candidates; The rationale behind the prohibition against
nuisance candidates and the disqualification of candidates who have not evinced
a bona fide intention to run for office is easy to divine—the State has a
compelling interest to ensure that its electoral exercises are rational, objective,
and orderly; Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of
time and resources in preparation for the election—a disorderly election is not
merely a textbook example of inefficiency, but a rot that erodes faith in our
democratic institutions.—The rationale behind the prohibition against nuisance
candidates and the disqualification of candidates who have not evinced a bona
fide intention to run for office is easy to divine. The State has a compelling
interest to ensure that its electoral exercises are rational, objective, and orderly.
Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the
greater the opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election. These practical
difficulties should, of course, never exempt the State from the conduct of a
mandated electoral exercise. At the same time, remedial actions should be
available to alleviate these logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook example of inefficiency,
but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held: [T]here is surely an important state interest in requiring
some preliminary showing of a significant modicum of support before printing
the name of a political organization and its candidates on the ballot—the interest,
if no other, in avoiding confusion, deception and even frustration of the
democratic [process].
Same; Same; Same; Owing to the superior interest in ensuring a credible and
orderly election, the State could exclude nuisance candidates and need not
indulge in, as the song goes, “their trips to the moon on gossamer wings.” —The
preparation of ballots is but one aspect that would be affected by allowance of
“nuisance candidates” to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling
place, watchers in the board of canvassers, or even the receipt of electoral
contributions. Moreover, there are election rules and regulations the formulations
of which are dependent on the number of candidates in a given election. Given
these considerations, the ignominious nature of a nuisance candidacy becomes
even more galling. The organization of an election with bona fide candidates
standing is onerous enough. To add into the mix candidates with no serious
intentions or capabilities to run a viable campaign would actually impair the
electoral process. This is not to mention the candidacies which are palpably
ridiculous so as to constitute a one-note joke. The poll body would be bogged by
irrelevant minutiae covering every step of the electoral process, most probably
posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State. Owing to the superior interest in ensuring a
credible and orderly election, the State could exclude nuisance candidates and
need not indulge in, as the song goes, “their trips to the moon on gossamer
wings.”
23
Same; Same; Same; The determination of bona fide candidates is governed by
the statutes, and the concept is satisfactorily defined in the Omnibus Election
Code.—The Omnibus Election Code and COMELEC Resolution No. 6452 are
cognizant of the compelling State interest to ensure orderly and credible
elections by excising impediments thereto, such as nuisance candidacies that
distract and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of elections and endowed with considerable
latitude in adopting means and methods that will ensure the promotion of free,
orderly and honest elections. Moreover, the Constitution guarantees that only
bona fide candidates for public office shall be free from any form of harassment
and discrimination. The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus
Election Code.
Same; Same; Same; The question of whether a candidate is a nuisance
candidate or not is both legal and factual .—Petitioner has submitted to this Court
mere photocopies of various documents purportedly evincing his credentials as
an eligible candidate for the presidency. Yet this Court, not being a trier of facts,
can not properly pass upon the reproductions as evidence at this level. Neither
the COMELEC nor the Solicitor General appended any document to their
respective Comments. The question of whether a candidate is a nuisance
candidate or not is both legal and factual. The basis of the factual determination
is not before this Court. Thus, the remand of this case for the reception of
further evidence is in order.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to petitioner’s Certificate of Candidacy in
its Resolution No. 6558  dated January 17, 2004. The decision, however, was not
unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain
voted to include petitioner as they believed he had parties or movements to back
up his candidacy.
On January 15, 2004, petitioner moved for reconsideration of Resolution No.
6558.  Petitioner’s Motion for Reconsideration was docketed as SPP (MP) No. 04-
001. The COMELEC, acting on petitioner’s Motion for Reconsideration  and on
similar motions filed by other aspirants for national elective positions, denied the
same under the aegis of Omnibus Resolution No. 6604  dated February 11, 2004.
The COMELEC declared petitioner and thirty-five (35) others nuisance candidates
who could not wage a nationwide campaign and/or are not nominated by a
political party or are not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.
In this Petition For Writ of Certiorari , petitioner seeks to reverse the resolutions
which were allegedly rendered in violation of his right to "equal access to
opportunities for public service" under Section 26, Article II of the 1987
Constitution,1 by limiting the number of qualified candidates only to those who
can afford to wage a nationwide campaign and/or are nominated by political
parties. In so doing, petitioner argues that the COMELEC indirectly amended the
constitutional provisions on the electoral process and limited the power of the
sovereign people to choose their leaders. The COMELEC supposedly erred in
disqualifying him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal qualifications for the
office of the president, he is capable of waging a national campaign since he has
numerous national organizations under his leadership, he also has the capacity
to wage an international campaign since he has practiced law in other countries,
and he has a platform of government. Petitioner likewise attacks the validity of
the form for the Certificate of Candidacy prepared by the COMELEC. Petitioner
claims that the form does not provide clear and reasonable guidelines for
determining the qualifications of candidates since it does not ask for the
candidate’s bio-data and his program of government.
First, the constitutional and legal dimensions involved.
Implicit in the petitioner’s invocation of the constitutional provision ensuring
"equal access to opportunities for public office" is the claim that there is a
constitutional right to run for or hold public office and, particularly in his case, to
seek the presidency. There is none. What is recognized is merely a privilege
subject to limitations imposed by law. Section 26, Article II of the Constitution
neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which
suggests such a thrust or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of the Constitution,
entitled "Declaration of Principles and State Policies." The provisions under the
Article are generally considered not self-executing,2 and there is no plausible
reason for according a different treatment to the "equal access" provision. Like
the rest of the policies enumerated in Article II, the provision does not contain
any judicially enforceable constitutional right but merely specifies a guideline for
legislative or executive action.3 The disregard of the provision does not give rise
to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same determination that
the provision is not self-executory. The original wording of the present Section
26, Article II had read, "The State shall broaden opportunities to public office
and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide,
24
Jr. successfully brought forth an amendment that changed the word "broaden"
to the phrase "ensure equal access," and the substitution of the word "office" to
"service." He explained his proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be equal access to the opportunity. If you broaden, it would
necessarily mean that the government would be mandated to create as
many offices as are possible to accommodate as many people as are
also possible. That is the meaning of broadening opportunities to public
service. So, in order that we should not mandate the State to make the
government the number one employer and to limit offices only to what
may be necessary and expedient yet offering equal opportunities to
access to it, I change the word "broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as many people as possible into public office.
The approval of the "Davide amendment" indicates the design of the framers to
cast the provision as simply enunciatory of a desired policy objective and not
reflective of the imposition of a clear State burden.
Moreover, the provision as written leaves much to be desired if it is to be
regarded as the source of positive rights. It is difficult to interpret the clause as
operative in the absence of legislation since its effective means and reach are not
properly defined. Broadly written, the myriad of claims that can be subsumed
under this rubric appear to be entirely open-ended.8 Words and phrases such as
"equal access," "opportunities," and "public service" are susceptible to countless
interpretations owing to their inherent impreciseness. Certainly, it was not the
intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.
As earlier noted, the privilege of equal access to opportunities to public office
may be subjected to limitations. Some valid limitations specifically on the
privilege to seek elective office are found in the provisions 9 of the Omnibus
Election Code on "Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein the COMELEC
may motu proprio  refuse to give due course to or cancel a Certificate of
Candidacy.
As long as the limitations apply to everybody equally without discrimination,
however, the equal access clause is not violated. Equality is not sacrificed as long
as the burdens engendered by the limitations are meant to be borne by any one
who is minded to file a certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the burdens which
they create.
Significantly, petitioner does not challenge the constitutionality or validity of
Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452
dated 10 December 2003. Thus, their presumed validity stands and has to be
accorded due weight.
Clearly, therefore, petitioner’s reliance on the equal access clause in Section 26,
Article II of the Constitution is misplaced.
The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona  fide intention to run
for office is easy to divine. The State has a compelling interest to ensure that its
electoral exercises are rational, objective, and orderly. Towards this end, the
State takes into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the opportunities
for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties should, of
course, never exempt the State from the conduct of a mandated electoral
exercise. At the same time, remedial actions should be available to alleviate
these logistical hardships, whenever necessary and proper. Ultimately, a
disorderly election is not merely a textbook example of inefficiency, but a rot that
erodes faith in our democratic institutions. As the United States Supreme Court
held:
[T]here is surely an important state interest in requiring some preliminary
showing of a significant modicum of support before printing the name of a
political organization and its candidates on the ballot – the interest, if no other,
in avoiding confusion, deception and even frustration of the democratic
[process].11
The COMELEC itself recognized these practical considerations when it
promulgated Resolution No. 6558  on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January 2004. As observed in the
COMELEC’s Comment:
There is a need to limit the number of candidates especially in the case of
candidates for national positions because the election process becomes a
mockery even if those who cannot clearly wage a national campaign are allowed
to run. Their names would have to be printed in the Certified List of Candidates,
Voters Information Sheet and the Official Ballots. These would entail additional
costs to the government. For the official ballots in automated counting and
canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those candidates to continue if they
cannot wage a decent campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be affected by allowance
of "nuisance candidates" to run in the elections. Our election laws provide
25
various entitlements for candidates for public office, such as watchers in every
polling place,13 watchers in the board of canvassers,14 or even the receipt of
electoral contributions.15Moreover, there are election rules and regulations the
formulations of which are dependent on the number of candidates in a given
election.
Given these considerations, the ignominious nature of a nuisance candidacy
becomes even more galling. The organization of an election with bona
fide candidates standing is onerous enough. To add into the mix candidates with
no serious intentions or capabilities to run a viable campaign would actually
impair the electoral process. This is not to mention the candidacies which are
palpably ridiculous so as to constitute a one-note joke. The poll body would be
bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a
senseless sacrifice on the part of the State.
Owing to the superior interest in ensuring a credible and orderly election, the
State could exclude nuisance candidates and need not indulge in, as the song
goes, "their trips to the moon on gossamer wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of
the compelling State interest to ensure orderly and credible elections by excising
impediments thereto, such as nuisance candidacies that distract and detract from
the larger purpose. The COMELEC is mandated by the Constitution with the
administration of elections16 and endowed with considerable latitude in adopting
means and methods that will ensure the promotion of free, orderly and honest
elections.17 Moreover, the Constitution guarantees that only bona fide  candidates
for public office shall be free from any form of harassment and
discrimination.18 The determination of bona fidecandidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus
Election Code.
Now, the needed factual premises.
However valid the law and the COMELEC issuance involved are, their proper
application in the case of the petitioner cannot be tested and reviewed by this
Court on the basis of what is now before it. The assailed resolutions of the
COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a nuisance candidate. This precludes the Court
from reviewing at this instance whether the COMELEC committed grave abuse of
discretion in disqualifying petitioner, since such a review would necessarily take
into account the matters which the COMELEC considered in arriving at its
decisions.
Petitioner has submitted to this Court mere photocopies of various documents
purportedly evincing his credentials as an eligible candidate for the presidency.
Yet this Court, not being a trier of facts, can not properly pass upon the
reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or not is both legal
and factual. The basis of the factual determination is not before this Court. Thus,
the remand of this case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s aspiration and offer
to serve in the government. It deserves not a cursory treatment but a hearing
which conforms to the requirements of due process.
As to petitioner’s attacks on the validity of the form for the certificate of
candidacy, suffice it to say that the form strictly complies with Section 74 of the
Omnibus Election Code.  This provision specifically enumerates what a certificate
of candidacy should contain, with the required information tending to show that
the candidate possesses the minimum qualifications for the position aspired for
as established by the Constitution and other election laws.
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is
hereby remanded to the COMELEC for the reception of further evidence, to
determine the question on whether petitioner Elly Velez Lao Pamatong is a
nuisance candidate as contemplated in Section 69 of the Omnibus Election Code.
The COMELEC is directed to hold and complete the reception of evidence and
report its findings to this Court with deliberate dispatch.
SO ORDERED.
Republic of the Philippines
Supreme Court
Manila
EN BANC
 
BUREAU OF FISHERIES AND AQUATIC G.R. No. 169815
RESOURCES (BFAR)
EMPLOYEES UNION, REGIONAL Present:
OFFICE NO. VII, CEBU CITY, Puno, C.J.,
Petitioner, Quisumbing,
Ynares-Santiago,
26
   Carpio, Same; Same; Allowances; The Department of Agriculture (DA)
Undersecretary has no authority to grant any allowance to the employees of
  Austria-Martinez, Bureau of Fisheries and Aquatic Resources (BFAR). —Petitioner contends that the
approval of the Department of Agriculture (DA) Undersecretary for Fisheries and
  Corona, Livestock of the Food Basket Allowance is the law which authorizes its release. It
  Carpio Morales, is crystal clear that the DA Undersecretary has no authority to grant any
allowance to the employees of BFAR. Section 4.5 of Budget Circular No. 16 dated
  Azcuna, November 28, 1998 states: All agencies are hereby prohibited from granting any
food, rice, gift checks, or any other form of incentives/allowances except those
  Tinga, authorized via Administrative Order by the Office of the President. In the instant
case, no Administrative Order has been issued by the Office of the President to
- versus - Chico-Nazario, exempt BFAR from the express prohibition against the grant of any food, rice,
gift checks, or any other form of incentive/allowance to its employees.
  Velasco, Jr.,

  Nachura,*
  Reyes,
  Leonardo-De Castro,
  Brion, JJ.
  Promulgated:
   
COMMISSION ON AUDIT, August 13, 2008
Respondent.  
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
--------x
Constitutional Law; Social Justice; The social justice provisions of the
Constitution are not self-executing principles ready for enforcement through the
courts; They are merely statements of principles and policies; To give them
effect, legislative enactment is required. —We rule on the issue of
constitutionality. Petitioner invokes the provisions of the 1987 Constitution on
social justice to warrant the grant of the Food Basket Allowance. Time and again,
we have ruled that the social justice provisions of the Constitution are not self-
executing principles ready for enforcement through the courts. They are merely
statements of principles and policies. To give them effect, legislative enactment
is required. As we held in Kilosbayan, Incorporated v. Morato , 246 SCRA 540
(1995), the principles and state policies enumerated in Article II and some
sections of Article XII are “not self-executing provisions, the disregard of which
can give rise to a cause of action in the courts. They do not embody judicially
enforceable constitutional rights but guidelines for legislation.”
Same; Same; Same; Under National Compensation Circular No. 59,
exceptions to the incentive allowance/fee/pay category are those authorized
under the General Appropriations Act (GAA) and Section 33 of Presidential
Decree (P.D.) No. 807; There is no law authorizing the grant of the subject Food
Basket Allowance.—The Food Basket Allowance falls under the 14th category,
that of incentive allowance/fee/pay. Petitioner itself justified the Food Basket
Allowance as an incentive to the employees to encourage them to be more
productive and efficient. Under National Compensation Circular No. 59,
exceptions to the incentive allowance/fee/pay category are those authorized
under the General Appropriations Act (GAA) and Section 33 of Presidential
Decree (P.D.) No. 807. Sec. 15(d) of the GAA for Fiscal Year 1999 or R.A. No.
8745 clearly prohibits the payment of honoraria, allowances or other forms of
compensation to any government official or employee, except those specifically
authorized by law. There is no law authorizing the grant of the subject Food
Basket Allowance. Further, Sec. 33 of P.D. No. 807 or the Civil Service Decree of
the Philippines does not exempt the Food Basket Allowance from the general
rule.
DECISION
PUNO, C.J.:
On appeal are the Decision[1] dated April 8, 2005 of respondent Commission on
Audit (COA) in LAO-N-2005-119 upholding the disallowance by the COA Legal
and Adjudication Office (COA-LAO), Regional Office No. VII, Cebu City of
the P10,000.00 Food Basket Allowance granted by BFAR to each of its employees
in 1999, and COA Resolution[2] dated August 5, 2005, denying petitioners motion
for reconsideration of said Decision.
First, the facts:
On October 18, 1999, petitioner Bureau of Fisheries and Aquatic Resources
(BFAR) Employees Union, Regional Office No. VII, Cebu City issued Resolution
27
No. 01, series of 1999 requesting the BFAR Central Office for a Food Basket
Allowance. It justified its request on the high cost of living, i.e., the increase in
prices of petroleum products which catapulted the cost of food commodities, has
greatly affected the economic conditions and living standard of the government
employees of BFAR Region VII and could hardly sustain its need to cope up with
the four (4) basic needs, i.e., food, shelter, clothing and education.[3] It also
relied on the Employees Suggestions and Incentive Awards System (ESIAS),
pursuant to Book V of Executive Order No. 292, or the Administrative Code of
1987, and approved by the Civil Service Commission on December 3, 1996.The
ESIAS includes the granting of incentives that will help employees overcome
present economic difficulties, boost their morale, and further commitment and
dedication to public service.[4] Regional Director Corazon M. Corrales of BFAR
Region VII indorsed the Resolution, and Malcolm I. Sarmiento, Jr., Director of
BFAR recommended its approval. Honorable Cesar M. Drilon, Jr., Undersecretary
for Fisheries and Livestock of the Department of Agriculture, approved the
request for Authority to Grant a Gift Check or the Food Basket Allowance at the
rate of P10,000.00 each to the 130 employees of BFAR Region VII, or in the total
amount of P1,322,682.00.[5] On the strength of the approval, Regional Director
Corrales released the allowance to the BFAR employees.
On post audit, the Commission on Audit Legal and Adjudication Office (COA-LAO)
Regional Office No. VII, Cebu City disallowed the grant of Food Basket Allowance
under Notice of Disallowance No. 2003-022-101 (1999) dated September 19,
2003. It ruled that the allowance had no legal basis and that it violated: a) Sec.
15(d) of the General Appropriations Act of 1999, prohibiting the payment of
honoraria, allowances, or other forms of compensation to any government
official or employee, except those specifically authorized by law; b) par. 4.5 of
Budget Circular No. 16 dated November 28, 1998, prohibiting the grant of food,
rice, gift checks, or any other form of incentives/allowances, except those
authorized via Administrative Order by the Office of the President; and c) Sec. 12
of Republic Act (R.A.) No. 6758, or the Salary Standardization Law of 1989,
which includes all allowances in the standardized salary rates, subject to certain
exceptions.
On February 26, 2004, BFAR Regional Office No. VII, through Regional Director
Corrales, moved for reconsideration and prayed for the lifting of the
disallowance. It argued that the grant of Food Basket Allowance would enhance
the welfare and productivity of the employees. Further, it contended that the
approval by the Honorable Drilon, Undersecretary for Fisheries and Livestock, of
the said benefit was the law itself which vested the specific authority for its
release. The Commission on Audit Legal and Adjudication Office (COA-LAO)
Regional Office No. VII, Cebu City denied the motion.
Petitioner appealed to the Commission on Audit Legal and Adjudication Office
(COA-LAO) National, Quezon City. The appeal was denied in a Decision dated
April 8, 2005. Petitioners motion for reconsideration was likewise denied in a
Resolution dated August 5, 2005.
Hence, this appeal.
Petitioner cites the following grounds for its appeal:
1.      The disallowance in question is unconstitutional as it contravenes the
fundamental principle of the State enshrined under Sections 9 and 10, Article II
of the 1987 Constitution, which provide as follows:
SEC. 9. The State shall promote a just and dynamic social order that will ensure
the prosperity and independence of the nation and free the people from poverty
through policies that provide adequate social services, promote full employment,
a rising standard of living, and an improved quality of life for all.
SEC. 10.  The State shall promote social justice in all phases of national
development.[6]
2.      The Undersecretary for Fisheries and Livestock is an extension of the
Secretary of Agriculture who is an alter-ego of the President. His approval was
tantamount to the authority from the Office of the President, as contemplated in
DBM Budget Circular No. 16, dated November 28, 1998.[7]
3.      The grant of the Food Basket Allowance is in conformity with Sec. 12 of
the Salary Standardization Law.[8]
 
We deny the petition.
First, we rule on the issue of constitutionality. Petitioner invokes the provisions of
the 1987 Constitution on social justice to warrant the grant of the Food Basket
Allowance. Time and again, we have ruled that the social justice provisions of
the Constitution are not self-executing principles ready for enforcement through
the courts. They are merely statements of principles and policies. To give them
effect, legislative enactment is required. As we held in Kilosbayan,
Incorporated v. Morato,[9] the principles and state policies enumerated in
Article II and some sections of Article XII are "not self-executing provisions, the
disregard of which can give rise to a cause of action in the courts. They do not
embody judicially enforceable constitutional rights but guidelines for
legislation."[10]
Second, petitioner contends that the approval of the Department of Agriculture
(DA) Undersecretary for Fisheries and Livestock of the Food Basket Allowance is
the law which authorizes its release. It is crystal clear that the DA Undersecretary
has no authority to grant any allowance to the employees of BFAR. Section 4.5
of Budget Circular No. 16 dated November 28, 1998 states:
28
All agencies are hereby prohibited from granting any food, rice, gift checks, or
any other form of incentives/allowances except those authorized via
Administrative Order by the Office of the President.
In the instant case, no Administrative Order has been issued by the Office of the
President to exempt BFAR from the express prohibition against the grant of any
food, rice, gift checks, or any other form of incentive/allowance to its employees.
Petitioner argues that the grant of the Food Basket Allowance does not violate
Sec. 12 of R.A. No. 6758 or the Salary Standardization Law. This law was passed
to standardize salary rates among government personnel and do away with
multiple allowances and other incentive packages and the resulting differences in
compensation among them.[11] Sec. 12 of the law provides:
Consolidation of Allowances and Compensation. All allowances, except for
representation and transportation allowances; clothing and laundry allowances;
subsistence allowance of marine officers and crew on board government vessels
and hospital personnel; hazard pay; allowances of foreign service personnel
stationed abroad; and such other additional compensation not otherwise
specified herein as may be determined by the DBM [Department of Budget and
Management], shall be deemed included in the standardized salary rates herein
prescribed. Such other additional compensation, whether in cash or in kind,
being received by incumbents only as of July 1, 1989 not integrated into the
standardized salary rates shall continue to be authorized.  government in the performance of their official functions. It is not payment in
Existing additional compensation of any national government official or employee
paid from local funds of a local government unit shall be absorbed into the basic
salary of said official or employee and shall be paid by the National Government. 
Under Sec. 12, as quoted, all kinds of allowances are integrated in the
standardized salary rates. The exceptions are:
1.            representation and transportation allowance (RATA);
2.            clothing and laundry allowance;
3.            subsistence allowance of marine officers and crew on board
government vessels;
4.            subsistence allowance of hospital personnel;
5.            hazard pay;
6.            allowances of foreign service personnel stationed abroad; and
7.            such other additional compensation not otherwise specified herein as
may be determined by the DBM.
Petitioner contends that the Food Basket Allowance falls under the 7 th category
above, that of other additional compensation not otherwise specified herein as
may be determined by the DBM.
The Court has had the occasion to interpret Sec. 12 of R.A. No.
6758. In National Tobacco Administration v. Commission on Audit,[12] we
held that under the first sentence of Section 12, the benefits excluded from the
standardized salary rates are the "allowances" or those which are usually granted
to officials and employees of the government to defray or reimburse the
expenses incurred in the performance of their official functions. These are
the RATA, clothing and laundry allowance, subsistence allowance of marine
officers and crew on board government vessels and hospital personnel, hazard
pay, and others, as enumerated in the first sentence of Section 12. We further
ruled that the phrase "and such other additional compensation not otherwise
specified herein as may be determined by the DBM" is a catch-all proviso for
benefits in the nature of allowances similar to those enumerated. In Philippine
Ports Authority v. Commission on Audit,[13] we explained that if these
allowances were consolidated with the standardized salary rates, then
government officials or employees would be compelled to spend their personal
funds in attending to their duties.
In the instant case, the Food Basket Allowance is definitely not in the nature of
an allowance to reimburse expenses incurred by officials and employees of the
consideration of the fulfillment of official duty. It is a form of financial assistance
to all officials and employees of BFAR. Petitioner itself stated that the Food
Basket Allowance has the purpose of alleviating the economic condition of BFAR
employees.
Next, petitioner relies on National Compensation Circular No. 59 dated
September 30, 1989, issued by the DBM, which is the List of
Allowances/Additional Compensation of Government Officials and Employees
which shall be Deemed Integrated into the Basic Salary. The list enumerates the
following allowances/additional compensation which shall be incorporated in the
basic salary, hence, may no longer be granted to government employees:
1.            Cost of Living Allowance (COLA);
2.            Inflation connected allowance;
3.            Living Allowance;
4.            Emergency Allowance;
5.            Additional Compensation of Public Health Nurses assigned to public
health nursing;
29
6.            Additional Compensation of Rural Health Physicians;
7.            Additional Compensation of Nurses in Malacaang Clinic;
8.            Nurses Allowance in the Air Transportation Office;
9.            Assignment Allowance of School Superintendents;
10.        Post allowance of Postal Service Office employees;
11.        Honoraria/allowances which are regularly given except the following:
a.       those for teaching overload;
b.      in lieu of overtime pay;
c.       for employees on detail with task forces/special projects;
d.      researchers, experts and specialists who are acknowledged authorities in
their field of specialization;
e.       lecturers and resource persons;
f.        Municipal Treasurers deputized by the Bureau of Internal Revenue to
collect and remit internal revenue collections; and
g.       Executive positions in State Universities and Colleges filled by designation
from among their faculty members.
12.        Subsistence Allowance of employees except those authorized under EO
[Executive Order] No. 346 and uniformed personnel of the Armed Forces of
the Philippines and Integrated National Police;
13.        Laundry Allowance of employees except those hospital/sanitaria
personnel who attend directly to patients and who by the nature of their duties
are required to wear uniforms, prison guards and uniformed personnel of the
Armed Forces of the Philippines and Integrated National Police; and
14.        Incentive allowance/fee/pay except those authorized under the General
Appropriations Act and Section 33 of P.D. No. 807.
Petitioner invokes the rule of statutory construction that what is not included is
excluded. Inclusio unius est exclusio alterius. Petitioner claims that the Food
Basket Allowance is distinct and separate from the specific allowances/additional
compensation listed in the circular.
Again, we reject petitioners contention. The Food Basket Allowance falls under
the 14th category, that of incentive allowance/fee/pay. Petitioner itself justified
the Food Basket Allowance as an incentive to the employees to encourage them
to be more productive and efficient.[14] Under National Compensation Circular
No. 59, exceptions to the incentive allowance/fee/pay category are those
authorized under the General Appropriations Act (GAA) and Section 33 of
Presidential Decree (P.D.) No. 807. Sec. 15(d) of the GAA for Fiscal Year 1999 or
R.A. No. 8745 clearly prohibits the payment of honoraria, allowances or other
forms of compensation to any government official or employee, except those
specifically authorized by law. There is no law authorizing the grant of the
subject Food Basket Allowance. Further, Sec. 33 of P.D. No. 807 or the Civil
Service Decree of the Philippines does not exempt the Food Basket Allowance
from the general rule. Sec. 33 states:
Section 33. Employee Suggestions and Incentive Award System. There shall be
established a government-wide employee suggestions and incentive awards
system which shall be administered under such rules, regulations, and standards
as may be promulgated by the Commission.
In accordance with rules, regulations, and standards promulgated by the
Commission, the President or the head of each department or agency is
authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and other personal
efforts contribute to the efficiency, economy, or other improvement of
government operations, or who perform such other extraordinary acts or services
in the public interest in connection with, or in relation to, their official
employment.
We are not convinced that the Food Basket Allowance falls under the incentive
award system contemplated above. The decree speaks of suggestions,
inventions, superior accomplishments, and other personal efforts contributed by
an employee to the efficiency, economy, or other improvement of government
operations, or other extraordinary acts or services performed by an employee in
the public interest in connection with, or in relation to, his official
employment. In the instant case, the Food Basket Allowance was granted to all
BFAR employees, without distinction. It was not granted due to any
extraordinary contribution or exceptional accomplishment by an employee. The
Food Basket Allowance was primarily an economic monetary assistance to the
employees.
Lastly, we note, as the Office of the Solicitor General, on behalf of respondent
did, that petitioner failed to exhaust its administrative remedies. It stopped
seeking remedies at the level of respondents Legal and Adjudication Office. It
failed to appeal the latters adverse decision to the Commission on Audit
proper. The consequence for failure to exhaust administrative remedies is clear:
the disallowance, as ruled by the Commission on Audit Legal and Adjudication
Office Regional Office No. VII, Cebu City and upheld by the Commission on Audit
Legal and Adjudication Office National, Quezon City, became final and
30
executory. Sections 48 and 51 of Presidential Decree No. 1445, or the
Government Auditing Code of the Philippines provide:

Section 48. Appeal from decision of auditors. Any person aggrieved by the
decision of an auditor of any government agency in the settlement of an account
or claim may, within six months from receipt of a copy of the decision, appeal in
writing to the Commission.

Section 51. Finality of decisions of the Commission or any auditor. A decision of

the Commission or of any auditor upon any matter within its or his jurisdiction, if
not appealed as herein provided, shall be final and executory.

IN VIEW WHEREOF, the petition is DENIED. The Decision and Resolution of

the Commission on Audit Legal and Adjudication Office dated April 8, 2005 and
August 5, 2005, respectively, in LAO-N-2005-119, are AFFIRMED.

SO ORDERED.

REYNATO S. PUNO

Chief Justice
Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819               April 8, 2014

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

behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI],

represented by its President, Maria Concepcion S. Noche, Spouses
Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A.
31
Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S. Mante, Jr.
& Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco &
Carol Anne C. Tansingco for themselves and on behalf of their minor
children, Therese Antonette C. Tansingco, Lorenzo Jose C. Tansingco,
Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z.
Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor &
Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children Margarita Racho,
Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho, Spouses
Alfred R. Racho & Francine V. Racho for themselves and on behalf of
their minor children Michael Racho, Mariana Racho, Rafael Racho, Maxi
Racho, Chessie Racho & Laura Racho, Spouses David R. Racho &
Armilyn A. Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor children
Elijah Gerald Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro,
Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,  and Management; HON. ENRIQUE T. ONA, Secretary, Department of
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports, HON.
CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary and NEDA Director-
General, THE PHILIPPINE COMMISSION ON WOMEN, represented by
its Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President Eduardo
Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF
THE PHILIPPINES, represented by its President Oscar Rodriguez, and
THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented
by its President Donato Marcos,Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Education; and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B.
Lumicao, M.D., as President and in his personal capacity, ROSEVALE
FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as
member of the school board and in his personal capacity, ROSEMARIE
R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd.,
ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I.
YAP,Petitioners, 
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner, 
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES,
HON. SENATE PRESIDENT, HON. SPEAKER OF THE HOUSE OF
REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE
OF THE PHILIPPINES, Petitioners, 
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO,
DBM SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA.
ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.
x---------------------------------x
32
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein
represented by its National President, Atty. Ricardo M . Ribo, and in his
own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C.
Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly Siguan,
Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel,
Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners,  Melegrito, as Executive Director, and in her personal capacity, JOSELYN
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, HON. MANUELA. ROXAS
II, Secretary, Department of Interior and Local Government, HON.
CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. ARSENIO BALISACAN, Director-General, National
Economic and Development Authority, HON. SUZETTE H. LAZO,
Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD
OF COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T.
DOMINGO, M.D., AND JOSEPHINE MILLADO-LUMITAO, M.D.,
collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL
ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO JOSE,
CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively
known as Filipinos For Life, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO
B. ABAD, Secretary of the Department of Budget and Management;
HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON.
ARMIN A. LUISTRO, Secretary of the Department of Education; and
HON. MANUELA. ROXAS II, Secretary of the Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F.
PAGUIA, for themselves, their Posterity, and the rest of Filipino
posterity, Petitioners, 
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma
B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I.
GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY, WINSTON
CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners, 
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget
and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA,
ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI
CATALUNA CAUSING, Petitioners, 
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY,
DEPARTMENT OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B.
LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS
and LOTA LAT-GUERRERO, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUEL A. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.
x---------------------------------x
33
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS
ARTADI SARMIENTO AND FRANCESCA ISABELLE BESINGA-
SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and
DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,  equal branch done within its sphere of competence and authority, but at the
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO
B. ABAD, Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports and
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,  actual case or controversy; (b) the petitioners must possess locus standi; (c) the
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T.
ONA, Secretary of the Department of Health, and HON. ARMIN A.
LUISTRO,Secretary of the Department of Budget and
Management,Respondents.
Constitutional Law; Separation of Powers; The separation of powers is a
fundamental principle in our system of government, which obtains not through
express provision but by actual division in our Constitution.—In many cases
involving the determination of the constitutionality of the actions of the Executive
and the Legislature, it is often sought that the Court temper its exercise of
judicial power and accord due respect to the wisdom of its co-equal branch on
the basis of the principle of separation of powers. To be clear, the separation of
powers is a fundamental principle in our system of government, which obtains
not through express provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere. Thus, the 1987 Constitution
provides that: (a) the legislative power shall be vested in the Congress of the
Philippines; (b) the executive power shall be vested in the President of the
Philippines; and (c) the judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law. The Constitution has truly
blocked out with deft strokes and in bold lines, the allotment of powers among
the three branches of government.
Same; Same; Judicial Review; The Constitution impresses upon the Supreme
Court to respect the acts performed by a co-equal branch done within its sphere
of competence and authority, but at the same time, allows it to cross the line of
separation — but only at a very limited and specific point — to determine
whether the acts of the executive and the legislative branches are null because
they were undertaken with grave abuse of discretion.—In times of social
disquietude or political instability, the great landmarks of the Constitution are apt
to be forgotten or marred, if not entirely obliterated. In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
same time, allows it to cross the line of separation — but only at a very limited
and specific point — to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse of
discretion. Thus, while the Court may not pass upon questions of wisdom, justice
or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results. The Court must
demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
Same; Same; Same; Jurisprudence is replete with the rule that the power of
judicial review is limited by four exacting requisites, viz.: (a) there must be an
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.—In the scholarly
estimation of former Supreme Court Justice Florentino Feliciano, “judicial review
is essential for the maintenance and enforcement of the separation of powers
and the balancing of powers among the three great departments of government
through the definition and maintenance of the boundaries of authority and
control between them. To him, judicial review is the chief, indeed the only,
medium of participation — or instrument of intervention — of the judiciary in that
balancing operation. Lest it be misunderstood, it bears emphasizing that the
Court does not have the unbridled authority to rule on just any and every claim
of constitutional violation. Jurisprudence is replete with the rule that the power
of judicial review is limited by four exacting requisites, viz.: (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.
Same; Same; Same; Actual Case or Controversy; Words and Phrases; An actual
case or controversy means an existing case or controversy that is appropriate or
ripe for determination, not conjectural or anticipatory, lest the decision of the
court would amount to an advisory opinion.—An actual case or controversy
means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion. The rule is that courts do not sit to
adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable — definite and
concrete, touching on the legal relations of parties having adverse legal interests.
In other words, the pleadings must show an active antagonistic assertion of a
34
legal right, on the one hand, and a denial thereof, on the other; that is, it must
concern a real, tangible and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.
Same; Same; Same; Same; For a case to be considered ripe for adjudication, it is
a prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to himself as a result
of the challenged action.—Corollary 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. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by either
branch before a court may come into the picture, and the petitioner must allege
the existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained.
Same; Same; Same; Same; Facial Challenges; While the Supreme Court has
withheld the application of facial challenges to strictly penal statutes, it has
expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights.—In this
jurisdiction, the application of doctrines originating from the U.S. has been
generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statutes, it has
expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights. The underlying
reason for this modification is simple. For unlike its counterpart in the U.S., this
Court, under its expanded jurisdiction, is mandated by the Fundamental Law not
only to settle actual controversies involving rights which are legally demandable
and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Same; Same; Same; Same; Locus Standi; Words and Phrases; Locus standi or
legal standing is defined as a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury as a result of the
challenged governmental act; The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third
persons not before the court.—Locus standi or legal standing is defined as a
personal and substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the challenged governmental act. It
requires a personal stake in the outcome of the controversy as to assure the
concrete adverseness which sharpens the presentation of issues upon which the
court so largely depends for illumination of difficult constitutional questions. In
relation to locus standi, the “as applied challenge” embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. The rule prohibits one from challenging the constitutionality of the
statute grounded on a violation of the rights of third persons not before the
court. This rule is also known as the prohibition against third-party standing.
Same; Same; Same; Same; Reproductive Health Law; The Reproductive Health
(RH) Law drastically affects the constitutional provisions on the right to life and
health, the freedom of religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of contraception and
reproductive health have already caused deep division among a broad spectrum
of society, the Supreme Court entertains no doubt that the petitions raise issues
of transcendental importance warranting immediate court adjudication.—In view
of the seriousness, novelty and weight as precedents, not only to the public, but
also to the bench and bar, the issues raised must be resolved for the guidance of
all. After all, the RH Law drastically affects the constitutional provisions on the
right to life and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among
a broad spectrum of society, the Court entertains no doubt that the petitions
raise issues of transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a
life to be taken away before taking action. The Court cannot, and should not,
exercise judicial restraint at this time when rights enshrined in the Constitution
are being imperilled to be violated. To do so, when the life of either the mother
or her child is at stake, would lead to irreparable consequences.
Same; Statutes; One-Subject-One-Title Rule; The one subject/one title rule
expresses the principle that the title of a law must not be “so uncertain that the
average person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is misleading, either in
referring to or indicating one subject where another or different one is really
embraced in the act, or in omitting any expression or indication of the real
subject or scope of the act.”—The one subject/one title rule expresses the
principle that the title of a law must not be “so uncertain that the average person
reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or
indicating one subject where another or different one is really embraced in the
act, or in omitting any expression or indication of the real subject or scope of the
act.” Considering the close intimacy between “reproductive health” and
“responsible parenthood” which bears to the attainment of the goal of achieving
35
“sustainable human development” as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to deceive the public as to
the contents of the assailed legislation.
Reproductive Health Law; The use of contraceptives and family planning
methods in the Philippines is not of recent vintage.—As expounded earlier, the
use of contraceptives and family planning methods in the Philippines is not of
recent vintage. From the enactment of R.A. No. 4729, entitled “An Act To
Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices” on June 18, 1966, prescribing rules on contraceptive drugs and devices
which prevent fertilization, to the promotion of male vasectomy and tubal
ligation, and the ratification of numerous international agreements, the country
has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through
the years, however, the use of contraceptives and other family planning methods
evolved from being a component of demographic management, to one centered
on the promotion of public health, particularly, reproductive health.
Same; Life begins at fertilization.—The ponente, is of the strong view that life
begins at fertilization. In answering the question of when life begins, focus
should be made on the particular phrase of Section 12 which reads: Section 12.
The State recognizes the sanctity of family life and shall protect and strengthen
the family as a basic autonomous social institution. It shall equally protect the
life of the mother and the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government. Textually, the Constitution affords protection to the unborn from
conception. This is undisputable because before conception, there is no unborn
to speak of. For said reason, it is no surprise that the Constitution is mute as to
any proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded the
scientific fact that conception is reckoned from fertilization. They are waving the
view that life begins at implantation. Hence, the issue of when life begins. In a
nutshell, those opposing the RH Law contend that conception is synonymous
with “fertilization” of the female ovum by the male sperm. On the other side of
the spectrum are those who assert that conception refers to the “implantation”
of the fertilized ovum in the uterus.
Same; Constitutional Law; Equal Protection of the Laws; It is apparent that the
Framers of the Constitution emphasized that the State shall provide equal
protection to both the mother and the unborn child from the earliest opportunity
of life, that is, upon fertilization or upon the union of the male sperm and the
female ovum.—It is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn
child from the earliest opportunity of life, that is, upon fertilization or upon the
union of the male sperm and the female ovum. It is also apparent is that the
Framers of the Constitution intended that to prohibit Congress from enacting
measures that would allow it determine when life begins.
Same; Same; Contraceptives; The Framers of the Constitution did not intend to
ban all contraceptives for being unconstitutional; Contraceptives that kill or
destroy the fertilized ovum should be deemed an abortive and thus prohibited.
Conversely, contraceptives that actually prevent the union of the male sperm and
the female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible.—The Framers of
the Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the need
to have a constitutional provision on the right to life, recognized that the
determination of whether a contraceptive device is an abortifacient is a question
of fact which should be left to the courts to decide on based on established
evidence. From the discussions above, contraceptives that kill or destroy the
fertilized ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be deemed
non-abortive, and thus, constitutionally permissible.
Same; Conception; Words and Phrases; Mosby’s Medical, Nursing, and Allied
Health Dictionary defines conception as “the beginning of pregnancy usually
taken to be the instant a spermatozoon enters an ovum and forms a viable
zygote”; The Textbook of Obstetrics (Physiological & Pathological Obstetrics),
used by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the egg
and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.—That
conception begins at fertilization is not bereft of medical foundation. Mosby’s
Medical, Nursing, and Allied Health Dictionary defines conception as “the
beginning of pregnancy usually taken to be the instant a spermatozoon enters an
ovum and forms a viable zygote.” It describes fertilization as “the union of male
and female gametes to form a zygote from which the embryo develops.” The
Textbook of Obstetrics (Physiological & Pathological Obstetrics), used by medical
schools in the Philippines, also concludes that human life (human person) begins
at the moment of fertilization with the union of the egg and the sperm resulting
in the formation of a new individual, with a unique genetic composition that
dictates all developmental stages that ensue. Similarly, recent medical research
on the matter also reveals that: “Human development begins after the union of
male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of
a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the
fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the
mingling of their chromosomes to form a new cell. This fertilized ovum, known as
36
a zygote, is a large diploid cell that is the beginning, or primordium, of a human
being.”
Same; Same; In all, whether it be taken from a plain meaning, or understood
under medical parlance, and more importantly, following the intention of the
Framers of the Constitution, the undeniable conclusion is that a zygote is a
human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.—In
all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism and
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
Same; Same While the Supreme Court has opted not to make any determination
when life begins, it finds that the Reproductive Health (RH) Law itself clearly
mandates that protection be afforded from the moment of fertilization.—The
clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the
record of the proceedings of the 1986 Constitutional Commission. x x x A reading
of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination,
at this stage, when life begins, it finds that the RH Law itself clearly mandates
that protection be afforded from the moment of fertilization. As pointed out by
Justice Carpio, the RH Law is replete with provisions that embody the policy of
the law to protect to the fertilized ovum and that it should be afforded safe travel
to the uterus for implantation. Moreover, the RH Law recognizes that abortion is
a crime under Article 256 of the Revised Penal Code, which penalizes the
destruction or expulsion of the fertilized ovum.
Same; Abortifacients; In carrying out its declared policy, the Reproductive Health
(RH) Law is consistent in prohibiting abortifacients.—In carrying out its declared
policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section
4(a) of the RH Law defines an abortifacient as: Section 4. Definition of Terms—
x x x x (a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother’s womb or the prevention of the
fertilized ovum to reach and be implanted in the mother’s womb upon
determination of the FDA. As stated above, the RH Law mandates that protection
must be afforded from the moment of fertilization. By using the word “or,” the
RH Law prohibits not only drugs or devices that prevent implantation, but also
those that induce abortion and those that induce the destruction of a fetus inside
the mother’s womb. Thus, an abortifacient is any drug or device that either: (a)
Induces abortion; or (b) Induces the destruction of a fetus inside the mother’s
womb; or (c) Prevents the fertilized ovum to reach and be implanted in the
mother’s womb, upon determination of the FDA.
Same; Same; Words and Phrases; As defined by the Reproductive Health (RH)
Law, any drug or device that induces abortion, that is, which kills or destroys the
fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother’s womb, is an abortifacient.—Contrary to the assertions made by the
petitioners, the Court finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law,
first, prohibits any drug or device that induces abortion (first kind), which, as
discussed exhaustively above, refers to that which induces the killing or the
destruction of the fertilized ovum, and, second, prohibits any drug or device the
fertilized ovum to reach and be implanted in the mother’s womb (third kind). By
expressly declaring that any drug or device that prevents the fertilized ovum to
reach and be implanted in the mother’s womb is an abortifacient (third kind), the
RH Law does not intend to mean at all that life only begins only at implantation,
as Hon. Lagman suggests. It also does not declare either that protection will only
be given upon implantation, as the petitioners likewise suggest. Rather, it
recognizes that: one, there is a need to protect the fertilized ovum which already
has life, and two, the fertilized ovum must be protected the moment it becomes
existent — all the way until it reaches and implants in the mother’s womb. After
all, if life is only recognized and afforded protection from the moment the
fertilized ovum implants — there is nothing to prevent any drug or device from
killing or destroying the fertilized ovum prior to implantation. From the foregoing,
the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court’s position that life
begins at fertilization, not at implantation. When a fertilized ovum is implanted in
the uterine wall, its viability is sustained but that instance of implantation is not
the point of beginning of life. It started earlier. And as defined by the RH Law,
any drug or device that induces abortion, that is, which kills or destroys the
fertilized ovum or prevents the fertilized ovum to reach and be implanted in the
mother’s womb, is an abortifacient.
Same; Contraceptives; Evidently, with the addition of the word “primarily,” in
Section 3.01(a) and (j) of the Implementing Rules and Regulations of the RH
Law (RH-IRR) is indeed ultra vires. It contravenes Section 4(a) of the
Reproductive Health (RH) Law and should, therefore, be declared invalid. There
is danger that the insertion of the qualifier “primarily” will pave the way for the
approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the
Constitution.—Evidently, with the addition of the word “primarily,” in Section
3.01(a) and (j) of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of
the RH Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier “primarily” will pave the way for the approval of
37
contraceptives which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the Constitution.
With such qualification in the RH-IRR, it appears to insinuate that a contraceptive
will only be considered as an “abortifacient” if its sole known effect is abortion
or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of “contraceptive” would permit the approval
of contraceptives which are actually abortifacients because of their fair-sale
mechanism.
Same; Same; Consistent with the constitutional policy prohibiting abortion, and
in line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the Reproductive Health (RH) Law and its
implementing rules must be consistent with each other in prohibiting abortion.—
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word “primarily” in
Section 3.01(a) and (j) of the RH-IRR should be declared void. To uphold the
validity of Section 3.01(a) and (j) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively
“open the floodgates to the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article
II, Section 12 of the Constitution.”
Same; Same; With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to the
public.—The legislative intent in the enactment of the RH Law in this regard is to
leave intact the provisions of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its requirements are still in to be complied
with. Thus, the Court agrees with the observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive
drugs and devices will still require the prescription of a licensed physician. With
R.A. No. 4729 in place, there exists adequate safeguards to ensure the public
that only contraceptives that are safe are made available to the public.
Same; Same; In the distribution by the Department of Health of contraceptive
drugs and devices, it must consider the provisions of Republic Act (R.A.) No.
4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and
that the actual dispensation of these contraceptive drugs and devices will done
following a prescription of a qualified medical practitioner.—In the distribution by
the DOH of contraceptive drugs and devices, it must consider the provisions of
R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it
will procure shall be from a duly licensed drug store or pharmaceutical company
and that the actual dispensation of these contraceptive drugs and devices will
done following a prescription of a qualified medical practitioner. The distribution
of contraceptive drugs and devices must not be indiscriminately done. The public
health must be protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden are assumed by the government in
supplying contraceptive drugs and devices, for it may be held accountable for
any injury, illness or loss of life resulting from or incidental to their use.
Same; Same; The Supreme Court is of the strong view that Congress cannot
legislate that hormonal contraceptives and intra-uterine devices are safe and
non-abortifacient.—At this point, the Court is of the strong view that Congress
cannot legislate that hormonal contraceptives and intrauterine devices are safe
and non-abortifacient. The first sentence of Section 9 that ordains their inclusion
by the National Drug Formulary in the EDL by using the mandatory “shall” is to
be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family planning supply
from the EDL supports this construction.
Constitutional Law; Separation of Church and State; Generally, the State cannot
meddle in the internal affairs of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one religion and discriminate against
another.—The principle of separation of Church and State was, thus, enshrined
in Article II, Section 6 of the 1987 Constitution, viz.: Section 6. The separation of
Church and State shall be inviolable. Verily, the principle of separation of Church
and State is based on mutual respect. Generally, the State cannot meddle in the
internal affairs of the church, much less question its faith and dogmas or dictate
upon it. It cannot favor one religion and discriminate against another. On the
other hand, the church cannot impose its beliefs and convictions on the State
and the rest of the citizenry. It cannot demand that the nation follow its beliefs,
even if it sincerely believes that they are good for the country. Consistent with
the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term “church” in its generic
sense, which refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the “Church”
means the religious congregations collectively.
Same; Religious Freedom; Free Exercise Clause; Establishment Clause; The
constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.—In short, the constitutional
assurance of religious freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause. The establishment clause “principally
prohibits the State from sponsoring any religion or favoring any religion as
against other religions. It mandates a strict neutrality in affairs among religious
groups.” Essentially, it prohibits the establishment of a state religion and the use
38
of public resources for the support or prohibition of a religion. On the other
hand, the basis of the free exercise clause is the respect for the inviolability of
the human conscience. Under this part of religious freedom guarantee, the State
is prohibited from unduly interfering with the outside manifestations of one’s
belief and faith.
Same; Same; Same; Doctrine of Benevolent Neutrality; In case of conflict
between the free exercise clause and the State, the Supreme Court adheres to
the doctrine of benevolent neutrality.—In case of conflict between the free
exercise clause and the State, the Court adheres to the doctrine of benevolent
neutrality. This has been clearly decided by the Court in Estrada v. Escritor, 492
SCRA 1 (2006), (Escritor) where it was stated “that benevolent neutrality-accom-
modation, whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution.” In the same case, it was further
explained that: The benevolent neutrality theory believes that with respect to
these governmental actions, accommodation of religion may be allowed, not to
promote the government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. “The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person’s
or institution’s religion.” “What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially neutral law, but an exemption
from its application or its ‘burdensome effect,’ whether by the legislature or the
courts.” In ascertaining the limits of the exercise of religious freedom, the
compelling state interest test is proper. Underlying the compelling state interest
test is the notion that free exercise is a fundamental right and that laws
burdening it should be subject to strict scrutiny.
Same; Reproductive Health Law; Religious Freedom; While the Supreme Court
stands without authority to rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether the Reproductive
Health (RH) Law contravenes the guarantee of religious freedom.—In the case at
bench, it is not within the province of the Court to determine whether the use of
contraceptives or one’s participation in the support of modern reproductive
health measures is moral from a religious standpoint or whether the same is
right or wrong according to one’s dogma or belief. For the Court has declared
that matters dealing with “faith, practice, doctrine, form of worship, ecclesiastical
law, custom and rule of a church...are unquestionably ecclesiastical matters
which are outside the province of the civil courts.” The jurisdiction of the Court
extends only to public and secular morality. Whatever pronouncement the Court
makes in the case at bench should be understood only in this realm where it has
authority. Stated otherwise, while the Court stands without authority to rule on
ecclesiastical matters, as vanguard of the Constitution, it does have authority to
determine whether the RH Law contravenes the guarantee of religious freedom.
Same; Same; Same; The State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion.—In
the same breath that the establishment clause restricts what the government can
do with religion, it also limits what religious sects can or cannot do with the
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to
restrict other groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion. Consequently, the
petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of
contraceptive use is contrary to their religious beliefs. Indeed, the State is not
precluded to pursue its legitimate secular objectives without being dictated upon
by the policies of any one religion. One cannot refuse to pay his taxes simply
because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar’s and
unto God the things that are God’s.
Same; Same; Same; Compelling Interest Test; The conscientious objector’s claim
to religious freedom would warrant an exemption from obligations under the
Reproductive Health Law, unless the government succeeds in demonstrating a
more compelling state interest in the accomplishment of an important secular
objective.—In a situation where the free exercise of religion is allegedly
burdened by government legislation or practice, the compelling state interest test
in line with the Court’s espousal of the Doctrine of Benevolent Neutrality in
Escritor, finds application. In this case, the conscientious objector’s claim to
religious freedom would warrant an exemption from obligations under the RH
Law, unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily so,
the plea of conscientious objectors for exemption from the RH Law deserves no
less than strict scrutiny.
Same; Same; Same; The Court is of the view that the obligation to refer imposed
by the Reproductive Health Law violates the religious belief and conviction of a
conscientious objector.—The Court is of the view that the obligation to refer
imposed by the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his will, refers a
patient seeking information on modern reproductive health products, services,
procedures and methods, his conscience is immediately burdened as he has been
compelled to perform an act against his beliefs. As Commissioner Joaquin A.
Bernas (Commissioner Bernas) has written, at the basis of the free exercise
clause is the respect for the inviolability of the human conscience. Though it has
been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the
performance of an act that they find morally repugnant or offensive. They
cannot, in conscience, do indirectly what they cannot do directly. One may not
be the principal, but he is equally guilty if he abets the offensive act by indirect
participation.
39
Same; Same; Same; In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of the State, on the
other, to provide access and information on reproductive health products,
services, procedures and methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Supreme Court is of the
strong view that the religious freedom of health providers, whether public or
private, should be accorded primacy.—In case of conflict between the religious
beliefs and moral convictions of individuals, on one hand, and the interest of the
State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine
the timing, number and spacing of the birth of their children, the Court is of the
strong view that the religious freedom of health providers, whether public or
private, should be accorded primacy. Accordingly, a conscientious objector
should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would
be violative of “the principle of non-coercion” enshrined in the constitutional right
to free exercise of religion.
Same; Same; Same; The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Supreme
Court cannot allow.—The Court is not oblivious to the view that penalties
provided by law endeavour to ensure compliance. Without set consequences for
either an active violation or mere inaction, a law tends to be toothless and
ineffectual. Nonetheless, when what is bartered for an effective implementation
of a law is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform reproductive
health procedure on a patient because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the Court cannot allow.
Same; Same; Same; The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they
belong to the public or private sector.—The conscientious objection clause should
be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other conscientious objectors
should equally apply to all medical practitioners without distinction whether they
belong to the public or private sector. After all, the freedom to believe is intrinsic
in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
Same; Same; Same; The Supreme Court finds no compelling state interest which
would limit the free exercise clause of the conscientious objectors, however few
in number.—The Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number. Only
the prevention of an immediate and grave danger to the security and welfare of
the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable. Freedom of religion means more than
just the freedom to believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated when one is
compelled to act against one’s belief or is prevented from acting according to
one’s belief.
Same; Same; In a conflict situation between the life of the mother and the life of
a child, the doctor is morally obliged always to try to save both lives. If,
however, it is impossible, the resulting death to one should not be deliberate.—
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained: Principle of Double-Effect.—May we please remind the principal
author of the RH Bill in the House of Representatives of the principle of double-
effect wherein intentional harm on the life of either the mother of the child is
never justified to bring about a “good” effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily the
mother) when it is medically impossible to save both, provided that no direct
harm is intended to the other. If the above principles are observed, the loss of
the child’s life or the mother’s life is not intentional and, therefore, unavoidable.
Hence, the doctor would not be guilty of abortion or murder. The mother is
never pitted against the child because both their lives are equally valuable.
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been more
than justified considering the life he would be able to save.
Same; Same; Police Power; Anent the requirement imposed under Section 15 as
a condition for the issuance of a marriage license, the Supreme Court finds the
same to be a reasonable exercise of police power by the government; All the law
requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition.—Anent the requirement imposed
under Section 15 as a condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the
petitioners is not at all violated. All the law requires is for would-be spouses to
attend a seminar on parenthood, family planning breastfeeding and infant
nutrition. It does not even mandate the type of family planning methods to be
included in the seminar, whether they be natural or artificial. As correctly noted
40
by the OSG, those who receive any information during their attendance in the
required seminars are not compelled to accept the information given to them,
are completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the
State.
Reproductive Health Law; Decision-making involving a reproductive health
procedure is a private matter which belongs to the couple, not just one of them.
—Section 3, Art. XV of the Constitution espouses that the State shall defend the
“right of the spouses to found a family.” One person cannot found a family. The
right, therefore, is shared by both spouses. In the same Section 3, their right “to
participate in the planning and implementation of policies and programs that
affect them” is equally recognized. The RH Law cannot be allowed to infringe
upon this mutual decision-making. By giving absolute authority to the spouse
who would undergo a procedure, and barring the other spouse from participating
in the decision would drive a wedge between the husband and wife, possibly
result in bitter animosity, and endanger the marriage and the family, all for the
sake of reducing the population. This would be a marked departure from the
policy of the State to protect marriage as an inviolable social institution.
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the State, which has not shown any
compelling interest, the State should see to it that they chart their destiny
together as one family.
Same; Parental Consent; Equally deplorable is the debarment of parental consent
in cases where the minor, who will be undergoing a procedure, is already a
parent or has had a miscarriage.—Equally deplorable is the debarment of
parental consent in cases where the minor, who will be undergoing a procedure,
is already a parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning.—x x x. No person shall be denied information
and access to family planning services, whether natural or artificial: Provided,
That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor
is already a parent or has had a miscarriage. There can be no other
interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision-making
process of the minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because there is a
need to tame population growth. It is precisely in such situations when a minor
parent needs the comfort, care, advice, and guidance of her own parents. The
State cannot replace her natural mother and father when it comes to providing
her needs and comfort. To say that their consent is no longer relevant is clearly
anti-family. It does not promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the family as an inviolable
social institution.
Same; Same; Compelling State Interest; The State cannot, without a compelling
state interest, take over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental
authority.—To insist on a rule that interferes with the right of parents to exercise
parental control over their minor-child or the right of the spouses to mutually
decide on matters which very well affect the very purpose of marriage, that is,
the establishment of conjugal and family life, would result in the violation of
one’s privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society. The
State cannot, without a compelling state interest, take over the role of parents in
the care and custody of a minor child, whether or not the latter is already a
parent or has had a miscarriage. Only a compelling state interest can justify a
state substitution of their parental authority.
Same; Access to Information; Principle of Double Effect; Insofar as access to
information is concerned, the Supreme Court finds no constitutional objection to
the acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12, Article II of the
Constitution mandates the State to protect both the life of the mother as that of
the unborn child.—There must be a differentiation between access to information
about family planning services, on one hand, and access to the reproductive
health procedures and modern family planning methods themselves, on the
other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to
under the exception in the second paragraph of Section 7 that would enable her
to take proper care of her own body and that of her unborn child. After all,
Section 12, Article II of the Constitution mandates the State to protect both the
life of the mother as that of the unborn child. Considering that information to
enable a person to make informed decisions is essential in the protection and
maintenance of ones’ health, access to such information with respect to
reproductive health must be allowed. In this situation, the fear that parents
might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and
assist her in deciding whether to accept or reject the information received.
41
Same; Same; Right to Life; No person should be denied the appropriate medical
care urgently needed to preserve the primordial right, that is, the right to life.—
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
such cases, the life of the minor who has already suffered a miscarriage and that
of the spouse should not be put at grave risk simply for lack of consent. It should
be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life. In this
connection, the second sentence of Section 23(a)(2)(ii) should be struck down.
By effectively limiting the requirement of parental consent to “only in elective
surgical procedures,” it denies the parents their right of parental authority in
cases where what is involved are “non-surgical procedures.” Save for the two
exceptions discussed above, and in the case of an abused child as provided in
the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of
their constitutional right of parental authority. To deny them of this right would
be an affront to the constitutional mandate to protect and strengthen the family.
Same; Any attack on the validity of Section 14 of the Reproductive Health (RH)
Law is premature because the Department of Education, Culture and Sports
(DECS) has yet to formulate a curriculum on age-appropriate reproductive health
education.—Suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports
has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue,
the Court declines to rule on its constitutionality or validity.
Statutes; Principle of Void for Vagueness; A statute or act suffers from the defect
of vagueness when it lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as to its application.—
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle. Moreover, in
determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general
intent of the whole enactment.
Constitutional Law; Reproductive Health Law; Equal Protection of the Law; To
provide that the poor are to be given priority in the government’s reproductive
health care program is not a violation of the equal protection clause; It should be
noted that Section 7 of the Reproductive Health (RH) Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to have
children. There is, therefore, no merit to the contention that the RH Law only
seeks to target the poor to reduce their number.—To provide that the poor are
to be given priority in the government’s reproductive health care program is not
a violation of the equal protection clause. In fact, it is pursuant to Section 11,
Article XIII of the Constitution which recognizes the distinct necessity to address
the needs of the underprivileged by providing that they be given priority in
addressing the health development of the people. Thus: Section 11. The State
shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs
of the underprivileged, sick, elderly, disabled, women, and children. The State
shall endeavor to provide free medical care to paupers. It should be noted that
Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no
merit to the contention that the RH Law only seeks to target the poor to reduce
their number. While the RH Law admits the use of contraceptives, it does not, as
elucidated above, sanction abortion. As Section 3(l) explains, the “promotion
and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health.”
Same; Same; Involuntary Servitude; Clearly, no compulsion, force or threat is
made upon reproductive healthcare service providers to render pro bono service
against their will. While the rendering of such service was made a prerequisite to
accreditation with PhilHealth, the Supreme Court does not consider the same to
be an unreasonable burden, but rather, a necessary incentive imposed by
Congress in the furtherance of a perceived legitimate state interest.—The OSG
counters that the rendition of pro bono services envisioned in Section 17 can
hardly be considered as forced labor analogous to slavery, as reproductive health
care service providers have the discretion as to the manner and time of giving
pro bono services. Moreover, the OSG points out that the imposition is within the
powers of the government, the accreditation of medical practitioners with
PhilHealth being a privilege and not a right. The point of the OSG is well-taken. It
should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress to prescribe the qualifications for the practice of
professions or trades which affect the public welfare, the public health, the public
morals, and the public safety; and to regulate or control such professions or
42
trades, even to the point of revoking such right altogether. Moreover, as some
petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion. A
reading of the assailed provision, however, reveals that it only encourages
private and nongovernment reproductive healthcare service providers to render
pro bono service. Other than non-accreditation with PhilHealth, no penalty is
imposed should they choose to do otherwise. Private and non-government
reproductive healthcare service providers also enjoy the liberty to choose which
kind of health service they wish to provide, when, where and how to provide it or
whether to provide it all. Clearly, therefore, no compulsion, force or threat is
made upon them to render pro bono service against their will. While the
rendering of such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an unreasonable burden,
but rather, a necessary incentive imposed by Congress in the furtherance of a
perceived legitimate state interest.
Same; Same; From the declared policy of the Reproductive Health (RH) Law, it is
clear that Congress intended that the public be given only those medicines that
are proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards.—The functions,
powers and duties of the FDA are specific to enable the agency to carry out the
mandates of the law. Being the country’s premiere and sole agency that ensures
the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to ensure
public health and safety by permitting only food and medicines that are safe
includes “service” and “methods.” From the declared policy of the RH Law, it is
clear that Congress intended that the public be given only those medicines that
are proven medically safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research standards.
Same; Same; The fact that the Reproductive Health (RH) Law does not intrude in
the autonomy of local governments can be equally applied to the Autonomous
Region of Muslim Mindanao (ARMM). The RH Law does not infringe upon its
autonomy.—The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not infringe
upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054,
or the organic act of the ARMM, alluded to by petitioner Tillah to justify the
exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions
relied upon by the petitioners simply delineate the powers that may be exercised
by the regional government, which can, in no manner, be characterized as an
abdication by the State of its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the
notion of imperium et imperio in the relationship between the national and the
regional governments. Except for the express and implied limitations imposed on
it by the Constitution, Congress cannot be restricted to exercise its inherent and
plenary power to legislate on all subjects which extends to all matters of general
concern or common interest.
Same; Same; Abortion; The Reproductive Health (RH) Law does not sanction the
taking away of life. It does not allow abortion in any shape or form. It only seeks
to enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily available
to the public, especially to the poor.—Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a law. In
Republic v. Sandiganbayan, 407 SCRA 10 (2003), the very case cited by the
petitioners, it was explained that the Court is not duty-bound to examine every
law or action and whether it conforms with both the Constitution and natural
law. Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is applicable. At any
rate, as earlier expounded, the RH Law does not sanction the taking away of life.
It does not allow abortion in any shape or form. It only seeks to enhance the
population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Same; Same; In general, the Supreme Court does not find the Reproductive
Health (RH) Law as unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality
reproductive healthcare services, methods, devices, and supplies.—In general,
the Court does not find the RH Law as unconstitutional insofar as it seeks to
provide access to medically-safe, non-abortifacient, effective, legal, affordable,
and quality reproductive healthcare services, methods, devices, and supplies. As
earlier pointed out, however, the religious freedom of some sectors of society
cannot be trampled upon in pursuit of what the law hopes to achieve. After all,
the Constitutional safeguard to religious freedom is a recognition that man
stands accountable to an authority higher than the State. In conformity with the
principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modern society
leaves enough room for diversity and pluralism. As such, everyone should be
tolerant and open-minded so that peace and harmony may continue to reign as
we exist alongside each other.
Same; Same; Separation of Powers; It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature to
enact remedial legislation if that would be necessary in the premises.—Indeed, at
the present, the country has a population problem, but the State should not use
43
coercive measures (like the penal provisions of the RH Law against conscientious
objectors) to solve it. Nonetheless, the policy of the Court is non-interference in
the wisdom of a law. x x x. But this Court cannot go beyond what the legislature
has laid down. Its duty is to say what the law is as enacted by the lawmaking
body. That is not the same as saying what the law should be or what is the
correct rule in a given set of circumstances. It is not the province of the judiciary
to look into the wisdom of the law nor to question the policies adopted by the
legislative branch. Nor is it the business of this Tribunal to remedy every unjust
situation that may arise from the application of a particular law. It is for the
legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court
must carry out the delicate function of interpreting the law, guided by the
Constitution and existing legislation and mindful of settled jurisprudence. The
Court’s function is therefore limited, and accordingly, must confine itself to the
judicial task of saying what the law is, as enacted by the lawmaking body.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs , and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as
a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people
and the development of the country as a whole. The legislative branch, as the
main facet of a representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and substantial solutions
within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that merely casts its watchful
eyes on clashing stakeholders until it is called upon to adjudicate. Passive, yet
reflexive when called into action, the Judiciary then willingly embarks on its
solemn duty to interpret legislation vis-a-vis the most vital and enduring principle
that holds Philippine society together - the supremacy of the Philippine
Constitution.
Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every democratic
society, diametrically opposed views on the subjects and their perceived
consequences freely circulate in various media. From television debates 2 to
sticker campaigns,3 from rallies by socio-political activists to mass gatherings
organized by members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive liberals has
caused a deep division in every level of the society. Despite calls to withhold
support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as
the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was
enacted by Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the Magnificat
Child Leaming Center, Inc., a domestic, privately-owned educational institution
(Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7 and
several others8 in their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas,
Inc., and Valeriano S. Avila, in their capacities as citizens and taxpayers (Task
Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro
City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational
institution, and several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines, 16 in their capacities as a citizens
and taxpayers (Olaguer);
44
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others, 21 in their
capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria
Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers
and on behalf of those yet unborn. Atty. Alan F. Paguia is also proceeding in his
capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys.
Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia
Causing, in their capacities as citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others, 31in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M.
Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity
as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an
accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the
constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees protection
of both the life of the mother and the life of the unborn from conception. 35
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes cancer
and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For the
petitioners, the use of public funds for purposes that are believed to be contrary
to their beliefs is included in the constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it compels
medical practitioners 1] to refer patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full and correct information on
reproductive health programs and service, although it is against their religious
beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations of
the RH Law (RH-IRR),39 provides that skilled health professionals who are public
officers such as, but not limited to, Provincial, City, or Municipal Health Officers,
medical officers, medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are specifically charged with
the duty to implement these Rules, cannot be considered as conscientious
objectors.40
It is also argued that the RH Law providing for the formulation of mandatory sex
education in schools should not be allowed as it is an affront to their religious
beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth program,
they are compelled to provide forty-eight (48) hours of pro bona services for
indigent women, under threat of criminal prosecution, imprisonment and other
forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
45
• The RH Law violates the right to equal protection of the law. It is claimed that
the RH Law discriminates against the poor as it makes them the primary target
of the government program that promotes contraceptive use. The petitioners
argue that, rather than promoting reproductive health among the poor, the RH
Law seeks to introduce contraceptives that would effectively reduce the number
of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause of
the Constitution. In imposing the penalty of imprisonment and/or fine for "any
violation," it is vague because it does not define the type of conduct to be
treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the right
to due process by removing from them (the people) the right to manage their
own affairs and to decide what kind of health facility they shall be and what kind
of services they shall offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance with their own
discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to explain a
full range of family planning methods is plainly to curtail his right to expound
only his own preferred way of family planning. The petitioners note that although
exemption is granted to institutions owned and operated by religious groups,
they are still forced to refer their patients to another healthcare facility willing to
perform the service or procedure. 48
• The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs. 49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue between
the spouses and impedes the right of spouses to mutually decide on matters
pertaining to the overall well-being of their family. In the same breath, it is also
claimed that the parents of a child who has suffered a miscarriage are deprived
of parental authority to determine whether their child should use
contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of legislative
authority. The petitioners question the delegation by Congress to the FDA of the
power to determine whether a product is non-abortifacient and to be included in
the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section 26( 1
), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the powers devolved to
LGUs and the ARMM under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law. Aside
from the Office of the Solicitor General (OSG) which commented on the petitions
in behalf of the respondents,55 Congressman Edcel C. Lagman,56 former officials
of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and Dr.
Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health
(C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed
their respective Comments-in-Intervention in conjunction with several others. On
June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons that 1]
there is no actual case or controversy and, therefore, the issues are not yet ripe
for judicial determination.; 2] some petitioners lack standing to question the RH
Law; and 3] the petitions are essentially petitions for declaratory relief over
which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed
legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the Court
issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels of
the parties to determine and/or identify the pertinent issues raised by the parties
and the sequence by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the
cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective memoranda
within sixty (60) days and, at the same time posed several questions for their
clarification on some contentions of the parties. 64
The Status Quo Ante
46
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back as
June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late
the Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices."
Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a
duly licensed drug store or pharmaceutical company and with the prescription of
a qualified medical practitioner." 65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions
relative to "dispensing of abortifacients or anti-conceptional substances and
devices." Under Section 37 thereof, it was provided that "no drug or chemical
product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be considered
as the principal element for long-term economic development, enacted measures
that promoted male vasectomy and tubal ligation to mitigate population
growth.67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating
the Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and
effective means will be provided to couples desiring to space or limit family size;
mortality and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued
Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among
others, made "family planning a part of a broad educational program," provided
"family planning services as a part of over-all health care," and made "available
all acceptable methods of contraception, except abortion, to all Filipino citizens
desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to one
centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country enacted
R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs
for women, including family planning and sex education. 71
The RH Law
Despite the foregoing legislative measures, the population of the country kept on
galloping at an uncontrollable pace. From a paltry number of just over 27 million
Filipinos in 1960, the population of the country reached over 76 million in the
year 2000 and over 92 million in 2010.72 The executive and the legislative, thus,
felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized,
access and information to the full range of modem family planning methods, and
to ensure that its objective to provide for the peoples' right to reproductive
health be achieved. To make it more effective, the RH Law made it mandatory
for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive
health education. To put teeth to it, the RH Law criminalizes certain acts of
refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and make
effective the current laws on contraception, women's health and population
control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates the
right to health of women and the sanctity of life, which the State is mandated to
protect and promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained." 73 It explains:
x x x. The instant Petition does not question contraception and contraceptives
per se. As provided under Republic Act No. 5921 and Republic Act No. 4729, the
sale and distribution of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the Petitioners find deplorable
and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in
the remotest areas of the country - is made to play in the implementation of the
contraception program to the fullest extent possible using taxpayers' money. The
State then will be the funder and provider of all forms of family planning
methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning
methods, devices and supplies.74
ISSUES
47
After a scrutiny of the various arguments and contentions of the parties, the respect the compromises made in the crafting of the RH Law, it being "a product
Court has synthesized and refined them to the following principal issues: of a majoritarian democratic process"75 and "characterized by an inordinate
amount of transparency."76 The OSG posits that the authority of the Court to
I. PROCEDURAL: Whether the Court may exercise its power of judicial review review social legislation like the RH Law by certiorari is "weak," since the
over the controversy. Constitution vests the discretion to implement the constitutional policies and
positive norms with the political departments, in particular, with Congress. 77 It
1] Power of Judicial Review
further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
2] Actual Case or Controversy Terrorism Council,78 the remedies of certiorari and prohibition utilized by the
petitioners are improper to assail the validity of the acts of the legislature. 79
3] Facial Challenge
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper
4] Locus Standi considering that the assailed law has yet to be enforced and applied to the
petitioners, and that the government has yet to distribute reproductive health
5] Declaratory Relief
devices that are abortive. It claims that the RH Law cannot be challenged "on its
6] One Subject/One Title Rule face" as it is not a speech-regulating measure. 80

II. SUBSTANTIVE: Whether the RH law is unconstitutional: In many cases involving the determination of the constitutionality of the actions
of the Executive and the Legislature, it is often sought that the Court temper its
1] Right to Life exercise of judicial power and accord due respect to the wisdom of its co-equal
branch on the basis of the principle of separation of powers. To be clear, the
2] Right to Health
separation of powers is a fundamental principle in our system of government,
3] Freedom of Religion and the Right to Free Speech which obtains not through express provision but by actual division in our
Constitution. Each department of the government has exclusive cognizance of
4] The Family matters within its jurisdiction and is supreme within its own sphere. 81

5] Freedom of Expression and Academic Freedom Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
6] Due Process vested in the President of the Philippines; 83 and (c) the judicial power shall be
7] Equal Protection vested in one Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and in bold lines,
8] Involuntary Servitude the allotment of powers among the three branches of government. 85

9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial
review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86
It has also long been observed, however, that in times of social disquietude or
political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. 87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the
same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the
48
legislative branches are null because they were undertaken with grave abuse of
discretion.88 Thus, while the Court may not pass upon questions of wisdom,
justice or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results. 89 The Court must
demonstrate its unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier point.
The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but,
rather, to make sure that they have acted in consonance with their respective
authorities and rights as mandated of them by the Constitution. If after said
review, the Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review. 90 This is in line with
Article VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared that
certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and
countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the duty
of the judiciary to settle the dispute. "The question thus posed is judicial rather
than political. The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano,
"judicial review is essential for the maintenance and enforcement of the
separation of powers and the balancing of powers among the three great
departments of government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial review is the
chief, indeed the only, medium of participation - or instrument of intervention -
of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have the
unbridled authority to rule on just any and every claim of constitutional violation.
Jurisprudence is replete with the rule that the power of judicial review is limited
by four exacting requisites, viz : (a) there must be an actual case or controversy;
(b) the petitioners must possess locus standi; (c) the question of constitutionality
must be raised at the earliest opportunity; and (d) the issue of constitutionality
must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present any
actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not yet
concrete and ripe for adjudication since no one has been charged with violating
any of its provisions and that there is no showing that any of the petitioners'
rights has been adversely affected by its operation. 98 In short, it is contended
that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion. 99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be justiciable-
definite and concrete, touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an active antagonistic
assertion of a legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a theoretical question or
issue. There ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as distinguished from an
opinion advising what the law would be upon a hypothetical state of facts. 100
Corollary to the requirement of an actual case or controversy is the requirement
of ripeness.101 A question is ripe for adjudication when the act being challenged
has had a direct adverse effect on the individual challenging it. For a case to be
considered ripe for adjudication, it is a prerequisite that something has then
been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. He must show
49
that he has sustained or is immediately in danger of sustaining some direct injury
as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented Memorandum of
Agreement on the Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the issues raised as there
was yet no concrete act performed that could possibly violate the petitioners' and
the intervenors' rights. Citing precedents, the Court ruled that the fact of the law
or act in question being not yet effective does not negate ripeness. Concrete acts
under a law are not necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH Law
and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated earlier, when an
action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to settle
the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally prosecuted
under the RH Law for vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with forfeiture of retirement
and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject
petitions, contending that the RH Law cannot be challenged "on its face" as it is
not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a First
Amendment Challenge, is one that is launched to assail the validity of statutes
concerning not only protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of the press, and the
right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the
right to one's freedom of expression, as they are modes which one's thoughts
are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court has
withheld the application of facial challenges to strictly penal statues, 108 it has
expanded its scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental rights.109 The
underlying reason for this modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving rights which
are legally demandable and enforceable, but also to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.110 Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the
Constitution.
Consequently, considering that the foregoing petitions have seriously alleged that
the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred petitions
and to determine if the RH Law can indeed pass constitutional scrutiny. To
dismiss these petitions on the simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive branch of government,
acting only when the Fundamental Law has been transgressed, to the detriment
of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute reproductive health
devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental importance"
doctrine and their status as citizens and taxpayers in establishing the requisite
locus standi.
Locus standi or legal standing is defined as a personal and substantial interest in
a case such that the party has sustained or will sustain direct injury as a result of
the challenged governmental act.113 It requires a personal stake in the outcome
of the controversy as to assure the concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that one
can challenge the constitutionality of a statute only if he asserts a violation of his
own rights. The rule prohibits one from challenging the constitutionality of the
50
statute grounded on a violation of the rights of third persons not before the
court. This rule is also known as the prohibition against third-party standing. 115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a
matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest." 116
In Coconut Oil Refiners Association, Inc. v. Torres,  the Court held that in cases
117
of paramount importance where serious constitutional questions are involved,
the standing requirement may be relaxed and a suit may be allowed to prosper
even where there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,118 ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive orders
although they had only an indirect and general interest shared in common with
the public.
With these said, even if the constitutionality of the RH Law may not be assailed
through an "as-applied challenge, still, the Court has time and again acted
liberally on the locus s tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with material interest affected
by a Government act, provided a constitutional issue of transcendental
importance is invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion, waived or relaxed,
thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest, albeit they may not have been
directly injured by the operation of a law or any other government act. As held in
Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved in
this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being of
this nation, specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched principle that
rules of procedure are not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for the
guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and expression
and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among
a broad spectrum of society, the Court entertains no doubt that the petitions
raise issues of transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a
life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do so,
when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions
for declaratory relief over which the Court has no original jurisdiction.120 Suffice it
to state that most of the petitions are praying for injunctive reliefs and so the
Court would just consider them as petitions for prohibition under Rule 65, over
which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for
prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming that it
violates Section 26(1 ), Article VI of the Constitution,122 prescribing the one
subject-one title rule. According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population
control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth or
population control measure, 124 and that the concepts of "responsible parenthood"
and "reproductive health" are both interrelated as they are inseparable. 125
Despite efforts to push the RH Law as a reproductive health law, the Court sees
it as principally a population control measure. The corpus of the RH Law is
geared towards the reduction of the country's population. While it claims to save
lives and keep our women and children healthy, it also promotes pregnancy-
preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to
information on the full range of modem family planning products and methods.
These family planning methods, natural or modem, however, are clearly geared
towards the prevention of pregnancy.
51
For said reason, the manifest underlying objective of the RH Law is to reduce the
number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-
natal care as well. A large portion of the law, however, covers the dissemination
of information and provisions on access to medically-safe, non-abortifacient,
effective, legal, affordable, and quality reproductive health care services,
methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the
RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation. 127 As earlier explained,
"the other positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in the
Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In
Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep. Francis
Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision as to
mirror, fully index or catalogue all the contents and the minute details therein.
The rule is sufficiently complied with if the title is comprehensive enough as to
include the general object which the statute seeks to effect, and where, as here,
the persons interested are informed of the nature, scope and consequences of
the proposed law and its operation. Moreover, this Court has invariably adopted
a liberal rather than technical construction of the rule "so as not to cripple or
impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human
rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and
the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the title of a law must
not be "so uncertain that the average person reading it would not be informed of
the purpose of the enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject where another or
different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and "responsible
parenthood" which bears to the attainment of the goal of achieving "sustainable
human development" as stated under its terms, the Court finds no reason to
believe that Congress intentionally sought to deceive the public as to the
contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health
of the unborn child under Section 12, Article II of the Constitution. The assailed
legislation allowing access to abortifacients/abortives effectively sanctions
abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the fertilized
ovum to reach and be implanted in the mother's womb as an abortifacient; thus,
sanctioning contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the Constitution to afford
protection to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient"
hormonal contraceptives, intrauterine devices, injectables and other safe, legal,
non-abortifacient and effective family planning products and supplies, medical
research shows that contraceptives use results in abortion as they operate to kill
the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food and
Drug Administration (FDA) to certify that the product or supply is not to be used
as an abortifacient, the assailed legislation effectively confirms that abortifacients
are not prohibited. Also considering that the FDA is not the agency that will
actually supervise or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make a certification that it
shall not be used for abortifacient purposes.133
Position of the Respondents
52
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They contend
that the RH Law does not violate the Constitution since the said law emphasizes
that only "non-abortifacient" reproductive health care services, methods, devices
products and supplies shall be made accessible to the public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the medical field, it is
asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined
as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum. Consequently,
he argues that the RH Law is constitutional since the law specifically provides
that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right to
life.137
Even if not formally established, the right to life, being grounded on natural law,
is inherent and, therefore, not a creation of, or dependent upon a particular law,
custom, or belief. It precedes and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section
1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in
the Philippines is not of recent vintage. From the enactment of R.A. No. 4729,
entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,138 to the promotion
of male vasectomy and tubal ligation,139 and the ratification of numerous
international agreements, the country has long recognized the need to promote
population control through the use of contraceptives in order to achieve long-
term economic development. Through the years, however, the use of
contraceptives and other family planning methods evolved from being a
component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.140
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-coercion." 141 As will
be discussed later, these principles are not merely grounded on administrative
policy, but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided, at
this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of
the Government.
Textually, the Constitution affords protection to the unborn from conception. This
is undisputable because before conception, there is no unborn to speak of. For
said reason, it is no surprise that the Constitution is mute as to any proscription
prior to conception or when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization. They are waving the view that
life begins at implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm. 142 On the
other side of the spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus. 143
53
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution should
be interpreted in their plain and ordinary meaning. As held in the recent case of
Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. It is a well-settled
principle of constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where technical terms
are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the
text of the provision to be construed compels acceptance and negates the power
of the courts to alter it, based on the postulate that the framers and the people
mean what they say. Verba legis non est recedendum - from the words of a
statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is assumed
that the words in which constitutional provisions are couched express the
objective sought to be attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important condition for the rule of
law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of becoming
pregnant, formation of a viable zygote; the fertilization that results in a new
entity capable of developing into a being like its parents. 145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in human
life capable of survival and maturation under normal conditions. 146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb already
has life. No less than the Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme
Court, said that the State "has respect for human life at all stages in the
pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of the
Framers regarding the term "conception" used in Section 12, Article II of the
Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the beginning of
human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive? Biologically
categorically says yes, the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there is no question
that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At
the moment of conception, the nuclei of the ovum and the sperm rupture. As
this happens 23 chromosomes from the ovum combine with 23 chromosomes of
the sperm to form a total of 46 chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. Therefore, the fertilized ovum is
human.
54
Since these questions have been answered affirmatively, we must conclude that
if the fertilized ovum is both alive and human, then, as night follows day, it must
be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and not
"from the moment of fertilization" was not because of doubt when human life
begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was described
by us here before with the scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler phrase "from the
moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection under
the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of
writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to
the Commissioner's own admission, he would leave it to Congress to define when
life begins. So, Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous. It is now determined
by science that life begins from the moment of conception. There can be no
doubt about it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point.
Actually, that is one of the questions I was going to raise during the period of
interpellations but it has been expressed already. The provision, as proposed
right now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when the
egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the rooting of
the ovum in the uterus. If fertilization has already occurred, the next process is
for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the
fertilized ovum to reach the uterus. Therefore, if we take the provision as it is
proposed, these so called contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called
abortifacient and, therefore, would be unconstitutional and should be banned
under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state
whether or not these certain contraceptives are abortifacient. Scientifically and
based on the provision as it is now proposed, they are already considered
abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both the
mother and the unborn child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life
begins.
Equally apparent, however, is that the Framers of the Constitution did not intend
to ban all contraceptives for being unconstitutional. In fact, Commissioner
Bernardo Villegas, spearheading the need to have a constitutional provision on
the right to life, recognized that the determination of whether a contraceptive
device is an abortifacient is a question of fact which should be left to the courts
to decide on based on established evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the female
ovum, and those that similarly take action prior to fertilization should be deemed
non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
x x x           x x x          x x x
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life,
to the point that I would like not only to protect the life of the unborn, but also
the lives of the millions of people in the world by fighting for a nuclear-free
world. I would just like to be assured of the legal and pragmatic implications of
the term "protection of the life of the unborn from the moment of conception." I
raised some of these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask that question again
for a categorical answer.
55
I mentioned that if we institutionalize the term "the life of the unborn from the Justice Bersamin:
moment of conception" we are also actually saying "no," not "maybe," to certain
contraceptives which are already being encouraged at this point in time. Is that Even if there is already information that condoms sometimes have porosity?
the sense of the committee or does it disagree with me? Atty. Noche:
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but
preventive. There is no unborn yet. That is yet unshaped. I am discussing here Section 12, Article II, Your Honor, yes.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some Justice Bersamin:
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say Alright.
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized. Atty. Noche:

Mr. Azcuna: Yes, to the extent that it is after the fertilization. And it's not, I have to admit it's not an abortifacient, Your Honor. 158

Mr. Gascon: Thank you, Mr. Presiding Officer.156 Medical Meaning

The fact that not all contraceptives are prohibited by the 1987 Constitution is That conception begins at fertilization is not bereft of medical foundation. Mosby
even admitted by petitioners during the oral arguments. There it was conceded s Medical, Nursing, and Allied Health Dictionary defines conception as "the
that tubal ligation, vasectomy, even condoms are not classified as beginning of pregnancy usually taken to be the instant a spermatozoon enters an
abortifacients.157 ovum and forms a viable zygote."159

Atty. Noche: It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
Before the union of the eggs, egg and the sperm, there is no life yet.
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by
Justice Bersamin: medical schools in the Philippines, also concludes that human life (human
person) begins at the moment of fertilization with the union of the egg and the
There is no life. sperm resulting in the formation of a new individual, with a unique genetic
Atty. Noche: composition that dictates all developmental stages that ensue.

So, there is no life to be protected. Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ cells
Justice Bersamin: during a process known as fertilization (conception). Fertilization is a sequence of
events that begins with the contact of a sperm (spermatozoon) with a secondary
To be protected. oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of
the sperm and ovum) and the mingling of their chromosomes to form a new cell.
Atty. Noche:
This fertilized ovum, known as a zygote, is a large diploid cell that is the
Under Section 12, yes. beginning, or primordium, of a human being."162

Justice Bersamin: The authors of Human Embryology & Teratology163 mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
So you have no objection to condoms? landmark because, under ordinary circumstances, a new, genetically distinct
human organism is thereby formed.... The combination of 23 chromosomes
Atty. Noche:
present in each pronucleus results in 46 chromosomes in the zygote. Thus the
Not under Section 12, Article II. diploid number is restored and the embryonic genome is formed. The embryo
now exists as a genetic unity."
56
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and therein
concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at this
stage that conception, and thus human life, begins. Human lives are sacred from
the moment of conception, and that destroying those new lives is never licit, no
matter what the purported good outcome would be. In terms of biology and
human embryology, a human being begins immediately at fertilization and after
that, there is no point along the continuous line of human embryogenesis where
only a "potential" human being can be posited. Any philosophical, legal, or
political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a scientifically
well defined "moment of conception." This conclusion is objective, consistent
with the factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos. 164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism and
that the life of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by
Hon. Lagman that life begins at implantation.165 According to him, "fertilization
and conception are two distinct and successive stages in the reproductive
process. They are not identical and synonymous."166 Citing a letter of the WHO,
he wrote that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after implantation that
pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the viability
of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living
human being complete with DNA and 46 chromosomes.168 Implantation has been
conceptualized only for convenience by those who had population control in
mind. To adopt it would constitute textual infidelity not only to the RH Law but
also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization
of any drug or device that would prevent the implantation of the fetus at the
uterine wall. It would be provocative and further aggravate religious-based
divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the Legislature
from enacting a measure legalizing abortion. It was so clear that even the Court
cannot interpret it otherwise. This intent of the Framers was captured in the
record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from
conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever
passed by Congress or any pro-abortion decision passed by the Supreme
Court.169
A reading of the RH Law would show that it is in line with this intent and actually
proscribes abortion. While the Court has opted not to make any determination,
at this stage, when life begins, it finds that the RH Law itself clearly mandates
that protection be afforded from the moment of fertilization. As pointed out by
Justice Carpio, the RH Law is replete with provisions that embody the policy of
the law to protect to the fertilized ovum and that it should be afforded safe travel
to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256 of
the Revised Penal Code, which penalizes the destruction or expulsion of the
fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and well-
being by addressing reproductive health-related problems. It also includes sexual
health, the purpose of which is the enhancement of life and personal relations.
The elements of reproductive health care include the following:
57
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to
decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law,
presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an abortifacient
as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from
the moment of fertilization. By using the word " or," the RH Law prohibits not
only drugs or devices that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus inside the mother's
womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH
Law, consistent with the Constitution, recognizes that the fertilized ovum already
has life and that the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug or device that
induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to reach and be
implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum
to reach and be implanted in the mother's womb is an abortifacient (third kind),
the RH Law does not intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not declare either that
protection will only be given upon implantation, as the petitioners likewise
suggest. Rather, it recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum must be protected the
moment it becomes existent - all the way until it reaches and implants in the
mother's womb. After all, if life is only recognized and afforded protection from
the moment the fertilized ovum implants - there is nothing to prevent any drug
or device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the
fertilized ovum, the RH Law does not sanction abortion. To repeat, it is the
Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It started earlier.
And as defined by the RH Law, any drug or device that induces abortion, that is,
which kills or destroys the fertilized ovum or prevents the fertilized ovum to
reach and be implanted in the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law
that "any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as empty as it is absurd.
The FDA, with all its expertise, cannot fully attest that a drug or device will not
all be used as an abortifacient, since the agency cannot be present in every
instance when the contraceptive product or supply will be used. 171
Pursuant to its declared policy of providing access only to safe, legal and non-
abortifacient contraceptives, however, the Court finds that the proviso of Section
9, as worded, should bend to the legislative intent and mean that "any product
or supply included or to be included in the EDL must have a certification from the
58
FDA that said product and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is consistent with the
proviso under the second paragraph of the same section that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by any
means emergency contraceptive pills, postcoital pills, abortifacients that will be
used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb in
doses of its approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are well
taken. As they pointed out, with the insertion of the word "primarily," Section
3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of
the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH Law and
should, therefore, be declared invalid. There is danger that the insertion of the
qualifier "primarily" will pave the way for the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in
the RH-IRR, it appears to insinuate that a contraceptive will only be considered
as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval
of contraceptives which are actually abortifacients because of their fail-safe
mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its declared
policy against abortion, the undeniable conclusion is that contraceptives to be
included in the PNDFS and the EDL will not only be those contraceptives that do
not have the primary action of causing abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb, but also those that do not have the
secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line
with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily" in
Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives which may harm or
destroy the life of the unborn from conception/fertilization in violation of Article
II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in
the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary and
59
the inclusion of the same in the regular purchase of essential medicines and
supplies of all national hospitals.176Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to women who
never use them. They point out that the risk is decreased when the use of
contraceptives is discontinued. Further, it is contended that the use of combined
oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177 Given the definition of
"reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of the
RH Law, the petitioners assert that the assailed legislation only seeks to ensure
that women have pleasurable and satisfying sex lives. 180
The OSG, however, points out that Section 15, Article II of the Constitution is not
self-executory, it being a mere statement of the administration's principle and
policy. Even if it were self-executory, the OSG posits that medical authorities
refute the claim that contraceptive pose a danger to the health of women. 181
The Court's Position
A component to the right to life is the constitutional right to health. In this
regard, the Constitution is replete with provisions protecting and promoting the
right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to provide
for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower development,
and research, responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for disabled person for
their rehabilitation, self-development, and self-reliance, and their integration into
the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and from
substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-
executing. Unless the provisions clearly express the contrary, the provisions of
the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions. 182 In Manila Prince Hotel
v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary to
enforce a constitutional mandate, the presumption now is that all provisions of
the constitution are self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. This
can be cataclysmic. That is why the prevailing view is, as it has always been, that
–
... in case of doubt, the Constitution should be considered self-executing rather
than non-self-executing. . . . Unless the contrary is clearly intended, the
provisions of the Constitution should be considered self-executing, as a contrary
rule would give the legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing
to pass the needed implementing statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly ALFI,
do not question contraception and contraceptives per se. 184 In fact, ALFI prays
that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and
distribution of contraceptives are not prohibited when they are dispensed by a
prescription of a duly licensed by a physician - be maintained. 185
The legislative intent in the enactment of the RH Law in this regard is to leave
intact the provisions of R.A. No. 4729. There is no intention at all to do away
with it. It is still a good law and its requirements are still in to be complied with.
Thus, the Court agrees with the observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive
drugs and devices will still require the prescription of a licensed physician. With
R.A. No. 4729 in place, there exists adequate safeguards to ensure the public
that only contraceptives that are safe are made available to the public. As aptly
explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
60
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/
or Distribution of Contraceptive Drugs and Devices" and Republic Act No. 5921 or
"An Act Regulating the Practice of Pharmacy and Setting Standards of
Pharmaceutical Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not inconsistent with
the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive drugs
and devices are particularly governed by RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration, any
contraceptive drug or device, unless such sale, dispensation or distribution is by
a duly licensed drug store or pharmaceutical company and with the prescription
of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female ovum:
and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this
Act shall be punished with a fine of not more than five hundred pesos or an
imprisonment of not less than six months or more than one year or both in the
discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921
provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,
pharmaceutical, or drug of whatever nature and kind or device shall be
compounded, dispensed, sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.186 [Emphases in the Original. Underlining
supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of the RH
Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH
shall procure, distribute to LGUs and monitor the usage of family planning
supplies for the whole country. The DOH shall coordinate with all appropriate
local government bodies to plan and implement this procurement and
distribution program. The supply and budget allotments shall be based on,
among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must
consider the provisions of R.A. No. 4729, which is still in effect, and ensure that
the contraceptives that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of these contraceptive
drugs and devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means.
As pointed out by Justice De Castro, a heavy responsibility and burden are
assumed by the government in supplying contraceptive drugs and devices, for it
may be held accountable for any injury, illness or loss of life resulting from or
incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await its
determination which drugs or devices are declared by the FDA as safe, it being
the agency tasked to ensure that food and medicines available to the public are
safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of
61
contraceptives must first be measured up to the constitutional yardstick as
expounded herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that
hormonal contraceptives and intra-uterine devices are safe and non-
abortifacient. The first sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory "shall" is to be
construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to determine
whether a particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family planning supply
from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of hormonal
contraceptives, intra-uterine devices, injectables, and other safe, legal, non-
abortifacient and effective family planning products and supplies by the National
Drug Formulary in the EDL is not mandatory. There must first be a determination
by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress
that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are not
covered by the constitutional proscription, there are those who, because of their
religious education and background, sincerely believe that contraceptives,
whether abortifacient or not, are evil. Some of these are medical practitioners
who essentially claim that their beliefs prohibit not only the use of contraceptives
but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely
opposed to marital chastity, it is contrary to the good of the transmission of life,
and to the reciprocal self-giving of the spouses; it harms true love and denies the
sovereign rule of God in the transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their religious
beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also imposes
upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able
to provide for the patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing he refuses to do
without violating his/her religious beliefs. 190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities
referred to in Section 7; b) public officers involved in the implementation of the
law referred to in Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize. 191
Petitioner Echavez and the other medical practitioners meanwhile, contend that
the requirement to refer the matter to another health care service provider is still
considered a compulsion on those objecting healthcare service providers. They
add that compelling them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that they
tend to disregard the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory pro-bono
reproductive health services to indigents encroach upon the religious freedom of
those upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious objector to
refer the person seeking reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under Catholic teachings.
While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury
to the public.193
Petitioner CFC adds that the RH Law does not show compelling state interest to
justify regulation of religious freedom because it mentions no emergency, risk or
threat that endangers state interests. It does not explain how the rights of the
people (to equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make decisions
62
according to religious convictions, ethics, cultural beliefs and the demands of
responsible parenthood) are being threatened or are not being met as to justify
the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring would-
be couples to attend family planning and responsible parenthood seminars and
to obtain a certificate of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH Law even if it
contravenes their religious beliefs.195 As the assailed law dangles the threat of
penalty of fine and/or imprisonment in case of non-compliance with its
provisions, the petitioners claim that the RH Law forcing them to provide,
support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of
religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not provide
that a specific mode or type of contraceptives be used, be it natural or artificial.
It neither imposes nor sanctions any religion or belief.196 They point out that the
RH Law only seeks to serve the public interest by providing accessible, effective
and quality reproductive health services to ensure maternal and child health, in
line with the State's duty to bring to reality the social justice health guarantees of
the Constitution,197 and that what the law only prohibits are those acts or
practices, which deprive others of their right to reproductive health. 198 They
assert that the assailed law only seeks to guarantee informed choice, which is an
assurance that no one will be compelled to violate his religion against his free
will.199
The respondents add that by asserting that only natural family planning should
be allowed, the petitioners are effectively going against the constitutional right to
religious freedom, the same right they invoked to assail the constitutionality of
the RH Law.200 In other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on
the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does not
violate the constitutional guarantee of religious freedom, it being a carefully
balanced compromise between the interests of the religious objector, on one
hand, who is allowed to keep silent but is required to refer -and that of the
citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise one's religion without
unnecessarily infringing on the rights of others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as the
duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity for
would-be couples to have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that those who object
to any information received on account of their attendance in the required
seminars are not compelled to accept information given to them. They are
completely free to reject any information they do not agree with and retain the
freedom to decide on matters of family life without intervention of the State. 204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its followers
in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society. It
is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial groups to thrive in
a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a deity, whatever they
conceived Him to be, and to whom they call for guidance and enlightenment in
crafting our fundamental law. Thus, the preamble of the present Constitution
reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order to
build a just and humane society, and establish a Government that shall embody
our ideals and aspirations, promote the common good, conserve and develop our
patrimony, and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of religion in so far as it
instills into the mind the purest principles of morality.205 Moreover, in recognition
of the contributions of religion to society, the 1935, 1973 and 1987 constitutions
contain benevolent and accommodating provisions towards religions such as tax
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exemption of church property, salary of religious officers in government
institutions, and optional religious instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State
would not encroach into the affairs of the church, and vice-versa. The principle
of separation of Church and State was, thus, enshrined in Article II, Section 6 of
the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of the
church, much less question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely
believes that they are good for the country.
Consistent with the principle that not any one religion should ever be preferred
over another, the Constitution in the above-cited provision utilizes the term
"church" in its generic sense, which refers to a temple, a mosque, an iglesia, or
any other house of God which metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and Article
VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil or
political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution, or system of religion, or of any priest,
preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to
any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the support
or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of religious
freedom, the Court, in Victoriano v. Elizalde Rope Workers Union 209 wrote:
The constitutional provisions not only prohibits legislation for the support of any
religious tenets or the modes of worship of any sect, thus forestalling compulsion
by law of the acceptance of any creed or the practice of any form of worship
(U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the free
exercise of one's chosen form of religion within limits of utmost amplitude. It has
been said that the religion clauses of the Constitution are all designed to protect
the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect. (Sherbert v.
Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its purpose
and effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of individual
religious beliefs and practices. In simplest terms, the free exercise clause
prohibits government from inhibiting religious beliefs with penalties for religious
beliefs and practice, while the establishment clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other
words, the two religion clauses were intended to deny government the power to
use either the carrot or the stick to influence individual religious beliefs and
practices.210
Corollary to the guarantee of free exercise of one's religion is the principle that
the guarantee of religious freedom is comprised of two parts: the freedom to
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believe, and the freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious belief,
limitless and without bounds. One may believe in most anything, however
strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel.212
The second part however, is limited and subject to the awesome power of the
State and can be enjoyed only with proper regard to the rights of others. It is
"subject to regulation where the belief is translated into external acts that affect
the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor) 214 where it was stated "that
benevolent neutrality-accommodation, whether mandatory or permissive, is the
spirit, intent and framework underlying the Philippine Constitution." 215 In the
same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's
or institution's religion."216 "What is sought under the theory of accommodation is
not a declaration of unconstitutionality of a facially neutral law, but an exemption
from its application or its 'burdensome effect,' whether by the legislature or the
courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218Underlying the compelling state interest test is the
notion that free exercise is a fundamental right and that laws burdening it should
be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible Society,
the Court mentioned the "clear and present danger" test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society and
law. The Victoriano case mentioned the "immediate and grave danger" test as
well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal of
the law. The case also used, albeit inappropriately, the "compelling state
interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and overruled the Gerona
test. The fairly recent case of Iglesia ni Cristo went back to the " clear and
present danger" test in the maiden case of A merican Bible Society. Not
surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious
speech as this test is often used in cases on freedom of expression. On the other
hand, the Gerona and German cases set the rule that religious freedom will not
prevail over established institutions of society and law. Gerona, however, which
was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only case
that employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag
and Iglesia ni Cristo where the "clear and present danger" and "grave and
immediate danger" tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside from having been
overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is
proper where conduct is involved for the whole gamut of human conduct has
different effects on the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that would protect the
interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right
that enjoys a preferred position in the hierarchy of rights - "the most inalienable
and sacred of all human rights", in the words of Jefferson. This right is sacred for
an invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid
of Almighty God in order to build a just and humane society and establish a
government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore
not appropriate. Instead, only a compelling interest of the state can prevail over
the fundamental right to religious liberty. The test requires the state to carry a
heavy burden, a compelling one, for to do otherwise would allow the state to
batter religion, especially the less powerful ones until they are destroyed. In
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determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest" serves the
purpose of revering religious liberty while at the same time affording protection
to the paramount interests of the state. This was the test used in Sherbert which
involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling
state interest" test, by upholding the paramount interests of the state, seeks to
protect the very state, without which, religious liberty will not be preserved.
[Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of modem
reproductive health measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief. For the Court has
declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts." 220 The
jurisdiction of the Court extends only to public and secular morality. Whatever
pronouncement the Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while the Court stands
without authority to rule on ecclesiastical matters, as vanguard of the
Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion and
religious beliefs and convictions. It is replete with assurances the no one can be
compelled to violate the tenets of his religion or defy his religious convictions
against his free will. Provisions in the RH Law respecting religious freedom are
the following:
1. The State recognizes and guarantees the human rights of all persons including
their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive
health, the right to education and information, and the right to choose and make
decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2,
Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2, Declaration
of Policy]
3. The State shall promote and provide information and access, without bias, to
all methods of family planning, including effective natural and modern methods
which have been proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards such
as those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to
have the number of children they desire with due consideration to the health,
particularly of women, and the resources available and affordable to them and in
accordance with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning
methods that are in accordance with their religious convictions and cultural
beliefs, taking into consideration the State's obligations under various human
rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and
people's organizations, civil society, faith-based organizations, the religious
sector and communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to
the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number of
children, spacing and timing of their children according to their own family life
aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of
contraceptives. To some medical practitioners, however, the whole idea of using
contraceptives is an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the government
can do with religion, it also limits what religious sects can or cannot do with the
66
government. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the government to
restrict other groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State
cannot enhance its population control program through the RH Law simply
because the promotion of contraceptive use is contrary to their religious beliefs.
Indeed, the State is not precluded to pursue its legitimate secular objectives
without being dictated upon by the policies of any one religion. One cannot
refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto
Caesar the things that are Caesar's and unto God the things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-Establishment
Clause, the same conclusion cannot be reached with respect to Sections 7, 23
and 24 thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and
services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line with
the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds
application. In this case, the conscientious objector's claim to religious freedom
would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of
conscientious objectors for exemption from the RH Law deserves no less than
strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right
to religious freedom has been burdened. As in Escritor, there is no doubt that an
intense tug-of-war plagues a conscientious objector. One side coaxes him into
obedience to the law and the abandonment of his religious beliefs, while the
other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once the
medical practitioner, against his will, refers a patient seeking information on
modem reproductive health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the
inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers complicit
in the performance of an act that they find morally repugnant or offensive. They
cannot, in conscience, do indirectly what they cannot do directly. One may not
be the principal, but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with the
right to free speech, it being an externalization of one's thought and conscience.
This in turn includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind.223 While the RH Law
seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of one's
religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to provide
access and information on reproductive health products, services, procedures
and methods to enable the people to determine the timing, number and spacing
of the birth of their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be exempt from
compliance with the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of
religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session,
found in the case of Doogan and Wood v. NHS Greater Glasgow and Clyde
Health Board,225 that the midwives claiming to be conscientious objectors under
the provisions of Scotland's Abortion Act of 1967, could not be required to
delegate, supervise or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were defined
according to whether the person was taking part 'directly' or ' indirectly' this
would actually mean more complexity and uncertainty." 227
67
While the said case did not cover the act of referral, the applicable principle was
the same - they could not be forced to assist abortions if it would be against
their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such institutions
should they fail or refuse to comply with their duty to refer under Section 7 and
Section 23(a)(3), the Court deems that it must be struck down for being violative
of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in
relation to Section 24, considering that in the dissemination of information
regarding programs and services and in the performance of reproductive health
procedures, the religious freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred status,
well aware that it is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10
The Court is not oblivious to the view that penalties provided by law endeavour
to ensure compliance. Without set consequences for either an active violation or
mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when
what is bartered for an effective implementation of a law is a constitutionally-
protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on
a patient because incompatible religious beliefs, is a clear inhibition of a
constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be considered
as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious belief
of public health officers. There is no perceptible distinction why they should not
be considered exempt from the mandates of the law. The protection accorded to
other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all,
the freedom to believe is intrinsic in every individual and the protective robe that
guarantees its free exercise is not taken off even if one acquires employment in
the government.
It should be stressed that intellectual liberty occupies a place inferior to none in
the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by oral
discourse or through the media and, thus, seek other candid views in occasions
or gatherings or in more permanent aggrupation. Embraced in such concept then
are freedom of religion, freedom of speech, of the press, assembly and petition,
and freedom of association.229
The discriminatory provision is void not only because no such exception is stated
in the RH Law itself but also because it is violative of the equal protection clause
in the Constitution. Quoting respondent Lagman, if there is any conflict between
the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page
52, you mentioned RH Law is replete with provisions in upholding the freedom of
religion and respecting religious convictions. Earlier, you affirmed this with
qualifications. Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not
thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as provincial,
city or municipal health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
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Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who
can be conscientious objectors, skilled health professionals cannot be considered
conscientious objectors. Do you agree with this? Is this not against the
constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must
prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the respondents,
in defense of the subject provisions, were able to: 1] demonstrate a more
compelling state interest to restrain conscientious objectors in their choice of
services to render; and 2] discharge the burden of proof that the obligatory
character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in
vain. The OSG was curiously silent in the establishment of a more compelling
state interest that would rationalize the curbing of a conscientious objector's
right not to adhere to an action contrary to his religious convictions. During the
oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling
State interest in imposing this duty to refer to a conscientious objector which
refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals. This is
not a free speech matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and their patients. 231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number. Only
the prevention of an immediate and grave danger to the security and welfare of
the community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also means
the freedom to act or not to act according to what one believes. And this
freedom is violated when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health of
an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother decides
to adopt or use the information, product, method or supply given to her or
whether she even decides to become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive use is immediate and
occurs the moment a patient seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of
the conscientious objector's religious freedom, the respondents have failed to
demonstrate "the gravest abuses, endangering paramount interests" which could
limit or override a person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to show that the
means it takes to achieve its legitimate state objective is the least intrusive
means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the
very action being contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken by the
State to achieve its objective without violating the rights of the conscientious
objector. The health concerns of women may still be addressed by other
practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform
an act in utter reluctance deserves the protection of the Court as the last
vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as they
69
stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as "The
Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The
State shall, at all times, provide for a comprehensive, culture-sensitive, and
gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's mortality
and morbidity: Provided, That in the provision for comprehensive health services,
due respect shall be accorded to women's religious convictions, the rights of the
spouses to found a family in accordance with their religious convictions, and the
demands of responsible parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy
and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance
towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to
ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall provide
women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health in
government education and training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought
up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He, however,
failed to substantiate this point by concrete facts and figures from reputable
sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a measure
that puts an unwarrantable stranglehold on religious beliefs in exchange for blind
conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set forth
in the law. While generally healthcare service providers cannot be forced to
render reproductive health care procedures if doing it would contravene their
religious beliefs, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In these situations, the right
to life of the mother should be given preference, considering that a referral by a
medical practitioner would amount to a denial of service, resulting to
unnecessarily placing the life of a mother in grave danger. Thus, during the oral
arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause
70
that we are objecting on grounds of violation of freedom of religion does not
contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the RH
Bill in the House of Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child is never justified to
bring about a "good" effect. In a conflict situation between the life of the child
and the life of the mother, the doctor is morally obliged always to try to save
both lives. However, he can act in favor of one (not necessarily the mother)
when it is medically impossible to save both, provided that no direct harm is
intended to the other. If the above principles are observed, the loss of the child's
life or the mother's life is not intentional and, therefore, unavoidable. Hence, the
doctor would not be guilty of abortion or murder. The mother is never pitted
against the child because both their lives are equally valuable.238
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it is
the basic social institution. In fact, one article, Article XV, is devoted entirely to
the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its total
development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;

Accordingly, if it is necessary to save the life of a mother, procedures The right of children to assistance, including proper care and nutrition, and
endangering the life of the child may be resorted to even if is against the special protection from all forms of neglect, abuse, cruelty, exploitation and other
religious sentiments of the medical practitioner. As quoted above, whatever conditions prejudicial to their development;
burden imposed upon a medical practitioner in this case would have been more
The right of the family to a family living wage and income; and
than justified considering the life he would be able to save.
The right of families or family assoc1at1ons to participate in the planning and
Family Planning Seminars
implementation of policies and programs that affect them.
Anent the requirement imposed under Section 15239 as a condition for the
In this case, the RH Law, in its not-so-hidden desire to control population
issuance of a marriage license, the Court finds the same to be a reasonable
growth, contains provisions which tend to wreck the family as a solid social
exercise of police power by the government. A cursory reading of the assailed
institution. It bars the husband and/or the father from participating in the
provision bares that the religious freedom of the petitioners is not at all violated.
decision making process regarding their common future progeny. It likewise
All the law requires is for would-be spouses to attend a seminar on parenthood,
deprives the parents of their authority over their minor daughter simply because
family planning breastfeeding and infant nutrition. It does not even mandate the
she is already a parent or had suffered a miscarriage.
type of family planning methods to be included in the seminar, whether they be
natural or artificial. As correctly noted by the OSG, those who receive any The Family and Spousal Consent
information during their attendance in the required seminars are not compelled
to accept the information given to them, are completely free to reject the Section 23(a) (2) (i) of the RH Law states:
information they find unacceptable, and retain the freedom to decide on matters
The following acts are prohibited:
of family life without the intervention of the State.
(a) Any health care service provider, whether public or private, who shall: ...
4-The Family and the Right to Privacy
(2) refuse to perform legal and medically-safe reproductive health procedures on
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates
any person of legal age on the ground of lack of consent or authorization of the
the provisions of the Constitution by intruding into marital privacy and autonomy.
following persons in the following instances:
It argues that it cultivates disunity and fosters animosity in the family rather than
promote its solidarity and total development. 240
71
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall prevail.
[Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation
and vasectomy which, by their very nature, should require mutual consent and
decision between the husband and the wife as they affect issues intimately
related to the founding of a family. Section 3, Art. XV of the Constitution
espouses that the State shall defend the "right of the spouses to found a family."
One person cannot found a family. The right, therefore, is shared by both
spouses. In the same Section 3, their right "to participate in the planning and
implementation of policies and programs that affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By
giving absolute authority to the spouse who would undergo a procedure, and
barring the other spouse from participating in the decision would drive a wedge
between the husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State to protect marriage as
an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or the
number of their children significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally
guaranteed private right. Unless it prejudices the State, which has not shown any
compelling interest, the State should see to it that they chart their destiny
together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710,
otherwise known as the "Magna Carta for Women," provides that women shall
have equal rights in all matters relating to marriage and family relations,
including the joint decision on the number and spacing of their children. Indeed,
responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be
allowed to betray the constitutional mandate to protect and strengthen the
family by giving to only one spouse the absolute authority to decide whether to
undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is
fully deserving of constitutional protection." 244 Marje adopted the ruling of the US
Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas
wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree of being
sacred. It is an association that promotes a way of life, not causes; a harmony in
living, not political faiths; a bilateral loyalty, not commercial or social projects.
Yet it is an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons. Nevertheless,
it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas in
Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy." 246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning services,
whether natural or artificial: Provided, That minors will not be allowed access to
modern methods of family planning without written consent from their parents or
guardian/s except when the minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that when a minor
is already a parent or has had a miscarriage, the parents are excluded from the
decision making process of the minor with regard to family planning. Even if she
is not yet emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her natural
mother and father when it comes to providing her needs and comfort. To say
that their consent is no longer relevant is clearly anti-family. It does not promote
72
unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive the support of
the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of
the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special contract of
marriage to as one unit in forming the foundation of the family and society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest can
justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services, on
one hand, and access to the reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as access to information is
concerned, the Court finds no constitutional objection to the acquisition of
information by the minor referred to under the exception in the second
paragraph of Section 7 that would enable her to take proper care of her own
body and that of her unborn child. After all, Section 12, Article II of the
Constitution mandates the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a person to make
informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed.
In this situation, the fear that parents might be deprived of their parental control
is unfounded because they are not prohibited to exercise parental guidance and
control over their minor child and assist her in deciding whether to accept or
reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
such cases, the life of the minor who has already suffered a miscarriage and that
of the spouse should not be put at grave risk simply for lack of consent. It should
be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be
struck down. By effectively limiting the requirement of parental consent to "only
in elective surgical procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical procedures." Save for
the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny them of this
right would be an affront to the constitutional mandate to protect and strengthen
the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the principle
of academic freedom . According to the petitioners, these provisions effectively
force educational institutions to teach reproductive health education even if they
believe that the same is not suitable to be taught to their students. 250 Citing
various studies conducted in the United States and statistical data gathered in
the country, the petitioners aver that the prevalence of contraceptives has led to
an increase of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of poverty"; the aging
of society; and promotion of promiscuity among the youth. 251
At this point, suffice it to state that any attack on the validity of Section 14 of the
RH Law is premature because the Department of Education, Culture and Sports
has yet to formulate a curriculum on age-appropriate reproductive health
education. One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue,
the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for civic
efficiency and development of moral character shall receive the support of the
Government. Like the 1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the invaluable role of parents in
73
preparing the youth to become productive members of society. Notably, it places
more importance on the role of parents in the development of their children by
recognizing that said role shall be "primary," that is, that the right of parents in
upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents in
the moral development of the youth. Indeed, the Constitution makes mention of
the importance of developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible parenthood, and
that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself
provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents - the Court finds that the
legal mandate provided under the assailed provision supplements, rather than
supplants, the rights and duties of the parents in the moral development of their
children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-teacher-
community associations, school officials and other interest groups, it could very
well be said that it will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the petitioners' contention
that Section 14 violates Article XV, Section 3(1) of the Constitution is without
merit.254
While the Court notes the possibility that educators might raise their objection to
their participation in the reproductive health education program provided under
Section 14 of the RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them, Section
23 (a)(l) mentions a "private health service provider" among those who may be
held punishable but does not define who is a "private health care service
provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation exempts
hospitals operated by religious groups from rendering reproductive health service
and modern family planning methods. It is unclear, however, if these institutions
are also exempt from giving reproductive health information under Section 23(a)
(l), or from rendering reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions
and becomes an arbitrary flexing of the Government muscle. 255 Moreover, in
determining whether the words used in a statute are vague, words must not only
be taken in accordance with their plain meaning alone, but also in relation to
other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be
construed together with the other parts and kept subservient to the general
intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH Law
which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care institution,
which is duly licensed and accredited and devoted primarily to the maintenance
and operation of facilities for health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from illness, disease, injury, disability
or deformity, or in need of obstetrical or other medical and nursing care; (2)
public health care professional, who is a doctor of medicine, a nurse or a
midvvife; (3) public health worker engaged in the delivery of health care
services; or (4) barangay health worker who has undergone training programs
under any accredited government and NGO and who voluntarily renders primarily
health care services in the community after having been accredited to function as
such by the local health board in accordance with the guidelines promulgated by
the Department of Health (DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause of
confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family planning
methods, includes exemption from being obligated to give reproductive health
74
information and to render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be exempt from
being obligated to render reproductive health service and modem family planning
methods, necessarily includes exemption from being obligated to give
reproductive health information and to render reproductive health procedures.
The terms "service" and "methods" are broad enough to include the providing of
information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH Law punishes
health care service providers who intentionally withhold, restrict and provide
incorrect information regarding reproductive health programs and services. For
ready reference, the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or
intentionally provide incorrect information regarding programs and services on
reproductive health including the right to informed choice and access to a full
range of legal, medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a
copy or model or with established rules; inaccurate, faulty; failing to agree with
the requirements of duty, morality or propriety; and failing to coincide with the
truth. 257 On the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or misrepresent the
public as to the nature and effect of programs and services on reproductive
health. Public health and safety demand that health care service providers give
their honest and correct medical information in accordance with what is
acceptable in medical practice. While health care service providers are not barred
from expressing their own personal opinions regarding the programs and
services on reproductive health, their right must be tempered with the need to
provide public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause
under the Constitution as it discriminates against the poor because it makes
them the primary target of the government program that promotes contraceptive
use . They argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively reduce the
number of the poor. Their bases are the various provisions in the RH Law dealing
with the poor, especially those mentioned in the guiding principles 259 and
definition of terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of justice and
fair play. It has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due
process clause. But if the particular act assailed partakes of an unwarranted
partiality or prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The purpose
of the equal protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether occasioned
by the express terms of a statue or by its improper execution through the state's
duly constituted authorities." "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate
governmental objective."
The equal protection clause is aimed at all official state actions, not just those of
the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws to all persons
or things without distinction. What it simply requires is equality among equals as
determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The classification
rests on substantial distinctions; (2) It is germane to the purpose of the law; (3)
It is not limited to existing conditions only; and (4) It applies equally to all
members of the same class. "Superficial differences do not make for a valid
classification."
75
For a classification to meet the requirements of constitutionality, it must include
or embrace all persons who naturally belong to the class. "The classification will
be regarded as invalid if all the members of the class are not similarly treated,
both as to rights conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal degree. Substantial
similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual
belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application
of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It must
be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases supplied; citations
excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which
recognizes the distinct necessity to address the needs of the underprivileged by
providing that they be given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost. There shall be
priority for the needs of the underprivileged, sick, elderly, disabled, women, and
children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized
couples who are suffering from fertility issues and desire to have children. There
is, therefore, no merit to the contention that the RH Law only seeks to target the
poor to reduce their number. While the RH Law admits the use of contraceptives,
it does not, as elucidated above, sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may
have and does not impose conditions upon couples who intend to have children.
While the petitioners surmise that the assailed law seeks to charge couples with
the duty to have children only if they would raise them in a truly humane way, a
deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to
promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it to
state that the mere fact that the children of those who are less fortunate attend
public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial
distinction rests between public educational institutions and private educational
institutions, particularly because there is a need to recognize the academic
freedom of private educational institutions especially with respect to religious
instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates
the constitutional prohibition against involuntary servitude. They posit that
Section 17 of the assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services envisioned in Section
17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the manner
and time of giving pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued
with public interest that it is both a power and a duty of the State to control and
regulate it in order to protect and promote the public welfare. Like the legal
profession, the practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the qualifications for the practice
of professions or trades which affect the public welfare, the public health, the
public morals, and the public safety; and to regulate or control such professions
or trades, even to the point of revoking such right altogether. 264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means of
coercion and compulsion.265 A reading of the assailed provision, however, reveals
that it only encourages private and non- government reproductive healthcare
service providers to render pro bono service. Other than non-accreditation with
76
PhilHealth, no penalty is imposed should they choose to do otherwise. Private
and non-government reproductive healthcare service providers also enjoy the
liberty to choose which kind of health service they wish to provide, when, where
and how to provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro bono service
against their will. While the rendering of such service was made a prerequisite to
accreditation with PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive imposed by Congress in
the furtherance of a perceived legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as long
as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the
power to determine whether or not a supply or product is to be included in the
Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only have
the power but also the competency to evaluate, register and cover health
services and methods. It is the only government entity empowered to render
such services and highly proficient to do so. It should be understood that health
services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711
reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office
to be called the Food and Drug Administration (FDA) in the Department of Health
(DOH). Said Administration shall be under the Office of the Secretary and shall
have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health
products standards, and to recommend standards of identity, purity, safety,
efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve as
basis for the issuance of appropriate authorization and spot-check for compliance
with regulations regarding operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other establishments and facilities of
health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health products to
report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a
consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for
health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30) days
and may be extended for sixty ( 60) days only after due process has been
observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health
product found to have caused death, serious illness or serious injury to a
consumer or patient, or is found to be imminently injurious, unsafe, dangerous,
or grossly deceptive, and to require all concerned to implement the risk
management plan which is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA
are specific to enable the agency to carry out the mandates of the law. Being the
country's premiere and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with the necessary
powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are safe includes "service" and
"methods." From the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are proven medically
safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the
permitted delegation was explained in Echagaray v. Secretary of Justice,267 as
follows:
77
The reason is the increasing complexity of the task of the government and the
growing inability of the legislature to cope directly with the many problems
demanding its attention. The growth of society has ramified its activities and
created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day
undertakings, the legislature may not have the competence, let alone the
interest and the time, to provide the required direct and efficacious, not to say
specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law
infringes upon the powers devolved to local government units (LGUs) under
Section 17 of the Local Government Code. Said Section 17 vested upon the LGUs
the duties and functions pertaining to the delivery of basic services and facilities,
as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall continue
exercising the powers and discharging the duties and functions currently vested
upon them. They shall also discharge the functions and responsibilities of
national agencies and offices devolved to them pursuant to this Code. Local
government units shall likewise exercise such other powers and discharge such
other functions and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities enumerated
herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the functions
and responsibilities that have already been devolved upon them from the
national agencies on the aspect of providing for basic services and facilities in
their respective jurisdictions, paragraph (c) of the same provision provides a
categorical exception of cases involving nationally-funded projects, facilities,
programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the
National Government under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially funded from
foreign sources, are not covered under this Section, except in those cases where
the local government unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national government is
that, unless an LGU is particularly designated as the implementing agency, it has
no power over a program for which funding has been provided by the national
government under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the LGU. 269 A
complete relinquishment of central government powers on the matter of
providing basic facilities and services cannot be implied as the Local Government
Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to
the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation. Local
autonomy is not absolute. The national government still has the say when it
comes to national priority programs which the local government is called upon to
implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the law
which can be construed as making the availability of these services mandatory
for the LGUs. For said reason, it cannot be said that the RH Law amounts to an
undue encroachment by the national government upon the autonomy enjoyed by
the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments
can be equally applied to the ARMM. The RH Law does not infringe upon its
autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to justify the exemption
of the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may be exercised by
the regional government, which can, in no manner, be characterized as an
abdication by the State of its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the
notion of imperium et imperio in the relationship between the national and the
regional governments.274 Except for the express and implied limitations imposed
on it by the Constitution, Congress cannot be restricted to exercise its inherent
and plenary power to legislate on all subjects which extends to all matters of
general concern or common interest. 275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice it to
say that the Court does not duly recognize it as a legal basis for upholding or
78
invalidating a law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural law, the Court is
not obliged to see if a statute, executive issuance or ordinance is in conformity to
it. To begin with, it is not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent rights espoused by
theorists, philosophers and theologists. The jurists of the philosophical school are
interested in the law as an abstraction, rather than in the actual law of the past
or present.277 Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law. In Republic v.
Sandiganbayan,278 the very case cited by the petitioners, it was explained that
the Court is not duty-bound to examine every law or action and whether it
conforms with both the Constitution and natural law. Rather, natural law is to be
used sparingly only in the most peculiar of circumstances involving rights
inherent to man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking away
of life. It does not allow abortion in any shape or form. It only seeks to enhance
the population control program of the government by providing information and
making non-abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it
seeks to provide access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of some sectors
of society cannot be trampled upon in pursuit of what the law hopes to achieve.
After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious
group cannot be allowed to impose its beliefs on the rest of the society.
Philippine modem society leaves enough room for diversity and pluralism. As
such, everyone should be tolerant and open-minded so that peace and harmony
may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the
Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long
run. The European and Asian countries, which embarked on such a program
generations ago , are now burdened with ageing populations. The number of
their young workers is dwindling with adverse effects on their economy. These
young workers represent a significant human capital which could have helped
them invigorate, innovate and fuel their economy. These countries are now
trying to reverse their programs, but they are still struggling. For one, Singapore,
even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our
Overseas Filipino Workers. This is because we have an ample supply of young
able-bodied workers. What would happen if the country would be weighed down
by an ageing population and the fewer younger generation would not be able to
support them? This would be the situation when our total fertility rate would go
down below the replacement level of two (2) children per woman. 280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the Court
is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not the
same as saying what the law should be or what is the correct rule in a given set
of circumstances. It is not the province of the judiciary to look into the wisdom of
the law nor to question the policies adopted by the legislative branch. Nor is it
the business of this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature to enact remedial
legislation if that would be necessary in the premises. But as always, with apt
judicial caution and cold neutrality, the Court must carry out the delicate function
of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and
accordingly, must confine itself to the judicial task of saying what the law is, as
enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation and
enhancement of the prior existing contraceptive and reproductive health laws,
but with coercive measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No. 6365), the
Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the
assailed legislation. All the same, the principle of "no-abortion" and "non-
coercion" in the adoption of any family planning method should be maintained.
79
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court The Status Quo Ante Order issued by the Court on March 19, 2013 as extended
declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with respect to the by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of
following provisions which are declared UNCONSTITUTIONAL: R.A. No. 10354 which have been herein declared as constitutional.

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) SO ORDERED.
require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an JOSE CATRAL MENDOZA
emergency or life-threatening case, as defined under Republic Act No. 8344, to Associate Justice
another health facility which is conveniently accessible; and b) allow minor-
parents or minors who have suffered a miscarriage access to modem methods of
family planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any healthcare service provider who
fails and or refuses to disseminate information regarding programs and services
on reproductive health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as

they allow a married individual, not in an emergency or life-threatening case, as
defined under Republic Act No. 8344, to undergo reproductive health procedures
without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as

they limit the requirement of parental consent only to elective surgical
procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly

Section 5.24 thereof, insofar as they punish any healthcare service provider who
fails and/or refuses to refer a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently accessible
regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the

rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
80

G.R. No. 225973. November 8, 2016.*
 SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO
LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES, MARIA
CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES LABAN SA
DETENSYON AT ARESTO (SELDA), represented by DIONITO CABILLAS,
CARMENCITA M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C.
DALISAY, and DANILO M. DELA FUENTE,** petitioners, vs. REAR
ADMIRAL ERNESTO C. ENRIQUEZ (in his capacity as the Deputy Chief
of Staff for Reservist and Retiree Affairs, Armed Forces of the
Philippines), The Grave Services Unit (Philippine Army), and GENERAL
RICARDO R. VISAYA (in his capacity as the Chief of Staff, Armed Forces
of the Philippines), DEFENSE SECRETARY DELFIN LORENZANA, and
HEIRS OF FERDINAND E. MARCOS, represented by his surviving spouse
IMELDA ROMUALDEZ MARCOS, respondents.
 RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C.
SAGUISAG III, intervenors.
G.R. No. 225984. November 8, 2016.*
REP. EDCEL C. LAGMAN, in his personal and official capacities and as a
member of Congress and as the Honorary Chairperson of the Families
of Victims of Involuntary Disappearance (FIND); FAMILIES OF VICTIMS
OF INVOLUNTARY DISAPPEARANCE (FIND), represented by its
Cochairperson, NILDA L. SEVILLA; REP. TEDDY BRAWNER BAGUILAT,
JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; and REP.
EMMANUEL A. BILLONES, petitioners, vs. EXECUTIVE SECRETARY
SALVADOR C. MEDIALDEA; DEFENSE SECRETARY DELFIN N.
LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFP
DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; and
HEIRS OF FERDINAND E. MARCOS, represented by his surviving spouse
IMELDA ROMUALDEZ MARCOS, respondents.
G.R. No. 226097.  November 8, 2016.*
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F.
SANTOS-MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S. MIQUE, FE B.
MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR, MINERVA
G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO,
FRANCISCO E. RODRIGO, JR., LIWAYWAY D. ARCE, and ABDULMARI
DE LEON IMAO, JR., petitioners, vs. EXECUTIVE SECRETARY SALVADOR
C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP
DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AFP
CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, and PHILIPPINE
VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR LT. GEN.
ERNESTO G. CAROLINA (RET.), respondents.
G.R. No. 226116. November 8, 2016.*
HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X. MANGLAPUS,
EDILBERTO C. DE JESUS, BELINDA O. CUNANAN, CECILIA GUIDOTE
ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE NOEL, CARLOS
MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F.
TRINIDAD, JESUS DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO
BELTRAN, SVD, ROBERTO S. VERZOLA, AUGUSTO A. LEGASTO, JR., and
JULIA KRISTINA P. LEGASTO, petitioners, vs. EXECUTIVE SECRETARY
SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA,
AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF
OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, and PHILIPPINE
VETERANS AFFAIRS OFFICE (PVAO) OF THE DND, respondents.
G.R. No. 226117. November 8, 2016.*
81
ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE
ROSE SACE LIM, JUAN ANTONIO RAROGAL MAGALANG, petitioners, vs.
SECRETARY OF NATIONAL DEFENSE DELFIN N. LORENZANA, AFP
CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE
PHILIPPINE VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA,
respondents.
G.R. No. 226120. November 8, 2016.*
ALGAMAR A. LATIPH, petitioner, vs. SECRETARY DELFIN N.
LORENZANA, sued in his capacity as Secretary of National Defense, LT.
GEN. RICARDO R. VISAYA, in his capacity as Chief of Staff of the Armed
Forces of the Philippines and LT. GEN. ERNESTO G. CAROLINA (ret.), in
his capacity as Administrator, Philippine Veterans Affairs Office
(PVAO), respondents.
G.R. No. 226294. November 8, 2016.*
LEILA M. DE LIMA, in her capacity as SENATOR OF THE REPUBLIC and
as TAXPAYER, petitioner, vs. HON. SALVADOR C. MEDIALDEA, DEFENSE
SECRETARY DELFIN LORENZANA, AFP CHIEF OF STAFF LT. GEN.
RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. CAROLINA, in his
capacity as Philippine Veterans Affairs Office (PVAO) Administrator and
B/GEN. RESTITUTO L. AGUILAR, in his capacity as Shrine Curator and
Chief, Veterans Memorial and Historical Division and HEIRS OF
FERDINAND EDRALIN MARCOS, respondents.
Constitutional Law; Judicial Department; Judicial Review; It is well-settled that
no question involving the constitutionality or validity of a law or governmental
act may be heard and decided by the Court unless the following requisites for
judicial inquiry are present: (a) there must be an actual case or controversy
calling for the exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject act or issuance; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the very lis mota of the case.—It is well-
settled that no question involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court unless the following
requisites for judicial inquiry are present: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging
the act must have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of
the case. In this case, the absence of the first two requisites, which are the most
essential, renders the discussion of the last two superfluous.
Same; Same; Same; An “actual case or controversy” is one which 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.—An “actual case or controversy” is one which 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.
Same; Same; Same; Political Questions; President Duterte’s decision to have the
remains of Marcos interred at the Libingan ng mga Bayani (LNMB) involves a
political question that is not a justiciable controversy.—The Court agrees with the
OSG that President Duterte’s decision to have the remains of Marcos interred at
the LNMB involves a political question that is not a justiciable controversy. In the
exercise of his powers under the Constitution and the Executive Order (E.O.) No.
292 (otherwise known as the Administrative Code of 1987) to allow the
interment of Marcos at the LNMB, which is a land of the public domain devoted
for national military cemetery and military shrine purposes, President Duterte
decided a question of policy based on his wisdom that it shall promote national
healing and forgiveness.
Locus Standi; Locus standi requires that a party alleges such personal stake in
the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for
illumination of difficult constitutional questions.—Defined as a right of
appearance in a court of justice on a given question, locus standi requires that a
party alleges such personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions.
Same; Petitioners, who filed their respective petitions for certiorari, prohibition
and mandamus, in their capacities as citizens, human rights violations victims,
legislators, members of the Bar and taxpayers, have no legal standing to file
such petitions because they failed to show that they have suffered or will suffer
direct and personal injury as a result of the interment of Marcos at the Libingan
ng mga Bayani (LNMB).—Petitioners, who filed their respective petitions for
certiorari, prohibition and mandamus, in their capacities as citizens, human rights
violations victims, legislators, members of the Bar and taxpayers, have no legal
standing to file such petitions because they failed to show that they have
suffered or will suffer direct and personal injury as a result of the interment of
Marcos at the LNMB.
Doctrine of Exhaustion of Administrative Remedies; Under the doctrine of
exhaustion of administrative remedies, before a party is allowed to seek the
intervention of the court, one should have availed first of all the means of
administrative processes available.—Under the doctrine of exhaustion of
administrative remedies, before a party is allowed to seek the intervention of the
court, one should have availed first of all the means of administrative processes
available. If resort to a remedy within the administrative machinery can still be
82
made by giving the administrative officer concerned every opportunity to decide
on a matter that comes within his jurisdiction, then such remedy should be
exhausted first before the court’s judicial power can be sought.
Hierarchy of Courts; The Regional Trial Court (RTC) is not just a trier of facts,
but can also resolve questions of law in the exercise of its original and
concurrent jurisdiction over petitions for certiorari, prohibition and mandamus,
and has the power to issue restraining order and injunction when proven
necessary.—While direct resort to the Court through petitions for the
extraordinary writs of certiorari, prohibition and mandamus are allowed under
exceptional cases, which are lacking in this case, petitioners cannot simply brush
aside the doctrine of hierarchy of courts that requires such petitions to be filed
first with the proper Regional Trial Court (RTC). The RTC is not just a trier of
facts, but can also resolve questions of law in the exercise of its original and
concurrent jurisdiction over petitions for certiorari, prohibition and mandamus,
and has the power to issue restraining order and injunction when proven
necessary.
Constitutional Law; Judicial Department; Judicial Review; While the Constitution
is a product of our collective history as a people, its entirety should not be
interpreted as providing guiding principles to just about anything remotely
related to the Martial Law period such as the proposed Marcos burial at the
Libingan ng mga Bayani (LNMB).—As the Office of the Solicitor General (OSG)
logically reasoned out, while the Constitution is a product of our collective history
as a people, its entirety should not be interpreted as providing guiding principles
to just about anything remotely related to the Martial Law period such as the
proposed Marcos burial at the LNMB.
Republic Act No. 289; National Pantheon; For the perpetuation of their memory
and for the inspiration and emulation of this generation and of generations still
unborn, Republic Act (RA) No. 289 authorized the construction of a National
Pantheon as the burial place of the mortal remains of all the Presidents of the
Philippines, national heroes and patriots.—For the perpetuation of their memory
and for the inspiration and emulation of this generation and of generations still
unborn, R.A. No. 289 authorized the construction of a National Pantheon as the
burial place of the mortal remains of all the Presidents of the Philippines, national
heroes and patriots. It also provided for the creation of a Board on National
Pantheon to implement the law.
Same; Same; The National Pantheon does not exist at present. To date, the
Congress has deemed it wise not to appropriate any funds for its construction or
the creation of the Board on National Pantheon.—The National Pantheon does
not exist at present. To date, the Congress has deemed it wise not to
appropriate any funds for its construction or the creation of the Board on
National Pantheon. This is indicative of the legislative will not to pursue, at the
moment, the establishment of a singular interment place for the mortal remains
of all Presidents of the Philippines, national heroes, and patriots.
Constitutional Law; Judicial Department; The proposed interment is not
equivalent to the consecration of Marcos’ mortal remains. The act in itself does
not confer upon him the status of a “hero.”—Also, the Court shares the view of
the OSG that the proposed interment is not equivalent to the consecration of
Marcos’ mortal remains. The act in itself does not confer upon him the status of
a “hero.” Despite its name, which is actually a misnomer, the purpose of the
LNMB, both from legal and historical perspectives, has neither been to confer to
the people buried there the title of “hero” nor to require that only those interred
therein should be treated as a “hero.”
Same; Same; Republic Act No. 10368; With its victim-oriented perspective, our
legislators could have easily inserted a provision specifically proscribing Marcos’
interment at the Libingan ng mga Bayani (LNMB) as a “reparation” for the
Human Rights Violations Victims (HRVVs), but they did not.—This Court cannot
subscribe to petitioners’ logic that the beneficial provisions of R.A. No. 10368 are
not exclusive as it includes the prohibition on Marcos’ burial at the LNMB. It
would be undue to extend the law beyond what it actually contemplates. With its
victim-oriented perspective, our legislators could have easily inserted a provision
specifically proscribing Marcos’ interment at the LNMB as a “reparation” for the
HRVVs, but they did not. As it is, the law is silent and should remain to be so.
This Court cannot read into the law what is simply not there.
Same; Executive Department; Our nation’s history will not be instantly revised by
a single resolve of President Duterte, acting through the public respondents, to
bury Marcos at the Libingan ng mga Bayani (LNMB).—Contrary to petitioners’
postulation, our nation’s history will not be instantly revised by a single resolve of
President Duterte, acting through the public respondents, to bury Marcos at the
LNMB. Whether petitioners admit it or not, the lessons of Martial Law are already
engraved, albeit in varying degrees, in the hearts and minds of the present
generation of Filipinos. As to the unborn, it must be said that the preservation
and popularization of our history is not the sole responsibility of the Chief
Executive; it is a joint and collective endeavor of every freedom-loving citizen of
this country.
Libingan ng mga Bayani; The descriptive words “sacred and hallowed” refer to
the Libingan ng mga Bayani (LNMB) as a place and not to each and every mortal
remains interred therein. Hence, the burial of Marcos at the LNMB does not
diminish said cemetery as a revered and respected ground.—Assuming that P.D.
No. 105 is applicable, the descriptive words “sacred and hallowed” refer to the
LNMB as a place and not to each and every mortal remains interred therein.
Hence, the burial of Marcos at the LNMB does not diminish said cemetery as a
revered and respected ground. Neither does it negate the presumed individual or
collective “heroism” of the men and women buried or will be buried therein.
Constitutional Law; Executive Department; President Duterte is not bound by the
alleged 1992 Agreement between former President Ramos and the Marcos family
83
to have the remains of Marcos interred in Batac, Ilocos Norte.—The presidential
power of control over the Executive Branch of Government is a self-executing
provision of the Constitution and does not require statutory implementation, nor
may its exercise be limited, much less withdrawn, by the legislature. This is why
President Duterte is not bound by the alleged 1992 Agreement between former
President Ramos and the Marcos family to have the remains of Marcos interred
in Batac, Ilocos Norte.
Libingan ng mga Bayani; The allotment of a cemetery plot at the Libingan ng
mga Bayani (LNMB) for Marcos as a former President and Commander-in-Chief, a
legislator, a Secretary of National Defense, a military personnel, a veteran, and a
Medal of Valor awardee, whether recognizing his contributions or simply his
status as such, satisfies the public use requirement.—At present, there is no law
or executive issuance specifically excluding the land in which the LNMB is located
from the use it was originally intended by the past Presidents. The allotment of a
cemetery plot at the LNMB for Marcos as a former President and Commander-in-
Chief, a legislator, a Secretary of National Defense, a military personnel, a
veteran, and a Medal of Valor awardee, whether recognizing his contributions or
simply his status as such, satisfies the public use requirement. The disbursement
of public funds to cover the expenses incidental to the burial is granted to
compensate him for valuable public services rendered.
Constitutional Law; Executive Department; President Duterte’s determination to
have Marcos’ remains interred at the Libingan ng mga Bayani (LNMB) was
inspired by his desire for national healing and reconciliation.—President Duterte’s
determination to have Marcos’ remains interred at the LNMB was inspired by his
desire for national healing and reconciliation. Presumption of regularity in the
performance of official duty prevails over petitioners’ highly disputed factual
allegation that, in the guise of exercising a presidential prerogative, the Chief
Executive is actually motivated by utang na loob (debt of gratitude) and bayad
utang (payback) to the Marcoses.
Libingan ng mga Bayani; In the absence of any executive issuance or law to the
contrary, the Armed Forces of the Philippines (AFP) Regulations G 161-375
remains to be the sole authority in determining who are entitled and disqualified
to be interred at the Libingan ng mga Bayani (LNMB).—In the absence of any
executive issuance or law to the contrary, the AFP Regulations G 161-375
remains to be the sole authority in determining who are entitled and disqualified
to be interred at the LNMB. Interestingly, even if they were empowered to do so,
former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who
were themselves aggrieved at the Martial Law, did not revise the rules by
expressly prohibiting the burial of Marcos at the LNMB.
Same; For his alleged human rights abuses and corrupt practices, we may
disregard Marcos as a President and Commander-in-Chief, but we cannot deny
him the right to be acknowledged based on the other positions he held or the
awards he received.—Petitioners did not dispute that Marcos was a former
President and Commander-in-Chief, a legislator, a Secretary of National Defense,
a military personnel, a veteran, and a Medal of Valor awardee. For his alleged
human rights abuses and corrupt practices, we may disregard Marcos as a
President and Commander-in-Chief, but we cannot deny him the right to be
acknowledged based on the other positions he held or the awards he received.
Same; The fact remains that Marcos was not convicted by final judgment of any
offense involving moral turpitude.—Despite all these ostensibly persuasive
arguments, the fact remains that Marcos was not convicted by final judgment of
any offense involving moral turpitude. No less than the 1987 Constitution
mandates that a person shall not be held to answer for a criminal offense
without due process of law.
Same; Marcos was honorably discharged from military service. Philippine
Veterans Affairs Office (PVAO) expressly recognized him as a retired veteran
pursuant to Republic Act (RA) No. 6948, as amended.—Likewise, Marcos was
honorably discharged from military service. PVAO expressly recognized him as a
retired veteran pursuant to R.A. No. 6948, as amended. Petitioners have not
shown that he was dishonorably discharged from military service under AFP
Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term
of Enlistment) for violating Articles 94, 95 and 97 of the Articles of War.
Same; It cannot be conveniently claimed that Marcos’ ouster from the presidency
during the Epifanio de los Santos Avenue (EDSA) Revolution is tantamount to his
dishonorable separation, reversion or discharge from the military service.—It
cannot be conveniently claimed that Marcos’ ouster from the presidency during
the EDSA Revolution is tantamount to his dishonorable separation, reversion or
discharge from the military service. The fact that the President is the
Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the
principle of supremacy of civilian authority over the military.
Same; Constitutional Law; Judicial Department; Notwithstanding the call of
human rights advocates, the Court must uphold what is legal and just. And that
is not to deny Marcos of his rightful place at the Libingan ng mga Bayani (LNMB).
—At bar, President Duterte, through the public respondents, acted within the
bounds of the law and jurisprudence. Notwithstanding the call of human rights
advocates, the Court must uphold what is legal and just. And that is not to deny
Marcos of his rightful place at the LNMB.
PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues that
have lingered and festered for so long and which unnecessarily divide
the people and slow the path to the future have to be interred. To
move on is not to forget the past. It is to focus on the present and the
future, leaving behind what is better left for history to ultimately
decide. The Court finds guidance from the Constitution and the
84
applicable laws, and in the absence of clear prohibition against the
exercise of discretion entrusted to the political branches of the
Government, the Court must not overextend its readings of what may
only be seen as providing tenuous connection to the issue before it.
Facts
During the campaign period for the 2016 Presidential Election, then candidate
Rodrigo R. Duterte (Duterte) publicly announced that he would allow the burial
of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga
Bayani (LNMB). He won the May 9, 2016 election, garnering 16,601,997 votes.
At noon of June 30, 2016, he formally assumed his office at the Rizal Hall in the
Malacañan Palace.
On August 7, 2016, public respondent Secretary of National Defense Delfin N.
Lorenzana issued a Memorandum to the public respondent Chief of Staff of the
Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the
interment of Marcos at the LNMB, to wit:
Subject: Interment of the late Former President Ferdinand Marcos at
LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.
In compliance to (sic) the verbal order of the President to implement his election
campaign promise to have the remains of the late former President Ferdinand E.
Marcos be interred at the Libingan ng mga Bayani, kindly undertake all the
necessary planning and preparations to facilitate the coordination of all agencies
concerned specially the provisions for ceremonial and security requirements.
Coordinate closely with the Marcos family regarding the date of interment and
the transport of the late former President's remains from Ilocos Norte to the
LNMB.
The overall OPR for this activity will [be] the PVAO since the LNMB is under its
supervision and administration. PVAO shall designate the focal person for this
activity who shall be the overall overseer of the event.
Submit your Implementing Plan to my office as soon as possible. [1]
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the
following directives to the Philippine Army ( PA) Commanding General:
SUBJECT:     Funeral Honors and Service
TO:              Commanding General, Philippine Army  victims of State-sanctioned human rights violations during the martial law regime
                   Headquarters, Philippine Army  of Marcos.
                   Fort Bonifacio, Taguig City 
                   Attn: Assistant Chief of Staff for RRA, G9
1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July
1992, provide services, honors and other courtesies for the late Former
President Ferdinand E. Marcos as indicated:
    [x] Vigil - Provide vigil 
    [x] Bugler/Drummer 
    [x] Firing Party 
    [x] Military Host/Pallbearers 
    [x] Escort and Transportation 
    [x] Arrival/Departure Honors
2. His remains lie in state at Ilocos Norte 
3. Interment will take place at the Libingan ng mga Bayani, Ft.
Bonifacio, Taguig City. Date: TBAL. 
4. Provide all necessary military honors accorded for a President 
5. POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA[2]
Dissatisfied with the foregoing issuance, the following were filed by petitioners:
1. Petition for Certiorari and Prohibition[3] filed by Saturnino Ocampo and several
others,[4] in their capacities as human rights advocates or human rights violations
victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368 (Human
Rights Victims Reparation and Recognition Act of 2013).
2. Petition for Certiorari-in-Intervention[5] filed by Rene A.V. Saguisag, Sr. and his
son,[6] as members of the Bar and human rights lawyers, and his grandchild.[7]
3. Petition for Prohibition[8] filed by Representative Edcel C. Lagman, in his
personal capacity, as member of the House of Representatives and as Honorary
Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-
registered corporation and organization of victims and families of enforced
disappearance, mostly during the martial law regime of the former President
Marcos, and several others,[9] in their official capacities as duly-elected
Congressmen of the House of Representatives of the Philippines.
4. Petition for Prohibition[10] filed by Loretta Ann Pargas-Rosales, former
Chairperson of the Commission on Human Rights, and several others, [11] suing as
85
5. Petition for Mandamus and Prohibition[12] filed by Heherson T. Alvarez, former
Senator of the Republic of the Philippines, who fought to oust the dictatorship of
Marcos, and several others,[13] as concerned Filipino citizens and taxpayers.
6. Petition for Certiorari and Prohibition[14] filed by Zaira Patricia B. Baniaga and
several others,[15] as concerned Filipino citizens and taxpayers.  (e) The International Covenant on Civil and Political Rights;
7. Petition for Certiorari and Prohibition[16] filed by Algamar A. Latiph, former
Chairperson of the Regional Human Rights Commission, Autonomous Region in
Muslim Mindanao, by himself and on behalf of the Moro[17]who are victims of
human rights during the martial law regime of Marcos.
8. Petition for Certiorari and Prohibition[18] filed by Leila M. De Lima as member of
the Senate of the Republic of the Philippines, public official and concerned
citizen.
Issues
Procedural
1. Whether President Duterte's determination to have the remains of Marcos
interred at the LNMB poses a justiciable controversy.
2. Whether petitioners have locus standi to file the instant petitions.
3. Whether petitioners violated the doctrines of exhaustion of administrative
remedies and hierarchy of courts.
Substantive
1. Whether the respondents Secretary of National Defense and AFP Rear Admiral
committed grave abuse of discretion, amounting to lack or excess of jurisdiction,
when they issued the assailed memorandum and directive in compliance with the
verbal order of President Duterte to implement his election campaign promise to
have the remains of Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed memorandum and
directive violate the Constitution, domestic and international laws, particularly:  challenging the act must have the standing to question the validity of the subject
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III,
Section 17 of Article VII, Section 1 of Article XI, Section 3(2) of Article XIV, and
Section 26 of Article XVIII of the 1987 Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation
for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law" of the United Nations (U.N.)
General Assembly; and
(g) The "Updated Set of Principles for Protection and Promotion of Human Rights
through Action to Combat Impunity" of the U.N. Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth from the
Marcoses and their cronies, and the pronouncements of the Court on the Marcos
regime have nullified his entitlement as a soldier and former President to
interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of the
remains of former President Marcos at the LNMB after they entered into an
agreement with the Government of the Republic of the Philippines as to the
conditions and procedures by which his remains shall be brought back to and
interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or validity of a
law or governmental act may be heard and decided by the Court unless the
following requisites for judicial inquiry are present: ( a) there must be an actual
case or controversy calling for the exercise of judicial power; ( b) the person
act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of
the case.[19] In this case, the absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.[20]
An "actual case or controversy" is one which involves a conflict of legal rights, an
86
assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute. [21]There must
be a contrariety of legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence.[22] Related to the requisite of an actual case or
controversy is the requisite of "ripeness," which means that something had then
been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged action.[23] Moreover, the
limitation on the power of judicial review to actual cases and controversies
carries the assurance that the courts will not intrude into areas committed to the
other branches of government. [24] Those areas pertain to 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. [25] As they are concerned with
questions of policy and issues dependent upon the wisdom, not legality of a
particular measure,[26] political questions used to be beyond the ambit of judicial
review. However, the scope of the political question doctrine has been limited by
Section 1 of Article VIII of the 1987 Constitution when it vested in the judiciary
the power to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
The Court agrees with the OSG that President Duterte's decision to have the
remains of Marcos interred at the LNMB involves a political question that is not a
justiciable controversy. In the exercise of his powers under the Constitution and
the Executive Order (E.O.) No. 292 (otherwise known as the Administrative Code
of 1987) to allow the interment of Marcos at the LNMB, which is a land of the
public domain devoted for national military cemetery and military shrine
purposes, President Duterte decided a question of policy based on his wisdom
that it shall promote national healing and forgiveness. There being no taint of
grave abuse in the exercise of such discretion, as discussed below, President
Duterte's decision on that political question is outside the ambit of judicial
review.
Locus standi
Defined as a right of appearance in a court of justice on a given question,
[27]
 locus standi requires that a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.[28] Unless a person has sustained or is in imminent
danger of sustaining an injury as a result of an act complained of, such proper
party has no standing.[29] Petitioners, who filed their respective petitions
for certiorari, prohibition and mandamus, in their capacities as citizens, human
rights violations victims, legislators, members of the Bar and taxpayers, have no
legal standing to file such petitions because they failed to show that they have
suffered or will suffer direct and personal injury as a result of the interment of
Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an invalid
or unconstitutional law.[30] In this case, what is essentially being assailed is the
wisdom behind the decision of the President to proceed with the interment of
Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement
of public funds, without showing that Marcos is disqualified to be interred at the
LNMB by either express or implied provision of the Constitution, the laws or
jurisprudence.
Petitioners Saguisag, et al.,[31] as members of the Bar, are required to allege any
direct or potential injury which the Integrated Bar of the Philippines, as an
institution, or its members may suffer as a consequence of the act complained
of.[32] Suffice it to state that the averments in their petition-in-intervention failed
to disclose such injury, and that their interest in this case is too general and
shared by other groups, such that their duty to uphold the rule of law, without
more, is inadequate to clothe them with requisite legal standing.[33]
As concerned citizens, petitioners are also required to substantiate that the
issues raised are of transcendental importance, of overreaching significance to
society, or of paramount public interest. [34] In cases involving such issues, the
imminence and clarity of the threat to fundamental constitutional rights outweigh
the necessity for prudence.[35] In Marcos v. Manglapus,[36] the majority opinion
observed that the subject controversy was of grave national importance, and
that the Court's decision would have a profound effect on the political, economic,
and other aspects of national life. The ponencia explained that the case was in a
class by itself, unique and could not create precedent because it involved a
dictator forced out of office and into exile after causing twenty years of political,
economic and social havoc in the country and who, within the short space of
three years (from 1986), sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally established
as a national military cemetery and declared a national shrine would have no
profound effect on the political, economic, and other aspects of our national life
considering that more than twenty-seven (27) years since his death and thirty
(30) years after his ouster have already passed. Significantly, petitioners failed to
demonstrate a clear and imminent threat to their fundamental constitutional
rights.
As human rights violations victims during the Martial Law regime, some of
petitioners decry re-traumatization, historical revisionism, and disregard of their
state recognition as heroes. Petitioners' argument is founded on the wrong
premise that the LNMB is the National Pantheon intended by law to perpetuate
the memory of all Presidents, national heroes and patriots. The history of the
LNMB, as will be discussed further, reveals its nature and purpose as a national
87
military cemetery and national shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator De Lima,
and Congressman Lagman, et al.[37] come before the Court as legislators suing to
defend the Constitution and to protect appropriated public funds from being used
unlawfully. In the absence of a clear showing of any direct injury to their person
or the institution to which they belong, their standing as members of the
Congress cannot be upheld.[38] They do not specifically claim that the official
actions complained of, i.e., the memorandum of the Secretary of National
Defense and the directive of the AFP Chief of Staff regarding the interment of
Marcos at the LNMB, encroach on their prerogatives as legislators. [39]
brush aside the doctrine of hierarchy of courts that requires such petitions to be
filed first with the proper Regional Trial Court (RTC). The RTC is not just a trier
of facts, but can also resolve questions of law in the exercise of its original and
concurrent jurisdiction over petitions for certiorari, prohibition and mandamus,
and has the power to issue restraining order and injunction when proven
necessary.
In fine, the petitions at bar should be dismissed on procedural grounds alone.
Even if We decide the case based on the merits, the petitions should still be
denied.

Exhaustion of Administrative Remedies Substantive Grounds

Petitioners violated the doctrines of exhaustion of administrative remedies and There is grave abuse of discretion when an act is (1) done contrary to the
hierarchy of courts. Under the doctrine of exhaustion of administrative remedies, Constitution, the law or jurisprudence or (2) executed whimsically, capriciously or
before a party is allowed to seek the intervention of the court, one should have arbitrarily, out of malice, ill will or personal bias. [46] None is present in this case.
availed first of all the means of administrative processes available. [40] If resort to
a remedy within the administrative machinery can still be made by giving the
administrative officer concerned every opportunity to decide on a matter that
I 
comes within his jurisdiction, then such remedy should be exhausted first before
The President's decision to bury Marcos at the LNMB is in accordance
the court's judicial power can be sought.[41] For reasons of comity and
with the Constitution, the law or jurisprudence
convenience, courts of justice shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to give the
Petitioners argue that the burial of Marcos at the LNMB should not be allowed
administrative agency concerned every opportunity to correct its error and
because it has the effect of not just rewriting history as to the Filipino people's
dispose of the case.[42] While there are exceptions[43] to the doctrine of
act of revolting against an authoritarian ruler but also condoning the abuses
exhaustion of administrative remedies, petitioners failed to prove the presence of
committed during the Martial Law, thereby violating the letter and spirit of the
any of those exceptions.
1987 Constitution, which is a "post-dictatorship charter" and a "human rights
constitution." For them, the ratification of the Constitution serves as a clear
Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary
condemnation of Marcos' alleged "heroism." To support their case, petitioners
course of law, petitioners should be faulted for failing to seek reconsideration of
invoke Sections 2,[47] 11,[48] 13,[49] 23,[50] 26,[51] 27[52] and 28[53] of Article II, Sec.
the assailed memorandum and directive before the Secretary of National
17 of Art. VII,[54] Sec. 3(2) of Art. XIV,[55] Sec. 1 of Art. XI,[56] and Sec. 26 of Art.
Defense. The Secretary of National Defense should be given opportunity to
XVIII[57] of the Constitution.
correct himself, if warranted, considering that AFP Regulations G 161-375 was
issued upon his order. Questions on the implementation and interpretation
There is no merit to the contention.
thereof demand the exercise of sound administrative discretion, requiring the
special knowledge, experience and services of his office to determine technical
As the Office of the Solicitor General (OSG) logically reasoned out, while the
and intricate matters of fact. If petitioners would still be dissatisfied with the
Constitution is a product of our collective history as a people, its entirety should
decision of the Secretary, they could elevate the matter before the Office of the
not be interpreted as providing guiding principles to just about anything remotely
President which has control and supervision over the Department of National
related to the Martial Law period such as the proposed Marcos burial at the
Defense (DND).[44]
LNMB.
Hierarchy of Courts
Tañada v. Angara[58] already ruled that the provisions in Article II of the
Constitution are not self-executing. Thus:
In the same vein, while direct resort to the Court through petitions for the
extraordinary writs of certiorari, prohibition and mandamus are allowed under
exceptional cases,[45] which are lacking in this case, petitioners cannot simply By its very title, Article II of the Constitution is a "declaration of principles and
state policies." The counterpart of this article in the 1935 Constitution is called
88
the "basic political creed of the nation" by Dean Vicente Sinco. These principles
in Article II are not intended to be self executing principles ready for
enforcement through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan, Incorporated vs.
Morato, the principles and state policies enumerated in Article II x x x are not
"self-executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional
rights but guidelines for legislation."
In the same light, we held in Basco vs. Pagcor that broad constitutional principles
need legislative enactments to implement them x x x.
xxx
The reasons for denying a cause of action to an alleged infringement of broad
constitutional principles are sourced from basic considerations of due process
and the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making."[59]
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing
provision considering that a law should be passed by the Congress to clearly
define and effectuate the principle embodied therein. As a matter of fact,
pursuant thereto, Congress enacted R.A. No. 6713 ("Code of Conduct and Ethical
Standards for Public Officials and Employees"), R.A. No. 6770 ("The Ombudsman
Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of
Plunder), and Republic Act No. 9485 ("Anti-Red Tape Act of 2007"). To
complement these statutes, the Executive Branch has issued various orders,
memoranda, and instructions relative to the norms of behavior/code of
conduct/ethical standards of officials and employees; workflow charts/public
transactions; rules and policies on gifts and benefits; whistle blowing and
reporting; and client feedback program.
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the
Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the constitutional
duty of educational institutions in teaching the values of patriotism and
nationalism and respect for human rights, while Sec. 26 of Art. XVIII is a
transitory provision on sequestration or freeze orders in relation to the recovery
of Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no
direct or indirect prohibition to Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the
President to "ensure that the laws be faithfully executed ," which is identical to
Sec. 1, Title I, Book III of the Administrative Code of 1987, [60] is likewise not
violated by public respondents. Being the Chief Executive, the President
represents the government as a whole and sees to it that all laws are enforced
by the officials and employees of his or her department. [61]Under the Faithful
Execution Clause, the President has the power to take "necessary and proper
steps" to carry into execution the law.[62] The mandate is self-executory by virtue
of its being inherently executive in nature and is intimately related to the other
executive functions.[63] It is best construed as an imposed obligation, not a
separate grant of power.[64] The provision simply underscores the rule of law and,
corollarily, the cardinal principle that the President is not above the laws but is
obliged to obey and execute them.[65]
Consistent with President Duterte's mandate under Sec. 17, Art. VII of the
Constitution, the burial of Marcos at the LNMB does not contravene R.A. No. 289,
R.A. No. 10368, and the international human rights laws cited by petitioners.
A. On R.A. No. 289[66]
For the perpetuation of their memory and for the inspiration and emulation of
this generation and of generations still unborn, R.A. No. 289 authorized the
construction of a National Pantheon as the burial place of the mortal remains of
all the Presidents of the Philippines, national heroes and patriots. [67] It also
provided for the creation of a Board on National Pantheon to implement the law.
[68]
On May 12, 1953, President Elpidio R. Quirino approved the site of the National
Pantheon at East Avenue, Quezon City.[69] On December 23, 1953, he issued
Proclamation No. 431 to formally "withdraw from sale or settlement and reserve
as a site for the construction of the National Pantheon a certain parcel of land
located in Quezon City." However, on July 5, 1954, President Magsaysay issued
Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of
1953, and reserving the parcels of land embraced therein for national park
purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which
a person's mortal remains may be interred at the LNMB, and that AFP
Regulations G 161-375 merely implements the law and should not violate its
spirit and intent. Petitioners claim that it is known, both here and abroad, that
Marcos' acts and deed - the gross human rights violations, the massive
corruption and plunder of government coffers, and his military record that is
fraught with myths, factual inconsistencies, and lies - are neither worthy of
perpetuation in our memory nor serve as a source of inspiration and emulation of
the present and future generations. They maintain that public respondents are
not members of the Board on National Pantheon, which is authorized by the law
to cause the burial at the LNMB of the deceased Presidents of the Philippines,
national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral arguments,
they miserably failed to provide legal and historical bases as to their supposition
that the LNMB and the National Pantheon are one and the same. This is not at
all unexpected because the LNMB is distinct and separate from the burial place
envisioned in R.A. No 289. The parcel of land subject matter of President
89
Quirino's Proclamation No. 431, which was later on revoked by President
Magsaysay's Proclamation No. 42, is different from that covered by Marcos'
Proclamation No. 208. The National Pantheon does not exist at present. To date,
the Congress has deemed it wise not to appropriate any funds for its
construction or the creation of the Board on National Pantheon. This is indicative
of the legislative will not to pursue, at the moment, the establishment of a
singular interment place for the mortal remains of all Presidents of the
Philippines, national heroes, and patriots. Perhaps, the Manila North Cemetery,
the Manila South Cemetery, and other equally distinguished private cemeteries
already serve the noble purpose but without cost to the limited funds of the
government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners'
allegations must fail. To apply the standard that the LNMB is reserved only for
the "decent and the brave" or "hero" would be violative of public policy as it will
put into question the validity of the burial of each and every mortal remains
resting therein, and infringe upon the principle of separation of powers since the
allocation of plots at the LNMB is based on the grant of authority to the President
under existing laws and regulations. Also, the Court shares the view of the OSG
that the proposed interment is not equivalent to the consecration of Marcos'
mortal remains. The act in itself does not confer upon him the status of a "hero."
Despite its name, which is actually a misnomer, the purpose of the LNMB, both
from legal and historical perspectives, has neither been to confer to the people
buried there the title of "hero" nor to require that only those interred therein
should be treated as a "hero." Lastly, petitioners' repeated reference to a "hero's
burial" and "state honors," without showing proof as to what kind of burial or
honors that will be accorded to the remains of Marcos, is speculative until the
specifics of the interment have been finalized by public respondents.
B. On R.A. No. 10368[70]
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly
disqualifying Marcos' burial at the LNMB because the legislature, which is a co-
equal branch of the government, has statutorily declared his tyranny as a
deposed dictator and has recognized the heroism and sacrifices of the Human
Rights Violations Victims (HRVVs)[71] under his regime. They insist that the
intended act of public respondents damages and makes mockery of the
mandatory teaching of Martial Law atrocities and of the lives and sacrifices of its
victims. They contend that "reparation" under R.A. No. 10368 is non-judicial in
nature but a political action of the State through the Legislative and Executive
branches by providing administrative relief for the compensation, recognition,
and memorialization of human rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos
who were victims of summary execution, torture, enforced or involuntary
disappearance, and other gross human rights violations committed from
September 21, 1972 to February 25, 1986. To restore their honor and dignity,
the State acknowledges its moral and legal obligation[72] to provide reparation to
said victims and/or their families for the deaths, injuries, sufferings, deprivations
and damages they experienced.
In restoring the rights and upholding the dignity of HRVVs, which is part of the
right to an effective remedy, R.A. No. 10368 entitles them to monetary and non-
monetary reparation. Any HRVV qualified under the law[73] shall receive a
monetary reparation, which is tax-free and without prejudice to the receipt of
any other sum from any other person or entity in any case involving human
rights violations.[74] Anent the non-monetary reparation, the Department of
Health (DOH), the Department of Social Welfare and Development (DSWD), the
Department of Education (DepEd), the Commission on Higher Education (CHED),
the Technical Education and Skills Development Authority (TESDA), and such
other government agencies are required to render the necessary services for the
HRVVs and/or their families, as may be determined by the Human Rights Victims'
Claims Board (Board) pursuant to the provisions of the law.[75]
Additionally, R.A. No. 10368 requires the recognition of the violations committed
against the HRVVs, regardless of whether they opt to seek reparation or not.
This is manifested by enshrining their names in the Roll of Human Rights
Violations Victims (Roll) prepared by the Board.[76] The Roll may be displayed in
government agencies designated by the HRVV Memorial Commission
(Commission).[77] Also, a Memorial/Museum/Library shall be established and a
compendium of their sacrifices shall be prepared and may be readily viewed and
accessed in the internet.[78] The Commission is created primarily for the
establishment, restoration, preservation and conservation of the
Memorial/Museum/ Library/Compendium.[79]
To memorialize[80] the HRVVs, the Implementing Rules and Regulations of R.A.
No. 10368 further mandates that: (1) the database prepared by the Board
derived from the processing of claims shall be turned over to the Commission for
archival purposes, and made accessible for the promotion of human rights to all
government agencies and instrumentalities in order to prevent recurrence of
similar abuses, encourage continuing reforms and contribute to ending impunity;
[81]
 (2) the lessons learned from Martial Law atrocities and the lives and sacrifices
of HRVVs shall be included in the basic and higher education curricula, as well as
in continuing adult learning, prioritizing those most prone to commit human
rights violations;[82] and (3) the Commission shall publish only those stories of
HRVVs who have given prior informed consent. [83]
This Court cannot subscribe to petitioners' logic that the beneficial provisions of
R.A. No. 10368 are not exclusive as it includes the prohibition on Marcos' burial
at the LNMB. It would be undue to extend the law beyond what it actually
contemplates. With its victim-oriented perspective, our legislators could have
easily inserted a provision specifically proscribing Marcos' interment at the LNMB
90
as a "reparation" for the HRVVs, but they did not. As it is, the law is silent and
should remain to be so. This Court cannot read into the law what is simply not
there. It is irregular, if not unconstitutional, for Us to presume the legislative will
by supplying material details into the law. That would be tantamount to judicial
legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No
10368 will surely not be impaired by the interment of Marcos at the LNMB. As
opined by the OSG, the assailed act has no causal connection and legal relation
to the law. The subject memorandum and directive of public respondents do not
and cannot interfere with the statutory powers and functions of the Board and
the Commission. More importantly, the HRVVs' entitlements to the benefits
provided for by R.A. No 10368 and other domestic laws are not curtailed. It must
be emphasized that R.A. No. 10368 does not amend or repeal, whether express
or implied, the provisions of the Administrative Code or AFP Regulations G 161-
375:
It is a well-settled rule of statutory construction that repeals by implication are
not favored. In order to effect a repeal by implication, the later statute must be
so irreconcilably inconsistent and repugnant with the existing law that they
cannot be made to reconcile and stand together. The clearest case possible must
be made before the inference of implied repeal may be drawn, for inconsistency
is never presumed. There must be a showing of repugnance clear and convincing
in character. The language used in the later statute must be such as to render it
irreconcilable with what had been formerly enacted. An inconsistency that falls
short of that standard does not suffice. x x x[84]
C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate the rights of
the HRVVs to "full" and "effective" reparation, which is provided under
the International Covenant on Civil and Political Rights (ICCPR),[85] the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law[86]adopted by the U.N. General Assembly on
December 16, 2005, and the Updated Set of Principles for the Protection and
Promotion of Human Rights Through Action to Combat Impunity [87] dated
February 8, 2005 by the U.N. Economic and Social Council.
We do not think so. The ICCPR,[88] as well as the U.N. principles on reparation
and to combat impunity, call for the enactment of legislative measures,
establishment of national programmes, and provision for administrative and
judicial recourse, in accordance with the country's constitutional processes, that
are necessary to give effect to human rights embodied in treaties, covenants and
other international laws. The U.N. principles on reparation expressly states:
Emphasizing that the Basic Principles and Guidelines contained herein do
not entail new international or domestic legal obligations but identify
mechanisms, modalities, procedures and methods for the implementation of
existing legal obligations under international human rights law and international
humanitarian law which are complementary though different as to their norms[.]
[Emphasis supplied]
The Philippines is more than compliant with its international obligations. When
the Filipinos regained their democratic institutions after the successful People
Power Revolution that culminated on February 25, 1986, the three branches of
the government have done their fair share to respect, protect and fulfill the
country's human rights obligations, to wit:
The 1987 Constitution contains provisions that promote and protect human
rights and social justice.
As to judicial remedies, aside from the writs of habeas corpus, amparo,
[89]
 and habeas data,[90] the Supreme Court promulgated on March 1, 2007
Administrative Order No. 25-2007,[91] which provides rules on cases involving
extra-judicial killings of political ideologists and members of the media. The
provision of the Basic Principles and Guidelines on the prevention of the victim's
re-traumatization applies in the course of legal and administrative procedures
designed to provide justice and reparation.[92]
On the part of the Executive Branch, it issued a number of administrative and
executive orders. Notable of which are the following:
1. A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency
Coordinating Committee on Human Rights)
2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a
National Committee on the Culture of Peace) 
3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every
12th Day of August Thereafter as International Humanitarian Law Day) 
4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the
Republic of the Philippines Monitoring Committee [GRPMC] on Human
Rights and International Humanitarian Law) 
5. A.O. No. 157 dated August 21, 2006 (Creating an Independent
Commission to Address Media and Activist Killings)
6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing
the Membership of the Presidential Human Rights Committee, and
Expanding Further the Functions of Said Committee)[93] 
91
 7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and
Coordination Between the National Prosecution Service and Other
Concerned Agencies of Government for the Successful Investigation and
Prosecution of Political and Media Killings )
8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination
with PHRC Sub-committee on Killings and Disappearances ) 
9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against
Political Violence) 
10. A.O. No. 249 dated December 10, 2008 (Further Strengthening
Government Policies, Plans, and Programs for the Effective Promotion
and Protection of Human Rights on the Occasion of the 60th
Anniversary of the Universal Declaration of Human Rights)
11. E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-
Military-Liaison Committee to Formulate and Implement a
Comprehensive Program to Establish Strong Partnership Between the
State and the Church on Matters Concerning Peace and Order and
Human Rights)  12. Republic Act No. 10168 (The Terrorism Financing Prevention and
12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency
Committee on Extra-Legal Killings, Enforced Disappearances, Torture
and Other Grave Violations of the Right to Life, Liberty and Security of
Persons) 
13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task
Force on Violations of the Right to Life, Liberty and Security of the
Members of the Media)
Finally, the Congress passed the following laws affecting human rights:
1. Republic Act No. 7438 (An Act Defining Certain Rights of Person
Arrested, Detained or Under Custodia/Investigation as well as the
Duties of the Arresting, Detaining and Investigating Officers and
Providing Penalties for Violations Thereof )
2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)
3. Republic Act No. 9201 (National Human Rights Consciousness Week Act
of 2002) 
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003) 
5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children
Act of 2004) 
6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) 
7. Republic Act No. 9372 (Human Security Act of 2007) 
8. Republic Act No. 9710 (The Magna Carta of Women) 
9. Republic Act No. 9745 (Anti-Torture Act of 2009) 
10. Republic Act No. 9851 (Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity) 
11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and
Management Act of 2010) 
Suppression Act of 2012) 
13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance
Act of 2012) 
14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of
2012) 
15. Republic Act No. 10368 (Human Rights Victims Reparation And
Recognition Act of 2013) 
16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of
2013)
Contrary to petitioners' postulation, our nation's history will not be instantly
revised by a single resolve of President Duterte, acting through the public
respondents, to bury Marcos at the LNMB. Whether petitioners admit it or not,
the lessons of Martial Law are already engraved, albeit in varying degrees, in the
hearts and minds of the present generation of Filipinos. As to the unborn, it must
be said that the preservation and popularization of our history is not the sole
responsibility of the Chief Executive; it is a joint and collective endeavor of every
freedom-loving citizen of this country.
Notably, complementing the statutory powers and functions of the Human Rights
92
Victims' Claims Board and the HRVV Memorial Commission in the memorialization
of HRVVs, the National Historical Commission of the Philippines ( NHCP), formerly
known as the National Historical Institute (NHI),[94] is mandated to act as the
primary government agency responsible for history and is authorized to
determine all factual matters relating to official Philippine history. [95] Among
others, it is tasked to: (a) conduct and support all kinds of research relating to
Philippine national and local history; (b) develop educational materials in various
media, implement historical educational activities for the popularization of
Philippine history, and disseminate, information regarding Philippine historical
events, dates, places and personages; and (c) actively engage in the settlement
or resolution of controversies or issues relative to historical personages, places,
dates and events.[96] Under R.A. Nos. 10066 (National Cultural Heritage Act of
2009)[97] and 10086 (Strengthening Peoples' Nationalism Through Philippine
History Act),[98] the declared State policy is to conserve, develop, promote, and
popularize the nation's historical and cultural heritage and resources. [99] Towards
this end, means shall be provided to strengthen people's nationalism, love of
country, respect for its heroes and pride for the people's accomplishments by
reinforcing the importance of Philippine national and local history in daily life with
the end in view of raising social consciousness. [100] Utmost priority shall be given
not only with the research on history but also its popularization. [101]
II.  and battle monuments declared as national shrines, which have been under the
The President's decision to bury Marcos at the LNMB is not done
whimsically, capriciously or arbitrarily, out of malice, ill will or personal
bias
Petitioners contend that the interment of Marcos at the LNMB will desecrate it as
a sacred and hallowed place and a revered national shrine where the mortal
remains of our country's great men and women are interred for the inspiration
and emulation of the present generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical shrines (or
historical shrines) refer to sites or structures hallowed and revered for their
history or association as declared by the NHCP.[102] The national shrines created
by law and presidential issuance include, among others: Fort Santiago (Dambana
ng Kalayaan) in Manila;[103] all battlefield areas in Corregidor and Bataan; [104] the
site of First Mass in the Philippines in Magallanes, Limasawa, Leyte; [105] Aguinaldo
Shrine or Freedom Shrine in Kawit, Cavite;[106] Fort San Antonio Abad National
Shrine in Malate, Manila;[107] Tirad Pass National Shrine in Ilocos Sur;[108] Ricarte
Shrine[109]and Aglipay Shrine[110] in Batac, Ilocos Norte; Liberty Shrine in Lapu-
Lapu, Cebu;[111] "Red Beach" or the landing point of General Douglas MacArthur
and the liberating forces in Baras, Palo, Leyte;[112] Dapitan City as a National
Shrine City in Zamboanga Del Norte;[113] General Leandro Locsin Fullon National
Shrine in Hamtic, Antique;[114] and Mabini Shrine in Polytechnic University of the
Philippines - Mabini Campus, Sta. Mesa, Manila.[115] As sites of the birth, exile,
imprisonment, detention or death of great and eminent leaders of the nation, it
is the policy of the Government to hold and keep the national shrines as sacred
and hallowed place.[116] P.O. No. 105[117] strictly prohibits and punishes by
imprisonment and/or fine the desecration of national shrines by disturbing their
peace and serenity through digging, excavating, defacing, causing unnecessary
noise, and committing unbecoming acts within their premises. R.A. No. 10066
also makes it punishable to intentionally modify, alter, or destroy the original
features of, or undertake construction or real estate development in any national
shrine, monument, landmark and other historic edifices and structures, declared,
classified, and marked by the NHCP as such, without the prior written permission
from the National Commission for Culture and the Arts (NCAA). [118]
As one of the cultural agencies attached to the NCAA,[119] the NHCP manages,
maintains and administers national shrines, monuments, historical sites, edifices
and landmarks of significant historico-cultural value.[120]In particular, the NHCP
Board has the power to approve the declaration of historic structures and sites,
such as national shrines, monuments, landmarks and heritage houses and to
determine the manner of their identification, maintenance, restoration,
conservation, preservation and protection.[121]
Excluded, however, from the jurisdiction of the NHCP are the military memorials
administration, maintenance and development of the Philippine Veterans Affairs
Office (PVAO) of the DND. Among the military shrines are: Mt. Samat National
Shrine in Pilar, Bataan;[122] Kiangan War Memorial Shrine in Linda, Kiangan,
Ifugao;[123] Capas National Shrine in Capas, Tarlac;[124] Ricarte National Shrine in
Malasin, Batac, Ilocos Norte;[125] Balantang Memorial Cemetery National Shrine in
Jaro, Iloilo;[126] Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;[127] USAFIP,
NL Military Shrine and Park in Bessang Pass, Cervantes, Ilocos Sur; [128] and the
LNMB in Taguig City, Metro Manila.[129]
B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the death of
thousands of Filipinos. Several places served as grounds for the war dead, such
as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other
places throughout the country. The Republic Memorial Cemetery, in particular,
was established in May 1947 as a fitting tribute and final resting place of Filipino
military personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77,
which ordered "the remains of the war dead interred at the Bataan Memorial
Cemetery, Bataan Province, and at other places in the Philippines, be transferred
to, and reinterred at, the Republic Memorial Cemetery at Fort Wm Mckinley,
Rizal Province" so as to minimize the expenses for the maintenance and upkeep,
and to make the remains accessible to the widows, parents, children, relatives,
93
and friends.
On October 27, 1954, President Magsaysay issued Proclamation No. 86, which
changed the name of Republic Memorial Cemetery to Libingan Ng Mga Bayani to
symbolize "the cause for which our soldiers have died" and to "truly express the
nations esteem and reverence for her war dead."[130]
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which
reserved for military purposes, under the administration of the AFP Chief of Staff,
the land where LNMB is located. The LNMB was part of a military reservation site
then known as Fort Wm McKinley (now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the
LNMB from the Fort Bonifacio military reservation and reserved the LNMB for
national shrine purposes under the administration of the National Shrines
Commission (NSC) under the DND.
On September 24, 1972, Marcos, in the exercise of his powers as the AFP
Commander-in-Chief, and pursuant to Proclamation No. 1081 dated September
21, 1972, and General Order No. 1 dated September 22, 1972, as amended,
issued Presidential Decree (P.D.) No. 1 which reorganized the Executive Branch
of the National Government through the adoption of the Integrated
Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof
abolished the NSC and its functions together with applicable appropriations,
records, equipment, property and such personnel as may be necessary were
transferred to the NHI under the Department of Education (DEC). The NHI was
responsible for promoting and preserving the Philippine cultural heritage by
undertaking, inter alia, studies on Philippine history and national heroes and
maintaining national shrines and monuments.[131]
Pending the organization of the DEC, the functions relative to the administration,
maintenance and development of national shrines tentatively integrated into the
PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article
XV, Chapter I, Part XII of the IRP was repealed on the grounds that "the
administration, maintenance and development of national shrines consisting of
military memorials or battle monuments can be more effectively accomplished if
they are removed from the [DEC] and transferred to the [DND] by reason of the
latter s greater capabilities and resources " and that "the functions of the [DND]
are more closely related and relevant to the charter or significance of said
national shrines." Henceforth, the PVAO through the Military Shrines Service
(MSS), which was created to perform the functions of the abolished NSC - would
administer, maintain and develop military memorials and battle monuments
proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the Administrative Code.
The Code retains PVAO under the supervision and control of the Secretary of
National Defense.[132] Among others, PVAO shall administer, develop and
maintain military shrines.[133] With the approval of PVAO Rationalization Plan on
June 29, 2010, pursuant to E.O. No. 366 dated October 4, 2004, MSS was
renamed to Veterans Memorial and Historical Division, under the supervision and
control of PVAO, which is presently tasked with the management and
development of military shrines and the perpetuation of the heroic deeds of our
nation's veterans.
As a national military shrine, the main features, structures, and facilities of the
LNMB are as follows:
1. Tomb of the Unknown Soldiers - The main structure constructed at
the center of the cemetery where wreath laying ceremonies are held
when Philippine government officials and foreign dignitaries visit the
LNMB. The following inscription is found on the tomb: "Here lies a
Filipino soldier whose name is known only to God ." Behind the tomb are
three marble pillars representing the three main island groups of the
Philippines - Luzon, Visayas and Mindanao. Buried here were the
remains of 39,000 Filipino soldiers who were originally buried in Camp
O'Donnell Concentration Camp and Fort Santiago, Intramuros, Manila.
2. Heroes Memorial Gate - A structure shaped in the form of a large
concrete tripod with a stairway leading to an upper view deck and a
metal sculpture at the center. This is the first imposing structure one
sees upon entering the grounds of the cemetery complex.
3. Black Stone Walls - Erected on opposite sides of the main entrance
road leading to the Tomb of the Unknown Soldiers and just near the
Heroes Memorial are two 12-foot high black stone walls which bear the
words, "I do not know the dignity of his birth, but I do know the glory
of his death." that General Douglas MacArthur made during his
sentimental journey to the Philippines in 1961.
4. Defenders of Bataan and Corregidor Memorial Pylon -
Inaugurated on April 5, 1977 by Secretary Renato S. De Villa in memory
of the defenders of Bataan and Corregidor during World War II. This
monument is dedicated as an eternal acknowledgment of their valor
and sacrifice in defense of the Philippines.
5. Korean Memorial Pylon - A towering monument honoring the 112
Filipino officers and men who, as members of the Philippine
Expeditionary Forces to Korea (PEFTOK), perished during the Korean
War.
94
 6. Vietnam Veterans Memorial Pylon - Dedicated to the members of
the Philippine contingents and Philippine civic action groups to Vietnam
(PHILCON-V and PHILCAG-V) who served as medical, dental,
engineering construction, community and psychological workers, and
security complement. They offered tremendous sacrifices as they
alleviated human suffering in war-ravaged Vietnam from 1964-1971.
Inscribed on the memorial pylon are the words: "To build and not to
destroy, to bring the Vietnamese people happiness and not sorrow, to
develop goodwill and not hatred."
7. Philippine World War II Guerillas Pylon - Erected by the Veterans
Federation of the Philippines as a testimony to the indomitable spirit
and bravery of the Filipino guerillas of World War II who refused to be
cowed into submission and carried on the fight for freedom against an
enemy with vastly superior arms and under almost insurmountable
odds. Their hardship and sufferings, as well as their defeats and
victories, are enshrined in this memorial.[134]
Contrary to the dissent, P.D. No. 105[135] does not apply to the LNMB. Despite the
fact that P.D. No. 208 predated P.D. No. 105,[136] the LNMB was not expressly
included in the national shrines enumerated in the latter.[137] The proposition that
the LNMB is implicitly covered in the catchall phrase "and others which may be
proclaimed in the future as National Shrines" is erroneous because:
(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem generis,
[138]
 the LNMB is not a site "of the birth, exile, imprisonment, detention or death
of great and eminent leaders of the nation." What P.D. No. 105 contemplates are
the following national shrines: Fort Santiago ("Dambana ng Kalayaan"), all
battlefield areas in Corregidor and Bataan, the site of First Mass in the
Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National
Shrine, Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine,
"Red Beach" or the landing point of General Douglas MacArthur and the
liberating forces, Dapitan City, General Leandro Locsin Fullon National Shrine,
and Mabini Shrine. Excluded are the military memorials and battle monuments
declared as national shrines under the PVAO, such as: Mt. Samat National
Shrine, Kiangan War Memorial Shrine, Capas National Shrine, Ricarte National
Shrine, Balantang Memorial Cemetery National Shrine, Balete Pass National
Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under the
jurisdiction of the PVAO. While P.D. No. 1 dated September 24, 1972 transferred
the administration, maintenance and development of national shrines to the NHI
under the DEC, it never actually materialized. Pending the organization of the
DEC, its functions relative to national shrines were tentatively integrated into the
PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No.
1076. The PVAO, through the MSS, was tasked to administer, maintain, and
develop military memorials and battle monuments proclaimed as national
shrines. The reasons being that "the administration, maintenance and
development of national shrines consisting of military memorials or battle
monuments can be more effectively accomplished if they are removed from the
[DEC] and transferred to the [DND] by reason of the latter's greater capabilities
and resources" and that "the functions of the [DND] are more closely related
and relevant to the charter or significance of said national shrines ."
The foregoing interpretation is neither narrow and myopic nor downright error.
Instead, it is consistent with the letter and intent of P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and
hallowed" refer to the LNMB as a place and not to each and every mortal
remains interred therein. Hence, the burial of Marcos at the LNMB does not
diminish said cemetery as a revered and respected ground. Neither does it
negate the presumed individual or collective "heroism" of the men and women
buried or will be buried therein. The "nations esteem and reverence for her war
dead," as originally contemplated by President Magsaysay in issuing Proclamation
No. 86, still stands unaffected. That being said, the interment of Marcos,
therefore, does not constitute a violation of the physical, historical, and cultural
integrity of the LNMB as a national military shrine.
At this juncture, reference should be made to Arlington National Cemetery
(Arlington), which is identical to the LNMB in terms of its prominence in the U.S.
It is not amiss to point that our armed forces have been patterned after the U.S.
and that its military code produced a salutary effect in the Philippines' military
justice system.[139]Hence, relevant military rules, regulations, and practices of the
U.S. have persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries, [140] the Arlington is under
the jurisdiction of the Department of the Army.[141] The Secretary of the U.S.
Army has the responsibility to develop, operate, manage, administer, oversee,
and fund the Army national military cemeteries in a manner and to standards
that fully honor the service and sacrifices of the deceased members of the armed
forces buried or inurned therein, and shall prescribe such regulations and policies
as may be necessary to administer the cemeteries. [142] In addition, the Secretary
of the U.S. Army is empowered to appoint an advisory committee, which shall
make periodic reports and recommendations as well as advise the Secretary with
respect to the administration of the cemetery, the erection of memorials at the
cemetery, and master planning for the cemetery. [143]
Similar to the Philippines, the U.S. national cemeteries are established as national
shrines in tribute to the gallant dead who have served in the U.S. Armed Forces.
[144]
 The areas are protected, managed and administered as suitable and dignified
burial grounds and as significant cultural resources. [145] As such, the authorization
of activities that take place therein is limited to those that are consistent with
95
applicable legislation and that are compatible with maintaining their solemn
commemorative and historic character.[146]
The LNMB is considered as a national shrine for military memorials. The PVAO,
which is empowered to administer, develop, and maintain military shrines, is
under the supervision and control of the DND. The DND, in turn, is under the
Office of the President.
The presidential power of control over the Executive Branch of Government is a
self-executing provision of the Constitution and does not require statutory
implementation, nor may its exercise be limited, much less withdrawn, by the
legislature.[147] This is why President Duterte is not bound by the alleged 1992
Agreement[148] between former President Ramos and the Marcos family to have
the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent
President, he is free to amend, revoke or rescind political agreements entered
into by his predecessors, and to determine policies which he considers, based on
informed judgment and presumed wisdom, will be most effective in carrying out
his mandate.
Moreover, under the Administrative Code, the President has the power to reserve
for public use and for specific public purposes any of the lands of the public
domain and that the reserved land shall remain subject to the specific public
purpose indicated until otherwise provided by law or proclamation. [149] At present,
there is no law or executive issuance specifically excluding the land in which the
LNMB is located from the use it was originally intended by the past Presidents.
The allotment of a cemetery plot at the LNMB for Marcos as a former President
and Commander-in-Chief,[150] a legislator,[151] a Secretary of National Defense,
[152]
 a military personnel,[153]a veteran,[154] and a Medal of Valor awardee,
[155]
 whether recognizing his contributions or simply his status as such, satisfies
the public use requirement. The disbursement of public funds to cover the
expenses incidental to the burial is granted to compensate him for valuable
public services rendered.[156] Likewise, President Duterte's determination to have
Marcos' remains interred at the LNMB was inspired by his desire for national
healing and reconciliation. Presumption of regularity in the performance of
official duty prevails over petitioners' highly disputed factual allegation that, in
the guise of exercising a presidential prerogative, the Chief Executive is actually
motivated by utang na loob (debt of gratitude) and bayad utang (payback) to
the Marcoses. As the purpose is not self-evident, petitioners have the burden of
proof to establish the factual basis of their claim. They failed. Even so, this Court
cannot take cognizance of factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who may and
may not be interred at the LNMB underscores the nature and purpose of the
LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of
the President and by order of the Secretary of National Defense, issued General
Orders No. 111, which constituted and activated, as of said date, the Graves
Registration Platoon as a unit of the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of
National Defense, issued AFP Regulations G 161-371 (Administrative and Special
Staff Services, Grave Registration Service), which provided that the following
may be interred in the LNMB: (a) World War II dead of the AFP and recognized
guerillas; (b) Current dead of the AFP; (c) Retired military personnel of the AFP;
(d) Remains of former members of the AFP who died while in the active service
and in the Retired List of the AFP now interred at different cemeteries and other
places throughout the Philippines or the Secretary of National Defense; and (e)
Others upon approval of the Congress of the Philippines, the President of the
Philippines or the Secretary of National Defense. The regulation also stated that
the AFP Quartermaster General will be responsible for, among other matters, the
efficient operation of the Graves Registration Service; the interment,
disinterment and reinterment of the dead mentioned above; and preservation of
military cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National
Defense, issued AFP Regulations G 161-372 (Administration and Operation of
AFP Graves Registration Installations), which superseded AFP Regulations G 161-
371. It provided that the following may be interred in the LNMB: (a) Deceased
Veterans of the Philippine Revolution of 1896/World War I; (b) Deceased World
War II members of the AFP and recognized guerillas; (c) Deceased military
personnel of the AFP who died while in the active duty; (d) Deceased retired
military personnel of the AFP; (e) Deceased military personnel of the AFP
interred at different cemeteries and other places outside the LNMB; and (f) Such
remains of persons as the Commander-in-Chief of the AFP may direct. The
remains of the following were not allowed to be interred in the LNMB: (a) The
spouse of an active, or retired, deceased military personnel, recognized guerillas
who himself/herself is not a military personnel; and (b) AFP personnel who were
retireable but separated/reverted/discharged for cause, or joined and aided the
enemy of the Republic of the Philippines, or were convicted of capital or other
criminal offenses, involving moral turpitude. The regulation also stated that the
Quartermaster General shall be responsible for, among other matters, the
efficient operation of the AFP graves registration installations; the interment,
disinterment and reinterment of deceased military personnel mentioned above;
and the preservation of military cemeteries, proper marking and official recording
of graves therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense
Minister, issued AFP Regulations G 161-373 (Allocation of Cemetery Plots at
the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372. It
enumerated a list of deceased person who may be interred at the LNMB, namely:
(a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c)
96
Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers
of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of
Philippine Revolution of 1896, WWI, WWII and recognized guerillas; and (h)
Government Dignitaries, Statesmen, National Artist and other deceased persons
whose interment or reinterment has been approved by the Commander-in-
Chief, Batasang Pambansa or the Minister of National Defense. The regulation
also stated that the Quartermaster General shall be responsible for the allocation
of specific section/areas for the said deceased persons, while the Commanding
Officer of the Quartermaster Graves Registration Company shall be charged with
the preparation of grave sites, supervision of burials at LNMB and the registration
of graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National
Defense, issued AFP Regulations G 161-374 (Allocation of Cemetery Plots at
the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373. It
provided that the following may be interred in the LNMB: (a) Medal of Valor
Awardees; (b) Presidents or Commanders-inChief, AFP; (c) Secretaries of
National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP;
(f) Active and retired military personnel of the AFP; (g) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas; (h) Government
Dignitaries, Statesmen, National Artists and other deceased persons whose
interment or reinterment has been approved by the Commander-in-Chief,
Congress or Secretary of National Defense; and (i) Former Presidents,
Secretaries of Defense, CSAFP, Generals/Flag Officers, Dignitaries, Statesmen,
National Artists, widows of former Presidents, Secretaries of National Defense
and Chief of Staff. The remains of the following were not allowed to be interred
in the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized personnel
who were convicted by final judgment of an offense involving moral turpitude.
Like AFP Regulations G 161-373, it stated that the Quartermaster General shall
be responsible for the allocation of specific section/areas for the deceased
persons, whereas the Commanding Officer of the Quartermaster Graves
Registration Unit shall be charged with the preparation of grave sites, supervision
of burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the
Secretary of National Defense, issued AFP Regulations G 161-375 (Allocation of
Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP
Regulations G 161-374. The regulation stated that the Chief of Staff shall be
responsible for the issuance of interment directive for all active military personnel
for interment, authorized personnel (such as those former members of the AFP
who laterally entered or joined the Philippine Coast Guard [PCG] and the
Philippine National Police [PNP]), and retirees, veterans and reservists
enumerated therein. The Quartermaster General is tasked to exercise over-all
supervision in the implementation of the regulation and the Commander ASCOM,
PA through the Commanding Officer of Grave Services Unit is charged with the
registration of the deceased/graves, the allocation of specific section/area at the
LNMB for interment of deceased, the preparation of grave sites, and the
supervision of burials.
Under AFP Regulations G 161-375, the following are eligible for interment at the
LNMB: (a) Medal of Valor Awardees; (b) Presidents or Commanders-in-Chief,
AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military personnel of the
AFP to include active draftees and trainees who died in line of duty, active
reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or
combat related activities; (g) Former members of the AFP who laterally entered
or joined the PCG and the PNP; (h) Veterans of Philippine Revolution of 1890,
WWI, WWII and recognized guerillas; (i) Government Dignitaries, Statesmen,
National Artists and other deceased persons whose interment or reinterment has
been approved by the Commander-in-Chief, Congress or the Secretary of
National Defense; and G) Former Presidents, Secretaries of Defense, Dignitaries,
Statesmen, National Artists, widows of Former Presidents, Secretaries of National
Defense and Chief of Staff. Similar to AFP Regulations G 161-374, the following
are not qualified to be interred in the LNMB: (a) Personnel who were
dishonorably separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense involving moral
turpitude.
In the absence of any executive issuance or law to the contrary, the AFP
Regulations G 161-375 remains to be the sole authority in determining who are
entitled and disqualified to be interred at the LNMB. Interestingly, even if they
were empowered to do so, former Presidents Corazon C. Aquino and Benigno
Simeon C. Aquino III, who were themselves aggrieved at the Martial Law, did
not revise the rules by expressly prohibiting the burial of Marcos at the LNMB.
The validity of AFP Regulations G 161-375 must, therefor, be sustained for
having been issued by the AFP Chief of Staff acting under the direction of the
Secretary of National Defense, who is the alter ego of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego principle or
the doctrine of qualified political agency and its limit in this wise: 
Under this doctrine, which recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief
Executive is required by the Constitution or law to act in person or the
exigencies of the situation demand that he act personally, the
multifarious executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular
course of business, are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.)
[157]
97
It has been held that an administrative regulation adopted pursuant to law has
the force and effect of law and, until set aside, is binding upon executive and
administrative agencies, including the President as the chief executor of laws. [158]
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence of clear
and unmistakable showing that it has been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. Neither could it be considered ultra
vires for purportedly providing incomplete, whimsical, and capricious standards
for qualification for burial at the LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington. In the
U.S., the Secretary of the Army, with the approval of the Secretary of Defense,
determines eligibility for interment or inurnment in the Army national military
cemeteries.[159] Effective October 26, 2016, the rule[160] is as follows:
Only those who qualify as a primarily eligible person or a derivatively eligible
person are eligible for interment in Arlington National Cemetery, unless otherwise
prohibited as provided for in §§ 553.19[161]-553.20,[162] provided that the last
period of active duty of the service member or veteran ended with an honorable
discharge.
(a) Primarily eligible persons. The following are primarily eligible persons for
purposes of interment:  Chief of Mission.
(1) Any service member who dies on active duty in the U.S. Armed Forces
(except those service members serving on active duty for training only), if the
General Courts Martial Convening Authority grants a certificate of honorable
service.  (b) Derivatively eligible persons. The following individuals are derivatively eligible
(2) Any veteran retired from a Reserve component who served a period of active
duty (other than for training), is carried on the official retired list, and is entitled
to receive military retired pay.  (1) The spouse of a primarily eligible person who is or will be interred in
(3) Any veteran retired from active military service and entitled to receive
military retired pay. 
(4) Any veteran who received an honorable discharge from the Armed Forces
prior to October 1, 1949, who was discharged for a permanent physical disability,
who served on active duty (other than for training), and who would have been
eligible for retirement under the provisions of 10 U.S.C. 1201 had the statute
been in effect on the date of separation. 
(5) Any veteran awarded one of the following decorations:  Monuments Commission; or
(i) Medal of Honor;[163]
(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross; 
(iii) Distinguished Service Medal; 
(iv) Silver Star; or 
(v) Purple Heart. 
(6) Any veteran who served on active duty (other than active duty for training)
and who held any of the following positions: 
(i) President or Vice President of the United States; 
(ii) Elected member of the U.S. Congress; 
(iii) Chief Justice of the Supreme Court of the United States or Associate Justice
of the Supreme Court of the United States; 
(iv) A position listed, at the time the person held the position, in 5 U.S.C.
5312[164] or 5313[165] (Levels I and II of the Executive Schedule); or
(v) Chief of Mission of a Category 4, 5, or post if the Department of State
classified that post as a Category 4, 5, or 5+ post during the person's tenure as
(7) Any former prisoner of war who, while a prisoner of war, served honorably in
the active military service, and who died on or after November 30, 1993. 
persons for purposes of interment who may be interred if space is available in
the gravesite of the primarily eligible person:
Arlington National Cemetery. A former spouse of a primarily eligible person is not
eligible for interment in Arlington National Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible veteran, who
was: 
(i) Lost or buried at sea, temporarily interred overseas due to action by the
Government, or officially determined to be missing in action;
(ii) Buried in a U.S. military cemetery maintained by the American Battle
 
(iii) Interred in Arlington National Cemetery as part of a group burial (the
98
derivatively eligible spouse may not be buried in the group burial gravesite).
(3) The parents of a minor child or a permanently dependent adult child, whose
remains were interred in Arlington National Cemetery based on the eligibility of a
parent at the time of the child's death, unless eligibility of the non-service
connected parent is lost through divorce from the primarily eligible parent.
(4) An honorably discharged veteran who does not qualify as a primarily eligible
person, if the veteran will be buried in the same gravesite as an already interred
primarily eligible person who is a close relative, where the interment meets the
following conditions:
(i) The veteran is without minor or unmarried adult dependent children;  persons whose interment or reinterment has been approved by the Commander-
(ii) The veteran will not occupy space reserved for the spouse, a minor child, or a
permanently dependent adult child;  to the list. Whether or not the extension of burial privilege to civilians is
(iii) All other close relatives of the primarily eligible person concur with the
interment of the veteran with the primarily eligible person by signing a notarized
statement;  military-related activities.
(iv) The veteran's spouse waives any entitlement to interment in Arlington
National Cemetery, where such entitlement might be based on the veteran's
interment in Arlington National Cemetery. The Executive Director may set aside
the spouse's waiver, provided space is available in the same gravesite, and all
close relatives of the primarily eligible person concur;  Chief, but we cannot deny him the right to be acknowledged based on the other
(v) Any cost of moving, recasketing, or revaulting the remains will be paid from
private funds.
There is a separate list of eligible with respect to the inurnment of cremated
remains in the Columbarium,[166]interment of cremated remains in the Unmarked
Area,[167] and group burial.[168] As a national military cemetery, eligibility
standards for interment, inurnment, or memorialization in Arlington are based
on honorable military service.[169] Exceptions to the eligibility standards for
new graves, which are rarely granted, are for those persons who have
made significant contributions that directly and substantially benefited
the U.S. military.[170]
Judging from the foregoing, it is glaring that the U.S. Army regulations on
Arlington and the AFP Regulations G 161-375 on the LNMB, as a general rule,
recognize and reward the military services or military related activities of the
deceased. Compared with the latter, however, the former is actually less
generous in granting the privilege of interment since only the spouse or parent,
under certain conditions, may be allowed "if space is available in the gravesite of
the primarily eligible person."
It is not contrary to the "well-established custom," as the dissent described it, to
argue that the word "bayani" in the LNMB has become a misnomer since while a
symbolism of heroism may attach to the LNMB as a national shrine for military
memorial, the same does not automatically attach to its feature as a military
cemetery and to those who were already laid or will be laid therein. As stated,
the purpose of the LNMB, both from the legal and historical perspectives, has
neither been to confer to the people buried there the title of "hero" nor to
require that only those interred therein should be treated as a "hero." In fact,
the privilege of internment at the LNMB has been loosen up through the years.
Since 1986, the list of eligible includes not only those who rendered active
military service or military-related activities but also non-military personnel who
were recognized for their significant contributions to the Philippine society (such
as government dignitaries, statesmen, national artists, and other deceased
in-Chief, Congress or Secretary of National Defense). In 1998, the widows of
former Presidents, Secretaries of National Defense and Chief of Staff were added
unwarranted and should be restricted in order to be consistent with the original
purpose of the LNMB is immaterial and irrelevant to the issue at bar since it is
indubitable that Marcos had rendered significant active military service and
Petitioners did not dispute that Marcos was a former President and Commander-
in-Chief, a legislator, a Secretary of National Defense, a military personnel, a
veteran, and a Medal of Valor awardee. For his alleged human rights abuses and
corrupt practices, we may disregard Marcos as a President and Commander-in-
positions he held or the awards he received. In this sense, We agree with the
proposition that Marcos should be viewed and judged in his totality as a person.
While he was not all good, he was not pure evil either. Certainly, just a human
who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran.
R.A. No. 9049[171] declares the policy of the State "to consistently honor its
military heroes in order to strengthen the patriotic spirit and nationalist
consciousness of the military."[172] For the "supreme self-sacrifice and distinctive
acts of heroism and gallantry,"[173] a Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to the following social services and
financial rewards:
1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos
(P20,000.00), which is separate and distinct from any salary or pension
that the awardee currently receives or will receive from the government
of the Philippines;[174]
2. Precedence in employment in government agencies or government-
owned or controlled corporation, if the job qualifications or
99
 requirements are met;  from the local governments. Under the law, the benefits may be withheld if the
3. Priority in the approval of the awardee's housing application under
existing housing programs of the government;
4. Priority in the acquisition of public lands under the Public Land Act and
preferential right in the lease of pasture lands and exploitation of
natural resources; 
5. Privilege of obtaining loans in an aggregate amount not exceeding Five
Hundred Thousand Pesos (P500,000.00) from governmentowned or
controlled financial institutions without having to put up any collateral or
constitute any pledge or mortgage to secure the payment of the loan;  Petitioners, however, protest that a narrow interpretation of the AFP regulations
6. Twenty (20%) percent discount from all establishments relative to
utilization of transportation services, hotels and similar lodging
establishments, restaurants, recreation and sport centers and purchase
of medicine anywhere in the country;  It is argued that Marcos committed offenses involving moral turpitude for his
7. Twenty (20%) percent discount on admission fees charged by theaters,
cinema houses and concert halls, circuses, carnivals and other similar
places of culture, leisure and amusement;  allowing death to overtake him, he inevitably escaped the prospect of facing
8. Free medical and dental services and consultation in hospital and clinics
anywhere in the country; 
9. Exemption from the payment of tuition and matriculation fees in public
or private schools, universities, colleges and other educational
institutions in any pre-school, baccalaureate or post graduate courses
such as or including course leading to the degree of Doctor of Medicine
(MD), Bachelor of Laws (LLB), and Bachelor of Science in Nursing (BSN)
or allied and similar courses; and  disqualified for acts that are less atrocious than that committed by Marcos). Also,
10. If interested and qualified, a quota is given to join the cadet corps of
the Philippine Military Academy or otherwise priority for direct
commission, call to active duty (CAD) and/or enlistment in regular force
of the AFP.
On the other hand, in recognizing their patriotic services in times of war and
peace for the cause of freedom and democracy; for the attainment of national
unity, independence, and socioeconomic advancement; and for the maintenance
of peace and order,[175] R.A. No. 6948, as amended,[176] grants our
veterans[177] and their dependents or survivors with pension (old age, disability,
total administrative disability, and death) and non-pension (burial, education,
hospitalization, and medical care and treatment) benefits as well as provisions
Commission on Human Rights certifies to the AFP General Headquarters that the
veteran has been found guilty by final judgment of a gross human rights
violation while in the service, but this factor shall not be considered taken
against his next of kin.[178]
2. Disqualification under the AFP Regulations
Aside from being eligible for burial at the LNMB, Marcos possessed none of the
disqualifications stated in AFP Regulations G 161-375. He was neither convicted
by final judgment of the offense involving moral turpitude nor dishonorably
separated/reverted/discharged from active military service.
disregards historical context and the rule on statutory construction. They urge
the Court to construe statutes not literally but according to their spirit and
reason.
gross human rights violations, massive graft and corruption, and dubious military
records, as found by foreign and local courts as well as administrative agencies.
By going into exile, he deliberately evaded liability for his actions. And by
accountability for his crimes. They also contend that his removal in the 1986
popular uprising is a clear sign of his discharge from the AFP. The People Power
Revolution was the direct exercise of the Filipinos' power to overthrow an
illegitimate and oppressive regime. As a sovereign act, it necessarily includes the
power to adjudge him as dishonorably discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the disqualifying
provisions of AFP Regulations G 161-375 only to soldiers would be unfair (since,
unlike Presidents, soldiers have an additional cause for disqualification) and lead
to absurd results (because soldiers who were dishonorably discharged would be
the AFP regulations would place Marcos in the same class as the other Philippine
Presidents when in fact he is a class of his own, sui generis. The other Presidents
were never removed by People Power Revolution and were never subject of laws
declaring them to have committed human rights violations. Thus, the intended
burial would be an act of similarly treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains that Marcos
was not convicted by final judgment of any offense involving moral turpitude. No
less than the 1987 Constitution mandates that a person shall not be held to
answer for a criminal offense without due process of law and that, "[i]n all
criminal prosecutions, the accused shall be presum innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a
100
speedy, impartial, and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf."[179] Even the U.N. principles on reparation
and to combat impunity cited by petitioners unequivocally guarantee the rights of
the accused, providing that:
XIII. Rights of others
27. Nothing in this document is to be construed as derogating from
internationally or nationally protected rights of others, in particular the right of
an accused person to benefit from applicable standards of due process.
xxx
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the individuals
concerned shall be entitled to the following guarantees: 
(a) The commission must try to corroborate information implicating individuals
before they are named publicly;
(b) The individuals implicated shall be afforded an opportunity to provide a
statement setting forth their version of the facts either at a hearing convened by
the commission while conducting its investigation or through submission of a
document equivalent to a right of reply for inclusion in the commission's file.
To note, in the U.S., a person found to have committed a Federal or State capital
crime (i.e., a crime which a sentence of imprisonment for life or death penalty
may be imposed) but who has not been convicted by reason of not being
available for trial due to death or flight to avoid prosecution, may be ineligible for
interment, inurnment, or memorialization in an Army national military cemetery.
Nevertheless, such ineligibility must still observe the procedures specified in §
553.21.[180]
The various cases cited by petitiOners, which were decided with finality by courts
here and abroad, have no bearing in this case since they are merely civil in
nature; hence, cannot and do not establish moral turpitude.
Also, the equal protection clause is not violated. Generally, there is no property
right to safeguard because even if one is eligible to be buried at the LNMB, such
fact would only give him or her the privilege to be interred therein. Unless there
is a favorable recommendation from the Commander-in-Chief, the Congress or
the Secretary of National Defense, no right can be said to have ripen. Until then,
such inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of equal
protection clause are not met.[181] In this case, there is a real and substantial
distinction between a military personnel and a former President. The conditions
of dishonorable discharge under the Articles of War[182] attach only to the
members of the military. There is also no substantial distinction between Marcos
and the three Philippine Presidents buried at the LNMB (Presidents Quirino,
Garcia, and Macapagal). All of them were not convicted of a crime involving
moral turpitude. In addition, the classification between a military personnel and a
former President is germane to the purposes of Proclamation No. 208 and P.D.
No. 1076. While the LNMB is a national shrine for military memorials, it is also
an active military cemetery that recognizes the status or position held by the
persons interred therein.
Likewise, Marcos was honorably discharged from military service. PVAO expressly
recognized him as a retired veteran pursuant to R.A. No. 6948, as amended.
Petitioners have not shown that he was dishonorably discharged from military
service under AFP Circular 17, Series of 1987 (Administrative Discharge Prior to
Expiration of Term of Enlistment) for violating Articles 94, 95 and 97 of the
Articles of War.[183] The NHCP study[184] is incomplete with respect to his entire
military career as it failed to cite and include the official records of the AFP.
With respect to the phrase "[p]ersonnel who were dishonorably
separated/reverted/discharged from the service," the same should be viewed in
light of the definition provided by AFP Regulations G 161-375 to the term " active
service" which is "[s]ervice rendered by a military person as a Commissioned
Officer, enlisted man/woman, probationary officer, trainee or draftee in the
Armed Forces of the Philippines and service rendered by him/her as a civilian
official or employee in the Philippine Government prior to the date of his/her
separation or retirement from the Armed Forces of the Philippines, for which
military and/or civilian service he/she shall have received pay from the Philippine
Government, and/or such others as may be hereafter be prescribed by law as
active service (PD 1638, as amended)."[185] To my mind, the word "service"
should be construed as that rendered by a military person in the AFP, including
civil service, from the time of his/her commission, enlistment, probation, training
or drafting, up to the date of his/her separation or retirement from the AFP. Civil
service after honorable separation and retirement from the AFP is outside the
context of "service" under AFP Regulations G 161-375.
Hence, it cannot be conveniently claimed that Marcos' ouster from the
presidency during the EDSA Revolution is tantamount to his dishonorable
separation, reversion or discharge from the military service. The fact that the
President is the Commander-in-Chief of the AFP under the 1987 Constitution only
enshrines the principle of supremacy of civilian authority over the military. Not
being a military person who may be prosecuted before the court martial, the
President can hardly be deemed "dishonorably separated/reverted/discharged
from the service" as contemplated by AFP Regulations G 161-375. Dishonorable
discharge through a successful revolution is an extra-constitutional and direct
101
sovereign act of the people which is beyond the ambit of judicial review, let
alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by the
people through the so-called EDSA Revolution. Said political act of the people
should not be automatically given a particular legal meaning other than its
obvious consequence- that of ousting him as president. To do otherwise would
lead the Court to the treacherous and perilous path of having to make choices
from multifarious inferences or theories arising from the various acts of the
people. It is not the function of the Court, for instance, to divine the exact
implications or significance of the number of votes obtained in elections, or the
message from the number of participants in public assemblies. If the Court is not
to fall into the pitfalls of getting embroiled in political and oftentimes emotional,
if not acrimonious, debates, it must remain steadfast in abiding by its recognized
guiding stars - clear constitutional and legal rules - not by the uncertain,
ambiguous and confusing messages from the actions of the people.

Conclusion

In sum, there is no clear constitutional or legal basis to hold that there was a
grave abuse of discretion amounting to lack or excess of jurisdiction which would
justify the Court to interpose its authority to check and override an act entrusted
to the judgment of another branch. Truly, the President's discretion is not totally
unfettered. "Discretion is not a freespirited stallion that runs and roams wherever
it pleases but is reined in to keep it from straying. In its classic formulation,
'discretion is not unconfined and vagrant' but 'canalized within banks that keep it
from overflowing.'"[186] At bar, President Duterte, through the public respondents,
acted within the bounds of the law and jurisprudence. Notwithstanding the call of
human rights advocates, the Court must uphold what is legal and just. And that
is not to deny Marcos of his rightful place at the LNMB. For even the Framers of
our Constitution intend that full respect for human rights is available at any stage
of a person's development, from the time he or she becomes a person to the
time he or she leaves this earth.[187]

There are certain things that are better left for history - not this Court - to
adjudge. The Court could only do so much in accordance with the clearly
established rules and principles. Beyond that, it is ultimately for the people
themselves, as the sovereign, to decide, a task that may require the better
perspective that the passage of time provides. In the meantime, the country
must mov'e on and let this issue rest.

WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED.

Necessarily, the Status Quo Ante Order is hereby LIFTED.

Francisco v. HR GR 160261 Nov. 10, 2003 (See Introduction)

102
 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.

Judicial Review; Locus Standi; Associations; An organization has standing to

assert the concerns of its constituents—it 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.—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, 429 SCRA 81
(2004), 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. x x x x 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 (Emphasis supplied), which was reasserted in Purok
Bagong Silang Association, Inc. v. Yuipco, 489 SCRA 382 (2006), 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.

International Law; Treaties; Doctrine of Incorporation and Doctrine of

Transformation; Words and Phrases; Under the 1987 Constitution, international
law can become part of the sphere of domestic law either by transformation or
incorporation; Treaties become part of the law of the land through
Republic of the Philippines
transformation pursuant to Article VII, Section 21 of the Constitution.—Under the
SUPREME COURT
1987 Constitution, international law can become part of the sphere of domestic
Manila
law either by transformation or incorporation. The transformation method
EN BANC requires that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. The incorporation method
G.R. No. 173034             October 9, 2007 applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law. Treaties become part of the law of the land
PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE through transformation pursuant to Article VII, Section 21 of the Constitution
PHILIPPINES, petitioner,  which provides that “[n]o treaty or international agreement shall be valid and
103
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.
Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly (WHA);
International Code of Marketing of Breastmilk Substitutes (ICMBS);
Advertisements; While the International Code of Marketing of Breastmilk
Substitutes (ICMBS) and World Health Assembly (WHA) Resolutions are not
treaties as they have not been concurred in by at least two-thirds of all members
of the Senate, the International Code of Marketing of Breastmilk Substitutes
(ICMBS) which was adopted by the World Health Assembly (WHA) in 1981 had
been transformed into domestic law through local legislation, the Milk Code; The
Milk Code is almost a verbatim reproduction of the International Code of
Marketing of Breastmilk Substitutes (ICMBS), but the Code did not adopt the
provision in the International Code of Marketing of Breastmilk Substitutes
(ICMBS) absolutely prohibiting advertising or other forms of promotion to the
general public of products within the scope of the International Code of
Marketing of Breastmilk Substitutes (ICMBS).—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).
Same; Same; Same; Generally Accepted Principles of Law; Section 2, Article II of
the 1987 Constitution, whereby the Philippines adopts the generally accepted
principles of international law as part of the law of the land, embodies the
incorporation method.—Section 2, Article II of the 1987 Constitution, to wit:
“SECTION 2. The Phil-ippines 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.
Same; Same; Same; Same; Words and Phrases; 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;
“Generally accepted principles of international law” refers to norms of general or
customary international law which are binding on all states, i.e., renunciation of
war as an instrument of national policy, the principle of sovereign immunity, a
person’s right to life, liberty and due process, and pacta sunt servanda, among
others.—In Mijares v. Ranada, 455 SCRA 399 (2005) the Court held thus:
[G]enerally 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. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] 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. (Emphasis supplied) “Generally accepted principles of international
law” refers to norms of general or customary international law which are binding
on all states, i.e., renunciation of war as an instrument of national policy, the
principle of sovereign immunity, a person’s right to life, liberty and due process,
and pacta sunt servanda, among others. The concept of “generally accepted
principles of law” has also been depicted in this wise: Some legal scholars and
judges look upon certain “general principles 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 1966 South West Africa Case, 1966 I.C.J. 296). O’Connell holds
that 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 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 (Emphasis supplied)
Same; Same; Same; Same; Same; Customary International Law; Custom or
customary international law means “a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris],” which
statement contains the two basic elements of custom: the material factor, that
is, how states behave, and, the psychological or subjective factor, that is, why
they behave the way they do; Customary international law is deemed
incorporated into our domestic system.—Fr. Joaquin G. Bernas defines customary
international law as follows: Custom or customary international law means “a
general and consistent practice of states followed by them from a sense of legal
104
obligation [opinio juris].” (Restatement) This statement contains the two basic
elements of custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way they do. x x
x x 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 x x x x Duration therefore is not the most important element. More
important is the consistency and the generality of the practice. x x x x x x x 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 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. (Italics and Emphasis supplied) Clearly customary international law is
deemed incorporated into our domestic system.
Same; Same; Same; Same; Milk Code (E.O. No. 51); World Health Assembly
(WHA); While regulations, along with conventions and agreements, duly adopted
by the World Health Assembly (WHA) bind member states, recommendations of
the World Health Assembly (WHA) do not come into force for members, in the
same way that conventions or agreements and regulations come into force. —
Regulations, along with conventions and agreements, duly adopted by the WHA
bind member states thus: x x x 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: 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.
Same; Same; Same; Same; Same; Same; International Code of Marketing of
Breastmilk Substitutes (ICMBS); Unlike what has been done with the
International Code of Marketing of Breastmilk Substitutes (ICMBS) whereby the
legislature enacted most of the provisions into law which is the Milk Code, the
subsequent World Health Assembly (WHA) Resolutions, specifically providing for
exclusive breast-feeding from 0-6 months, continued breastfeeding up to 24
months, and absolutely prohibiting advertisements and promotions of breast-
milk substitutes, have not been adopted as a domestic law.—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, specifically providing for exclusive breastfeeding
from 0-6 months, continued breastfeed-ing up to 24 months, and absolutely
prohibiting advertisements and promotions of breastmilk substitutes, have not
been adopted as a domestic law.
Same; Same; Same; Same; Same; Same; Same; Soft Law; Words and Phrases;
While “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, it is, however, an expression of non-binding norms, principles, and
practices that influence state behavior.—It is propounded that WHA Resolutions
may constitute “soft law” or non-binding norms, principles and practices that
influence state behavior. “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. It is, however, an expression of non-binding
norms, principles, and practices that influence state behavior. Certain
declarations and resolutions of the UN General Assembly fall under this category.
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, 521 SCRA 470 (2007); Mejoff v. Director of
Prisons, 90 Phil. 70, Mijares v. Rañada, 455 SCRA 397 (2005), and Shangri-la
International Hotel Management, Ltd. v. Developers Group of Companies, Inc .,
486 SCRA 405 (2006).
Same; Same; Same; Same; Same; Same; Same; Administrative Law; The
provisions of the World Health Assembly (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. —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.
Administrative Law; Milk Code; Health; Breastfeeding; Breast-milk Substitutes;
Advertisements; National Health Policy (A.O. No. 2005-0014); The primacy of
breastfeeding for children is emphasized as a national health policy but 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 breast-
feeding 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, it
105
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—only the provisions of the Milk Code, but not those
of subsequent World Health Assembly (WHA) Resolutions, can be validly
implemented by the Department of Health (DOH).—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 breastfeed-ing, exclusive breastfeeding for the first six months,
extended breast-feeding 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.
Same; Same; Same; Same; Same; 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 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.
Same; Same; Same; Same; Same; Statutory Construction; The entirety of the
Revised Implementing Rules and Regulations (RIRR), not merely truncated
portions thereof, must be considered and construed together—the 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; The Revised Implementing Rules and Regulations (RIRR), just like the
Milk Code, also recognizes that in certain cases, the use of breastmilk substitutes
may be proper.—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, 495 SCRA 42 (2006), “[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 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.
Same; Same; Same; Same; Same; Advertisements; Police Power; Health is a
legitimate subject matter for regulation by the Department of Health (DOH) (and
certain other administrative agencies) in exercise of police powers delegated to
it; Health information, particularly advertising materials on apparently non-toxic
products like breastmilk substitutes and supplements, is a relatively new area for
regulation by the Department of Health (DOH).—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.However, health information,
particularly advertising materials on apparently non-toxic products like breast-
milk substitutes and supplements, is a relatively new area for regulation by the
DOH.
Same; Same; Same; Same; Same; Same; The Department of Health’s (DOH’s)
power under the Milk Code to control information regarding breastmilk vis-à-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.—When it comes to information regarding
nutrition of infants and young children, 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: x x x 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: x x x The DOH is also
authorized to control the purpose of the information and to whom such
106
information may be disseminated under Sections 6 through 9 of the Milk Code 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-à-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.
Same; Same; Same; Same; Same; Same; Section 26(c) of the Revised
Implementing Rules and Regulations (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 2 of the Milk Code.—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 breast-
milk vis-à-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 2 of the Milk Code.
Same; Same; Same; Same; Same; Same; The requirement under Section 26(f)
of the Revised Implementing Rules and Regulations (RIRR) for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.—The label of a product contains information about said
product intended for the buyers thereof. The buyers of breastmilk substitutes are
mothers of infants, and Section 26 of the RIRR merely adds a fair warning about
the likelihood of pathogenic microorganisms being present in infant formula and
other related products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology that
allows production of powdered infant formula that eliminates all forms of
contamination. Ineluctably, the requirement under Section 26(f) of the RIRR for
the label to contain the message regarding health hazards including the
possibility of contamination with pathogenic microorganisms is in accordance
with Section 5(b) of the Milk Code.
Same; Same; Same; Same; Same; Same; The Department of Health (DOH)
evidently arrogated to itself not only the regulatory authority given to the Inter-
Agency Committee (IAC) but also imposed absolute prohibition on advertising,
promotion, and marketing.—Section 11 of the RIRR, to wit: “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,”
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.—x x x x (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.
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 dissemination.
Same; Same; Same; Same; Same; Same; Sections 11 and 4(f) of the Revised
Implementing Rules and Regulations (RIRR) are clearly violative of the Milk
Code.—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.
Same; Same; Same; Same; Same; Same; The Department of Health (DOH) has
the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the Inter-Agency
107
Committee (IAC) shall screen advertising, promotional, or other marketing
materials.—Section 12(b) of the Milk Code designates the DOH as the principal
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: 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) Thus, the DOH has
the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
Same; Same; Same; Same; Same; Same; The “total effect” standards set out in
Section 13 of the Revised Implementing Rules and Regulations (RIRR) bind the
Inter-Agency Committee (IAC) in formulating its rules and regulations on
advertising, promotion, and marketing.—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 breast-milk 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-à-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.
Same; Same; Same; Same; Same; Same; Correct information as to infant
feeding and nutrition is infused with public interest and welfare .—In Equi-Asia
Placement, Inc. vs. Department of Foreign Affairs , 502 SCRA 295 (2006), 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.” In this case, correct information
as to infant feeding and nutrition is infused with public interest and welfare.
Same; Same; Same; Same; Same; Same; Section 22 of the Revised
Implementing Rules and Regulations (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.—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.
Same; Same; Same; Same; Same; It is the Department of Health (DOH) which is
principally responsible for the implementation and enforcement of the provisions
of said Code—it is entirely up to the Department of Health (DOH) to decide
which entities to call upon or allow to be part of policymaking bodies on
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. Note that under Section 12(b) of
the Milk Code, it is the DOH which shall be principally responsible for the
implementation and enforcement of the provisions of said Code. It is entirely up
to the DOH to decide which entities to call upon or allow to be part of
policymaking bodies on breastfeeding. Therefore, the RIRR’s prohibition on milk
companies’ participation in any policymaking body in relation to the
advancement of breastfeeding is in accord with the Milk Code.
Same; Same; Same; Same; Same; The Milk Code endows the Department of
Health (DOH) with the power to determine how research or educational
assistance may be given by milk companies or under what conditions health
workers may accept the assistance, thus, Sections 9 and 10 of the Revised
Implementing Rules and Regulations (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.—Petitioner is also mistaken in arguing that Section 22
of the RIRR prohibits milk companies from giving reasearch assistance and
continuing education to health professionals. Section 22 of the RIRR does not
pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education for
women and children. Nothing in Section 22 of the RIRR prohibits milk companies
from giving assistance for research or continuing education to health
108
professionals; hence, petitioner’s argument against this particular provision must
be struck down. It is Sections 9 and 10 of the RIRR which govern research
assistance. Said sections of the RIRR provide that research assistance for health
workers and researchers may be allowed upon approval of an ethics committee,
and with certain disclosure requirements imposed on the milk company and on
the recipient of the research award. The Milk Code endows the DOH with the
power to determine how such research or educational assistance may be given
by milk 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.
Same; Same; Same; Same; Same; The law does not proscribe the refusal of
donations made by manufacturers and distributors of breastmilk substitutes—the
Milk Code leaves it purely to the discretion of the Department of Health (DOH)
whether to request or accept such donations.—As to the RIRR’s prohibition on
donations, said provisions are also consistent with the Milk Code. Section 6(f) of
the Milk Code provides that donations may be made by manufacturers and
distributors of breastmilk substitutes upon the request or with the approval of
the DOH. The law does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to request or accept such
donations. The DOH then appropriately exercised its discretion through Section
51 of the RIRR which sets forth its policy not to request or approve donations
from manufacturers and distributors of breastmilk substitutes. It was within the
discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed
through the IAC which shall determine whether such donation should be
accepted or refused. As 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 inconsistency between
the RIRR and the law because the Milk Code does not prohibit the DOH from
refusing donations.
Same; Same; Administrative Penalties; Since neither the Milk Code nor the
Revised Administrative Code grants the Department of Health (DOH) the
authority to fix or impose administrative fines, then the Department of Health
(DOH) cannot provide for such fines in the Revised Implementing Rules and
Regulations (RIRR).—In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc., 492 SCRA 638 (2006), 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.
Same; Same; Same; Non-Delegation of Powers; The express grant of rule-
making power to an administrive agency necessarily includes the power to
amend, revise, alter, or repeal the same; It is a standard provision in
administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.—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. Such express grant of rule-making power necessarily includes the power
to amend, revise, alter, or repeal the same. 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, 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.
Same; Same; Regulation of Trade; 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. —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. In Pest Management Association of the Philippines v. Fertilizer and
Pesticide Authority, 516 SCRA 360 (2007), 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
109
such protective regulation would result in the restraint of trade. [Emphasis and
italics supplied]
Same; Same; Words and Phrases; Since all the regulatory provisions under the
Milk Code apply equally to both manufacturers and distributors, the Court sees
no harm in the Revised Implementing Rules and Regulations (RIRR) providing
for just one term to encompass both entities—the definition of “milk company” in
the Revised Implementing Rules and Regulations (RIRR) and the definitions of
“distributor” and “manufacturer” provided for under the Milk Code are practically
the same.—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 restated 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
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.
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 a Temporary
Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH
acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and in violation of the provisions of
the Constitution in promulgating the RIRR.3
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. Whether or not petitioner is a real party-in-interest;
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;
110
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51
(Milk Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines
are part of the law of the land and may be implemented by the DOH through the
RIRR; If in the affirmative, whether the RIRR is in accord with the international
agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
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.
The petition is partly imbued with merit.
On the issue of petitioner's standing
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 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.
111
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:
[G]enerally 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. The classical formulation in international law sees
those customary rules accepted as binding result from the combination [of] 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.16 (Emphasis supplied)
"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:
Some legal scholars and judges look upon certain "general principles 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 1966 South West Africa Case, 1966 I.C.J.
296). O'Connell holds that 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
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)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice
of states followed by them from a sense of legal obligation [opinio juris]."
(Restatement) This statement contains the two basic elements of
custom: the material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave the way
they do.
xxxx
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
xxxx
Duration therefore is not the most important element. More important is the
consistency and the generality of the practice. x x x
xxxx
112
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 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," 27and 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:
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:
113
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
The World Intellectual Property Organization (WIPO), a specialized agency
attached to the UN with the mandate to promote and protect intellectual
property worldwide, has resorted to soft law as a rapid means of norm creation,
in order "to reflect and respond to the changing needs and demands of its
constituents."39 Other international organizations which have resorted to soft law
include the International Labor Organization and the Food and Agriculture
Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome (SARS) and Avian flu outbreaks.
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
lawyers typically distinguish binding rules of international law-"hard
law"-from non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence generated
many soft law norms, creating a "soft law regime" in international
governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the
political groundwork for improved international cooperation on infectious
diseases. These resolutions clearly define WHO member states' normative duty
to cooperate fully with other countries and with WHO in connection with
infectious disease surveillance and response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the
SARS epidemic, the duty is powerful politically  for two reasons. First, the
SARS outbreak has taught the lesson that participating in, and enhancing,
international cooperation on infectious disease controls is in a country's self-
interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice
on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and
control.41
In the Philippines, the executive department implemented certain measures
recommended by WHO to address the outbreaks of SARS and Avian flu by
issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on
February 2, 2004, delegating to various departments broad powers to close
down schools/establishments, conduct health surveillance and monitoring, and
ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the
duty of a state to implement the IHR Resolution was still considered not binding
or enforceable, although said resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary
law, it must be established that such rule is being followed by states because
they consider it obligatory to comply with such rules (opinio juris).
Respondents have not presented any evidence to prove that the WHA
Resolutions, although signed by most of the member states, were in fact
enforced or practiced by at least a majority of the member states; neither have
respondents proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.
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.
114
Second, the Court will determine whether the DOH may implement the 1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
provisions of the WHA Resolutions by virtue of its powers and functions under extended its coverage to "young children" or those from ages two years old and
the Revised Administrative Code even in the absence of a domestic law. beyond:

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 MILK CODE RIRR
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 WHEREAS, in order to ensure Section 2. Purpose – These
and plans, and issue orders and regulations concerning the that safe and adequate Revised Rules and Regulations
implementation of established health policies. nutrition for infants is provided, are hereby promulgated to
there is a need to protect and ensure the provision of safe
It is crucial to ascertain whether the absolute prohibition on advertising and promote breastfeeding and to and adequate nutrition for
other forms of promotion of breastmilk substitutes provided in some WHA inform the public about the infants and young children by
Resolutions has been adopted as part of the national health policy. proper use of breastmilk the promotion, protection and
substitutes and supplements support of breastfeeding and
Respondents submit that the national policy on infant and young child feeding is
and related products through by ensuring the proper use of
embodied in A.O. No. 2005-0014, dated May 23, 2005. Basically, the
adequate, consistent and breastmilk substitutes,
Administrative Order declared the following policy guidelines: (1) ideal
objective information and breastmilk supplements and
breastfeeding practices, such as early initiation of breastfeeding, exclusive
appropriate regulation of the related products when these
breastfeeding for the first six months, extended breastfeeding up to two years
marketing and distribution of are medically indicated and
and beyond; (2) appropriate complementary feeding, which is to start at age six
the said substitutes, only when necessary, on the
months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the
supplements and related basis of adequate information
exercise of other feeding options; and (6) feeding in exceptionally difficult
products; and through appropriate
circumstances. Indeed, the primacy of breastfeeding for children is emphasized
marketing and distribution.
as a national health policy. However, nowhere in A.O. No. 2005-0014 is it SECTION 4(e). "Infant"
declared that as part of such health policy, the advertisement or means a person falling within Section 5(ff). "Young Child"
promotion of breastmilk substitutes should be absolutely prohibited. the age bracket of 0-12 means a person from the age
months. of more than twelve (12)
The national policy of protection, promotion and support of breastfeeding cannot
months up to the age of three
automatically be equated with a total ban on advertising for breastmilk
(3) years (36 months).
substitutes.
2. The Milk Code recognizes that infant formula may be a proper and possible
In view of the enactment of the Milk Code which does not contain a total ban on
substitute for breastmilk in certain instances; but the RIRR provides "exclusive
the advertising and promotion of breastmilk substitutes, but instead, specifically
breastfeeding for infants from 0-6 months" and declares that "there is no
creates an IAC which will regulate said advertising and promotion, it follows that
substitute nor replacement for breastmilk":
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 MILK CODE RIRR
legislature.
WHEREAS, in order to ensure that Section 4.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA
safe and adequate nutrition Declaration of
Resolutions, can be validly implemented by the DOH through the subject RIRR.
for infants is provided, there is a need Principles – The
Third, the Court will now determine whether the provisions of the RIRR are in to protect and promote breastfeeding following are the
accordance with those of the Milk Code. and to inform the public about underlying principles
the proper use of breastmilk from which the revised
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner substitutes and supplements and rules and regulations
alleges the following: related products through adequate, are premised upon:
consistent and objective information
115
 and appropriate regulation of the a. Exclusive
marketing and distribution of the said breastfeeding is for
substitutes, supplements and related infants from 0 to six (6)
products; months.
b. There is no
substitute or
replacement for
breastmilk.
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 Section 4. Declaration of
Public and Mothers. – Principles – The following
are the underlying principles
(a) No advertising, promotion or from which the revised rules
other marketing materials, and regulations are premised
whether written, audio or visual, upon:
for products within the scope of
this Code shall be printed, xxxx
published, distributed, exhibited
and broadcast unless such f. Advertising, promotions, or
materials are duly authorized sponsor-ships of infant
and approved by an inter- formula, breastmilk substitutes
agency committee created and other related products are
herein pursuant to the prohibited.
applicable standards provided
Section 11. Prohibition
for in this Code.
– 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,
116
 siblings, grandparents, other
relatives or caregivers (or
yayas) shall be used in any
advertisements for infant
formula and breastmilk
supplements;
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:
5. The Milk Code allows dissemination of information on infant formula to health
MILK CODE RIRR
professionals; the RIRR totally prohibits such activity:
SECTION 10. Section 26. Content
Containers/Label. – – Each container/label shall
contain such message, in
(a) Containers and/or labels shall both Filipino and English
be designed to provide the
languages, and which
necessary information about the message cannot be readily
appropriate use of the products, separated therefrom, relative
and in such a way as not to the following points:
discourage breastfeeding.
(a) The words or phrase
(b) Each container shall have a
"Important Notice" or
clear, conspicuous and easily
"Government Warning" or
readable and understandable
message in Pilipino or English their equivalent;
printed on it, or on a label, which
message can not readily become (b) A statement of the
separated from it, and which shall superiority of breastfeeding;
include the following points: (c) A statement that there is
(i) the words "Important Notice" no substitute for breastmilk;
or their equivalent; (d) A statement that the
(ii) a statement of the superiority product shall be used only
of breastfeeding; on the advice of a health
worker as to the need for its
(iii) a statement that the product use and the proper methods
shall be used only on the advice of use;
of a health worker as to the need
for its use and the proper (e) Instructions for
methods of use; and appropriate prepara-tion,
and a warning against the
(iv) instructions for appropriate health hazards of
preparation, and a warning inappropriate preparation;
against the health hazards of and
inappropriate preparation.
(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.
MILK CODE RIRR
SECTION 7. Health Care Section 22. No manufacturer,
System. – distributor, or representatives of
products covered by the Code shall
(b) No facility of the health be allowed to conduct or be
care system shall be used involved in any activity on
for the purpose of breastfeeding promotion, education
promoting infant formula and production of Information,
or other products within Education and Communication (IEC)
the scope of this materials on breastfeeding, holding
Code. This Code does not, of or participating as speakers in
117
 however, preclude the classes or seminars for women and products covered by the Code shall
dissemination of children activities and to avoid the be allowed to conduct or be involved
information to health use of these venues to market their in any activity on breastfeeding
professionals as provided brands or company names. promotion, education and production
in Section 8(b). of Information, Education and
SECTION 16. All health and Communication (IEC) materials on
SECTION 8. Health nutrition claims for products within breastfeeding, holding of or
Workers. - the scope of the Code are participating as speakers in classes or
absolutely prohibited. For this seminars for women and children
(b) Information provided purpose, any phrase or words that
activitiesand to avoid the use of these
by manufacturers and connotes to increase emotional, venues to market their brands or
distributors to health intellectual abilities of the infant company names.
professionals regarding and young child and other like
products within the scope phrases shall not be allowed. SECTION 32. Primary
of this Code shall be Responsibility of Health
restricted to scientific and Workers - It is the primary
factual matters and such responsibility of the health workers to
information shall not imply promote, protect and support
or create a belief that breastfeeding and appropriate infant
bottle-feeding is equivalent and young child feeding. Part of this
or superior to responsibility is to continuously
breastfeeding. It shall also update their knowledge and skills on
include the information breastfeeding. No assistance,
specified in Section 5(b). support, logistics or training from milk
companies shall be permitted.
6. The Milk Code permits milk manufacturers and distributors to extend
assistance in research and continuing education of health professionals; RIRR 7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
absolutely forbids the same.
MILK CODE RIRR
MILK CODE RIRR
SECTION 6. The Section 51. Donations Within the
SECTION 8. Health Section 4. Declaration of General Public and Scope of This Code - Donations of
Workers – Principles – Mothers. – products, materials, defined and
covered under the Milk Code and
(e) Manufacturers and The following are the underlying (f) Nothing herein these implementing rules and
distributors of products principles from which the revised contained shall prevent regulations, shall be strictly
within the scope of this rules and regulations are premised donations from prohibited.
Code may assist in the upon: manufacturers and
research, scholarships distributors of products Section 52. Other Donations By
and continuing i. Milk companies, and their
within the scope of this Milk Companies Not Covered by
education, of health representatives, should not form part
Code upon request by or this Code. - Donations of products,
professionals, in of any policymaking body or entity in
with the approval of the equipments, and the like, not
accordance with the relation to the advancement of
Ministry of Health. otherwise falling within the scope of
rules and regulations breasfeeding.
this Code or these Rules, given by
promulgated by the milk companies and their agents,
SECTION 22. No manufacturer,
Ministry of Health. representatives, whether in kind or in
distributor, or representatives of
118
 cash, may only be coursed through
the Inter Agency Committee (IAC),
which shall determine whether such
donation be accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk Code.
MILK RIRR
CODE
  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.
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.
119
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 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:
(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 –
120
(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-visbreastmilk 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.
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
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g) Section 10 which provides that containers or labels should not contain
information that would discourage breastfeeding and idealize the use of infant
formula.
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 1657of 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
notimply 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 2 60 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:
SECTION 5. x x x
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: 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 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. (Emphasis supplied)
The label of a product contains information about said product intended for the
buyers thereof. The buyers of breastmilk substitutes are mothers of infants, and
Section 26 of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula and other related
products when these are prepared and used inappropriately.
Petitioner’s counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to contaminations and there is as yet no technology that
allows production of powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding health hazards including the possibility of
contamination with pathogenic microorganisms is in accordance with Section
5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-
vis breastmilk substitutes and supplements and related products cannot be
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questioned. It is its intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
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.
the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring  -
(a) For purposes of Section 6(a) of this Code, an inter-agency committee
composed of the following members is hereby created:
Minister of Health -------------------
Minister of Trade and Industry -------------------
Minister of Justice -------------------
Minister of Social Services and -------------------
Development
The members may designate their duly authorized representative to every
meeting of the Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing
materials, whether written, audio or visual, on products 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 Code;
(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
proper for the implementation of Section 6(a) of this Code. x x x
(Emphasis supplied)
However, Section 11 of the RIRR, to wit:
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.
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:
Chairman
SECTION 4. Declaration of Principles –
Member xxxx
(f) Advertising, promotions, or sponsorships of infant formula, breastmilk
Member substitutes and other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the
Member
regulatory authority given to the IAC but also imposed absolute prohibition on
advertising, promotion, and marketing.
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 dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the oral arguments on June 19, 2007, that the
prohibition under Section 11 is not actually operational, viz:
SOLICITOR GENERAL DEVANADERA:
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
123
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
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it
simply regulates the advertisement and the promotions of breastfeeding milk
substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with
the provision on the Inter-Agency Committee that 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 undermine the practice of breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules and Regulations regarding the Advertising, Promotion
and Marketing of Breastmilk Substitutes?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making
authority when it totally banned advertising and promotion under Section 11
prescribed the total effect rule as well as the content of materials under Section
13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-Agency Committee is under the Department of Health,
Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes intended for children two (2) years old and younger?
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
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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 other breastmilk substitutes.
Such materials shall not use any picture or text which may idealize the use of
breastmilk substitutes.
xxxx
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 bottle feeding is equivalent or superior to breastfeeding. It shall also
include the information specified in Section 5(b).
xxxx
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 12(b) of the Milk Code designates the DOH as the principal 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:
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)
Thus, the DOH has the significant responsibility to translate into
operational terms the standards set forth in Sections 5, 8, and 10 of 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.
125
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. Note that under Section 12(b) of the Milk Code, it
is the DOH which shall be principally responsible for the implementation
and enforcement of the provisions of said Code. It is entirely up to the DOH to
decide which entities to call upon or allow to be part of policymaking bodies on
breastfeeding. Therefore, the RIRR's prohibition on milk companies’ participation
in any policymaking body in relation to the advancement of breastfeeding is in
accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving reasearch assistance and continuing education to health
professionals. Section 2270 of the RIRR does not pertain to research
assistance to or the continuing education of health professionals;
rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from
giving assistance for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision must be struck
down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said
sections of the RIRR provide that research assistance for health workers
and researchers may be allowed upon approval of an ethics committee,
and with certain disclosure requirements imposed on the milk company
and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research
or educational assistance may be given by milk 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.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from
giving assistance, support, logistics or training to health workers. This provision
is within the prerogative given to the DOH under Section 8(e) 74of the Milk Code,
which provides that manufacturers and distributors of breastmilk
substitutes may assist in researches, scholarships and the continuing education,
of health professionals in accordance with the rules and regulations promulgated
by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions are also consistent
with the Milk Code. Section 6(f) of the Milk Code provides that donations may be
made by manufacturers and distributors of breastmilk substitutes upon the
request or with the approval of the DOH. The law does not proscribe the
refusal of donations. The Milk Code leaves it purely to the discretion of the DOH
whether to request or accept such donations. The DOH then appropriately
exercised its discretion through Section 5175 of the RIRR which sets forth its
policy not to request or approve donations from manufacturers and distributors
of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk companies not covered by the Code should be
coursed through the IAC which shall determine whether such donation should be
accepted or refused. As 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 inconsistency between
the RIRR and the law because the Milk Code does not prohibit the DOH from
refusing donations.
126
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:
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)
127
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 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.
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.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Corona, Carpio-Morales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr.,
Nachura, Reyes, JJ., concur.
128

EN BANC
 
GEN. AVELINO I. RAZON, JR.,
Chief, Philippine National Police
(PNP); Police Chief
Superintendent RAUL
CASTAEDA, Chief, Criminal
Investigation and Detection
Group (CIDG); Police Senior
Superintendent LEONARDO A.
ESPINA, Chief, Police Anti-
Crime and Emergency Response
(PACER); and GEN. JOEL R.
GOLTIAO, Regional Director of
ARMM, PNP,
Petitioners,
- versus -
  BRION,
  PERALTA,
MARY JEAN B. TAGITIS, herein BERSAMIN,
represented by ATTY. FELIPE P.
ARCILLA, JR., Attorney-in-Fact, DEL CASTILLO,
Respondent. ABAD, and
VILLARAMA, JR., JJ.
Promulgated:
 December 3, 2009
Writs of Amparo; Nature; Words and Phrases; The Writ of Amparo—a protective
remedy against violations or threats of violation against the rights to life, liberty
and security—does not determine guilt nor pinpoint criminal culpability for the
disappearance; rather, it determines responsibility, or at least accountability, for
the enforced disappearance for purposes of imposing the appropriate remedies
to address the disappearance; Responsibility refers to the extent the actors have
been established by substantial evidence to have participated in whatever way,
by action or omission, in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the directive to file the appropriate
criminal and civil cases against the responsible parties in the proper courts;
G.R. No. 182498 Accountability refers to the measure of remedies that should be addressed to
those who exhibited involvement in the enforced disappearance without bringing
Present: the level of their complicity to the level of responsibility defined above; or who
are imputed with knowledge relating to the enforced disappearance and who
 
carry the burden of disclosure; or those who carry, but have failed to discharge,
the burden of extraordinary diligence in the investigation of the enforced
PUNO, C.J.,
disappearance.—This Decision reflects the nature of the Writ of Amparo—a
CARPIO, protective remedy against violations or threats of violation against the rights to
life, liberty and security. It embodies, as a remedy, the court’s directive to police
CORONA, agencies to undertake specified courses of action to address the disappearance
of an individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt
CARPIO MORALES,
nor pinpoint criminal culpability for the disappearance; rather, it determines
CHICO-NAZARIO, responsibility, or at least accountability, for the enforced disappearance for
purposes of imposing the appropriate remedies to address the disappearance.
VELASCO, JR., Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission,
NACHURA,
in an enforced disappearance, as a measure of the remedies this Court shall
LEONARDO-DE CASTRO, craft, among them, the directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts. Accountability, on the other
129
hand, refers to the measure of remedies that should be addressed to those who
exhibited involvement in the enforced disappearance without bringing the level
of their complicity to the level of responsibility defined above; or who are
imputed with knowledge relating to the enforced disappearance and who carry
the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced
disappearance. In all these cases, the issuance of the Writ of Amparo is justified
by our primary goal of addressing the disappearance, so that the life of the
victim is preserved and his liberty and security are restored.
Same; Same; The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.—We highlight this
nature of a Writ of Amparo case at the outset to stress that the unique situations
that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the
standard measures and procedures in ordinary court actions and proceedings. In
this sense, the Rule on the Writ of Amparo (Amparo Rule) issued by this Court is
unique. The Amparo Rule should be read, too, as a work in progress, as its
directions and finer points remain to evolve through time and jurisprudence and
through the substantive laws that Congress may promulgate.
Same; Pleadings and Practice; While, as in any other initiatory pleading, the
pleader must of course state the ultimate facts constituting the cause of action,
omitting the evidentiary details, in an Amparo petition, however, this
requirement must be read in light of the nature and purpose of the proceeding,
which addresses a situation of uncertainty—the petitioner may not be able to
describe with certainty how the victim exactly disappeared, or who actually acted
to kidnap, abduct or arrest him or her, or where the victim is detained, because
these information may purposely be hidden or covered up by those who caused
the disappearance.—The framers of the Amparo Rule never intended Section
5(c) to be complete in every detail in stating the threatened or actual violation of
a victim’s rights. As in any other initiatory pleading, the pleader must of course
state the ultimate facts constituting the cause of action, omitting the evidentiary
details. In an Amparo petition, however, this requirement must be read in light
of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him
or her, or where the victim is detained, because these information may purposely
be hidden or covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo Rule is to make this Rule a
token gesture of judicial concern for violations of the constitutional rights to life,
liberty and security. To read the Rules of Court requirement on pleadings while
addressing the unique Amparo situation, the test in reading the petition should
be to determine whether it contains the details available to the petitioner under
the circumstances, while presenting a cause of action showing a violation of the
victim’s rights to life, liberty and security through State or private party action.
The petition should likewise be read in its totality, rather than in terms of its
isolated component parts, to determine if the required elements—namely, of the
disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security—are present.
Same; Same; Where the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled.—If a defect can at all be attributed to the petition, this defect
is its lack of supporting affidavit, as required by Section 5(c) of the Amparo Rule.
Owing to the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the affiant’s
direct testimony. This requirement, however, should not be read as an absolute
one that necessarily leads to the dismissal of the petition if not strictly followed.
Where, as in this case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing the facts relied
upon, the strict need for the sworn statement that an affidavit represents is
essentially fulfilled. We note that the failure to attach the required affidavits was
fully cured when the respondent and her witness (Mrs. Talbin) personally
testified in the CA hearings held on January 7 and 17 and February 18, 2008 to
swear to and flesh out the allegations of the petition. Thus, even on this point,
the petition cannot be faulted.
Same; Same; Section 5(e) is in the Amparo Rule to prevent the use of a petition
—that otherwise is not supported by sufficient allegations to constitute a proper
cause of action—as a means to “fish” for evidence.—These allegations, to our
mind, sufficiently specify that reports have been made to the police authorities,
and that investigations should have followed. That the petition did not state the
manner and results of the investigation that the Amparo Rule requires, but rather
generally stated the inaction of the police, their failure to perform their duty to
investigate, or at the very least, their reported failed efforts, should not be a
reflection on the completeness of the petition. To require the respondent to
elaborately specify the names, personal circumstances, and addresses of the
investigating authority, as well the manner and conduct of the investigation is an
overly strict interpretation of Section 5(d), given the respondent’s frustrations in
securing an investigation with meaningful results. Under these circumstances, we
are more than satisfied that the allegations of the petition on the investigations
undertaken are sufficiently complete for purposes of bringing the petition
forward. Section 5(e) is in the Amparo Rule to prevent the use of a petition—that
130
otherwise is not supported by sufficient allegations to constitute a proper cause
of action—as a means to “fish” for evidence. The petitioners contend that the
respondent’s petition did not specify what “legally available efforts were taken by
the respondent,” and that there was an “undue haste” in the filing of the petition
when, instead of cooperating with authorities, the respondent immediately
invoked the Court’s intervention.
Same; Extralegal Killings and Enforced Disappearances; The phenomenon of
enforced disappearance arising from State action first attracted notice in Adolf
Hitler’s Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941; In
the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have “disappeared” during the military regime
in Argentina.—The phenomenon of enforced disappearance arising from State
action first attracted notice in Adolf Hitler’s Nact und Nebel Erlass or Night and
Fog Decree of December 7, 1941. The Third Reich’s Night and Fog Program, a
State policy, was directed at persons in occupied territories “endangering
German security”; they were transported secretly to Germany where they
disappeared without a trace. In order to maximize the desired intimidating effect,
the policy prohibited government officials from providing information about the
fate of these targeted persons. In the mid-1970s, the phenomenon of enforced
disappearances resurfaced, shocking and outraging the world when individuals,
numbering anywhere from 6,000 to 24,000, were reported to have “disappeared”
during the military regime in Argentina. Enforced disappearances spread in Latin
America, and the issue became an international concern when the world noted
its widespread and systematic use by State security forces in that continent
under Operation Condor and during the Dirty War in the 1970s and 1980s. The
escalation of the practice saw political activists secretly arrested, tortured, and
killed as part of governments’ counter-insurgency campaigns. As this form of
political brutality became routine elsewhere in the continent, the Latin American
media standardized the term “disappearance” to describe the phenomenon. The
victims of enforced disappearances were called the “desaparecidos,” which
literally means the “disappeared ones.”
Same; Same; Three Different Kinds of “Disappearance” Cases. —In general, there
are three different kinds of “disappearance” cases: 1) those of people arrested
without witnesses or without positive identification of the arresting agents and
are never found again; 2) those of prisoners who are usually arrested without an
appropriate warrant and held in complete isolation for weeks or months while
their families are unable to discover their whereabouts and the military
authorities deny having them in custody until they eventually reappear in one
detention center or another; and 3) those of victims of “salvaging” who have
disappeared until their lifeless bodies are later discovered.
Same; Same; Words and Phrases; Although the writ of amparo specifically
covers “enforced disappearances,” this concept is neither defined nor penalized
in this jurisdiction; As the law now stands, extrajudicial killings and enforced
disappearances in this jurisdiction are not crimes penalized separately from the
component criminal acts undertaken to carry out these killings and enforced
disappearances and are now penalized under the Revised Penal Code and special
laws.—The Amparo Rule expressly provides that the “writ shall cover extralegal
killings and enforced disappearances or threats thereof.” We note that although
the writ specifically covers “enforced disappearances,” this concept is neither
defined nor penalized in this jurisdiction. The records of the Supreme Court
Committee on the Revision of Rules (Committee) reveal that the drafters of the
Amparo Rule initially considered providing an elemental definition of the concept
of enforced disappearance: x x x In the end, the Committee took cognizance of
several bills filed in the House of Representatives and in the Senate on
extrajudicial killings and enforced disappearances, and resolved to do away with
a clear textual definition of these terms in the Rule. The Committee instead
focused on the nature and scope of the concerns within its power to address and
provided the appropriate remedy therefor, mindful that an elemental definition
may intrude into the ongoing legislative efforts. As the law now stands,
extrajudicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to
carry out these killings and enforced disappearances and are now penalized
under the Revised Penal Code and special laws. The simple reason is that the
Legislature has not spoken on the matter; the determination of what acts are
criminal and what the corresponding penalty these criminal acts should carry are
matters of substantive law that only the Legislature has the power to enact
under the country’s constitutional scheme and power structure.
Same; Same; Supreme Court; Even without the benefit of directly applicable
substantive laws on extrajudicial killings and enforced disappearances, however,
the Supreme Court is not powerless to act under its own constitutional mandate
to promulgate “rules concerning the protection and enforcement of constitutional
rights, pleading, practice and procedure in all courts,” since extrajudicial killings
and enforced disappearances, by their nature and purpose, constitute State or
private party violation of the constitutional rights of individuals to life, liberty and
security—the legal protection that the Court can provide can be very meaningful
through the procedures it sets in addressing extrajudicial killings and enforced
disappearances.—Even without the benefit of directly applicable substantive laws
on extrajudicial killings and enforced disappearances, however, the Supreme
Court is not powerless to act under its own constitutional mandate to promulgate
“rules concerning the protection and enforcement of constitutional rights,
pleading, practice and procedure in all courts,” since extrajudicial killings and
enforced disappearances, by their nature and purpose, constitute State or private
party violation of the constitutional rights of individuals to life, liberty and
security. Although the Court’s power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the
Court can provide can be very meaningful through the procedures it sets in
131
addressing extrajudicial killings and enforced disappearances. The Court, through
its procedural rules, can set the procedural standards and thereby directly
compel the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a
difference—even if only procedurally—in a situation when the very same
investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Same; Same; Same; The Court’s intervention is in determining whether an
enforced disappearance has taken place and who is responsible or accountable
for this disappearance, and to define and impose the appropriate remedies to
address it; The burden for the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold: the first is to ensure that all
efforts at disclosure and investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts are less than what the
individual situations require; and, the second is to address the disappearance, so
that the life of the victim is preserved and his or her liberty and security restored .
—Lest this Court intervention be misunderstood, we clarify once again that we
do not rule on any issue of criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires criminal action before our
criminal courts based on our existing penal laws. Our intervention is in
determining whether an enforced disappearance has taken place and who is
responsible or accountable for this disappearance, and to define and impose the
appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is twofold.
The first is to ensure that all efforts at disclosure and investigation are
undertaken under pain of indirect contempt from this Court when governmental
efforts are less than what the individual situations require. The second is to
address the disappearance, so that the life of the victim is preserved and his or
her liberty and security restored. In these senses, our orders and directives
relative to the writ are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the production
of the disappeared person and the restoration of his or her liberty and security,
and, in the proper case, by the commencement of criminal action against the
guilty parties.
Same; Same; International Law; From the International Law perspective,
involuntary or enforced disappearance is considered a flagrant violation of
human rights.—From the International Law perspective, involuntary or enforced
disappearance is considered a flagrant violation of human rights. It does not only
violate the right to life, liberty and security of the desaparecido; it affects their
families as well through the denial of their right to information regarding the
circumstances of the disappeared family member. Thus, enforced disappearances
have been said to be “a double form of torture,” with “doubly paralyzing impact
for the victims,” as they “are kept ignorant of their own fates, while family
members are deprived of knowing the whereabouts of their detained loved ones”
and suffer as well the serious economic hardship and poverty that in most cases
follow the disappearance of the household breadwinner. The UN General
Assembly first considered the issue of “Disappeared Persons” in December 1978
under Resolution 33/173. The Resolution expressed the General Assembly’s deep
concern arising from “reports from various parts of the world relating to enforced
or involuntary disappearances,” and requested the “UN Commission on Human
Rights to consider the issue of enforced disappearances with a view to making
appropriate recommendations.”
Same; Same; Same; Convention for the Protection of All Persons from Enforced
Disappearance (Convention); In 1992, in response to the reality that the
insidious practice of enforced disappearance had become a global phenomenon,
the United Nations General Assembly adopted the Declaration on the Protection
of All Persons from Enforced Disappearance, and fourteen years later (or on
December 20, 2006), the UN General Assembly adopted the International
Convention for the Protection of All Persons from Enforced Disappearance .—In
1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration). This Declaration, for the first time, provided in its
third preambular clause a working description of enforced disappearance, as
follows: Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested, detained
or abducted against their will or otherwise deprived of their liberty by officials of
different branches or levels of Government, or by organized groups or private
individuals acting on behalf of, or with the support, direct or indirect, consent or
acquiescence of the Government, followed by a refusal to disclose the fate or
whereabouts of the persons concerned or a refusal to acknowledge the
deprivation of their liberty, which places such persons outside the protection of
the law. Fourteen years after (or on December 20, 2006), the UN General
Assembly adopted the International Convention for the Protection of All Persons
from Enforced Disappearance (Convention). The Convention was opened for
signature in Paris, France on February 6, 2007. Article 2 of the Convention
defined enforced disappearance as follows: For the purposes of this Convention,
“enforced disappearance” is considered to be the arrest, detention, abduction or
any other form of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place
such a person outside the protection of the law.
Same; Same; Same; Same; The Convention is the first universal human rights
instrument to assert that there is a right not to be subject to enforced
132
disappearance and that this right is non-derogable.—The Convention is the first
universal human rights instrument to assert that there is a right not to be subject
to enforced disappearance and that this right is non-derogable. It provides that
no one shall be subjected to enforced disappearance under any circumstances,
be it a state of war, internal political instability, or any other public emergency. It
obliges State Parties to codify enforced disappearance as an offense punishable
with appropriate penalties under their criminal law. It also recognizes the right of
relatives of the disappeared persons and of the society as a whole to know the
truth on the fate and whereabouts of the disappeared and on the progress and
results of the investigation. Lastly, it classifies enforced disappearance as a
continuing offense, such that statutes of limitations shall not apply until the fate
and whereabouts of the victim are established.
Same; Same; Same; Same; To date, the Philippines has neither signed nor
ratified the Convention, so that the country is not yet committed to enact any
law penalizing enforced disappearance as a crime.—To date, the Philippines has
neither signed nor ratified the Convention, so that the country is not yet
committed to enact any law penalizing enforced disappearance as a crime. The
absence of a specific penal law, however, is not a stumbling block for action from
this Court, as heretofore mentioned; underlying every enforced disappearance is
a violation of the constitutional rights to life, liberty and security that the
Supreme Court is mandated by the Constitution to protect through its rule-
making powers.
Same; Same; Same; Same; Separately from the Constitution (but still pursuant
to its terms), the Court is guided, in acting on Amparo cases, by the reality that
the Philippines is a member of the UN, bound by its Charter and by the various
conventions we signed and ratified, particularly the conventions touching on
humans rights.—Separately from the Constitution (but still pursuant to its terms),
the Court is guided, in acting on Amparo cases, by the reality that the Philippines
is a member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans rights.
Under the UN Charter, the Philippines pledged to “promote universal respect for,
and observance of, human rights and fundamental freedoms for all without
distinctions as to race, sex, language or religion.” Although no universal
agreement has been reached on the precise extent of the “human rights and
fundamental freedoms” guaranteed to all by the Charter, it was the UN itself that
issued the Declaration on enforced disappearance, and this Declaration states:
Any act of enforced disappearance is an offence to dignity. It is condemned as a
denial of the purposes of the Charter of the United Nations and as a grave and
flagrant violation of human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights and reaffirmed and developed in
international instruments in this field. As a matter of human right and
fundamental freedom and as a policy matter made in a UN Declaration, the ban
on enforced disappearance cannot but have its effects on the country, given our
own adherence to “generally accepted principles of international law as part of
the law of the land.”
Same; Same; Same; Same; The most widely accepted statement of sources of
international law today is Article 38(1) of the Statute of the International Court
of Justice, which provides that the Court shall apply “international custom, as
evidence of a general practice accepted as law.”—The most widely accepted
statement of sources of international law today is Article 38(1) of the Statute of
the International Court of Justice, which provides that the Court shall apply
“international custom, as evidence of a general practice accepted as law.” The
material sources of custom include State practice, State legislation, international
and national judicial decisions, recitals in treaties and other international
instruments, a pattern of treaties in the same form, the practice of international
organs, and resolutions relating to legal questions in the UN General Assembly.
Sometimes referred to as “evidence” of international law, these sources identify
the substance and content of the obligations of States and are indicative of the
“State practice” and “opinio juris” requirements of international law.
Same; Same; Same; Same; Enforced disappearance as a State practice has been
repudiated by the international community so that the ban on it is now a
generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us. —While
the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has
not formally declared enforced disappearance as a specific crime, the above
recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now a
generally accepted principle of international law, which we should consider a
part of the law of the land, and which we should act upon to the extent already
allowed under our laws and the international conventions that bind us.
Same; Same; Past experiences in other jurisdictions relative to enforced
disappearances show that the evidentiary difficulties are generally threefold:
first, there may be a deliberate concealment of the identities of the direct
perpetrators; second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; and, third is the element of denial .—These
difficulties largely arise because the State itself—the party whose involvement is
alleged—investigates enforced disappearances. Past experiences in other
jurisdictions show that the evidentiary difficulties are generally threefold. First,
there may be a deliberate concealment of the identities of the direct
perpetrators. Experts note that abductors are well organized, armed and usually
members of the military or police forces. Second, deliberate concealment of
pertinent evidence of the disappearance is a distinct possibility; the central piece
of evidence in an enforced disappearance—i.e., the corpus delicti or the victim’s
body—is usually concealed to effectively thwart the start of any investigation or
133
the progress of one that may have begun. The problem for the victim’s family is
the State’s virtual monopoly of access to pertinent evidence . The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez that inherent to the practice of enforced disappearance is the
deliberate use of the State’s power to destroy the pertinent evidence. The IACHR
described the concealment as a clear attempt by the State to commit the perfect
crime. Third is the element of denial; in many cases, the State authorities
deliberately deny that the enforced disappearance ever occurred. “Deniability” is
central to the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victim’s human rights. Experience shows that government officials
typically respond to requests for information about desaparecidos by saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented.
Same; Same; Evidence; Burden of Proof; The characteristics of the Amparo Rule
of being summary and the use of substantial evidence as the required level of
proof (in contrast to the usual preponderance of evidence or proof beyond
reasonable doubt in court proceedings)—reveal the clear intent of the framers to
have the equivalent of an administrative proceeding, albeit judicially conducted,
in addressing Amparo situations; In these proceedings, the Amparo petitioner
needs only to properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the allegations by
substantial evidence, and once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the standard
of diligence required.—These characteristics—namely, of being summary and the
use of substantial evidence as the required level of proof (in contrast to the usual
preponderance of evidence or proof beyond reasonable doubt in court
proceedings)—reveal the clear intent of the framers of the Amparo Rule to have
the equivalent of an administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required—the duty of
public officials and employees to observe extraordinary diligence—point, too, to
the extraordinary measures expected in the protection of constitutional rights
and in the consequent handling and investigation of extrajudicial killings and
enforced disappearance cases. Thus, in these proceedings, the Amparo petitioner
needs only to properly comply with the substance and form requirements of a
Writ of Amparo petition, as discussed above, and prove the allegations by
substantial evidence. Once a rebuttable case has been proven, the respondents
must then respond and prove their defenses based on the standard of diligence
required. The rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation of the victim’s
constitutional rights to life, liberty or security, and the failure on the part of the
investigating authorities to appropriately respond.
Same; Same; Same; Quantum of Evidence; Substantial Evidence; Words and
Phrases; The landmark case of Ang Tibay v. Court of Industrial Relations, 69
Phil. 635 (1940), provided the Court its first opportunity to define the substantial
evidence required to arrive at a valid decision in administrative proceedings .—
The landmark case of Ang Tibay v. Court of Industrial Relations provided the
Court its first opportunity to define the substantial evidence required to arrive at
a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that ‘the rules of evidence
prevailing in courts of law and equity shall not be controlling.’ The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force.
Same; Same; Same; Same; Same; The fair and proper rule is to consider all the
pieces of evidence adduced in their totality, and to consider any evidence
otherwise inadmissible under our usual rules to be admissible if it is consistent
with the admissible evidence adduced—we reduce our rules to the most basic
test of reason, i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence.—Velasquez stresses the
lesson that flexibility is necessary under the unique circumstances that enforced
disappearance cases pose to the courts; to have an effective remedy, the
standard of evidence must be responsive to the evidentiary difficulties faced. On
the one hand, we cannot be arbitrary in the admission and appreciation of
evidence, as arbitrariness entails violation of rights and cannot be used as an
effective counter-measure; we only compound the problem if a wrong is
addressed by the commission of another wrong. On the other hand, we cannot
be very strict in our evidentiary rules and cannot consider evidence the way we
do in the usual criminal and civil cases; precisely, the proceedings before us are
administrative in nature where, as a rule, technical rules of evidence are not
strictly observed. Thus, while we must follow the substantial evidence rule, we
must observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic test of
reason—i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic minimum test.
134
Same; Same; Convention for the Protection of All Persons from Enforced
Disappearance; Elements of Enforced Disappearance .—The Convention defines
enforced disappearance as “the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons
acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law.” Under this definition, the elements that constitute
enforced disappearance are essentially fourfold: (a) arrest, detention, abduction
or any form of deprivation of liberty; (b) carried out by agents of the State or
persons or groups of persons acting with the authorization, support or
acquiescence of the State; (c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the disappeared person; and (d)
placement of the disappeared person outside the protection of the law.
Same; Same; Evidence; Witnesses; As a rule, minor inconsistencies indicate
truthfulness rather than prevarication and only tend to strengthen their probative
value, in contrast to testimonies from various witnesses dovetailing on every
detail — the latter cannot but generate witnesses that the material
circumstances they testified to were integral parts of a well thought of and
prefabricated story.—Upon deeper consideration of these inconsistencies,
however, what appears clear to us is that the petitioners never really steadfastly
disputed or presented evidence to refute the credibility of the respondent and
her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate,
more than anything else, to details that should not affect the credibility of the
respondent and Mrs. Talbin; the inconsistencies are not on material points. We
note, for example, that these witnesses are lay people in so far as military and
police matters are concerned, and confusion between the police and the military
is not unusual. As a rule, minor inconsistencies such as these indicate
truthfulness rather than prevarication and only tend to strengthen their probative
value, in contrast to testimonies from various witnesses dovetailing on every
detail; the latter cannot but generate suspicion that the material circumstances
they testified to were integral parts of a well thought of and prefabricated story.
Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the
respondent and her friends, based on the informant’s letter, that Tagitis,
reputedly a liaison for the JI and who had been under surveillance since January
2007, was “in good hands” and under custodial investigation for complicity with
the JI after he was seen talking to one Omar Patik and a certain “Santos” of
Bulacan, a “Balik Islam” charged with terrorism. The respondent’s and Mrs.
Talbin’s testimonies cannot simply be defeated by Col. Kasim’s plain denial and
his claim that he had destroyed his informant’s letter, the critical piece of
evidence that supports or negates the parties’ conflicting claims. Col. Kasim’s
admitted destruction of this letter—effectively, a suppression of this evidence—
raises the presumption that the letter, if produced, would be proof of what the
respondent claimed. For brevity, we shall call the evidence of what Col. Kasim
reported to the respondent to be the “Kasim evidence.”
Same; Same; Same; The Amparo Rule was not promulgated with the intent to
make it a token gesture of concern for constitutional rights. It was promulgated
to provide effective and timely remedies, using and profiting from local and
international experiences in extrajudicial killings and enforced disappearances, as
the situation may require—the Court has no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these
difficulties demand.—To say that this piece of evidence is incompetent and
inadmissible evidence of what it substantively states is to acknowledge—as the
petitioners effectively suggest—that in the absence of any direct evidence, we
should simply dismiss the petition. To our mind, an immediate dismissal for this
reason is no different from a statement that the Amparo Rule—despite its terms
—is ineffective, as it cannot allow for the special evidentiary difficulties that are
unavoidably present in Amparo situations, particularly in extrajudicial killings and
enforced disappearances. The Amparo Rule was not promulgated with this intent
or with the intent to make it a token gesture of concern for constitutional rights.
It was promulgated to provide effective and timely remedies, using and profiting
from local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.
Same; Same; Same; In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the investigation made
—to be sure, reports of top police officials indicating the personnel and units
they directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities undertaken
to search for the missing subject; Indisputably, the police authorities from the
very beginning failed to come up to the extraordinary diligence that the Amparo
Rule requires.—As the CA found through Task Force Tagitis, the investigation
was at best haphazard since the authorities were looking for a man whose
picture they initially did not even secure. The returns and reports made to the CA
fared no better, as the CIDG efforts themselves were confined to searching for
custodial records of Tagitis in their various departments and divisions. To point
out the obvious, if the abduction of Tagitis was a “black” operation because it
was unrecorded or officially unauthorized, no record of custody would ever
appear in the CIDG records; Tagitis, too, would not be detained in the usual
police or CIDG detention places. In sum, none of the reports on record contains
any meaningful results or details on the depth and extent of the investigation
made. To be sure, reports of top police officials indicating the personnel and
units they directed to investigate can never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of the activities undertaken
135
to search for Tagitis. Indisputably, the police authorities from the very beginning
failed to come up to the extraordinary diligence that the Amparo Rule requires.
Same; Same; Same; The consistent but unfounded denials and the haphazard
investigations cannot but point to the conclusion that there was government
complicity in the disappearance, for why would the government and its officials
engage in their chorus of concealment if the intent had not been to deny what
they already knew of the disappearance?—Based on these considerations, we
conclude that Col. Kasim’s disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the disappearance. The
consistent but unfounded denials and the haphazard investigations cannot but
point to this conclusion. For why would the government and its officials engage
in their chorus of concealment if the intent had not been to deny what they
already knew of the disappearance? Would not an in-depth and thorough
investigation that at least credibly determined the fate of Tagitis be a feather in
the government’s cap under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the Kasim evidence,
already establish a concrete case of enforced disappearance that the Amparo
Rule covers. From the prism of the UN Declaration, heretofore cited and quoted,
the evidence at hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a background of
consistent and unfounded government denials and haphazard handling. The
disappearance as well effectively placed Tagitis outside the protection of the law
—a situation that will subsist unless this Court acts.
Same; Same; Same; The Court believes and so holds that the government in
general, through the Philippine National Police (PNP) and the Criminal
Investigation and Detention Group (PNP-CIDG), and in particular, the Chiefs of
these organizations together with Col. Kasim, should be held fully accountable
for the enforced disappearance of Tagitis—the Court holds these organizations
accountable through their incumbent Chiefs who, under this Decision, shall carry
the personal responsibility of seeing to it that extraordinary diligence, in the
manner the Amparo Rule requires, is applied in addressing the enforced
disappearnce of Tagitis.—Following the lead of this Turkish experience—adjusted
to the Philippine legal setting and the Amparo remedy this Court has established,
as applied to the unique facts and developments of this case—we believe and so
hold that the government in general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together with Col. Kasim, should be
held fully accountable for the enforced disappearance of Tagitis. The PNP and
CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise
known as the “PNP Law,” specifies the PNP as the governmental office with the
mandate “to investigate and prevent crimes, effect the arrest of criminal
offenders, bring offenders to justice and assist in their prosecution.” The PNP-
CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the
“investigative arm” of the PNP and is mandated to “investigate and prosecute all
cases involving violations of the Revised Penal Code, particularly those
considered as heinous crimes.” Under the PNP organizational structure, the PNP-
CIDG is tasked to investigate all major crimes involving violations of the Revised
Penal Code and operates against organized crime groups, unless the President
assigns the case exclusively to the National Bureau of Investigation ( NBI). No
indication exists in this case showing that the President ever directly intervened
by assigning the investigation of Tagitis’ disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the
ones who were remiss in their duties when the government completely failed to
exercise the extraordinary diligence that the Amparo Rule requires. We hold
these organization accountable through their incumbent Chiefs who, under this
Decision, shall carry the personal responsibility of seeing to it that extraordinary
diligence, in the manner the Amparo Rule requires, is applied in addressing the
enforced disappearance of Tagitis.
Same; Same; Same; The Court holds Col. Kasim accountable for his failure to
disclose under oath information relating to the enforced disappearance, and for
the purpose of this accountability, he is impleaded as a party to this case. —We
hold Col. Kasim accountable for his failure to disclose under oath information
relating to the enforced disappearance. For the purpose of this accountability, we
order that Col. Kasim be impleadead as a party to this case. The PNP is similarly
held accountable for the suppression of vital information that Col. Kasim could
and did not provide, and, as the entity with direct authority over Col. Kasim, is
held with the same obligation of disclosure that Col. Kasim carries. We shall deal
with Col. Kasim’s suppression of evidence under oath when we finally close this
case under the process outlined below.
DECISION
BRION, J.:
 We review in this petition for review on certiorari[1] the decision dated March 7,
2008 of the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA
decision confirmed the enforced disappearance of Engineer Morced N. Tagitis
(Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B.
Tagitis (respondent). The dispositive portion of the CA decision reads:
 WHEREFORE, premises considered, petition is hereby GRANTED. The Court
hereby FINDS that this is an enforced disappearance within the meaning of
the United Nations instruments, as used in the Amparo Rules. The privileges of
the writ of amparo are hereby extended to Engr. Morced Tagitis.
 Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE
VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to aid him; (2)
136
respondent GEN. AVELINO I. RAZON, Chief, PNP, who should order his men,
namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of ARMM PNP,
(b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police
Anti-Crime and Emergency Response, to aid him as their superior- are
hereby DIRECTED to exert extraordinary diligence and efforts, not only to
protect the life, liberty and security of Engr. Morced Tagitis, but also to extend
the privileges of the writ of amparo to Engr. Morced Tagitis and his family, and
to submit a monthly report of their actions to this Court, as a way of PERIODIC
REVIEW to enable this Court to monitor the action of respondents.
This amparo case is hereby DISMISSED as to respondent LT. GEN.
ALEXANDER YANO, Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror Task Force Comet,
Zamboanga City, both being with the military, which is a separate and distinct
organization from the police and the CIDG, in terms of operations, chain of
command and budget.
This Decision reflects the nature of the Writ of Amparo a protective remedy
against violations or threats of violation against the rights to life, liberty and
security.[3] It embodies, as a remedy, the courts directive to police agencies to
undertake specified courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It does not determine guilt nor
pinpoint criminal culpability for the disappearance; rather, it
determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been
established by substantial evidence to have participated in whatever way, by
action or omission, in an enforced disappearance, as a measure of the remedies
this Court shall craft, among them, the directive to file the appropriate criminal
and civil cases against the responsible parties in the proper
courts. Accountability, on the other hand, refers to the measure of remedies
that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of
responsibility defined above; or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of disclosure; or those who
carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of
the Writ of Amparo  is justified by our primary goal of addressing the
disappearance, so that the life of the victim is preserved and his liberty and
security are restored.
 We highlight this nature of a Writ of Amparo case at the outset to stress that
the unique situations that call for the issuance of the writ, as well as the
considerations and measures necessary to address these situations, may not at
all be the same as the standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on the Writ
of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule
should be read, too, as a work in progress, as its directions and finer points
remain to evolve through time and jurisprudence and through the substantive
laws that Congress may promulgate.
 THE FACTUAL ANTECEDENTS
 The background facts, based on the petition and the records of the case, are
summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the
Senior Honorary Counselor for the Islamic Development Bank ( IDB) Scholarship
Programme, was last seen in Jolo, Sulu. Together with Arsimin Kunnong
(Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of
October 31, 2007 from a seminar in Zamboanga City. They immediately checked-
in at ASY Pension House. Tagitis asked Kunnong to buy him a boat ticket for his
return trip the following day to Zamboanga.When Kunnong returned from this
errand, Tagitis was no longer around.[5] The receptionist related that Tagitis went
out to buy food at around 12:30 in the afternoon and even left his room key with
the desk.[6] Kunnong looked for Tagitis and even sent a text message to the
latters Manila-based secretary who did not know of Tagitis whereabouts and
activities either; she advised Kunnong to simply wait.[7]
 On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP
professor of Muslim studies and Tagitis fellow student counselor at the IDB,
reported Tagitis disappearance to the Jolo Police Station.[8] On November 7,
2007, Kunnong executed a sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis disappearance. [9]
 More than a month later (on December 28, 2007), the respondent filed a
Petition for the Writ of Amparo (petition) with the CA through her Attorney-in-
Fact, Atty. Felipe P. Arcilla.[10] The petition was directed against Lt. Gen.
Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon,
Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal
Investigation and Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief,
Police Anti-Crime and Emergency Response; Gen. Joel Goltiao, Regional Director,
ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force Comet
[collectively referred to as petitioners]. After reciting Tagitis personal
circumstances and the facts outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly
men believed to be police intelligence operatives, forcibly took him and
137
boarded the latter on a motor vehicle then sped away without the
knowledge of his student, Arsimin Kunnong;
8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot
[sic] be contacted by phone and was not also around and his room was closed
and locked;
 9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell phones, documents and other
personal belongings were all intact inside the room;
 10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
 11. Arsimin Kunnong including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could have been abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
 12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis]
by phone and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines, who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
 13. [Respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
 14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the uniformed men;
 15. According to reliable information received by the [respondent], subject
Engr. Tagitis is in the custody of police intelligence operatives,
specifically with the CIDG, PNP Zamboanga City,being held against his
will in an earnest attempt of the police to involve and connect Engr.
Tagitis with the different terrorist groups;
 x x x x
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her
husband, but [respondents] request and pleadings failed to produce any positive
results;
 18. Instead of helping the [respondent], she [sic] was told of an intriguing tale
by the police that her husband, subject of the petition, was not missing but was
with another woman having good time somewhere, which is a clear indication of
the [petitioners] refusal to help and provide police assistance in locating her
missing husband;
 19. The continued failure and refusal of the [petitioners] to release and/or turn-
over subject Engr. Tagitis to his family or even to provide truthful information to
[the respondent] of the subjects whereabouts, and/or allow [the respondent] to
visit her husband Engr. Morced Tagitis, caused so much sleepless nights and
serious anxieties;
 20. Lately, [the respondent] was again advised by one of the [petitioners] to go
to the ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including [those] in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the
[respondent] in search for her husband, which entailed expenses for her trips to
these places thereby resorting her to borrowings and beggings [ sic] for financial
help from friends and relatives only to try complying [ sic] to the different
suggestions of these police officers, despite of which, her efforts produced no
positive results up to the present time;
 21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper
persons that she should approach, but assured her not to worry because her
husband is [sic]  in good hands;
 22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to
extend the needed help, support and assistance in locating the whereabouts of
Engr. Tagitis who had been declared missing since October 30, 2007 which is
almost two (2) months now, clearly indicates that the [petitioners] are actually in
physical possession and custody of [respondents] husband, Engr. Tagitis;
 x x x x
 25. [The respondent] has exhausted all administrative avenues and remedies
but to no avail, and under the circumstances, [the respondent] has no other
plain, speedy and adequate remedy to protect and get the release of subject
Engr. Morced Tagitis from the illegal clutches of the [petitioners], their
intelligence operatives and the like which are in total violation of the subjects
human and constitutional rights, except the issuance of a WRIT OF AMPARO.
[Emphasis supplied]
138
 On the same day the petition was filed, the CA immediately issued the Writ
of Amparo, set the case for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-two (72) hours from service
of the writ.[11]
 In their verified Return filed during the hearing of January 27, 2008, the
petitioners denied any involvement in or knowledge of Tagitis alleged
abduction. They argued that the allegations of the petition were incomplete and
did not constitute a cause of action against them; were baseless, or at best
speculative; and were merely based on hearsay evidence. [12]
 The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated
that: he did not have any personal knowledge of, or any participation in, the
alleged disappearance; that he had been designated by President Gloria
Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to
address concerns about extralegal killings and enforced disappearances; the
Task Force, inter alia, coordinated with the investigators and local police, held
case conferences, rendered legal advice in connection to these cases; and gave
the following summary:[13]
xxxx
4.
a)                 On November 5, 2007, the Regional Director, Police Regional Office
ARMM submitted a report on the alleged disappearance of one Engr. Morced
Tagitis. According to the said report, the victim checked-in at ASY Pension House
on October 30, 2007 at about 6:00 in the morning and then roamed around Jolo,
Sulu with an unidentified companion. It was only after a few days when the said
victim did not return that the matter was reported to Jolo MPS. Afterwards,
elements of Sulu PPO conducted a thorough investigation to trace and locate the
whereabouts of the said missing person, but to no avail. The said PPO is still
conducting investigation that will lead to the immediate findings of the
whereabouts of the person.  around six oclock in the morning he arrived at Jolo, Sulu. He was assisted by his
b)                Likewise, the Regional Chief, 9RCIDU submitted a Progress Report
to the Director, CIDG. The said report stated among others that: subject person
attended an Education Development Seminar set on October 28, 2007 conducted
at Ateneo de Zamboanga, Zamboanga City together with a Prof. Matli. On
October 30, 2007, at around 5:00 oclock in the morning, Engr. Tagitis reportedly
arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then billeted at ASY
Pension House. At about 6:15 oclock in the morning of the same date, he
instructed his student to purchase a fast craft ticket bound for Zamboanga City
and will depart from Jolo, Sulu on October 31, 2007. That on or about 10:00
oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as
stated by the cashier of the said pension house. Later in the afternoon, the
student instructed to purchase the ticket arrived at the pension house and waited
for Engr. Tagitis, but the latter did not return. On its part, the elements of
9RCIDU is now conducting a continuous case build up and information gathering
to locate the whereabouts of Engr. Tagitis.
c)                 That the Director, CIDG directed the conduct of the search in all
divisions of the CIDG to find Engr. Tagitis who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives since October 30, 2007, but
after diligent and thorough search, records show that no such person is being
detained in CIDG or any of its department or divisions.
5. On this particular case, the Philippine National Police exhausted all possible
efforts, steps and actions available under the circumstances and continuously
search and investigate [sic] the instant case. This immense mandate, however,
necessitates the indispensable role of the citizenry, as the PNP cannot stand
alone without the cooperation of the victims and witnesses to identify the
perpetrators to bring them before the bar of justice and secure their conviction in
court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of
the Writ of Amparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed
the Investigation Division of this Group [CIDG] to conduct urgent investigation
on the alleged enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis attended an Education
Development Seminar on October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser Matli. On October 30, 2007, at
student identified as Arsimin Kunnong of the Islamic Development Bank who was
also one of the participants of the said seminar. He checked in at ASY pension
house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic]
unidentified companion. At around six oclock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga
City. In the afternoon of the same date, Kunnong arrived at the pension house
carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to
be found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who
reported the incident to the police. The CIDG is not involved in the
disappearance of Engr. Morced Tagitis to make out a case of an enforced
disappearance which presupposes a direct or indirect involvement of the
government.
139
That herein [petitioner] searched all divisions and departments for a person
named Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained
by covert CIDG-PNP Intelligence Operatives since October 30, 2007 and after a
diligent and thorough research records show that no such person is being
detained in CIDG or any of its department or divisions.
That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue investigations up to its full
completion in order to aid in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]  Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao ( Gen.
xxxx
That, I and our men and women in PACER vehemently deny any participation in
the alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on
October 30, 2007. As a matter of fact, nowhere in the writ was mentioned that
the alleged abduction was perpetrated by elements of PACER nor was there any
indication that the alleged abduction or illegal detention of ENGR. TAGITIS was
undertaken jointly by our men and by the alleged covert CIDG-PNP intelligence
operatives alleged  to have abducted or illegally detained ENGR. TAGITIS.
That I was shocked when I learned that I was implicated in the alleged
disappearance of ENGR. MORCED in my capacity as the chief PACER [ sic]
considering that our office, the Police Anti-Crime and Emergency Response
(PACER), a special task force created for the purpose of neutralizing or
eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court and
to abduct or illegally detain or kidnap anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT OF AMPARO, I directed the
Chief of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures
to investigate, locate/search the subject, identify and apprehend the persons
responsible, to recover and preserve evidence related to the disappearance of
ENGR. MORCED TAGITIS, which may aid in the prosecution of the person or
persons responsible, to identify witnesses and obtain statements from them
concerning the disappearance and to determine the cause, manner, location and
time of disappearance as well as any pattern or practice that may have brought
about the disappearance.
That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance
of ENGR. MORCED.
That in compliance with my directive, the chief of PACER-MOR sent through fax
his written report.
That the investigation and measures being undertaken to locate/search the
subject in coordination with Police Regional Office, Autonomous Region of
Muslim Mindanao (PRO-ARMM) and Jolo Police Provincial Office (PPO) and other
AFP and PNP units/agencies in the area are ongoing with the instruction not to
leave any stone unturned so to speak in the investigation until the perpetrators
in the instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF
AMPARO just issued.
Goltiao), also submitted his affidavit detailing the actions that he had taken upon
receipt of the report on Tagitis disappearance, viz:[17]
xxxx
3) For the record:
 
1.                 I am the Regional Director of Police Regional Office ARMM now and
during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate measures on any cases of
reported enforced disappearances and when they are being alluded to my office;
5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain Abdulnasser Matli, an
employee of Islamic Development Bank, appeared before the Office of the Chief
of Police, Jolo Police Station, and reported the disappearance of Engr. Morced
Tagitis, scholarship coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just
disappeared from ASY Pension House situated at Kakuyagan Village, Village,
Patikul, Sulu, on October 30, 2007, without any trace of forcible abduction or
arrest;
7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the student returned back to ASY
Pension House, he no longer found Engr. Tagitis there and when he immediately
140
inquired at the information counter regarding his whereabouts [sic], the person
in charge in the counter informed him that Engr. Tagitis had left the premises on
October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and
text messages to conduct investigation [sic] to determine the whereabouts of the
aggrieved party and the person or persons responsible for the threat, act or
omission, to recover and preserve evidence related to the disappearance of Engr.
Tagitis, to identify witnesses and obtain statements from them concerning his
disappearance, to determine the cause and manner of his disappearance, to
identify and apprehend the person or persons involved in the disappearance so
that they shall be brought before a competent court;
9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:
a)      Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007
directing PD Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM
on the matter;
b)     Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007
directing PD Sulu PPO to expedite compliance to my previous directive;
c)      Memorandum dated December 14, 2007 addressed to PD Sulu PPO
reiterating our series of directives for investigation and directing him to
undertake exhaustive coordination efforts with the owner of ASY Pension House
and student scholars of IDB in order to secure corroborative statements
regarding the disappearance and whereabouts of said personality;
d)     Memorandum dated December 24, 2007 addressed to PD Sulu PPO
directing him to maximize efforts to establish clues on the whereabouts of Engr.
Tagitis by seeking the cooperation of Prof. Abdulnasser Matli and Arsimin
Kunnong and/or whenever necessary, for them to voluntarily submit for
polygraph examination with the NBI so as to expunge all clouds of doubt that
they may somehow have knowledge or idea to his disappearance;
e)      Memorandum dated December 27, 2007 addressed to the Regional Chief,
Criminal Investigation and Detection Group, Police Regional Office 9, Zamboanga
City, requesting assistance to investigate the cause and unknown disappearance
of Engr. Tagitis considering that it is within their area of operational jurisdiction
f)      Memorandum from Chief, Intelligence Division, PRO ARMM dated
December 30, 2007 addressed to PD Sulu PPO requiring them to submit
complete investigation report regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has exerted his [ sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his disappearance and submitted the
following:
a)      Progress Report dated November 6, 2007 through Radio Message Cite No.
SPNP3-1106-10-2007;
b)      Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they
are still monitoring the whereabouts of Engr. Tagitis;
c)      Investigation Report dated December 31, 2007 from the Chief of Police,
Jolo Police Station, Sulu PPO;
11. This incident was properly reported to the PNP Higher Headquarters as
shown in the following:
a)      Memorandum dated November 6, 2007 addressed to the Chief, PNP
informing him of the facts of the disappearance and the action being taken by
our office
b)      Memorandum dated November 6, 2007 addressed to the Director,
Directorate for Investigation and Detection Management, NHQ PNP;
c)      Memorandum dated December 30, 2007 addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information
gathering, monitoring and coordination for the immediate solution of the case.
Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen.
Goltiao as the officer in command of the area of disappearance to form TASK
FORCE TAGITIS.[18]
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim ( PS Supt.
Ajirim) to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings
to monitor whether TASK FORCE TAGITIS was exerting extraordinary efforts in
handling the disappearance of Tagitis.[20] As planned, (1) the first hearing would
be to mobilize the CIDG, Zamboanga City; (2) the second hearing would be to
mobilize intelligence with Abu Sayyaf and ARMM; and (3) the third hearing would
be to mobilize the Chief of Police of Jolo, Sulu and the Chief of Police of
Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA
an intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo
141
Police Station, stating a possible motive for Tagitis disappearance. [22] The
intelligence report was apparently based on the sworn affidavit dated January 4,
2008 of Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic
Studies at the University of the Philippines and an Honorary Student Counselor of
the IDB Scholarship Program in the Philippines, who told the Provincial Governor
of Sulu that:[23]
[Based] on reliable information from the Office of Muslim Affairs in Manila,
Tagitis has reportedly taken and carried away more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his [personal] bank accounts by the
Central Office of IDB, Jeddah, Kingdom of Saudi Arabia, which [was] intended
for the IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to
be responsible, he personally went to the CIDG office in Zamboanga City to
conduct an ocular inspection/investigation, particularly of their detention cells.
[24]
 PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS
investigate the disappearance of Tagitis, persistently denied any knowledge or
complicity in any abduction.[25] He further testified that prior to the hearing, he
had already mobilized and given specific instructions to their supporting units to
perform their respective tasks; that they even talked to, but failed to get any
lead from the respondent in Jolo.[26] In his submitted investigation report dated
January 16, 2008, PS Supt. Ajirim concluded:[27]
 
9. Gleaned from the undersigned inspection and observation at the Headquarters
9 RCIDU and the documents at hand, it is my own initial conclusion that the
9RCIDU and other PNP units in the area had no participation neither [sic]
something to do with [sic] mysterious disappearance of Engr. Morced Tagitis last
October 30, 2007. Since doubt has been raised regarding the emolument on the
Islamic Development Bank Scholar program of IDB that was reportedly deposited
in the personal account of Engr. Tagitis by the IDB central office in Jeddah,
Kingdom of Saudi Arabia.Secondly, it could might [sic] be done by resentment or
sour grape among students who are applying for the scholar [ sic] and were
denied which was allegedly conducted/screened by the subject being the
coordinator of said program.
20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the funds he
maliciously spent for his personal interest and wanted to elude responsibilities
from the institution where he belong as well as to the Islamic student scholars
should the statement of Prof. Matli be true or there might be a professional
jealousy among them.
xxxx
It is recommended that the Writ of Amparo filed against the respondents be
dropped and dismissed considering on [sic] the police and military actions in the
area particularly the CIDG are exerting their efforts and religiously doing their
tasked [sic] in the conduct of its intelligence monitoring and investigation for the
early resolution of this instant case. But rest assured, our office, in coordination
with other law-enforcement agencies in the area, are continuously and religiously
conducting our investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE
TAGITIS did not appear to be exerting extraordinary efforts in resolving Tagitis
disappearance on the following grounds:[28]
 (1)              This Court FOUND that it was only as late as January 28, 2008,
after the hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had
requested for clear photographs when it should have been standard operating
procedure in kidnappings or disappearances that the first agenda was for the
police to secure clear pictures of the missing person, Engr. Morced Tagitis, for
dissemination to all parts of the country and to neighboring countries. It had
been three (3) months since GEN. JOEL GOLTIAO admitted having
been informed  on November 5, 2007 of the alleged abduction of Engr. Morced
Tagitis by alleged bad elements of the CIDG. It had been more than one (1)
month since the Writ of Amparo had been issued on December 28, 2007. It had
been three (3) weeks when battle formation was ordered through Task Force
Tagitis, on January 17, 2008. It was only on January 28, 2008 when the Task
Force Tagitis requested for clear and recent photographs of the missing person,
Engr. Morced Tagitis, despite the Task Force Tagitis claim that they already had
an all points bulletin, since November 5, 2007, on the missing person, Engr.
Morced Tagitis. How could the police look for someone who disappeared if no
clear photograph had been disseminated.
(2)              Furthermore, Task Force Tagitis  COL. AHIROM AJIRIM informed this
Court that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in
the latters official designated post. Yet, P/Supt KASIMs subpoena was returned
to this Court unserved. Since this Court was made to understand that it was
P/Supt KASIM who was the petitioners unofficial source of the military
intelligence information that Engr. Morced Tagitis was abducted by bad elements
of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM
and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the
appearance of Col. KASIM in response to this courts subpoena and COL. KASIM
could have confirmed the military intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her
142
husband. She said that a friend from Zamboanga holding a high position in the
military (whom she did not then identify) gave her information that allowed her
to specify her allegations, particularly paragraph 15 of the petition. [29] This friend
also told her that her husband [was] in good hands.[30] The respondent also
testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that PNP CIDG is
holding [her husband], Engineer Morced Tagitis.[31] The respondent recounted
that she went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who
were then with her) a highly confidential report that contained the alleged
activities of Engineer Tagitis and informed her that her husband was abducted
because he is under custodial investigation for being a liaison for J.I. or Jemaah
Islamiah.[32]
On January 17, 2008, the respondent on cross-examination testified that she is
Tagitis second wife, and they have been married for thirteen years; Tagitis was
divorced from his first wife.[33] She last communicated with her husband on
October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then
on his way to Jolo, Sulu, from Zamboanga City.[34]
The respondent narrated that she learned of her husbands disappearance on
October 30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her
that she had not heard from her father since the time they arranged to meet in
Manila on October 31, 2007.[35] The respondent explained that it took her a few
days (or on November 5, 2007) to personally ask Kunnong to report her
husbands disappearance to the Jolo Police Station, since she had the impression
that her husband could not communicate with her because his cellular phones
battery did not have enough power, and that he would call her when he had
fully-charged his cellular phones battery.[36]
The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan,
Jr (Col. Ancanan). She met him in Camp Karingal, Zamboanga through her boss.
[37]
 She also testified that she was with three other people, namely, Mrs. Marydel
Martin Talbin and her two friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the highly confidential report at Camp
Katitipan, Davao City. The respondent further narrated that the report indicated
that her husband met with people belonging to a terrorist group and that he was
under custodial investigation. She then told Col. Kasim that her husband was a
diabetic taking maintenance medication, and asked that the Colonel relay to the
persons holding him the need to give him his medication. [38]
On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,
[39]
 signed by the respondent, detailing her efforts to locate her husband which
led to her meetings with Col. Ancanan of the Philippine Army and Col. Kasim of
the PNP. In her narrative report concerning her meeting with Col. Ancanan, the
respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at
Zamboanga Airport at around 10:00 oclock. We [were] fetched by the two staffs
of Col. Ancanan. We immediately proceed [sic] to West Mindanao Command
(WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He
interviewed me and got information about the personal background of Engr.
Morced N. Tagitis. After he gathered all information, he revealed to us the
contents of text messages they got from the cellular phone of the subject Engr.
Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any telephone
calls in his condominium unit.
While we were there he did not tell us any information of the whereabouts of
Engr. Tagitis. After the said meeting with Col. Ancanan, he treated us as guests
to the city. His two staffs accompanied us to the mall to purchase our plane
ticket going back to Davao City on November 12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning,
Col. Ancanan and I were discussing some points through phone calls. He assured
me that my husband is alive and hes last looked [sic] in Talipapao, Jolo,
Sulu. Yet I did not believe his given statements of the whereabouts of my
husband, because I contacted some of my friends who have access to the
groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging
to tell me the exact location of my husband and who held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I called him up again because
the PNP, Jolo did not give me any information of the whereabouts of my
husband. Col. Ancanan told me that Sana ngayon alam mo na kung saan ang
kinalalagyan ng asawa mo. When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for
the reason that the Chief of Police of Jolo told me not to contact any AFP officials
and he promised me that he can solve the case of my husband (Engr. Tagitis)
within nine days.
I appreciate the effort of Col. Ancanan on trying to solve the case of my husband
Engr. Morced Tagitis, yet failed to do so.
The respondent also narrated her encounter with Col. Kasim, as follows: [41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch,
Davao City to meet Mr. Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo, Sulu on October 30,
143
2007. I asked him a favor to contact his connections in the military in Jolo, Sulu
where the abduction of Engr. Tagitis took place. Mr. Salvador immediately called
up Camp Katitipan located in Davao City looking for high-ranking official who can
help me gather reliable information behind the abduction of subject Engineer
Tagitis.
On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive
Secretary, accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short conversation. And he assured
me that hell do the best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up informing me up informing me that
I am to go to Camp Katitipan to meet Col. Kasim for he has an urgent,
confidential information to reveal.
On November 24, 2007, we went back to Camp Katitipan with my three
friends. That was the time that Col. Kasim read to us the confidential report that
Engr. Tagitis was allegedly connected [with] different terrorist [groups], one of
which he mentioned in the report was OMAR PATIK and a certain SANTOS - a
Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still
remember. It was written in a long bond paper with PNP Letterhead. It was not
shown to us, yet Col. Kasim was the one who read it for us.
He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the
military for custodial investigation.I told him to please take care of my husband
because he has aliments and he recently took insulin for he is a diabetic patient.
In my petition for writ of amparo, I emphasized the information that I got from
Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin
(Mrs. Talbin) to corroborate her testimony regarding her efforts to locate her
husband, in relation particularly with the information she received from Col.
Kasim. Mrs. Talbin testified that she was with the respondent when she went to
Zamboanga to see Col. Ancanan, and to Davao City at Camp Katitipan to meet
Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told
them that there was a report and that he showed them a series of text messages
from Tagitis cellular phone, which showed that Tagitis and his daughter would
meet in Manila on October 30, 2007.[43]
She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and
Mini Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col.
Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that
Tagitis was in good hands, although he was not certain whether he was with the
PNP or with the Armed Forces of the Philippines (AFP). She further recounted
that based on the report Col. Kasim read in their presence, Tagitis was under
custodial investigation because he was being charged with terrorism; Tagitis in
fact had been under surveillance since January 2007 up to the time he was
abducted when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that he
could not give a copy of the report because it was a raw report. [45] She also
related that the Col. Kasim did not tell them exactly where Tagitis was being
kept, although he mentioned Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit indicated, [51] he never
told PS Supt. Pingay, or made any accusation, that Tagitis took away money
entrusted to him.[52] Prof. Matli confirmed, however, that that he had received an
e-mail report[53] from Nuraya Lackian of the Office of Muslim Affairs in Manila that
the IDB was seeking assistance of the office in locating the funds of IDB scholars
deposited in Tagitis personal account.[54]
On cross-examination by the respondents counsel, Prof. Matli testified that his
January 4, 2008 affidavit was already prepared when PS Supt. Pingay asked him
to sign it.[55]Prof Matli clarified that although he read the affidavit before signing
it, he was not so much aware of [its] contents. [56]
On February 11, 2008, the petitioners presented Col. Kasim to rebut material
portions of the respondents testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the military or the PNP. [57] Col.
Kasim categorically denied the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen carrying boxes of
medicines as supplier for the injured terrorists; (2) that Tagitis was under the
custody of the military, since he merely said to the respondent that your
husband is in good hands and is probably taken cared of by his armed
abductors; and (3) that Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City.[58] Col. Kasim emphasized that
the informal letter he received from his informant in Sulu did not indicate that
Tagitis was in the custody of the CIDG.[59] He also stressed that the information
he provided to the respondent was merely a raw report sourced from barangay
intelligence that still needed confirmation and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the
respondent was given to him by his informant, who was a civilian asset, through
a letter which he considered as unofficial.[61] Col. Kasim stressed that the letter
was only meant for his consumption and not for reading by others. [62] He
testified further that he destroyed the letter right after he read it to the
144
respondent and her companions because it was not important to him and also
because the information it contained had no importance in relation with the
abduction of Tagitis.[63] He explained that he did not keep the letter because it
did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.[64]
In the same hearing on February 11, 2008, the petitioners also presented Police
Senior Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to
disprove the respondents allegation that Tagitis was in the custody of CIDG-
Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm
of the PNP, and that the CIDG investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those considered as heinous
crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was baseless, since they did not
conduct any operation in Jolo, Sulu before or after Tagitis reported
disappearance.[67] Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any operation, since they were only
assigned to investigate matters and to monitor the terrorism situation.[68] He
denied that his office conducted any surveillance on Tagitis prior to the latters
disappearance.[69] Col. Pante further testified that his investigation of Tagitis
disappearance was unsuccessful; the investigation was still facing a blank wall on
the whereabouts of Tagitis.[70]
THE CA RULING
On March 7, 2008, the CA issued its decision[71] confirming that the
disappearance of Tagitis was an enforced disappearance under the United
Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.[72] The CA ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in the abduction, the missing-
person case qualified as an enforced disappearance. The conclusion that the
CIDG was involved was based on the respondents testimony, corroborated by
her companion, Mrs. Talbin. The CA noted that the information that the CIDG, as
the police intelligence arm, was involved in Tagitis abduction came from no less
than the military an independent agency of government. The CA thus greatly
relied on the raw report from Col. Kasims asset, pointing to the CIDGs
involvement in Tagitis abduction.The CA held that raw reports from an asset
carried great weight in the intelligence world. It also labeled as suspect Col.
Kasims subsequent and belated retraction of his statement that the military, the
police, or the CIDG was involved in the abduction of Tagitis.
The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the part
of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no
student of the IDB scholarship program ever came forward to complain that he
or she did not get his or her stipend. The CA also found no basis for the police
theory that Tagitis was trying to escape from the clutches of his second wife, on
the basis of the respondents testimony that Tagitis was a Muslim who could have
many wives under the Muslim faith, and that there was no issue at all when the
latter divorced his first wife in order to marry the second. Finally, the CA also
ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary
as the cause for Tagitis disappearance, since the respondent, the police and the
military noted that there was no acknowledgement of Tagitis abduction or
demand for payment of ransom the usual modus operandi of these terrorist
groups.
Based on these considerations, the CA thus extended the privilege of the writ to
Tagitis and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col.
Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of
Tagitis, with the obligation to provide monthly reports of their actions to the
CA. At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael,
based on the finding that it was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the
CA denied the motion in its Resolution of April 9, 2008. [73]
THE PETITION
In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the
petitioners mainly dispute the sufficiency in form and substance of
the Amparo petition filed before the CA; the sufficiency of the legal remedies the
respondent took before petitioning for the writ; the finding that the rights to life,
liberty and security of Tagitis had been violated; the sufficiency of evidence
supporting the conclusion that Tagitis was abducted; the conclusion that the
CIDG Zamboanga was responsible for the abduction; and, generally, the ruling
that the respondent discharged the burden of proving the allegations of the
petition by substantial evidence.[74]
THE COURTS RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the
respondents Amparo petition, the petitioners contend that the petition violated
Section 5(c), (d), and (e) of the Amparo  Rule. Specifically, the petitioners allege
that the respondent failed to:
145
1)    allege any act or omission the petitioners committed in violation of Tagitis
rights to life, liberty and security;
2)    allege in a complete manner how Tagitis was abducted, the persons
responsible for his disappearance, and the respondents source of information;
3)    allege that the abduction was committed at the petitioners instructions or
with their consent;
4)    implead the members of CIDG regional office in Zamboanga alleged to have
custody over her husband;
5)    attach the affidavits of witnesses to support her accusations;
6)    allege any action or inaction attributable to the petitioners in the
performance of their duties in the investigation of Tagitis disappearance; and
7)    specify what legally available efforts she took to determine the fate or
whereabouts of her husband.
A petition for the Writ of Amparo shall be signed and verified and shall allege,
among others (in terms of the portions the petitioners cite): [75]
(c) The right to life, liberty and security of the aggrieved party violated
or threatened with violation by an unlawful act or omission of the
respondent, and how such threat or violation is committed with the
attendant circumstances detailed in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal
circumstances, and addresses of the investigating authority or
individuals, as well as the manner and conduct of the investigation,
together with any report;
(e) The actions and recourses taken by the petitioner to determine the
fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission; and
The framers of the Amparo  Rule never intended Section 5(c) to be complete in
every detail in stating the threatened or actual violation of a victims rights. As in
any other initiatory pleading, the pleader must of course state the ultimate facts
constituting the cause of action, omitting the evidentiary details. [76] In
an Amparo petition, however, this requirement must be read in light of
the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him
or her, or where the victim is detained, because these information may purposely
be hidden or covered up by those who caused the disappearance. In this type of
situation, to require the level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo  Rule is to make this Rule
a token gesture of judicial concern for violations of the constitutional rights to
life, liberty and security.
To read the Rules of Court requirement on pleadings while addressing the
unique Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the
circumstances, while presenting a cause of action showing a violation of the
victims rights to life, liberty and security through State or private party
action. The petition should likewise be read in its totality, rather than in terms of
its isolated component parts, to determine if the required elements namely, of
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security are present.
In the present case, the petition amply recites in its paragraphs 4 to 11 the
circumstances under which Tagitis suddenly dropped out of sight after engaging
in normal activities, and thereafter was nowhere to be found despite efforts to
locate him. The petition alleged, too, under its paragraph 7, in relation to
paragraphs 15 and 16, that according to reliable information, police operatives
were the perpetrators of the abduction. It also clearly alleged how Tagitis rights
to life, liberty and security were violated when he was forcibly taken and boarded
on a motor vehicle by a couple of burly men believed to be police intelligence
operatives, and then taken into custody by the respondents police intelligence
operatives since October 30, 2007, specifically by the CIDG, PNP Zamboanga
City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups.[77]
These allegations, in our view, properly pleaded ultimate facts within the
pleaders knowledge about Tagitis disappearance, the participation by agents of
the State in this disappearance, the failure of the State to release Tagitis or to
provide sufficient information about his whereabouts, as well as the actual
violation of his right to liberty. Thus, the petition cannot be faulted for any failure
in its statement of a cause of action.
If a defect can at all be attributed to the petition, this defect is its lack of
supporting affidavit, as required by Section 5(c) of the Amparo Rule. Owing to
the summary nature of the proceedings for the writ and to facilitate the
resolution of the petition, the Amparo  Rule incorporated the requirement for
supporting affidavits, with the annotation that these can be used as the affiants
direct testimony.[78] This requirement, however, should not be read as an
absolute one that necessarily leads to the dismissal of the petition if not strictly
followed. Where, as in this case, the petitioner has substantially complied with
the requirement by submitting a verified petition sufficiently detailing the facts
relied upon, the strict need for the sworn statement that an affidavit represents
is essentially fulfilled. We note that the failure to attach the required affidavits
was fully cured when the respondent and her witness (Mrs. Talbin) personally
146
testified in the CA hearings held on January 7 and 17 and February 18, 2008 to
swear to and flesh out the allegations of the petition. Thus, even on this point,
the petition cannot be faulted.
Section 5(d) of the Amparo  Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the
investigation.Effectively, this requirement seeks to establish at the earliest
opportunity the level of diligence the public authorities undertook in relation with
the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not comply
with the Section 5(d) requirements of the Amparo Rule, as the petition specifies
in its paragraph 11 that Kunnong and his companions immediately reported
Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were
relatively certain that he indeed had disappeared . The police, however, gave
them the ready answer that Tagitis could have been abducted by the Abu Sayyaf
group or other anti-government groups. The respondent also alleged in
paragraphs 17 and 18 of her petition that she filed a complaint with the PNP
Police Station in Cotobato and in Jolo, but she was told of an intriguing tale by
the police that her husband was having a good time with another woman. The
disappearance was alleged to have been reported, too, to no less than the
Governor of the ARMM, followed by the respondents personal inquiries that
yielded the factual bases for her petition.[80]
These allegations, to our mind, sufficiently specify that reports have been made
to the police authorities, and that investigations should have followed . That the
petition did not state the manner and results of the investigation that
the Amparo Rule requires, but rather generally stated the inaction of the police,
their failure to perform their duty to investigate, or at the very least, their
reported failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as well the manner
and conduct of the investigation is an overly strict interpretation of Section 5(d),
given the respondents frustrations in securing an investigation with meaningful
results. Under these circumstances, we are more than satisfied that the
allegations of the petition on the investigations undertaken are sufficiently
complete for purposes of bringing the petition forward.
Section 5(e) is in the Amparo  Rule to prevent the use of a petition that otherwise
is not supported by sufficient allegations to constitute a proper cause of action as
a means to fish for evidence.[81] The petitioners contend that the respondents
petition did not specify what legally available efforts were taken by the
respondent, and that there was an undue haste in the filing of the petition when,
instead of cooperating with authorities, the respondent immediately invoked the
Courts intervention.
We do not see the respondents petition as the petitioners view it.
Section 5(e) merely requires that the Amparo petitioner (the respondent in the
present case) allege the actions and recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission. The following allegations of the respondents
petition duly outlined the actions she had taken and the frustrations she
encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension
house to take his early lunch but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly took him and boarded the
latter on a motor vehicle then sped away without the knowledge of his student,
Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;
 11. Arsimin Kunnong, including his friends and companions in Jolo, exerted
efforts in trying to locate the whereabouts of Engr. Tagitis and when he reported
the matter to the police authorities in Jolo, he was immediately given a ready
answer that Engr. Tagitis could [have been] abducted by the Abu Sayyaf group
and other groups known to be fighting against the government;
12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone
and other responsible officers and coordinators of the IDB Scholarship
Programme in the Philippines who alerted the office of the Governor of ARMM
who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached some of her co-employees
with the Land Bank in Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military who could help them
find/locate the whereabouts of her husband;
xxxx
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his will in an earnest attempt of
the police to involve and connect Engr. Tagitis with the different terrorist groups;
xxxx
147
17. [The respondent] filed her complaint with the PNP Police Station at the
ARMM in Cotobato and in Jolo, as suggested by her friends, seeking their help to
find her husband, but [the respondents] request and pleadings failed to produce
any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different
Police Headquarters including the police headquarters in Davao City, in
Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all these places
have been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and
beggings [sic] for financial help from friends and relatives only to try complying
to the different suggestions of these police officers, despite of which, her efforts
produced no positive results up to the present time;
xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but
to no avail, and under the circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the release of subject Engr.
Morced Tagitis from the illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ
of Amparo is sufficient in form and substance and that the Court of Appeals had
every reason to proceed with its consideration of the case.
The Desaparecidos
The present case is one of first impression in the use and application of the Rule
on the Writ of Amparo in an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an enforced disappearance
situation, a brief look at the historical context of the writ and enforced
disappearances would be very helpful
The phenomenon of enforced disappearance arising from State action first
attracted notice in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.[82] The Third Reichs Night and Fog Program, a State policy,
was directed at persons in occupied territories endangering German security;
they were transported secretly to Germany where they disappeared without a
trace. In order to maximize the desired intimidating effect, the policy prohibited
government officials from providing information about the fate of these targeted
persons.[83]
In the mid-1970s, the phenomenon of enforced disappearances resurfaced,
shocking and outraging the world when individuals, numbering anywhere from
6,000 to 24,000, were reported to have disappeared during the military regime in
Argentina. Enforced disappearances spread in Latin America, and the issue
became an international concern when the world noted its widespread and
systematic use by State security forces in that continent under Operation
Condor[84] and during the Dirty War[85] in the 1970s and 1980s. The escalation of
the practice saw political activists secretly arrested, tortured, and killed as part of
governments counter-insurgency campaigns. As this form of political brutality
became routine elsewhere in the continent, the Latin American media
standardized the term disappearance to describe the phenomenon. The victims
of enforced disappearances were called the desaparecidos,[86] which literally
means the disappeared ones.[87] In general, there are three different kinds of
disappearance cases:
1)      those of people arrested without witnesses or without positive
identification of the arresting agents and are never found again;
2)      those of prisoners who are usually arrested without an appropriate warrant
and held in complete isolation for weeks or months while their families are
unable to discover their whereabouts and the military authorities deny having
them in custody until they eventually reappear in one detention center or
another; and
3)      those of victims of salvaging who have disappeared until their lifeless
bodies are later discovered.[88]
In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained missing, 132 surfaced alive and
127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were
documented. Of this number, 407 remain missing, 108 surfaced alive and 97
were found dead. The number of enforced disappearances dropped during
former President Fidel V. Ramos term when only 87 cases were reported, while
the three-year term of former President Joseph E. Estrada yielded 58 reported
cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of
enforced disappearance under incumbent President Gloria M. Arroyos
administration. The Commission on Human Rights records show a total of 636
verified cases of enforced disappearances from 1985 to 1993. Of this number,
406 remained missing, 92 surfaced alive, 62 were found dead, and 76 still have
undetermined status.[90] Currently, the United Nations Working Group on
Enforced or Involuntary Disappearance[91] reports 619 outstanding cases of
enforced or involuntary disappearances covering the period December 1, 2007 to
November 30, 2008.[92]
148
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the writ shall cover extralegal killings
and enforced disappearances or threats thereof.[93] We note that although the
writ specifically covers enforced disappearances, this concept is neither defined
nor penalized in this jurisdiction. The records of the Supreme Court Committee
on the Revision of Rules (Committee) reveal that the drafters of the Amparo  Rule
initially considered providing an elemental definition of the concept of enforced
disappearance:[94]
JUSTICE MARTINEZ: I believe that first and foremost we should come up or
formulate a specific definition [for] extrajudicial killings and enforced
disappearances. From that definition, then we can proceed to formulate the
rules, definite rules concerning the same.
CHIEF JUSTICE PUNO: As things stand, there is no law penalizing
extrajudicial killings and enforced disappearances so initially also we
have to [come up with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the jurisdiction of
the courts. So well have to agree among ourselves about the nature of killings
and disappearances for instance, in other jurisdictions, the rules only cover state
actors. That is an element incorporated in their concept of extrajudicial killings
and enforced disappearances. In other jurisdictions, the concept includes acts
and omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us say, the NPAs
or the leftist organizations and others. So, again we need to define the nature of
the extrajudicial killings and enforced disappearances that will be covered by
these rules. [Emphasis supplied] [95]
In the end, the Committee took cognizance of several bills filed in the House of
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these
terms in the Rule. The Committee instead focused on the nature and scope of
the concerns within its power to address and provided the appropriate remedy
therefor, mindful that an elemental definition may intrude into the ongoing
legislative efforts.[98]
As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now
penalized under the Revised Penal Code and special laws.[99] The simple reason is
that the Legislature has not spoken on the matter; the determination of what
acts are criminal and what the corresponding penalty these criminal acts should
carry are matters of substantive law that only the Legislature has the power to
enact under the countrys constitutional scheme and power structure.
Even without the benefit of directly applicable substantive laws on extra-judicial
killings and enforced disappearances, however, the Supreme Court is not
powerless to act under its own constitutional mandate to promulgate rules
concerning the protection and enforcement of constitutional rights, pleading,
practice and procedure in all courts,[100]since extrajudicial killings and enforced
disappearances, by their nature and purpose, constitute State or private party
violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the
Court can provide can be very meaningful through the procedures it sets in
addressing extrajudicial killings and enforced disappearances. The Court, through
its procedural rules, can set the procedural standards  and thereby directly
compel the public authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial intervention can make a
difference even if only procedurally in a situation when the very same
investigating public authorities may have had a hand in the threatened or actual
violations of constitutional rights.
Lest this Court intervention be misunderstood, we clarify once again that we do
not rule on any issue of criminal culpability for the extrajudicial killing or enforced
disappearance. This is an issue that requires criminal action before our criminal
courts based on our existing penal laws. Our intervention is in determining
whether an enforced disappearance has taken place and who is responsible or
accountable for this disappearance, and to define and impose the appropriate
remedies to address it. The burden for the public authorities to discharge in
these situations, under the Rule on the Writ of Amparo, is twofold. The first is to
ensure that all efforts at disclosure and investigation are undertaken under
pain of indirect contempt from this Court when governmental efforts are less
than what the individual situations require. The second is to address the
disappearance, so that the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and directives relative to the
writ are continuing efforts that are not truly terminated until the extrajudicial
killing or enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the production
of the disappeared person and the restoration of his or her liberty and security,
and, in the proper case, by the commencement of criminal action against the
guilty parties.
Enforced Disappearance
Under International Law
149
From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.[101] It does not only violate the
right to life, liberty and security of the desaparecido; it affects their families as
well through the denial of their right to information regarding the circumstances
of the disappeared family member. Thus, enforced disappearances have been
said to be a double form of torture, with doubly paralyzing impact for the
victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as
well the serious economic hardship and poverty that in most cases follow the
disappearance of the household breadwinner. [102]
The UN General Assembly first considered the issue of Disappeared Persons in
December 1978 under Resolution 33/173. The Resolution expressed the General
Assemblys deep concern arising from reports from various parts of the world
relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances
with a view to making appropriate recommendations.[103]
In 1992, in response to the reality that the insidious practice of enforced
disappearance had become a global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All Persons from Enforced
Disappearance (Declaration).[104] This Declaration, for the first time, provided in
its third preambular clause a working description of enforced disappearance, as
follows:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur, in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their
liberty by officials of different branches or levels of Government, or by
organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government,
followed by a refusal to disclose the fate or whereabouts of the
persons concerned or a refusal to acknowledge the deprivation of their
liberty, which places such persons outside the protection of the law. [Emphasis
supplied]
Fourteen years after (or on December 20, 2006), the UN General Assembly
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance (Convention).[105] The Convention was opened for
signature in Paris, France on February 6, 2007.[106] Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, enforced disappearance is considered to
be the arrest, detention, abduction or any other form of deprivation of liberty by
agents of the State or by persons or groups of persons acting with the
authorization, support or acquiescence of the State, followed by a refusal to
acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the
protection of the law. [Emphasis supplied]
The Convention is the first universal human rights instrument to assert that there
is a right not to be subject to enforced disappearance [107] and that this right is
non-derogable.[108] It provides that no one shall be subjected to enforced
disappearance under any circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges State Parties to codify
enforced disappearance as an offense punishable with appropriate penalties
under their criminal law.[109] It also recognizes the right of relatives of the
disappeared persons and of the society as a whole to know the truth on the fate
and whereabouts of the disappeared and on the progress and results of the
investigation.[110] Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the fate and
whereabouts of the victim are established.[111]
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified the Convention, so that
the country is not yet committed to enact any law penalizing enforced
disappearance as a crime.The absence of a specific penal law, however, is not a
stumbling block for action from this Court, as heretofore mentioned; underlying
every enforced disappearance is a violation of the constitutional rights to life,
liberty and security that the Supreme Court is mandated by the Constitution to
protect through its rule-making powers.
Separately from the Constitution (but still pursuant to its terms), the Court is
guided, in acting on Amparo cases, by the reality that the Philippines is a
member of the UN, bound by its Charter and by the various conventions we
signed and ratified, particularly the conventions touching on humans
rights. Under the UN Charter, the Philippines pledged to promote universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinctions as to race, sex, language or religion.[112]Although no universal
agreement has been reached on the precise extent of the human rights and
fundamental freedoms guaranteed to all by the Charter, [113] it was the UN itself
that issued the Declaration on enforced disappearance, and this Declaration
states:[114]
Any act of enforced disappearance is an offence to dignity. It is condemned as
a denial of the purposes of the Charter of the United Nations and as a
grave and flagrant violation of human rights and fundamental
freedoms proclaimed in the Universal Declaration of Human Rights  and
reaffirmed and developed in international instruments in this field. [Emphasis
supplied]
150
As a matter of human right and fundamental freedom and as a policy matter
made in a UN Declaration, the ban on enforced disappearance cannot but have
its effects on the country, given our own adherence to generally accepted
principles of international law as part of the law of the land.[115]
In the recent case of Pharmaceutical and Health Care Association of the
Philippines v. Duque III,[116] we held that:
Under the 1987 Constitution, international law can become part of the sphere of
domestic law either by transformation or incorporation. 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. [Emphasis supplied]
We characterized generally accepted principles of international law as norms of
general or customary international law that are binding on all states. We held
further:[117]
[G]enerally 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. The classical formulation in international
law sees those customary rules accepted as binding result from the
combination [of] 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. [Emphasis in the original]
The most widely accepted statement of sources of international law today is
Article 38(1) of the Statute of the International Court of Justice, which provides
that the Court shall apply international custom, as evidence of a general practice
accepted as law.[118] The material sources of custom include State practice, State
legislation, international and national judicial decisions, recitals in treaties and
other international instruments, a pattern of treaties in the same form, the
practice of international organs, and resolutions relating to legal questions in the
UN General Assembly.[119] Sometimes referred to as evidence of international law,
[120]
 these sources identify the substance and content of the obligations of States
and are indicative of the State practice and opinio juris requirements of
international law.[121] We note the following in these respects:
First, barely two years from the adoption of the Declaration, the Organization of
American States (OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in June 1994. [122] State parties
undertook under this Convention not to practice, permit, or tolerate the forced
disappearance of persons, even in states of emergency or suspension of
individual guarantees.[123] One of the key provisions includes the States obligation
to enact the crime of forced disappearance in their respective national criminal
laws and to establish jurisdiction over such cases when the crime was committed
within their jurisdiction, when the victim is a national of that State, and when the
alleged criminal is within its territory and it does not proceed to extradite him,
which can be interpreted as establishing universal jurisdiction among the parties
to the Inter-American Convention.[124] At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate laws in accordance with
the Inter-American Convention and have defined activities involving enforced
disappearance to be criminal.[125]
Second, in Europe, the European Convention on Human Rights has no explicit
provision dealing with the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however, has applied the Convention
in a way that provides ample protection for the underlying rights affected by
enforced disappearance through the Conventions Article 2 on the right to life;
Article 3 on the prohibition of torture; Article 5 on the right to liberty and
security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on the
right to an effective remedy. A leading example demonstrating the protection
afforded by the European Convention is Kurt v. Turkey,[126] where the ECHR
found a violation of the right to liberty and security of the disappeared person
when the applicants son disappeared after being taken into custody by Turkish
forces in the Kurdish village of Agilli in November 1993. It further found the
applicant (the disappeared persons mother) to be a victim of a violation of Article
3, as a result of the silence of the authorities and the inadequate character of the
investigations undertaken. The ECHR also saw the lack of any meaningful
investigation by the State as a violation of Article 13.[127]
Third, in the United States, the status of the prohibition on enforced
disappearance as part of customary international law is recognized in the most
recent edition of Restatement of the Law: The Third,[128] which provides that [a]
State violates international law if, as a matter of State policy, it practices,
encourages, or condones (3) the murder or causing the disappearance of
individuals.[129] We significantly note that in a related matter that finds close
identification with enforced disappearance the matter of torture the United
States Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-
Irala[130] that the prohibition on torture had attained the status of customary
international law. The court further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they specify with great precision
the obligations of member nations under the Charter. Since their adoption,
"(m)embers can no longer contend that they do not know what human rights
they promised in the Charter to promote. Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal and solemn instrument,
suitable for rare occasions when principles of great and lasting importance are
151
being enunciated. Accordingly, it has been observed that the Universal
Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of
the international community." Thus, a Declaration creates an expectation of
adherence, and "insofar as the expectation is gradually justified by State
practice, a declaration may by custom become recognized as laying down rules
binding upon the States." Indeed, several commentators have concluded that the
Universal Declaration has become, in toto, a part of binding, customary
international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the
International Convention on Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the UN Human Rights
Committee, under the Office of the High Commissioner for Human Rights, has
stated that the act of enforced disappearance violates Articles 6 (right to life), 7
(prohibition on torture, cruel, inhuman or degrading treatment or punishment)
and 9 (right to liberty and security of the person) of the ICCPR, and the act may
also amount to a crime against humanity.[131]
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the
International Criminal Court (ICC) also covers enforced disappearances insofar as
they are defined as crimes against humanity,[132] i.e., crimes committed as part of
a widespread or systematic attack against any civilian population, with
knowledge of the attack. While more than 100 countries have ratified the Rome
Statute,[133] the Philippines is still merely a signatory and has not yet ratified it.
We note that Article 7(1) of the Rome Statute has been incorporated in the
statutes of other international and hybrid tribunals, including Sierra Leone
Special Court, the Special Panels for Serious Crimes in Timor-Leste, and the
Extraordinary Chambers in the Courts of Cambodia.[134] In addition, the
implementing legislation of State Parties to the Rome Statute of the ICC has
given rise to a number of national criminal provisions also covering enforced
disappearance.[135]
While the Philippines is not yet formally bound by the terms of the Convention on
enforced disappearance (or by the specific terms of the Rome Statute) and has
not formally declared enforced disappearance as a specific crime, the above
recital shows that enforced disappearance as a State practice has been
repudiated by the international community, so that the ban on it is now
a generally accepted principle of international law,  which we should
consider a part of the law of the land, and which we should act upon to
the extent already allowed under our laws and the international
conventions that bind us.
The following civil or political rights under the Universal Declaration of Human
Rights, the ICCPR and the International Convention on Economic, Social and
Cultural Rights (ICESR) may be infringed in the course of a disappearance: [136]
1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading
treatment or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a
disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the
violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]
In General Comment No. 31, the UN Human Rights Committee opined that the
right to an effective remedy under Article 2 of the ICCPR includes the obligation
of the State to investigate ICCPR violations promptly, thoroughly, and
effectively, viz:[137]
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15. Article 2, paragraph 3, requires that in addition to effective protection of
Covenant rights, States Parties must ensure that individuals also have
accessible and effective remedies to vindicate those rights The
Committee attaches importance to States Parties' establishing appropriate
judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are particularly
required to give effect to the general obligation to investigate
allegations of violations promptly, thoroughly and effectivelythrough
independent and impartial bodies. A failure by a State Party to investigate
allegations of violations could in and of itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an essential element of the right
to an effective remedy. [Emphasis supplied]
The UN Human Rights Committee further stated in the same General Comment
No. 31 that failure to investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself give rise to a separate
breach of the Covenant, thus:[138]
18. Where the investigations referred to in paragraph 15 reveal violations of
certain Covenant rights, States Parties must ensure that those responsible
are brought to justice. As with failure to investigate, failure to bring to
justice perpetrators of such violations could in and of itself give rise to
a separate breach of the Covenant. These obligations arise notably in
respect of those violations recognized as criminal under either
domestic or international law, such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and arbitrary killing (article 6) and
enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the
problem of impunity for these violations, a matter of sustained concern by the
Committee, may well be an important contributing element in the recurrence of
the violations. When committed as part of a widespread or systematic attack on
a civilian population, these violations of the Covenant are crimes against
humanity (see Rome Statute of the International Criminal Court, article 7).
[Emphasis supplied]
In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right
to security of persons is a guarantee of the protection of ones right by the
government, held that:
The right to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II, Section 11 of
the 1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to
these rights especially when they are under threat.  Protection includes
conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez
Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its own legal duty, not
as a step taken by private interests that depends upon the initiative of
the victim or his family or upon their offer of proof, without an effective
search for the truth by the government. [Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the
right to security not only as a prohibition on the State against arbitrary
deprivation of liberty, but also as the imposition of a positive duty to afford
protection to the right to liberty. The Court notably quoted the following ECHR
ruling:
[A]ny deprivation of liberty must not only have been effected in conformity with
the substantive and procedural rules of national law but must equally be in
keeping with the very purpose of Article 5, namely to protect the individual from
arbitrariness... Having assumed control over that individual, it is incumbent on
the authorities to account for his or her whereabouts. For this reason, Article 5
must be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt
effective investigation into an arguable claim that a person has been
taken into custody and has not been seen since. [Emphasis supplied]
These rulings effectively serve as the backdrop for the Rule on the Writ
of Amparo, which the Court made effective on October 24, 2007. Although
the Amparo  Rule still has gaps waiting to be filled through substantive law, as
evidenced primarily by the lack of a concrete definition of enforced
disappearance, the materials cited above, among others, provide ample
guidance and standards on how, through the medium of
the Amparo  Rule, the Court can provide remedies and protect the
constitutional rights to life, liberty and security that underlie every
enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance 
Before going into the issue of whether the respondent has discharged the burden
of proving the allegations of the petition for the Writ of Amparo  by the degree of
proof required by the Amparo  Rule, we shall discuss briefly the unique
153
evidentiary difficulties presented by enforced disappearance cases; these
difficulties form part of the setting that the implementation of the Amparo  Rule
shall encounter.
These difficulties largely arise because the State itself the party whose
involvement is alleged investigates enforced disappearances. Past experiences in
other jurisdictions show that the evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the identities of the direct
perpetrators.[141] Experts note that abductors are well organized, armed and
usually members of the military or police forces, thus:
The victim is generally arrested by the security forces or by persons acting under
some form of governmental authority. In many countries the units that plan,
implement and execute the program are generally specialized, highly-secret
bodies within the armed or security forces. They are generally directed through a
separate, clandestine chain of command, but they have the necessary credentials
to avoid or prevent any interference by the "legal" police forces. These
authorities take their victims to secret detention centers where they subject them
to interrogation and torture without fear of judicial or other controls.[142]
In addition, there are usually no witnesses to the crime; if there are, these
witnesses are usually afraid to speak out publicly or to testify on the
disappearance out of fear for their own lives.[143] We have had occasion to note
this difficulty in Secretary of Defense v. Manalo[144] when we acknowledged that
where powerful military officers are implicated, the hesitation of witnesses to
surface and testify against them comes as no surprise.
Second, deliberate concealment of pertinent evidence of the
disappearance is a distinct possibility; the central piece of evidence in an
enforced disappearance i.e., the corpus delicti or the victims body is usually
concealed to effectively thwart the start of any investigation or the progress of
one that may have begun.[145] The problem for the victims family is the States
virtual monopoly of access to pertinent evidence . The Inter-American Court of
Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the
deliberate use of the States power to destroy the pertinent evidence. The IACHR
described the concealment as a clear attempt by the State to commit the perfect
crime.[147]
Third is the element of denial; in many cases, the State authorities deliberately
deny that the enforced disappearance ever occurred.[148] Deniability is central to
the policy of enforced disappearances, as the absence of any proven
disappearance makes it easier to escape the application of legal standards
ensuring the victims human rights.[149]Experience shows that government officials
typically respond to requests for information about desaparecidos  by saying that
they are not aware of any disappearance, that the missing people may have fled
the country, or that their names have merely been invented. [150]
These considerations are alive in our minds, as these are the difficulties we
confront, in one form or another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the nature of
an Amparo proceeding and the degree and burden of proof the parties to the
case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall
be summary. However, the court, justice or judge may call for a preliminary
conference to simplify the issues and determine the possibility of obtaining
stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties shall
establish their claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as
required by applicable laws, rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee must prove that
extraordinary diligence as required by applicable laws, rules and regulations was
observed in the performance of duty.
The respondent public official or employee cannot invoke the presumption that
official duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by
substantial evidence, the court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise, the privilege shall
be denied. [Emphasis supplied]
These characteristics namely, of being summary and the use of substantial
evidence as the required level of proof (in contrast to the usual preponderance of
evidence or proof beyond reasonable doubt in court proceedings) reveal the
clear intent of the framers of the Amparo  Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in
addressing Amparo situations. The standard of diligence required the duty of
public officials and employees to observe extraordinary diligence point, too, to
the extraordinary measures expected in the protection of constitutional rights
154
and in the consequent handling and investigation of extra-judicial killings and
enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner needs only to properly comply
with the substance and form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by substantial evidence. Once a
rebuttable case has been proven, the respondents must then respond and prove
their defenses based on the standard of diligence required. The rebuttable case,
of course, must show that an enforced disappearance took place under
circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to
appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the
Court its first opportunity to define the substantial evidence required to arrive at
a valid decision in administrative proceedings. To directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion. [citations omitted] The statute provides that the rules of evidence
prevailing in courts of law and equity shall not be controlling. The obvious
purpose of this and similar provisions is to free administrative boards from the
compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable
flexibility in administrative procedure does not go so far as to justify orders
without a basis in evidence having rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,[152]  which was the Courts first petition for a
Writ of Amparo, we recognized that the full and exhaustive proceedings that the
substantial evidence standard regularly requires do not need to apply due to the
summary nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of
a summary proceeding that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not an action to determine
criminal guilt requiring proof beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or administrative responsibility
requiring substantial evidence that will require full and exhaustive
proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary aspects of Amparo  petitions
are the unique difficulties presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court must frontally meet if
the Amparo Rule is to be given a chance to achieve its objectives. These
evidentiary difficulties compel the Court to adopt standards appropriate and
responsive to the circumstances, without transgressing the due process
requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of
direct evidence that the government of Honduras was involved in Velasquez
Rodriguez disappearance adopted a relaxed and informal evidentiary standard,
and established the rule that presumes governmental responsibility for a
disappearance if it can be proven that the government carries out a general
practice of enforced disappearances and the specific case can be linked to that
practice.[154] The IACHR took note of the realistic fact that enforced
disappearances could be proven only through circumstantial or indirect evidence
or by logical inference; otherwise, it was impossible to prove that an individual
had been made to disappear. It held:
130. The practice of international and domestic courts shows that direct
evidence, whether testimonial or documentary, is not the only type of evidence
that may be legitimately considered in reaching a decision. Circumstantial
evidence, indicia, and presumptions may be considered, so long as they
lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in
allegations of disappearances, because this type of repression is
characterized by an attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was
carried out by agents who acted under cover of public authority, the IACHR
relied on circumstantial evidence including the hearsay testimony of
Zenaida Velsquez, the victims sister, who described Manfredos   kidnapping on the
basis of conversations she had with witnesses who saw Manfredo kidnapped by
men in civilian clothes in broad daylight. She also told the Court that a former
Honduran military official had announced that Manfredo was kidnapped by a
special military squadron acting under orders of the Chief of the Armed Forces.
[155]
 The IACHR likewise considered the hearsay testimony of a second witness
who asserted that he had been told by a Honduran military officer about the
disappearance, and a third witness who testified that he had spoken in prison to
a man who identified himself as Manfredo.[156]
Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an
effective remedy, the standard of evidence must be responsive to the evidentiary
difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only compound the problem if a
wrong is addressed by the commission of another wrong. On the other hand, we
155
cannot be very strict in our evidentiary rules and cannot consider evidence the
way we do in the usual criminal and civil cases; precisely, the proceedings before
us are administrative in nature where, as a rule, technical rules of evidence are
not strictly observed. Thus, while we must follow the substantial evidence rule,
we must observe flexibility in considering the evidence we shall take into
account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence
adduced in their totality, and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is consistent with the admissible
evidence adduced. In other words, we reduce our rules to the most basic
test of reason i.e., to the relevance of the evidence to the issue at hand
and its consistency with all other pieces of adduced evidence. Thus,
even hearsay evidence can be admitted if it satisfies this basic
minimum test.
 We note in this regard that the use of flexibility in the consideration of evidence
is not at all novel in the Philippine legal system. In child abuse cases, Section 28
of the Rule on Examination of a Child Witness [157] is expressly recognized as an
exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the right
of cross-examination by the adverse party. The admission of the statement is
determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child witness.
[158]
 These requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility in the
consideration of evidence, including hearsay evidence, in extrajudicial killings and
enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was there an enforced
disappearance within the meaning of this term under the UN Declaration we
have cited?
The Convention defines enforced disappearance as the arrest, detention,
abduction or any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or whereabouts of the disappeared
person, which place such a person outside the protection of the law. [159] Under
this definition, the elements that constitute enforced disappearance are
essentially fourfold:[160]
 (a)   arrest, detention, abduction or any form of deprivation of liberty;
 (b)   carried out by agents of the State or persons or groups of persons
acting with the authorization, support or acquiescence of the State;
(c)    followed by a refusal to acknowledge the detention, or a concealment of
the fate of the disappeared person; and
 (d)   placement of the disappeared person outside the protection of the law.
[Emphasis supplied]
 We find no direct evidence indicating how the victim actually
disappeared. The direct evidence at hand only shows that Tagitis went out of the
ASY Pension House after depositing his room key with the hotel desk and was
never seen nor heard of again. The undisputed conclusion, however, from all
concerned the petitioner, Tagitis colleagues and even the police authorities is
that Tagistis disappeared under mysterious circumstances and was never seen
again. The respondent injected the causal element in her petition and testimony,
as we shall discuss below.
 We likewise find no direct evidence showing that operatives of PNP CIDG
Zamboanga abducted or arrested Tagitis. If at all, only the respondents
allegation that Tagistis was under CIDG Zamboanga custody stands on record,
but it is not supported by any other evidence, direct or circumstantial.
 In her direct testimony, the respondent pointed to two sources of information as
her bases for her allegation that Tagistis had been placed under government
custody (in contrast with CIDG Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col. Ancanan), who occupied a high
position in the military and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the respondent herself and her
witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part,
admitted the meeting with the respondent but denied giving her any information
about the disappearance.
 The more specific and productive source of information was Col.
Kasim, whom the respondent, together with her witness Mrs. Talbin, met in
Camp Katitipan in Davao City. To quote the relevant portions of the respondents
testimony: 
Q: Were you able to speak to other military officials regarding the whereabouts
of your husband particularly those in charge of any records or investigation?
 A: I went to Camp Katitipan in Davao City. Then one military officer, Col.
Casim, told me that my husband is being abducted [sic] because he is
under custodial investigation because he is
allegedly parang  liason ng J.I., sir.
156
 Q: What is J.I.?
 A: Jemaah Islamiah, sir.
 Q: Was there any information that was read to you during one of those visits of
yours in that Camp?
A: Col. Casim did not furnish me a copy of his report because he said
those reports are highly confidential, sir.
Q: Was it read to you then even though you were not furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly confidential report?
A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]
She confirmed this testimony in her cross-examination:
 Q: You also mentioned that you went to Camp Katitipan in Davao City?
 A: Yes, maam.
 Q: And a certain Col. Kasim told you that your husband was abducted
and under custodial investigation?
 A: Yes, maam.
 Q: And you mentioned that he showed you a report?
 A: Yes, maam.
 Q: Were you able to read the contents of that report?
 A: He did not furnish me a copy of those [sic] report because those
[sic] were highly confidential. That is a military report, maam.
 Q: But you were able to read the contents?
 A: No. But he read it in front of us, my friends, maam.
 Q: How many were you when you went to see Col. Kasim?
 A: There were three of us, maam.
 Q: Who were your companions?
 A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was your
reaction and what did you do?
A: May binasa kasi sya that my husband has a parang meeting with
other people na parang mga terorista na mga tao. Tapos at the end of the
report is [sic] under custodial investigation.So I told him Colonel, my
husband is sick. He is diabetic at nagmemaintain yun ng gamot. Pakisabi lang sa
naghohold sa asawa ko na bigyan siya ng gamot, maam.[163]
xxxx
Q: You mentioned that you received information that Engineer Tagitis is being
held by the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that
information?
A: I did not go to CIDG Zamboanga. I went to Camp Karingal
instead. Enough na yun na effort ko because I know that they would deny it,
maam.[164]
On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her
testimony that her husband was abducted and held under custodial investigation
by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao City sometime November
24, 2007, who was with you when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.
 Q: Were you able to talk, see some other officials at Camp Katitipan during that
time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.
 Q: Were you able to talk to him?
 A: Yes, sir.
 Q: The four of you?
 A: Yes, sir.
 Q: What information did you get from Col. Kasim during that time?
157
 A: The first time we met with [him] I asked him if he knew of the exact location,
if he can furnish us the location of Engr. Tagitis. And he was reading this
report. He told us that Engr. Tagitis is in good hands. He is with the
military, but he is not certain whether he is with the AFP or PNP. He
has this serious case. He was charged of terrorism because he was
under surveillance from January 2007 up to the time that he was
abducted. He told us that he was under custodial investigation. As Ive
said earlier, he was seen under surveillance from January. He was seen
talking to Omar Patik, a certain Santos of Bulacan who is also a Balik
Islam and charged with terrorism. He was seen carrying boxes of
medicines.Then we asked him how long will he be in custodial investigation. He
said until we can get some information. But he also told us that he cannot give
us that report because it was a raw report. It was not official, sir.
 Q: You said that he was reading a report, was that report in document form, in
a piece of paper or was it in the computer or what?
 A: As far as I can see it, sir, it is written in white bond paper. I dont know if it
was computerized but Im certain that it was typewritten. Im not sure if it used
computer, fax or what, sir.
 Q: When he was reading it to you, was he reading it line by line or he was
reading in a summary form?
 A: Sometimes he was glancing to the report and talking to us, sir. [165]
xxxx
Q: Were you informed as to the place where he was being kept during that time?
A: He did not tell us where he [Tagitis] was being kept. But he
mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as Ive mentioned, we just waited because that raw
information that he was reading to us [sic] after the custodial investigation,
Engineer Tagitis will be released. [Emphasis supplied] [166]
Col. Kasim never denied that he met with the respondent and her friends, and
that he provided them information based on the input of an unnamed asset. He
simply claimed in his testimony that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He
also stressed that the information he provided the respondent was merely a raw
report from barangay  intelligence that still needed confirmation and follow up as
to its veracity.[167]
To be sure, the respondents and Mrs. Talbins testimonies were far from perfect,
as the petitioners pointed out. The respondent mistakenly characterized Col.
Kasim as a military officer who told her that her husband is being abducted
because he is under custodial investigation because he is allegedly parang liason
ng J.I. The petitioners also noted that Mrs. Talbins testimony imputing certain
statements to Sr. Supt. Kasim that Engr. Tagitis is with the military, but he is not
certain whether it is the PNP or AFP is not worthy of belief, since Sr. Supt. Kasim
is a high ranking police officer who would certainly know that the PNP is not part
of the military.
Upon deeper consideration of these inconsistencies, however, what appears clear
to us is that the petitioners never really steadfastly disputed or presented
evidence to refute the credibility of the respondent and her witness, Mrs.
Talbin. The inconsistencies the petitioners point out relate, more than anything
else, to details that should not affect the credibility of the respondent and Mrs.
Talbin; the inconsistencies are not on material points. [168] We note, for example,
that these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As
a rule, minor inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot
but generate suspicion that the material circumstances they testified to were
integral parts of a well thought of and prefabricated story.[170]
Based on these considerations and the unique evidentiary situation in
enforced disappearance cases, we hold it duly established that Col.
Kasim informed the respondent and her friends, based on the
informants letter, that Tagitis, reputedly a liaison for the JI and who
had been under surveillance since January 2007, was in good hands
and under custodial investigation for complicity with the JI after he
was seen talking to one Omar Patik and a certain Santos of Bulacan, a
Balik Islam charged with terrorism. The respondents and Mrs. Talbins
testimonies cannot simply be defeated by Col. Kasims plain denial and his claim
that he had destroyed his informants letter, the critical piece of evidence that
supports or negates the parties conflicting claims. Col. Kasims admitted
destruction of this letter effectively, a suppression of this evidence raises the
presumption that the letter, if produced, would be proof of what the respondent
claimed.[171] For brevity, we shall call the evidence of what Col. Kasim reported to
the respondent to be the Kasim evidence.
Given this evidence, our next step is to decide whether we can accept this
evidence, in lieu of direct evidence, as proof that the disappearance of Tagitis
was due to action with government participation, knowledge or consent and that
he was held for custodial investigation. We note in this regard that Col. Kasim
was never quoted to have said that the custodial investigation was by the CIDG
Zamboanga. The Kasim evidence only implies government intervention through
158
the use of the term custodial investigation, and does not at all point to CIDG
Zamboanga as Tagitis custodian.
 Strictly speaking, we are faced here with a classic case of hearsay evidence i.e.,
evidence whose probative value is not based on the personal knowledge of the
witnesses (the respondent, Mrs. Talbin and Col. Kasim himself) but on the
knowledge of some other person not on the witness stand (the informant). [172]
To say that this piece of evidence is incompetent and inadmissible evidence of
what it substantively states is to acknowledge as the petitioners effectively
suggest that in the absence of any direct evidence, we should simply dismiss the
petition. To our mind, an immediate dismissal for this reason is no different from
a statement that the Amparo  Rule despite its terms is ineffective, as it cannot
allow for the special evidentiary difficulties that are unavoidably present
in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo  Rule was not promulgated with this intent or with
the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from
local and international experiences in extrajudicial killings and enforced
disappearances, as the situation may require. Consequently, we have no choice
but to meet the evidentiary difficulties inherent in enforced disappearances with
the flexibility that these difficulties demand.
 To give full meaning to our Constitution and the rights it protects, we hold that,
as in Velasquez, we should at least take a close look at the available evidence to
determine the correct import of every piece of evidence even of those usually
considered inadmissible under the general rules of evidence taking into account
the surrounding circumstances and the test of reason that we can use as basic
minimum admissibility requirement. In the present case, we should at least
determine whether the Kasim evidence before us is relevant and meaningful to
the disappearance of Tagistis and reasonably consistent with other evidence in
the case.
 The evidence about Tagitis personal circumstances surrounded him with an air
of mystery. He was reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a seminar in Zamboanga and
thereafter proceded to Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to Zamboanga the day after he
arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo
police that Tagitis may have taken funds given to him in trust for IDB
scholars. Prof Matli later on stated that he never accused Tagitis of taking away
money held in trust, although he confirmed that the IDB was seeking assistance
in locating funds of IDB scholars deposited in Tagitis personal account. Other
than these pieces of evidence, no other information exists in the records relating
to the personal circumstances of Tagitis.
 The actual disappearance of Tagitis is as murky as his personal
circumstances. While the Amparo petition recited that he was taken away by
burly men believed to be police intelligence operatives, no evidence whatsoever
was introduced to support this allegation. Thus, the available direct evidence is
that Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived
in Jolo and was never seen again.
 The Kasim evidence assumes critical materiality given the dearth of direct
evidence on the above aspects of the case, as it supplies the gaps that were
never looked into and clarified by police investigation. It is the evidence, too,
that colors a simple missing person report into an enforced disappearance case,
as it injects the element of participation by agents of the State and thus brings
into question how the State reacted to the disappearance.
 Denials on the part of the police authorities, and frustration on the part of the
respondent, characterize the attempts to locate Tagitis. Initially in Jolo, the police
informed Kunnong that Tagitis could have been taken by the Abu Sayyaf or other
groups fighting the government. No evidence was ever offered on whether there
was active Jolo police investigation and how and why the Jolo police arrived at
this conclusion. The respondents own inquiry in Jolo yielded the answer that he
was not missing but was with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on an investigation . As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it was only the inquiry from
Col. Kasim that yielded positive results. Col. Kasims story, however, confirmed
only the fact of his custodial investigation (and, impliedly, his arrest or
abduction), without identifying his abductor/s or the party holding him in
custody. The more significant part of Col. Kasims story is that the abduction
came after Tagitis was seen talking with Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Mrs. Talbin mentioned, too, that
Tagitis was being held at Talipapao, Sulu. None of the police agencies
participating in the investigation ever pursued these leads.Notably, TASK FORCE
TAGITIS to which this information was relayed did not appear to have lifted a
finger to pursue these aspects of the case.
More denials were manifested in the Returns on the writ to the CA made by the
petitioners. Then PNP Chief Gen. Avelino I. Razon merely reported the directives
he sent to the ARMM Regional Director and the Regional Chief of the CIDG on
Tagitis, and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative
results. These, to the PNP Chief, constituted the exhaustion of all possible
efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also reported
negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough
research, records show that no such person is being detained in the CIDG or any
of its department or divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and
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PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no
better in their affidavits-returns, as they essentially reported the results of their
directives to their units to search for Tagitis
The extent to which the police authorities acted was fully tested when the CA
constituted TASK FORCE TAGITIS, with specific directives on what to do. The
negative results reflected in the Returns on the writ were again replicated during
the three hearings the CA scheduled. Aside from the previously mentioned
retraction that Prof. Matli made to correct his accusation that Tagitis took money
held in trust for students, PS Supt. Ajirim reiterated in his testimony that the
CIDG consistently denied any knowledge or complicity in any abduction and said
that there was no basis to conclude that the CIDG or any police unit had
anything to do with the disappearance of Tagitis; he likewise considered it
premature to conclude that Tagitis simply ran away with the money in his
custody. As already noted above, the TASK FORCE notably did not pursue any
investigation about the personal circumstances of Tagitis, his background in
relation to the IDB and the background and activities of this Bank itself, and the
reported sighting of Tagistis with terrorists and his alleged custody in Talipapao,
Sulu. No attempt appears to have ever been made to look into the alleged IDB
funds that Tagitis held in trust, or to tap any of the assets who are indispensable
in investigations of this nature. These omissions and negative results were
aggravated by the CA findings that it was only as late as January 28, 2008 or
three months after the disappearance that the police authorities requested for
clear pictures of Tagitis. Col. Kasim could not attend the trial because his
subpoena was not served, despite the fact that he was designated as Ajirims
replacement in the latters last post. Thus, Col. Kasim was not then
questioned. No investigation even an internal one appeared to have been made
to inquire into the identity of Col. Kasims asset and what he indeed wrote.
We glean from all these pieces of evidence and developments a
consistency in the governments denial of any complicity in the
disappearance of Tagitis, disrupted only by the report made by Col.
Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,
eventually denied that he ever made the disclosure that Tagitis was under
custodial investigation for complicity in terrorism. Another distinctive trait
that runs through these developments is the governments dismissive
approach to the disappearance, starting from the initial response by the Jolo
police to Kunnongs initial reports of the disappearance, to the responses made to
the respondent when she herself reported and inquired about her husbands
disappearance, and even at TASK FORCE TAGITIS itself.
As the CA found through TASK FORCE TAGITIS, the investigation was at best
haphazard since the authorities were looking for a man whose picture they
initially did not even secure. The returns and reports made to the CA fared no
better, as the CIDG efforts themselves were confined to searching for custodial
records of Tagitis in their various departments and divisions. To point out the
obvious, if the abduction of Tagitis was a black operation because it was
unrecorded or officially unauthorized, no record of custody would ever appear in
the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG
detention places. In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the
personnel and units they directed to investigate can never constitute exhaustive
and meaningful investigation, or equal detailed investigative reports of the
activities undertaken to search for Tagitis. Indisputably, the police authorities
from the very beginning failed to come up to the extraordinary diligence that
the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col. Kasims disclosure, made in
an unguarded moment, unequivocally point to some government complicity in
the disappearance. The consistent but unfounded denials and the haphazard
investigations cannot but point to this conclusion. For why would the government
and its officials engage in their chorus of concealment if the intent had not been
to deny what they already knew of the disappearance? Would not an in-depth
and thorough investigation that at least credibly determined the fate of Tagitis be
a feather in the governments cap under the circumstances of the
disappearance? From this perspective, the evidence and developments,
particularly the Kasim evidence, already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the prism of the UN
Declaration, heretofore cited and quoted,[173] the evidence at hand and the
developments in this case confirm the fact of the enforced disappearance and
government complicity, under a background of consistent and unfounded
government denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law a situation that will
subsist unless this Court acts.
This kind of fact situation and the conclusion reached are not without precedent
in international enforced disappearance rulings. While the facts are not exactly
the same, the facts of this case run very close to those of Timurtas v. Turkey,
[174]
 a case decided by ECHR. The European tribunal in that case acted on the
basis of the photocopy of a post-operation report in finding that Abdulvahap
Timurtas (Abdulvahap) was abducted and later detained by agents (gendarmes)
of the government of Turkey. The victim's father in this case brought a claim
against Turkey for numerous violations of the European Convention, including
the right to life (Article 2) and the rights to liberty and security of a person
(Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the
Kurdish Workers Party (PKK) in the Silopi region. The petition was filed in
southeast Turkey nearly six and one half years after the apprehension. According
to the father, gendarmes first detained Abdulvahap and then transferred him to
160
another detainment facility. Although there was no eyewitness evidence of
the apprehension or subsequent detainment, the applicant presented
evidence corroborating his version of events, including a photocopy of
a post-operation report signed by the commander of gendarme
operations in Silopi, Turkey. The report included a description of
Abdulvahap's arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK in the Silopi
region. On this basis, Turkey was held responsible for Abdulvahaps enforced
disappearance.
Following the lead of this Turkish experience - adjusted to the
Philippine legal setting and the Amparo remedy this Court has
established, as applied to the unique facts and developments of this
case we believe and so hold that the government in general, through
the PNP and the PNP-CIDG, and in particular, the Chiefs of these
organizations together with Col. Kasim, should be held fully
accountable for the enforced disappearance of Tagitis
The PNP and CIDG are accountable because Section 24 of Republic Act No.
6975, otherwise known as the PNP Law,[175] specifies the PNP as the
governmental officewith the mandate to investigate and prevent crimes, effect
the arrest of criminal offenders, bring offenders to justice and assist in their
prosecution. The PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG
Region 9) testified, is the investigative arm of the PNP and is mandated to
investigate and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes. [176] Under the PNP
organizational structure, the PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and operates against organized
crime groups, unless the President assigns the case exclusively to the National
Bureau of Investigation (NBI).[177] No indication exists in this case showing that
the President ever directly intervened by assigning the investigation of Tagitis
disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials and members were the
ones who were remiss in their duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo  remedy, we refer this case back
to the CA for appropriate proceedings directed at the monitoring of the PNP and
the PNP-CIDG investigations and actions, and the validation of their results
through hearings the CA may deem appropriate to conduct. For purposes of
these investigations, the PNP/PNP-CIDG shall initially present to the CA a plan of
action for further investigation, periodically reporting the detailed results of its
investigation to the CA for its consideration and action.On behalf of this Court,
the CA shall pass upon: the need for the PNP and the PNP-CIDG to make
disclosures of matters known to them as indicated in this Decision and as further
CA hearings may indicate; the petitioners submissions; the sufficiency of their
investigative efforts; and submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the petitioners and the
respondent, with the first report due at the end of the first quarter counted
from the finality of this Decision. The PNP and the PNP-CIDG shall have one (1)
full year to undertake their investigation. The CA shall submit its full report for
the consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision.
WHEREFORE, premises considered, we DENY the petitioners petition for
review on certiorari for lack of merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following terms:
a.                 Recognition that the disappearance of Engineer Morced N. Tagitis
is an enforced disappearance covered by the Rule on the Writ of Amparo;
b.                 Without any specific pronouncement on exact authorship and
responsibility, declaring the government (through the PNP and the PNP-CIDG)
and Colonel Julasirim Ahadin Kasim accountable for the enforced disappearance
of Engineer Morced N. Tagitis;
c.                  Confirmation of the validity of the Writ of Amparo  the Court of
Appeals issued;
d.                 Holding the PNP, through the PNP Chief, and the PNP-CIDG,
through its Chief, directly responsible for the disclosure of material facts known
to the government and to their offices regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of proper investigations using
extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;
e.                  Ordering Colonel Julasirim Ahadin Kasim impleaded in this case
and holding him accountable with the obligation to disclose information known to
him and to his assets in relation with the enforced disappearance of Engineer
Morced N. Tagitis;
f.                   Referring this case back to the Court of Appeals for appropriate
proceedings directed at the monitoring of the PNP and PNP-CIDG investigations,
actions and the validation of their results; the PNP and the PNP-CIDG shall
initially present to the Court of Appeals a plan of action for further investigation,
periodically reporting their results to the Court of Appeals for consideration and
action;
g.                 Requiring the Court of Appeals to submit to this Court a quarterly
report with its recommendations, copy furnished the incumbent PNP and PNP-
CIDG Chiefs as petitioners and the respondent, with the first report due at the
end of the first quarter counted from the finality of this Decision;
161
h.                 The PNP and the PNP-CIDG shall have one (1) full year to
undertake their investigations; the Court of Appeals shall submit its full report for
the consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this
Decision shall be given to, and shall be directly enforceable against, whoever
may be the incumbent Chiefs of the Philippine National Police and its Criminal
Investigation and Detection Group, under pain of contempt from this Court when
the initiatives and efforts at disclosure and investigation constitute less than the
extraordinary diligence that the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique nature of Amparo cases
and their varying attendant circumstances, these directives particularly, the
referral back to and monitoring by the CA are specific to this case and are not
standard remedies that can be applied to every Amparo situation.

The dismissal of the Amparo  petition with respect to General Alexander Yano,

Commanding General, Philippine Army, and General Ruben Rafael, Chief, Anti-
Terrorism Task Force Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.

ARTURO D. BRION

Associate Justice

162

SECOND DIVISION
[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, petitioners, 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.
Remedial Law; Judgments; Enforcement of Foreign Judgments; Comity; There is
an evident distinction between a foreign judgment in an action in rem and one in
personam; 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.— 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. 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, collusion,
fraud, or clear mistake of law or fact. 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.
Same; Same; Same; Same; It is usually necessary for an action to be filed in
order to enforce a foreign judgment; The party attacking a foreign judgment has
the burden of overcoming the presumption of its validity.—It is clear then that it
is usually necessary for an action to be filed in order to enforce a foreign
judgment, 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. Consequently, the party attacking a foreign judgment has the burden
of overcoming the presumption of its validity.
Same; Same; Same; Same; 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.—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. 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.” 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.
Same; Same; Same; Same; The viability of the public policy defense against the
enforcement of a foreign judgment has been recognized in this jurisdiction.— The
viability of the public policy defense against the enforcement of a foreign
judgment has been recognized in this jurisdiction. 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. 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. 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.
Same; Same; Same; Same; 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 .— 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. 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.
Same; Same; Same; Same; Court can assert with certainty that such an
undertaking is among those generally accepted principles of international law .—
While the definite conceptual parameters of the recognition and enforcement of
163
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.
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.
The petitioners in this case are prominent victims of human rights
violations[1] 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 citizens [2] 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 Courts 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]
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]
164
On 9 September 1998, respondent Judge Santiago Javier Ranada[10] of the Makati judgments, particularly those lodged against an estate. There is no basis for the
RTC issued the subject Order dismissing the complaint without prejudice. issuance a limited pro hac vice ruling based on the special circumstances of the
Respondent judge opined that contrary to the petitioners submission, the subject petitioners as victims of martial law, or on the emotionally-charged allegation of
matter of the complaint was indeed capable of pecuniary estimation, as it human rights abuses.
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 An examination of Rule 141 of the Rules of Court readily evinces that the
foreign judgment. On that score, Section 7(a) of Rule 141 of the Rules of Civil respondent judge ignored the clear letter of the law when he concluded that the
Procedure would find application, and the RTC estimated the proper amount of filing fee be computed based on the total sum claimed or the stated value of the
filing fees was approximately Four Hundred Seventy Two Million Pesos, which property in litigation.
obviously had not been paid. In dismissing the complaint, the respondent judge relied on Section 7(a), Rule
Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge 141 as basis for the computation of the filing fee of over P472 Million. The
Ranada denied in an Order dated 28 July 1999. From this denial, petitioners filed provision states:
a Petition for Certiorariunder Rule 65 assailing the twin orders of respondent SEC. 7. Clerk of Regional Trial Court.-
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 (a) For filing an action or a permissive counterclaim or money claim against
appropriate proceedings thereon. 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
Petitioners submit that their action is incapable of pecuniary estimation as the clerical services in the same time, if the total sum claimed, exclusive of interest,
subject matter of the suit is the enforcement of a foreign judgment, and not an or the started value of the property in litigation, is:
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 1. Less than P 100,00.00 P 500.00
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, 2. P 100,000.00 or more - P 800.00
Rule 1 of the Rules of Civil Procedure, particularly the inexpensive disposition of
but less than P 150,000.00
every action.
3. P 150,000.00 or more but - P 1,000.00
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 less than P 200,000.00
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 4. P 200,000.00 or more but
fee. The adjudicated amount of the filing fee, as arrived at by the RTC, was
less than P 250,000.00 - P 1,500.00
characterized as indisputably unfair, inequitable, and unjust.
5. P 250,000.00 or more but
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 less than P 300,00.00 - P 1,750.00
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 6. P 300,000.00 or more but
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 not more than P 400,000.00 - P 2,000.00
between the same parties in one country on the same issue with finality, it can 7. P 350,000.00 or more but not
no longer be relitigated again in another country.[13] The CHR likewise invokes
the principle of comity, and of vested rights. more than P400,000.00 - P 2,250.00

The Courts disposition on the issue of filing fees will prove a useful 8. For each P 1,000.00 in excess of
jurisprudential guidepost for courts confronted with actions enforcing foreign

165
P 400,000.00 - P 10.00
...
(Emphasis supplied)
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, money claims against estates which are not
based on judgment. Thus, the relevant question for purposes of the present
petition is 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 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.
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
mortgagees claim.[14] In special 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 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:
SEC. 7. Clerk of Regional Trial Court.-
(b) For filing
1. Actions where the value
of the subject matter
cannot be estimated --- P 600.00
2. Special civil actions except
judicial foreclosure which
shall be governed by
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
adjudicated by the US District Court involves any real property of the Marcos
Estate.
Thus, respondent judge was in clear and serious error when he concluded that
the filing fees should be computed on the basis of the 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?
To resolve this question, a proper understanding is required on the nature and
effects of a foreign judgment in this jurisdiction.
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. Guyot[18] 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:
(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;
166
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 judgment[26], 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 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 Ferrers 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 complaintthe enforcement of a foreign judgmentis
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]
167
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:
xxx 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, like in 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 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.[37]
Petitioners go on to add that among the actions the Court has recognized as
being incapable of pecuniary estimation include legality of conveyances and
money deposits,[38] validity of a mortgage,[39] the right to support,[40] validity of
documents,[41] rescission of contracts,[42] specific performance,[43] and validity or
annulment of judgments.[44] It is urged that an action for enforcement of a
foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that while the
subject matter of the action is undoubtedly the enforcement of a foreign
judgment, the effect of a providential award would be the adjudication of a sum
of money. Perhaps in theory, such an action is primarily for the enforcement of
the foreign 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.
But before we insist upon this conclusion past beyond the point of reckoning, we
must examine its possible ramifications. Petitioners raise the point that a
declaration that an action for enforcement of foreign judgment may be capable
of pecuniary estimation might lead to an instance wherein a first level court such
as the Municipal Trial Court would have jurisdiction to enforce a foreign
judgment. But under the statute defining the jurisdiction of first level courts, B.P.
129, such courts are not vested with jurisdiction over actions for the
enforcement of foreign judgments.
Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in civil cases. Metropolitan Trial Courts, Municipal
Trial Courts, and Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over civil actions and probate proceedings,
testate and intestate, including the grant of provisional remedies in proper cases,
where the value of the personal property, estate, or amount of the demand does
not exceed One hundred thousand pesos (P100,000.00) or, in Metro Manila
where such personal property, estate, or amount of the demand does not exceed
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, That where there are several claims
or causes of action between the same or different parties, embodied in the same
complaint, the amount of the demand shall be the totality of the claims in all the
causes of action, irrespective of whether the causes of action arose out of the
same or different transactions;
(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 ownership, the issue of ownership shall be resolved
only to determine the issue of possession.
(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,
168
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 nations[47] 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. Guyot[48] 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 conceptual bases for the recognition of foreign judgments have
evolved such as the vested rights theory or the modern doctrine of obligation. [52]
There have been attempts to codify through treaties or multilateral agreements
the standards for the recognition and enforcement of foreign judgments, but
these have not borne fruition. The members of the European Common Market
accede to the Judgments Convention, signed in 1978, which eliminates as to
participating countries all of such obstacles to recognition such as reciprocity
and rvision au fond.[53] The most ambitious of these attempts is the 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 representing current scholarly thought on the topic.
[56]
 Neither the Philippines nor the United States are signatories to the
Convention.
Yet even if there is no unanimity as to the applicable theory behind the
recognition and enforcement of foreign judgments or a universal treaty rendering
it obligatory force, there is consensus that the viability of such recognition and
enforcement is essential. Steiner and Vagts note:
. . . The notion of unconnected bodies of national law on private international
law, each following a quite separate path, is not one conducive to the growth of
a transnational community encouraging travel and commerce among its
members. There is a contemporary resurgence of writing stressing the identity or
similarity of the values that systems of public and private international law seek
to further a community interest in common, or at least reasonable, rules on
these matters in national legal systems. And such generic principles as reciprocity
play an important role in both fields.[57]
Salonga, whose treatise on private international law is of worldwide renown,
points out:
Whatever be the theory as to the basis for recognizing foreign judgments, there
can be little dispute that the end is to protect the reasonable expectations and
demands of the parties. Where the parties have submitted a matter for
adjudication in the court of one state, and proceedings there are not tainted with
irregularity, they may fairly be expected to submit, within the state or elsewhere,
to the enforcement of the judgment issued by the court. [58]
There is also consensus as to the requisites for recognition of a foreign judgment
and the defenses against the enforcement thereof. 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 generally accepted principles of international law. Section 98 of
The Restatement, Second, Conflict of Laws, states that a valid judgment
rendered in a foreign nation after a fair trial in a contested proceeding will be
recognized in the United States, and on its face, 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 foreign judgment finds affirmation with foreign jurisprudence
and commentators,[60] as well as the doctrine that the foreign judgment must not
169
constitute a clear mistake of law or fact. [61] And finally, it has been recognized
that public policy as a defense to the recognition of judgments serves as an
umbrella for a variety of concerns in international practice which may lead to a
denial of recognition.[62]
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 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
170
complaint is lodged against an estate and is based on the US District Courts 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 grounds[73] 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.

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.

Puno, (Chairman), Austria-Martinez, Callejo, Sr.,  and Chico-Nazario, JJ.,  concur.

EN BANC

March 8, 2016
171
G.R. No. 221697
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,  an authority properly vested with jurisdiction. The prior determination of
vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.
x-----------------------x
G.R. No. 221698-700
MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,  authority being the necessary measure by which the falsity of the representation
vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND
AMADO D. VALDEZ Respondents.
Election Law; Cancellation of Certificate of Candidacy; The Commission on
Elections (COMELEC) cannot itself, in the same cancellation case, decide the
qualification or lack thereof of the candidate.—The issue before the COMELEC is
whether or not the CoC of petitioner should be denied due course or cancelled
“on the exclusive ground” that she made in the certificate a false material
representation. The exclusivity of the ground should hedge in the discretion of
the COMELEC and restrain it from going into the issue of the qualifications of the
candidate for the position, if, as in this case, such issue is yet undecided or
undetermined by the proper authority. The COMELEC cannot itself, in the same
cancellation case, decide the qualification or lack thereof of the candidate.
Same; Disqualification of Candidates; As presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified “is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.”—Clearly, the amendment done in 2012 is an acceptance of the
reality of absence of an authorized proceeding for determining before election
the qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent court
that the candidate sought to be disqualified “is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.”
jurisdiction, for the COMELEC to determine the qualification of a candidate. The
facts of qualification must beforehand be established in a prior proceeding before
qualification may be by statute, by executive order or by a judgment of a
competent court or tribunal. If a candidate cannot be disqualified without a prior
finding that he or she is suffering from a disqualification “provided by law or the
Constitution,” neither can the certificate of candidacy be cancelled or denied due
course on grounds of false representations regarding his or her qualifications,
without a prior authoritative finding that he or she is not qualified, such prior
can be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
Citizenship; Burden of Proof; The burden of proof was on private respondents to
show that petitioner is not a Filipino citizen .—At the outset, it must be noted that
presumptions regarding paternity is neither unknown nor unaccepted in
Philippine Law. The Family Code of the Philippines has a whole chapter on
Paternity and Filiation. That said, there is more than sufficient evidence that
petitioner has Filipino parents and is therefore a natural-born Filipino.
Parenthetically, the burden of proof was on private respondents to show that
petitioner is not a Filipino citizen. The private respondents should have shown
that both of petitioner’s parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where there
is a high probability, if not certainty, that her parents are Filipinos.

Same; Cancellation of Certificate of Candidacy; Misrepresentation; If a candidate

cannot be disqualified without a prior finding that he or she is suffering from a
disqualification “provided by law or the Constitution,” neither can the certificate
of candidacy (CoC) be cancelled or denied due course on grounds of false
representations regarding his or her qualifications, without a prior authoritative
finding that he or she is not qualified, such prior authority being the necessary
measure by which the falsity of the representation can be found.—Insofar as the
qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one
to the other. Both do not allow, are not authorizations, are not vestment of
172
Same; Foundlings; Presumptions; That a person with typical Filipino features is
abandoned in Catholic Church in a municipality where the population of the
Philippines is overwhelmingly Filipinos such that there would be more than a
ninety-nine percent (99%) chance that a child born in the province would be a
Filipino, would indicate more than ample probability if not statistical certainty,
that petitioner’s parents are Filipinos.—Other circumstantial evidence of the
nationality of petitioner’s parents are the fact that she was abandoned as an
infant in a Roman Catholic Church in Iloilo City. She also has typical Filipino
features: height, flat nasal bridge, straight black hair, almond shaped eyes and
an oval face. There is a disputable presumption that things have happened
according to the ordinary course of nature and the ordinary habits of life. All of
the foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that
a child born in the province would be a Filipino, would indicate more than ample
probability if not statistical certainty, that petitioner’s parents are Filipinos. That
probability and the evidence on which it is based are admissible under Rule 128,
Section 4 of the Revised Rules on Evidence.
Same; Same; As a matter of law, foundlings are as a class, natural-born citizens .
—As a matter of law, foundlings are as a class, natural-born citizens. While the
1935 Constitution’s enumeration is silent as to foundlings, there is no restrictive
language which would definitely exclude foundlings either. Because of silence
and ambiguity in the enumeration with respect to foundlings, there is a need to
examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue, 152 SCRA 284 (1987), this Court held that: The ascertainment of that
intent is but in keeping with the fundamental principle of constitutional
construction that the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in constitutional construction
is to ascertain and thereafter assure the realization of the purpose of the framers
and of the people in the adoption of the Constitution. It may also be safely
assumed that the people in ratifying the Constitution were guided mainly by the
explanation offered by the framers.
Same; Same; Burden of Proof; The burden is on those who wish to use the
constitution to discriminate against foundlings to show that the constitution
really intended to take this path to the dark side and inflict this across the board
marginalization.—The Solicitor General makes the further point that the framers
“worked to create a just and humane society,” that “they were reasonable
patriots and that it would be unfair to impute upon them a discriminatory intent
against foundlings.” He exhorts that, given the grave implications of the
argument that foundlings are not natural-born Filipinos, the Court must search
the records of the 1935, 1973 and 1987 Constitutions “for an express intention
to deny foundlings the status of Filipinos. The burden is on those who wish to
use the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this
across the board marginalization.” We find no such intent or language permitting
discrimination against foundlings. On the contrary, all three Constitutions
guarantee the basic right to equal protection of the laws. All exhort the State to
render social justice. Of special consideration are several provisions in the
present charter: Article II, Section 11 which provides that the “State values the
dignity of every human person and guarantees full respect for human rights,”
Article XIII, Section 1 which mandates Congress to “give highest priority to the
enactment of measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, and political inequalities x x x” and
Article XV, Section 3 which requires the State to defend the “right of children to
assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to
their development.” Certainly, these provisions contradict an intent to
discriminate against foundlings on account of their unfortunate status.
Same; Same; Domestic laws on adoption also support the principle that
foundlings are Filipinos.—Domestic laws on adoption also support the principle
that foundlings are Filipinos. These laws do not provide that adoption confers
citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first
place to be adopted. The most basic of such laws is Article 15 of the Civil Code
which provides that “[l]aws relating to family rights, duties, status, conditions,
legal capacity of persons are binding on citizens of the Philippines even though
living abroad.” Adoption deals with status, and a Philippine adoption court will
have jurisdiction only if the adoptee is a Filipino.
Same; Same; Adoption; Republic Act (RA) No. 8043 entitled “An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes” (otherwise known as the “Inter-Country Adoption Act of 1995”),
RA No. 8552, entitled “An Act Establishing the Rules and Policies on the Adoption
of Filipino Children and For Other Purposes” (otherwise known as the Domestic
Adoption Act of 1998) and this Court’s A.M. No. 02-6-02-SC or the “Rule on
Adoption,” all expressly refer to “Filipino children” and include foundlings as
among Filipino children who may be adopted.—Recent legislation is more direct.
R.A. No. 8043 entitled “An Act Establishing the Rules to Govern the Inter-
Country Adoption of Filipino Children and For Other Purposes” (otherwise known
as the “Inter-Country Adoption Act of 1995”), R.A. No. 8552, entitled “An Act
Establishing the Rules and Policies on the Adoption of Filipino Children and For
Other Purposes” (otherwise known as the Domestic Adoption Act of 1998) and
this Court’s A.M. No. 02-6-02-SC or the “Rule on Adoption,” all expressly refer to
“Filipino children” and include foundlings as among Filipino children who may be
adopted. It has been argued that the process to determine that the child is a
foundling leading to the issuance of a foundling certificate under these laws and
the issuance of said certificate are acts to acquire or perfect Philippine citizenship
173
which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 “Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship.” In the first place, “having to perform an act” means
that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the authorities.
Secondly, the object of the process is the determination of the whereabouts of
the parents, not the citizenship of the child. Lastly, the process is certainly not
analogous to naturalization proceedings to acquire Philippine citizenship, or the
election of such citizenship by one born of an alien father and a Filipino mother
under the 1935 Constitution, which is an act to perfect it. In this instance, such
issue is moot because there is no dispute that petitioner is a foundling, as
evidenced by a Foundling Certificate issued in her favor. The Decree of Adoption
issued on 13 May 1974, which approved petitioner’s adoption by Jesusa Sonora
Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife,
Rosario Militar, as her “foundling parents,” hence effectively affirming petitioner’s
status as a foundling.
Same; Same; Foundlings are likewise citizens under international law .—
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. On the other hand, 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. Generally accepted principles of international law include
international custom as evidence of a general practice accepted as law, and
general principles of law recognized by civilized nations. International customary
rules are accepted as binding as a result from the combination of 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.
“General principles of law recognized by civilized nations” are principles
“established by a process of reasoning” or judicial logic, based on principles
which are “basic to legal systems generally,” such as “general principles of
equity, i.e., the general principles of fairness and justice,” and the “general
principle against discrimination” which is embodied in the “Universal Declaration
of Human Rights, the International Covenant on Economic, Social and Cultural
Rights, the International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention Against Discrimination in Education, the
Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation.” These are the same core principles which underlie the Philippine
Constitution itself, as embodied in the due process and equal protection clauses
of the Bill of Rights.
Same; Same; The common thread of the Universal Declaration of Human Rights
(UDHR), United Nations Convention on the Rights of the Child (UNCRC) and
International Covenant on Civil and Political Rights (ICCPR) is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless .—
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless.
This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old. The principles found
in two conventions, while yet unratified by the Philippines, are generally
accepted principles of international law. The first is Article 14 of the 1930 Hague
Convention on Certain Questions Relating to the Conflict of Nationality Laws
under which a foundling is presumed to have the “nationality of the country of
birth,” to wit: Article 14 A child whose parents are both unknown shall have the
nationality of the country of birth. If the child’s parentage is established, its
nationality shall be determined by the rules applicable in cases where the
parentage is known. A foundling is, until the contrary is proved, presumed to
have been born on the territory of the State in which it was found. (Underlining
supplied) The second is the principle that a foundling is presumed born of
citizens of the country where he is found, contained in Article 2 of the 1961
United Nations Convention on the Reduction of Statelessness: Article 2 A
foundling found in the territory of a Contracting State shall, in the absence of
proof to the contrary, be considered to have been born within the territory of
parents possessing the nationality of that State.
Same; Same; Foreign Judgments; Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and
which are “basic to legal systems generally,” support the notion that the right
against enforced disappearances and the recognition of foreign judgments, were
correctly considered as “generally accepted principles of international law” under
the incorporation clause.—Our approach in Razon, Jr. v. Tagitis, 606 SCRA 598
(2009), and Mijares v. Ranada, 455 SCRA 397 (2005), effectively takes into
account the fact that “generally accepted principles of international law” are
based not only on international custom, but also on “general principles of law
recognized by civilized nations,” as the phrase is understood in Article 38.1
paragraph (c) of the ICJ Statute. Justice, fairness, equity and the policy against
discrimination, which are fundamental principles underlying the Bill of Rights and
which are “basic to legal systems generally,” support the notion that the right
against enforced disappearances and the recognition of foreign judgments, were
correctly considered as “generally accepted principles of international law” under
the incorporation clause.
174
Same; Same; It is a generally accepted principle of international law to presume
foundlings as having been born of nationals of the country in which the
foundling is found.—Petitioner’s evidence shows that at least sixty countries in
Asia, North and South America, and Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments
pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings
are recognized as citizens. These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted principle of international
law to presume foundlings as having been born of nationals of the country in
which the foundling is found.
Same; Same; Passports; It has been pointed that the Department of Foreign
Affairs (DFA) issues passports to foundlings. Passports are by law, issued only to
citizens. This shows that even the executive department, acting through the
DFA, considers foundlings as Philippine citizens.—Current legislation reveals the
adherence of the Philippines to this generally accepted principle of international
law. In particular, R.A. No. 8552, R.A. No. 8042 and this Court’s Rules on
Adoption, expressly refer to “Filipino children.” In all of them, foundlings are
among the Filipino children who could be adopted. Likewise, it has been pointed
that the DFA issues passports to foundlings. Passports are by law, issued only to
citizens. This shows that even the executive department, acting through the
DFA, considers foundlings as Philippine citizens. Adopting these legal principles
from the 1930 Hague Convention and the 1961 Convention on Statelessness is
rational and reasonable and consistent with the jus sanguinis regime in our
Constitution. The presumption of natural-born citizenship of foundlings stems
from the presumption that their parents are nationals of the Philippines. As the
empirical data provided by the PSA show, that presumption is at more than 99%
and is a virtual certainty.
Same; Same; Repatriation; Natural-born Citizens; Parreño v. Commission on
Audit, 523 SCRA 390 (2007), is categorical that “if petitioner reacquires his
Filipino citizenship (under Republic Act [RA] No. 9225), he will . . . recover his
natural-born citizenship.”—R.A. No. 9225 is a repatriation statute and has been
described as such in several cases. They include Sobejana-Condon v. COMELEC,
678 SCRA 267 (2012), where we described it as an “abbreviated repatriation
process that restores one’s Filipino citizenship x x x.” Also included is Parreño v.
Commission on Audit, 523 SCRA 390 (2007), which cited Tabasa v. Court of
Appeals, 500 SCRA 9 (2006), where we said that “[t]he repatriation of the former
Filipino will allow him to recover his natural-born citizenship. Parreño v.
Commission on Audit is categorical that “if petitioner reacquires his Filipino
citizenship (under R.A. No. 9225), he will . . . recover his natural-born
citizenship.”
Same; Natural-born Citizens; Congress saw it fit to decree that natural-born
citizenship may be reacquired even if it had been once lost. It is not for the
Commission on Elections (COMELEC) to disagree with the Congress’
determination.—The COMELEC construed the phrase “from birth” in the
definition of natural citizens as implying “that natural-born citizenship must begin
at birth and remain uninterrupted and continuous from birth.” R.A. No. 9225 was
obviously passed in line with Congress’ sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that natural-
born citizenship may be reacquired even if it had been once lost. It is not for the
COMELEC to disagree with the Congress’ determination. More importantly,
COMELEC’s position that natural-born status must be continuous was already
rejected in Bengson III v. House of Representatives Electoral Tribunal, 357 SCRA
545 (2001), where the phrase “from birth” was clarified to mean at the time of
birth: “A person who at the time of his birth, is a citizen of a particular country, is
a naturalborn citizen thereof.” Neither is “repatriation” an act to “acquire or
perfect” one’s citizenship. In Bengson III v. House of Representatives Electoral
Tribunal, this Court pointed out that there are only two types of citizens under
the 1987 Constitution: natural-born citizen and naturalized, and that there is no
third category for repatriated citizens: It is apparent from the enumeration of
who are citizens under the present Constitution that there are only two classes of
citizens: (1) those who are natural-born and (2) those who are naturalized in
accordance with law. A citizen who is not a naturalized Filipino, i.e., did not have
to undergo the process of naturalization to obtain Philippine citizenship,
necessarily is a natural-born Filipino. Noteworthy is the absence in said
enumeration of a separate category for persons who, after losing Philippine
citizenship, subsequently reacquire it. The reason therefor is clear: as to such
persons, they would either be natural-born or naturalized depending on the
reasons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz was not required
by law to go through naturalization proceedings in order to reacquire his
citizenship, he is perforce a naturalborn Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of
Representatives.
Election Law; Commission on Elections; The Commission on Elections
(COMELEC) cannot reverse a judicial precedent.—The COMELEC cannot reverse
a judicial precedent. That is reserved to this Court. And while we may always
revisit a doctrine, a new rule reversing standing doctrine cannot be retroactively
applied. In Carpio-Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,
774 SCRA 431 (2015), where we decreed reversed the condonation doctrine, we
cautioned that it “should be prospective in application for the reason that judicial
decisions applying or interpreting the laws of the Constitution, until reversed,
175
shall form part of the legal system of the Philippines.” This Court also said that
“while the future may ultimately uncover a doctrine’s error, it should be, as a
general rule, recognized as good law prior to its abandonment. Consequently,
the people’s reliance thereupon should be respected.”
Civil Law; Adoption; One (1) of the effects of adoption is “to sever all legal ties
between the biological parents and the adoptee, except when the biological
parent is the spouse of the adopter.”—It was repeatedly pointed out during the
oral arguments that petitioner committed a falsehood when she put in the spaces
for “born to” in her application for repatriation under R.A. No. 9225 the names of
her adoptive parents, and this misled the BI to presume that she was a natural-
born Filipino. It has been contended that the data required were the names of
her biological parents which are precisely unknown. This position disregards one
important fact — petitioner was legally adopted. One of the effects of adoption is
“to sever all legal ties between the biological parents and the adoptee, except
when the biological parent is the spouse of the adopter.” Under R.A. No. 8552,
petitioner was also entitled to an amended birth certificate “attesting to the fact
that the adoptee is the child of the adopter(s)” and which certificate “shall not
bear any notation that it is an amended issue.” That law also requires that “[a]ll
records, books, and papers relating to the adoption cases in the files of the
court, the Department [of Social Welfare and Development], or any other agency
or institution participating in the adoption proceedings shall be kept strictly
confidential.” The law therefore allows petitioner to state that her adoptive
parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption
records, petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot
make in the same case for cancellation of CoC, it resorted to opinionatedness
which is, moreover, erroneous. The whole process undertaken by COMELEC is
wrapped in grave abuse of discretion.
Election Law; Presidential Candidates; Residence; The Constitution requires
presidential candidates to have ten (10) years residence in the Philippines before
the day of the elections.—The Constitution requires presidential candidates to
have ten (10) years’ residence in the Philippines before the day of the elections.
Since the forthcoming elections will be held on 9 May 2016, petitioner must have
been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In
answer to the requested information of “Period of Residence in the Philippines
up to the day before May 09, 2016,” she put in “10 years 11 months” which
according to her pleadings in these cases corresponds to a beginning date of 25
May 2005 when she returned for good from the U.S. When petitioner immigrated
to the U.S. in 1991, she lost her original domicile, which is the Philippines. There
are three requisites to acquire a new domicile: 1. Residence or bodily presence
in a new locality; 2. an intention to remain there; and 3. an intention to abandon
the old domicile. To successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of domicile; a bona fide
intention of abandoning the former place of residence and establishing a new
one and definite acts which correspond with the purpose. In other words, there
must basically be animus manendi coupled with animus non revertendi. The
purpose to remain in or at the domicile of choice must be for an indefinite period
of time; the change of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.
Same; Same; Same; Indeed, coupled with her eventual application to reacquire
Philippine citizenship and her family’s actual continuous stay in the Philippines
over the years, it is clear that when petitioner returned on 24 May 2005 it was
for good.—It is obvious that because of the sparse evidence on residence in the
four cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident visa or
from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner
is overwhelming and taken together leads to no other conclusion that she
decided to permanently abandon her U.S. residence (selling the house, taking
the children from U.S. schools, getting quotes from the freight company,
notifying the U.S. Post Office of the abandonment of their address in the U.S.,
donating excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually reestablished her residence here on 24 May 2005
(securing T.I.N., enrolling her children in Philippine schools, buying property
here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her eventual
application to reacquire Philippine citizenship and her family’s actual continuous
stay in the Philippines over the years, it is clear that when petitioner returned on
24 May 2005 it was for good.
Same; Residence; Balikbayan Program; A closer look at Republic Act (RA) No.
6768 as amended, otherwise known as the “An Act Instituting a Balikbayan
Program,” shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one (1) year.—The COMELEC also took
it against petitioner that she had entered the Philippines visa-free as a
balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the
“An Act Instituting a Balikbayan Program,” shows that there is no overriding
intent to treat balikbayans as temporary visitors who must leave after one year.
Included in the law is a former Filipino who has been naturalized abroad and
“comes or returns to the Philippines.” The law institutes a balikbayan program
“providing the opportunity to avail of the necessary training to enable the
balikbayan to become economically self-reliant members of society upon their
return to the country” in line with the government’s “reintegration program.”
Obviously, balikbayans are not ordinary transients. Given the law’s express policy
to facilitate the return of a balikbayan and help him reintegrate into society, it
would be an unduly harsh conclusion to say in absolute terms that the
176
balikbayan must leave after one year. That visa-free period is obviously granted
him to allow him to reestablish his life and reintegrate himself into the
community before he attends to the necessary formal and legal requirements of
repatriation. And that is exactly what petitioner did — she reestablished life here
by enrolling her children and buying property while awaiting the return of her
husband and then applying for repatriation shortly thereafter.
Same; Same; It is the fact of residence, not a statement in a certificate of
candidacy (CoC) which ought to be decisive in determining whether or not an
individual has satisfied the constitution’s residency qualification requirement .—It
was grave abuse of discretion for the COMELEC to treat the 2012 CoC as a
binding and conclusive admission against petitioner. It could be given in evidence
against her, yes, but it was by no means conclusive. There is precedent after all
where a candidate’s mistake as to period of residence made in a CoC was
overcome by evidence. In Romualdez-Marcos v. COMELEC, 248 SCRA 300
(1995), the candidate mistakenly put seven (7) months as her period of
residence where the required period was a minimum of one year. We said that
“[i]t is the fact of residence, not a statement in a certificate of candidacy which
ought to be decisive in determining whether or not an individual has satisfied the
constitution’s residency qualification requirement.” The COMELEC ought to have
looked at the evidence presented and see if petitioner was telling the truth that
she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it
would have seen that the 2012 CoC and the 2015 CoC both correctly stated the
pertinent period of residency.
Same; Misrepresentation; Disqualification of Candidates; The candidate’s
misrepresentation in his Certificate of Candidacy (CoC) must not only refer to a
material fact (eligibility and qualifications for elective office), but should evince a
deliberate intent to mislead, misinform or hide a fact which would otherwise
render a candidate ineligible.—The facts now, if not stretched to distortion, do
not show or even hint at an intention to hide the 2012 statement and have it
covered by the 2015 representation. Petitioner, moreover, has on her side this
Court’s pronouncement that: Concededly, a candidate’s disqualification to run for
public office does not necessarily constitute material misrepresentation which is
the sole ground for denying due course to, and for the cancellation of, a CoC.
Further, as already discussed, the candidate’s misrepresentation in his CoC must
not only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact which
would otherwise render a candidate ineligible. It must be made with an intention
to deceive the electorate as to one’s qualifications to run for public office.
DECISION
PEREZ, J.:
Before the Court are two consolidated petitions under Rule 64 in relation to Rule
65 of the Rules of Court with extremely urgent application for an ex
parte  issuance of temporary restraining order/status quo ante  order and/or writ
of preliminary injunction assailing the following: (1) 1 December 2015 Resolution
of the Commission on Elections (COMELEC) Second Division; (2) 23 December
2015 Resolution of the COMELEC En Banc,  in SPA No. 15-001 (DC); (3) 11
December 2015 Resolution of the COMELEC First Division; and ( 4) 23 December
2015 Resolution of the COMELEC En Banc,  in SPA No. 15-002 (DC), SPA No. 15-
007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a
newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar
(Edgardo) on 3 September 1968. Parental care and custody over petitioner was
passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife.
Three days after, 6 September 1968, Emiliano reported and registered petitioner
as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In
her Foundling Certificate and Certificate of Live Birth, the petitioner was given
the name "Mary Grace Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe
(a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a
petition for her adoption with the Municipal Trial Court (MTC) of San Juan City.
On 13 May 1974, the trial court granted their petition and ordered that
petitioner's name be changed from "Mary Grace Natividad Contreras Militar" to
"Mary Grace Natividad Sonora Poe." Although necessary notations were made by
OCR-Iloilo on petitioner's foundling certificate reflecting the court decreed
adoption,2 the petitioner's adoptive mother discovered only sometime in the
second half of 2005 that the lawyer who handled petitioner's adoption failed to
secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's
new name and the name of her adoptive parents. 3 Without delay, petitioner's
mother executed an affidavit attesting to the lawyer's omission which she
submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo issued a new Certificate
of Live Birth in the name of Mary Grace Natividad Sonora Poe. 4
Having reached the age of eighteen (18) years in 1986, petitioner registered as a
voter with the local COMELEC Office in San Juan City. On 13 December 1986,
she received her COMELEC Voter's Identification Card for Precinct No. 196 in
Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport No.
F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on 5 April
1993 and 19 May 1998, she renewed her Philippine passport and respectively
secured Philippine Passport Nos. L881511 and DD156616. 7
177
Initially, the petitioner enrolled and pursued a degree in Development Studies at
the University of the Philippines8 but she opted to continue her studies abroad
and left for the United States of America (U.S.) in 1988. Petitioner graduated in
1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her
Bachelor of Arts degree in Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de
San Jose Parish in San Juan City. 10 Desirous of being with her husband who was
then based in the U.S., the couple flew back to the U.S. two days after the
wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian)
on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa
Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June
2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14 She
obtained U.S. Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with Hanna
to support her father's candidacy for President in the May 2004 elections. It was
during this time that she gave birth to her youngest daughter Anika. She
returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed back to
the Philippines upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her father's
funeral arrangements as well as to assist in the settlement of his estate. 18
According to the petitioner, the untimely demise of her father was a severe blow
to her entire family. In her earnest desire to be with her grieving mother, the
petitioner and her husband decided to move and reside permanently in the
Philippines sometime in the first quarter of 2005. 19 The couple began preparing
for their resettlement including notification of their children's schools that they
will be transferring to Philippine schools for the next semester; 20coordination with
property movers for the relocation of their household goods, furniture and cars
from the U.S. to the Philippines;21 and inquiry with Philippine authorities as to the
proper procedure to be followed in bringing their pet dog into the country. 22 As
early as 2004, the petitioner already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 2005 24 and without
delay, secured a Tax Identification Number from the Bureau of Internal Revenue.
Her three (3) children immediately followed25 while her husband was forced to
stay in the U.S. to complete pending projects as well as to arrange the sale of
their family home there.26
The petitioner and her children briefly stayed at her mother's place until she and
her husband purchased a condominium unit with a parking slot at One Wilson
Place Condominium in San Juan City in the second half of 2005. 27 The
corresponding Condominium Certificates of Title covering the unit and parking
slot were issued by the Register of Deeds of San Juan City to petitioner and her
husband on 20 February 2006.28 Meanwhile, her children of school age began
attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise
the disposal of some of the family's remaining household belongings. 29 She
travelled back to the Philippines on 11 March 2006. 30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006. 32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the country on
4 May 2006 and started working for a major Philippine company in July 2006. 33
In early 2006, petitioner and her husband acquired a 509-square meter lot in
Corinthian Hills, Quezon City where they built their family home34 and to this day,
is where the couple and their children have been residing.35 A Transfer Certificate
of Title covering said property was issued in the couple's name by the Register of
Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention
and Re-acquisition Act of 2003.36 Under the same Act, she filed with the Bureau
of Immigration (BI) a sworn petition to reacquire Philippine citizenship together
with petitions for derivative citizenship on behalf of her three minor children on
10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted
favorably on petitioner's petitions and declared that she is deemed to have
reacquired her Philippine citizenship while her children are considered as citizens
of the Philippines.38 Consequently, the BI issued Identification Certificates (ICs) in
petitioner's name and in the names of her three (3) children. 39
Again, petitioner registered as a voter of Barangay  Santa Lucia, San Juan City on
31 August 2006.40 She also secured from the DFA a new Philippine Passport
bearing the No. XX4731999.41 This passport was renewed on 18 March 2014 and
she was issued Philippine Passport No. EC0588861 by the DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation of
American Citizenship" before a notary public in Pasig City on 20 October
2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said
178
affidavit to the BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the
United States."49 On that day, she accomplished a sworn questionnaire before
the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB
Chairperson on 21 October 2010 with the intent, among others, of relinquishing
her American citizenship.50 In the same questionnaire, the petitioner stated that
she had resided outside of the U.S., specifically in the Philippines, from 3
September 1968 to 29 July 1991 and from May 2005 to present. 51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of
Loss of Nationality of the United States" effective 21 October 2010. 52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6
years and 6 months" to the question "Period of residence in the Philippines
before May 13, 2013."53 Petitioner obtained the highest number of votes and was
proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No.
DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-born
citizen and that her residence in the Philippines up to the day before 9 May 2016
would be ten (10) years and eleven (11) months counted from 24 May
2005.57 The petitioner attached to her COC an "Affidavit Affirming Renunciation
of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon
City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections triggered the
filing of several COMELEC cases against her which were the subject of these
consolidated cases.
Origin of Petition for Certiorari  in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo)
filed a petition to deny due course or cancel said COC which was docketed as
SPA No. 15-001 (DC) and raffled to the COMELEC Second Division.59She is
convinced that the COMELEC has jurisdiction over her petition.60 Essentially,
Elamparo's contention is that petitioner committed material misrepresentation
when she stated in her COC that she is a natural-born Filipino citizen and that
she is a resident of the Philippines for at least ten (10) years and eleven (11)
months up to the day before the 9 May 2016 Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was a
foundling.62 Elamparo claimed that international law does not confer natural-born
status and Filipino citizenship on foundlings.63 Following this line of reasoning,
petitioner is not qualified to apply for reacquisition of Filipino citizenship under
R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with. 64Even
assuming arguendo  that petitioner was a natural-born Filipino, she is deemed to
have lost that status when she became a naturalized American
citizen.65 According to Elamparo, natural-born citizenship must be continuous
from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner was
bound by the sworn declaration she made in her 2012 COC for Senator wherein
she indicated that she had resided in the country for only six ( 6) years and six
( 6) months as of May 2013 Elections. Elamparo likewise insisted that
assuming arguendo  that petitioner is qualified to regain her natural-born status
under R.A. No. 9225, she still fell short of the ten-year residency requirement of
the Constitution as her residence could only be counted at the earliest from July
2006, when she reacquired Philippine citizenship under the said Act. Also on the
assumption that petitioner is qualified to reacquire lost Philippine Citizenship,
Elamparo is of the belief that she failed to reestablish her domicile in the
Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was
actually a petition for quo warranto  which could only be filed if Grace Poe wins in
the Presidential elections, and that the Department of Justice (DOJ) has primary
jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain
allegations which, if hypothetically admitted, would make false the statement in
her COC that she is a natural-born Filipino citizen nor was there any allegation
that there was a willful or deliberate intent to misrepresent on her part;
(3) she did not make any material misrepresentation in the COC regarding her
citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings were
considered citizens;
b. foundlings are presumed under international law to have been born of citizens
of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions of
R.A. No. 9225;
179
d. she executed a sworn renunciation of her American citizenship prior to the
filing of her COC for President in the May 9, 2016 Elections and that the same is
in full force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-born
status;
f. residence is a matter of evidence and that she reestablished her domicile in
the Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born
citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator was
an honest mistake, not binding and should give way to evidence on her true date
of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the
Filipino people to decide a purely political question, that is, should she serve as
the country's next leader.68
After the parties submitted their respective Memoranda, the petition was deemed
submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a Resolution
finding that petitioner's COC, filed for the purpose of running for the President of
the Republic of the Philippines in the 9 May 2016 National and Local Elections,
contained material representations which are false. The fallo  of the aforesaid
Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition to
Deny Due Course to or Cancel Certificate of Candidacy is hereby GRANTED.
Accordingly, the Certificate of Candidacy for President of the Republic of the
Philippines in the May 9, 2016 National and Local Elections filed by respondent
Mary Grace Natividad Sonora Poe Llamanzares is hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by
petitioner which the COMELEC En Banc  resolved in its 23 December 2015
Resolution by denying the same.70
Origin of Petition for Certiorari  in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S. Tatad
(Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against
petitioner before the COMELEC which were consolidated and raffled to its First
Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of
Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner
lacks the requisite residency and citizenship to qualify her for the Presidency. 72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis,  persons of unknown parentage, particularly foundlings, cannot be
considered natural-born Filipino citizens since blood relationship is determinative
of natural-born status.73 Tatad invoked the rule of statutory construction that
what is not included is excluded. He averred that the fact that foundlings were
not expressly included in the categories of citizens in the 193 5 Constitution is
indicative of the framers' intent to exclude them.74 Therefore, the burden lies on
petitioner to prove that she is a natural-born citizen.75
Neither can petitioner seek refuge under international conventions or treaties to
support her claim that foundlings have a nationality.76 According to Tatad,
international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations assumed by
the Philippines.77 He also stressed that there is no standard state practice that
automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the
option to reacquire Philippine citizenship under R.A. No. 9225 because it only
applies to former natural-born citizens and petitioner was not as she was a
foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement. 80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she renounced
her American citizenship which was sometime in 2010 or 2011. 81 Additionally,
Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as
evinced by the fact that her husband stayed thereat and her frequent trips to the
U.S.82
In support of his petition to deny due course or cancel the COC of petitioner,
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under
R.A. No. 9225 did not bestow upon her the status of a natural-born citizen. 83 He
advanced the view that former natural-born citizens who are repatriated under
the said Act reacquires only their Philippine citizenship and will not revert to their
original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that
she had only been a resident of the Philippines for at least six (6) years and six
(6) months prior to the 13 May 2013 Elections operates against her. Valdez
rejected petitioner's claim that she could have validly reestablished her domicile
in the Philippines prior to her reacquisition of Philippine citizenship. In effect, his
position was that petitioner did not meet the ten (10) year residency requirement
for President.
180
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the residency
issue. He claimed that petitioner's 2015 COC for President should be cancelled on
the ground that she did not possess the ten-year period of residency required for
said candidacy and that she made false entry in her COC when she stated that
she is a legal resident of the Philippines for ten (10) years and eleven (11)
months by 9 May 2016.86 Contreras contended that the reckoning period for
computing petitioner's residency in the Philippines should be from 18 July 2006,
the date when her petition to reacquire Philippine citizenship was approved by
the BI.87 He asserted that petitioner's physical presence in the country before 18
July 2006 could not be valid evidence of reacquisition of her Philippine domicile
since she was then living here as an American citizen and as such, she was
governed by the Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First,  Tatad's petition should be dismissed outright for failure to state a cause of
action. His petition did not invoke grounds proper for a disqualification case as
enumerated under Sections 12 and 68 of the Omnibus Election Code.89 Instead,
Tatad completely relied on the alleged lack of residency and natural-born status
of petitioner which are not among the recognized grounds for the disqualification
of a candidate to an elective office.90
Second,  the petitions filed against her are basically petitions for quo warranto  as
they focus on establishing her ineligibility for the Presidency.91 A petition for quo
warranto  falls within the exclusive jurisdiction of the Presidential Electoral
Tribunal (PET) and not the COMELEC.92
Third,  the burden to prove that she is not a natural-born Filipino citizen is on the
respondents.93 Otherwise stated, she has a presumption in her favor that she is a
natural-born citizen of this country.
Fourth,  customary international law dictates that foundlings are entitled to a
nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen of
the Philippines.95
Fifth,  she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the
BI declaring her as natural-born citizen, her appointment as MTRCB Chair and
the issuance of the decree of adoption of San Juan RTC.97 She believed that all
these acts reinforced her position that she is a natural-born citizen of the
Philippines.98
Sixth,  she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by her
children's resettlement and schooling in the country, purchase of a condominium
unit in San Juan City and the construction of their family home in Corinthian
Hills.99
Seventh,  she insisted that she could legally reestablish her domicile of choice in
the Philippines even before she renounced her American citizenship as long as
the three determinants for a change of domicile are complied with.100She
reasoned out that there was no requirement that renunciation of foreign
citizenship is a prerequisite for the acquisition of a new domicile of choice. 101
Eighth,  she reiterated that the period appearing in the residency portion of her
COC for Senator was a mistake made in good faith. 102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First
Division ruled that petitioner is not a natural-born citizen, that she failed to
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she has
been a resident of the Philippines for a period of ten (10) years and eleven (11)
months as of the day of the elections on 9 May 2016. The COMELEC First
Division concluded that she is not qualified for the elective position of President
of the Republic of the Philippines. The dispositive portion of said Resolution
reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for
the elective position of President of the Republic of the Philippines in connection
with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC
First Division's Resolution. On 23 December 2015, the COMELEC En Banc  issued
a Resolution denying petitioner's motion for reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present
petitions for certiorari  with urgent prayer for the issuance of an ex
parte  temporary restraining order/status quo ante  order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining orders were
issued by the Court enjoining the COMELEC and its representatives from
implementing the assailed COMELEC Resolutions until further orders from the
Court. The Court also ordered the consolidation of the two petitions filed by
petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were
held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and
to ANNUL and SET ASIDE the:
181
1. Resolution dated 1 December 2015 rendered through its Second Division, in
SPA No. 15-001 (DC), entitled Estrella  C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division, in the
consolidated cases SPA No. 15-002 (DC) entitled Francisco  S. Tatad, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;  SPA No. 15-007
(DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent;  and SPA No. 15-139 (DC) entitled Amado D.
Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 1 December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc, upholding
the 11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9
May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner should be
denied due course or cancelled "on the exclusive ground" that she made in the
certificate a false material representation. The exclusivity of the ground should
hedge in the discretion of the COMELEC and restrain it from going into the issue
of the qualifications of the candidate for the position, if, as in this case, such
issue is yet undecided or undetermined by the proper authority. The COMELEC
cannot itself, in the same cancellation case, decide the qualification or lack
thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its provisions
in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers and
functions:
(1) Enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory, and
not appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the President, law enforcement agencies
and instrumentalities of the Government, including the Armed Forces of the
Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful,
and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present their platform
or program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to
uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments and their agencies to political
parties, organizations, coalitions, or candidates related to elections constitute
interference in national affairs, and, when accepted, shall be an additional
ground for the cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.
(7) Recommend to the Congress effective measures to minimize election
spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of any officer or employee it has
deputized, or the imposition of any other disciplinary action, for violation or
disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the
conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
182
The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral Tribunal
shall be composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the remaining six shall
be Members of the Senate or the House of Representatives, as the case may be,
who shall be chosen on the basis of proportional representation from the political
parties and the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc,  shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House of
Representatives was made clear by the Constitution. There is no such provision
for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission
on Elections,104 which was affirmatively cited in the En Banc  decision in Fermin v.
COMELEC105  is our guide. The citation in Fermin  reads:
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15, 1993
so as to provide in Rule 25 § 1, the following:
Grounds for disqualification.  - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot
be supplied by a mere rule. Such an act is equivalent to the creation of a cause
of action which is a substantive matter which the COMELEC, in the exercise of its
rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is
noteworthy that the Constitution withholds from the COMELEC even the power to
decide cases involving the right to vote, which essentially involves an inquiry
into qualifications  based on age, residence  and citizenship  of voters. [Art. IX, C,
§2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For
not only in their grounds but also in their consequences are proceedings for
"disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds specified
in § 12 and §68 of the Omnibus Election Code and in §40 of the Local
Government Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a candidate  for public office.
In a word, their purpose is to eliminate a candidate from the race  either from the
start or during its progress. "Ineligibility," on the other hand, refers to the lack of
the qualifications prescribed in the Constitution or the statutes for holding public
office  and the purpose of the proceedings for declaration of ineligibility is
to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office
does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice versa. We have this sort of
dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the Law does not imply that he does not suffer
from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the consequences of
the respective proceedings, the importance of the opinion is in its statement that
"the lack of provision for declaring the ineligibility of candidates, however, cannot
be supplied by a mere rule". Justice Mendoza lectured in Romualdez-
Marcos  that:
Three reasons may be cited to explain the absence of an authorized proceeding
for determining before election  the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is
no necessity for determining his eligibility for the office. In contrast, whether an
individual should be disqualified as a candidate for acts constituting election
offenses (e.g.,  vote buying, over spending, commission of prohibited acts) is a
prejudicial question which should be determined lest he wins because of the very
acts for which his disqualification is being sought. That is why it is provided that
if the grounds for disqualification are established, a candidate will not be voted
for; if he has been voted for, the votes in his favor will not be counted; and if for
some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g.,  his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending in
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the COMELEC even after the elections of May 8, 1995. This is contrary to the
summary character proceedings relating to certificates of candidacy. That is why
the law makes the receipt of certificates of candidacy a ministerial duty of the
COMELEC and its officers.  The law is satisfied if candidates state in their
certificates of candidacy that they are eligible for the position which they seek to
fill, leaving the determination of their qualifications to be made after the election
and only in the event they are elected. Only in cases involving charges of false
representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in
elections for President, Vice President, Senators and members of the House of
Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the
prerogatives of the House of Representatives Electoral Tribunal and the other
Tribunals as "sole judges" under the Constitution of the election,
returns  and qualifications  of members of Congress of the President and Vice
President, as the case may be.106
To be sure, the authoritativeness of the Romualdez  pronouncements as
reiterated in Fermin,  led to the amendment through COMELEC Resolution No.
9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of
Rule 25, which states that:
Grounds for disqualification.  -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds.  - Any candidate who, in action or protest in which he is a party, is
declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or
Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a
Nuisance Candidate, or a combination thereof, shall be summarily dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of absence
of an authorized proceeding for determining before election  the qualifications of
candidate. Such that, as presently required, to disqualify a candidate there must
be a declaration by a final judgment of a competent court that the candidate
sought to be disqualified "is guilty of or found by the Commission to be suffering
from any disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are
flipsides of one to the other. Both do not allow,  are not authorizations, are not
vestment of jurisdiction, for the COMELEC to determine the qualification of a
candidate. The facts of qualification must beforehand be established in a prior
proceeding before an authority properly vested with jurisdiction. The prior
determination of qualification may be by statute, by executive order or by a
judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution," neither
can the certificate of candidacy be cancelled or denied due course on grounds of
false representations regarding his or her qualifications, without a prior
authoritative finding that he or she is not qualified, such prior authority being the
necessary measure by which the falsity of the representation can be found. The
only exception that can be conceded are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions. Such are, anyway, bases
equivalent to prior decisions against which the falsity of representation can be
determined.
The need for a predicate finding or final pronouncement in a proceeding under
Rule 23 that deals with, as in this case, alleged false representations regarding
the candidate's citizenship and residence, forced the COMELEC to rule essentially
that since foundlings108 are not mentioned in the enumeration of citizens under
the 1935 Constitution,109 they then cannot be citizens. As the COMELEC stated in
oral arguments, when petitioner admitted that she is a foundling, she said it all.
This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after
saying that it cannot rule that herein petitioner possesses blood relationship with
a Filipino citizen when "it is certain that such relationship is indemonstrable,"
proceeded to say that "she now has the burden to present evidence to prove her
natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is neither
unknown nor unaccepted in Philippine Law. The Family Code of the Philippines
has a whole chapter on Paternity and Filiation.110 That said, there is more than
sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-
born Filipino. Parenthetically, the burden of proof was on private respondents to
show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a
foundling did not shift the burden to her because such status did not exclude the
possibility that her parents were Filipinos, especially as in this case where there
is a high probability, if not certainty, that her parents are Filipinos.
184
The factual issue is not who the parents of petitioner are, as their identities are
unknown, but whether such parents are Filipinos. Under Section 4, Rule 128:
Sect. 4. Relevancy, collateral matters  - Evidence must have such a relation to the
fact in issue as to induce belief in its existence or no-existence. Evidence on
collateral matters shall not be allowed, except when it tends in any reasonable
degree to establish the probability of improbability of the fact in issue.
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners born in
the Philippines was 15,986 while the total number of Filipinos born in the country
was 10,558,278. The statistical probability that any child born in the Philippines
in that decade is natural-born Filipino was 99.83%. For her part, petitioner
presented census statistics for Iloilo Province for 1960 and 1970, also from the
PSA. In 1960, there were 962,532 Filipinos and 4,734 foreigners in the
province; 99.62% of the population were Filipinos. In 1970, the figures were
1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were
figures for the child producing ages (15-49). In 1960, there were 230,528 female
Filipinos as against 730 female foreigners or 99.68%. In the same year, there
were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there
were 270,299 Filipino females versus 1, 190 female aliens, or 99.56%. That
same year, there were 245,740 Filipino males as against only 1,165 male aliens
or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner
Arthur Lim admitted, during the oral arguments, that at the time petitioner was
found in 1968, the majority of the population in Iloilo was Filipino. 112
Other circumstantial evidence of the nationality of petitioner's parents are the
fact that she was abandoned as an infant in a Roman Catholic Church in Iloilo
City.1âwphi1 She also has typical Filipino features: height, flat nasal bridge,
straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to the
ordinary course of nature and the ordinary habits of life.113 All of the foregoing
evidence, that a person with typical Filipino features is abandoned in Catholic
Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance that
a child born in the province would be a Filipino, would indicate more than ample
probability if not statistical certainty, that petitioner's parents are Filipinos. That
probability and the evidence on which it is based are admissible under Rule 128,
Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible, as
the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to the
Philippines so they can get pregnant and leave their newborn babies behind. We
do not face a situation where the probability is such that every foundling would
have a 50% chance of being a Filipino and a 50% chance of being a foreigner.
We need to frame our questions properly. What are the chances that the parents
of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos?
99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly
average, there were 1,766,046 children born in the Philippines to Filipino
parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus,
for that sample period, the ratio of non-Filipino children to natural born Filipino
children is 1:1357. This means that the statistical probability that any child born
in the Philippines would be a natural born Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is 15,558,278.
For this period, the ratio of non-Filipino children is 1:661. This means that the
statistical probability that any child born in the Philippines on that decade would
be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers for
us, but I am confident that the statistical probability that a child born in the
Philippines would be a natural born Filipino will not be affected by whether or not
the parents are known. If at all, the likelihood that a foundling would have a
Filipino parent might even be higher than 99.9%. Filipinos abandon their children
out of poverty or perhaps, shame. We do not imagine foreigners abandoning
their children here in the Philippines thinking those infants would have better
economic opportunities or believing that this country is a tropical paradise
suitable for raising abandoned children. I certainly doubt whether a foreign
couple has ever considered their child excess baggage that is best left behind.
To deny full Filipino citizenship to all foundlings and render them stateless just
because there may be a theoretical chance that one among the thousands of
these foundlings might be the child of not just one, but two, foreigners is
downright discriminatory, irrational, and unjust. It just doesn't make any sense.
Given the statistical certainty - 99.9% - that any child born in the Philippines
would be a natural born citizen, a decision denying foundlings such status is
effectively a denial of their birthright. There is no reason why this Honorable
Court should use an improbable hypothetical to sacrifice the fundamental political
rights of an entire class of human beings. Your Honor, constitutional
interpretation and the use of common sense are not separate disciplines.
185
As a matter of law, foundlings are as a class, natural-born citizens. While the
1935 Constitution's enumeration is silent as to foundlings, there is no restrictive
language which would definitely exclude foundlings either. Because of silence
and ambiguity in the enumeration with respect to foundlings, there is a need to
examine the intent of the framers. In Nitafan v. Commissioner of Internal
Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle
of constitutional construction that the intent of the framers of the organic law
and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of
the purpose of the framers and of the people in the adoption of the Constitution.
It may also be safely assumed that the people in ratifying the Constitution were
guided mainly by the explanation offered by the framers. 115
As pointed out by petitioner as well as the Solicitor General, the deliberations of
the 1934 Constitutional Convention show that the framers intended foundlings to
be covered by the enumeration. The following exchange is recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the following is
inserted: "The natural children of a foreign father and a Filipino mother not
recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the amendment.
The gentleman refers to natural children or to any kind of illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown
parentage,  natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all children of
unknown parentage born in Spanish territory are considered Spaniards, because
the presumption is that a child of unknown parentage is the son of a Spaniard.
This may be applied in the Philippines in that a child of unknown parentage born
in the Philippines is deemed to be Filipino, and there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be
Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by
one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize
the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment from the Gentleman
from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands
of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them.  By international law the
principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a provision
on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there was
any objection to the notion that persons of "unknown parentage" are not citizens
but only because their number was not enough to merit specific mention. Such
was the account,117 cited by petitioner, of delegate and constitution law author
Jose Aruego who said:

186
During the debates on this provision, Delegate Rafols presented an amendment
to include as Filipino citizens the illegitimate children with a foreign father of a
mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the
cases, being too few to warrant the inclusion of a provision in the Constitution to
apply to them, should be governed by statutory legislation. Moreover, it was
believed that the rules of international law were already clear to the effect that
illegitimate children followed the citizenship of the mother, and that foundlings
followed the nationality of the place where they were found, thereby making
unnecessary the inclusion in the Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the 16
February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings as
Filipinos. And so, the way to explain the constitutional silence is by saying that it
was the view of Montinola and Roxas which prevailed that there is no more need
to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally
correct. Framers of a constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong. They can even overturn existing
rules. This is basic. What matters here is that Montinola and Roxas were able to
convince their colleagues in the convention that there is no more need to
expressly declare foundlings as Filipinos because they are already impliedly so
recognized.
In other words, the constitutional silence is fully explained in terms of linguistic
efficiency and the avoidance of redundancy. The policy is clear: it is to recognize
foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935
Constitution. This inclusive policy is carried over into the 1973 and 1987
Constitution. It is appropriate to invoke a famous scholar as he was paraphrased
by Chief Justice Fernando: the constitution is not silently silent, it is silently
vocal. 118
The Solicitor General makes the further point that the framers "worked to create
a just and humane society," that "they were reasonable patriots and that it
would be unfair to impute upon them a discriminatory intent against foundlings."
He exhorts that, given the grave implications of the argument that foundlings are
not natural-born Filipinos, the Court must search the records of the 1935, 1973
and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate
against foundlings to show that the constitution really intended to take this path
to the dark side and inflict this across the board marginalization."
We find no such intent or language permitting discrimination against foundlings.
On the contrary, all three Constitutions guarantee the basic right to equal
protection of the laws. All exhort the State to render social justice. Of special
consideration are several provisions in the present charter: Article II, Section 11
which provides that the "State values the dignity of every human person and
guarantees full respect for human rights," Article XIII, Section 1 which mandates
Congress to "give highest priority to the enactment of measures that protect and
enhance the right of all the people to human dignity, reduce social, economic,
and political inequalities x x x" and Article XV, Section 3 which requires the State
to defend the "right of children to assistance, including proper care and nutrition,
and special protection from all forms of neglect, abuse, cruelty, exploitation, and
other conditions prejudicial to their development." Certainly, these provisions
contradict an intent to discriminate against foundlings on account of their
unfortunate status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon the
adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted.
The most basic of such laws is Article 15 of the Civil Code which provides that
"[l]aws relating to family rights, duties, status, conditions, legal capacity of
persons are binding on citizens of the Philippines even though living abroad."
Adoption deals with status, and a Philippine adoption court will have jurisdiction
only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an
unidentified mother was sought to be adopted by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem,  which no
court may entertain unless it has jurisdiction, not only over the subject matter of
the case and over the parties, but also over the res,  which is the personal status
of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15)
adheres to the theory that jurisdiction over the status of a natural person is
determined by the latter's nationality. Pursuant to this theory, we
have jurisdiction over the status of Baby Rose, she being a citizen of the
Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the
Rules to Govern the Inter-Country Adoption of Filipino Children and For Other
Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"), R.A.
No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of
Filipino Children and For Other Purposes" (otherwise known as the Domestic
Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on
Adoption," all expressly refer to "Filipino children" and include foundlings as
among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling
leading to the issuance of a foundling certificate under these laws and the
187
issuance of said certificate are acts to acquire or perfect Philippine citizenship
which make the foundling a naturalized Filipino at best. This is erroneous. Under
Article IV, Section 2 "Natural-born citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship." In the first place, "having to perform an act" means
that the act must be personally done by the citizen. In this instance, the
determination of foundling status is done not by the child but by the
authorities.121 Secondly, the object of the process is the determination of the
whereabouts of the parents, not the citizenship of the child. Lastly, the process is
certainly not analogous to naturalization proceedings to acquire Philippine
citizenship, or the election of such citizenship by one born of an alien father and
a Filipino mother under the 1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that petitioner is
a foundling, as evidenced by a Foundling Certificate issued in her favor. 122 The
Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption
by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano
and his wife, Rosario Militar, as her "foundling parents," hence effectively
affirming petitioner's status as a foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires
that an international law be transformed into a domestic law through a
constitutional mechanism such as local legislation. 124 On the other hand,
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. Generally accepted principles of international law
include international custom as evidence of a general practice accepted as law,
and general principles of law recognized by civilized nations.125 International
customary rules are accepted as binding as a result from the combination of two
elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinionjuris 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.126 "General principles of law recognized by civilized
nations" are principles "established by a process of reasoning" or judicial logic,
based on principles which are "basic to legal systems generally," 127 such as
"general principles of equity, i.e.,  the general principles of fairness and justice,"
and the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination
in Respect of Employment and Occupation." 128 These are the same core
principles which underlie the Philippine Constitution itself, as embodied in the
due process and equal protection clauses of the Bill of Rights. 129
Universal Declaration of Human Rights ("UDHR") has been interpreted by this
Court as part of the generally accepted principles of international law and binding
on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the Child
(UNCRC). Article 7 of the UNCRC imposes the following obligations on our
country:
Article 7
1. The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and as far as possible, the
right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance
with their national law and their obligations under the relevant international
instruments in this field, in particular where the child would otherwise be
stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil and
Political Rights (ICCPR). Article 24 thereof provide for the right of every child "to
acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is stateless.
This grant of nationality must be at the time of birth, and it cannot be
accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
188
The principles found in two conventions, while yet unratified by the Philippines,
are generally accepted principles of international law. The first is Article 14 of the
1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws under which a foundling is presumed to have the "nationality of
the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the country
of birth. If the child's parentage is established, its nationality shall be determined
by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the
territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens  of the
country where he is found, contained in Article 2 of the 1961 United Nations
Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of
proof to the contrary, be considered to have been born within the territory of
parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the 1961
Convention on the Reduction of Statelessness does not mean that their principles
are not binding. While the Philippines is not a party to the 1930 Hague
Convention, it is a signatory to the Universal Declaration on Human Rights,
Article 15(1) ofwhich131effectively affirms Article 14 of the 1930 Hague
Convention. Article 2 of the 1961 "United Nations Convention on the Reduction
of Statelessness" merely "gives effect" to Article 15(1) of the UDHR. 132 In Razon
v. Tagitis,  133 this Court noted that the Philippines had not signed or ratified the
"International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced
disappearances in the said convention was nonetheless binding as a "generally
accepted principle of international law." Razon v. Tagitis  is likewise notable for
declaring the ban as a generally accepted principle of international law although
the convention had been ratified by only sixteen states and had not even come
into force and which needed the ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was content with the practice of
international and regional state organs, regional state practice in Latin America,
and State Practice in the United States.
Another case where the number of ratifying countries was not determinative
is Mijares v. Ranada,  134 where only four countries had "either ratified or acceded
to"135 the 1966 "Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters" when the case was decided in 2005.
The Court also pointed out that that nine member countries of the European
Common Market had acceded to the Judgments Convention. The Court also cited
U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the
practices of fourteen countries were considered and yet, there was
pronouncement that recognition of foreign judgments was widespread practice.
Our approach in Razon  and Mijares  effectively takes into account the fact that
"generally accepted principles of international law" are based not only on
international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the
ICJ Statute. Justice, fairness, equity and the policy against discrimination, which
are fundamental principles underlying the Bill of Rights and which are "basic to
legal systems generally,"136 support the notion that the right against enforced
disappearances and the recognition of foreign judgments, were correctly
considered as "generally accepted principles of international law" under the
incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North and
South America, and Europe have passed legislation recognizing foundlings as its
citizen. Forty-two (42) of those countries follow the jus sanguinis  regime. Of the
sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness;
twenty-six (26) are not signatories to the Convention. Also, the Chief Justice, at
the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These
circumstances, including the practice of jus sanguinis  countries, show that it is a
generally accepted principle of international law to presume foundlings as having
been born of nationals of the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally
accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In
all of them, foundlings are among the Filipino children who could be adopted.
Likewise, it has been pointed that the DFA issues passports to foundlings.
Passports are by law, issued only to citizens. This shows that even the executive
department, acting through the DFA, considers foundlings as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the 1961
Convention on Statelessness is rational and reasonable and consistent with
the jus sanguinis  regime in our Constitution. The presumption of natural-born
citizenship of foundlings stems from the presumption that their parents are
nationals of the Philippines. As the empirical data provided by the PSA show, that
presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter of
nationality of foundlings were designed to address the plight of a defenseless
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class which suffers from a misfortune not of their own making. We cannot be
restrictive as to their application if we are a country which calls itself civilized and
a member of the community of nations. The Solicitor General's warning in his
opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court that
those treaties and conventions were drafted because the world community is
concerned that the situation of foundlings renders them legally invisible. It would
be tragically ironic if this Honorable Court ended up using the international
instruments which seek to protect and uplift foundlings a tool to deny them
political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the
provisions of R.A. No. 9225 did not result in the reacquisition of natural-born
citizenship. The COMELEC reasoned that since the applicant must perform an
act, what is reacquired is not "natural-born" citizenship but only plain "Philippine
citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter
of repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET,  140 repatriation was explained as
follows:
Moreover, repatriation results in the recovery of the original nationality. This
means that a naturalized Filipino who lost his citizenship will be restored to his
prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he will be
restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in several
cases. They include Sobejana-Condon v. COMELEC141  where we described it as
an "abbreviated repatriation process that restores  one's Filipino citizenship x x
x." Also included is Parreno v. Commission on Audit,142 which cited Tabasa v.
Court of Appeals,143where we said that "[t]he repatriation of the former Filipino
will allow him to recover his natural-born citizenship. Parreno v. Commission on
Audit144  is categorical that "if petitioner reacquires his Filipino citizenship (under
R.A. No. 9225), he will ... recover his natural-born  citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural
citizens as implying "that natural-born citizenship must begin at birth and remain
uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in
line with Congress' sole prerogative to determine how citizenship may be lost or
reacquired. Congress saw it fit to decree that natural-born citizenship may be
reacquired even if it had been once lost. It is not for the COMELEC to disagree
with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145  where the phrase
"from birth" was clarified to mean at the time of birth: "A person who at the time
of his birth, is a citizen of a particular country, is a natural-born citizen thereof."
Neither is "repatriation" an act to "acquire or perfect" one's citizenship.
In Bengson III v. HRET,  this Court pointed out that there are only two types of
citizens under the 1987 Constitution: natural-born citizen and naturalized, and
that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A citizen
who is not a naturalized Filipino, ie., did not have to undergo the process of
naturalization to obtain Philippine citizenship, necessarily is a natural-born
Filipino. Noteworthy is the absence in said enumeration of a separate category
for persons who, after losing Philippine citizenship, subsequently reacquire it.
The reason therefor is clear: as to such persons, they would either be natural-
born or naturalized depending on the reasons for the loss of their citizenship and
the mode prescribed by the applicable law for the reacquisition thereof. As
respondent Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to be elected as
member of the House of Representatives. 146
The COMELEC cannot reverse a judicial precedent. That is reserved to this Court.
And while we may always revisit a doctrine, a new rule reversing standing
doctrine cannot be retroactively applied. In Morales v. Court of Appeals and
Jejomar Erwin  S. Binay, Jr.,147 where we decreed reversed the condonation
doctrine, we cautioned that it "should be prospective in application for the
reason that judicial decisions applying or interpreting the laws of the
Constitution, until reversed, shall form part of the legal system of the
Philippines." This Court also said that "while the future may ultimately uncover a
doctrine's error, it should be, as a general rule, recognized as good law prior to
its abandonment. Consequently, the people's reliance thereupon should be
respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born Filipino.
It has been contended that the data required were the names of her biological
parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted. One
of the effects of adoption is "to sever all legal ties between the biological parents
and the adoptee, except when the biological parent is the spouse of the
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adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an amended
birth certificate "attesting to the fact that the adoptee is the child of the
adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and papers
relating to the adoption cases in the files of the court, the Department [of Social
Welfare and Development], or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential."151 The law therefore
allows petitioner to state that her adoptive parents were her birth parents as that
was what would be stated in her birth certificate anyway. And given the policy of
strict confidentiality of adoption records, petitioner was not obligated to disclose
that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot
make in the same case for cancellation of COC, it resorted to opinionatedness
which is, moreover, erroneous.  The whole process undertaken by COMELEC is
wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not
petitioner committed false material representation when she stated in her COC
that she has before and until 9 May 2016 been a resident of the Philippines for
ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and eleven
(11) months on the day before the 2016 elections,  is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have been a
resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to
the requested information of "Period of Residence in the Philippines up to the
day before May 09, 2016," she put in "10 years 11 months" which according to
her pleadings in these cases corresponds to a beginning date of 25 May 2005
when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original domicile,
which is the Philippines. There are three requisites to acquire a new domicile: 1.
Residence or bodily presence in a new locality; 2. an intention to remain there;
and 3. an intention to abandon the old domicile.152 To successfully effect a
change of domicile, one must demonstrate an actual removal or an actual
change of domicile; a bona fide  intention of abandoning the former place of
residence and establishing a new one and definite acts which correspond with
the purpose. In other words, there must basically be animus manendi  coupled
with animus non revertendi.  The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile must be
actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good. These
evidence include petitioner's former U.S. passport showing her arrival on 24 May
2005 and her return to the Philippines every time she travelled abroad; e-mail
correspondences starting in March 2005 to September 2006 with a freight
company to arrange for the shipment of their household items weighing about
28,000 pounds to the Philippines; e-mail with the Philippine Bureau of Animal
Industry inquiring how to ship their dog to the Philippines; school records of her
children showing enrollment in Philippine schools starting June 2005 and for
succeeding years; tax identification card for petitioner issued on July 2005; titles
for condominium and parking slot issued in February 2006 and their
corresponding tax declarations issued in April 2006; receipts dated 23 February
2005 from the Salvation Army in the U.S. acknowledging donation of items from
petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming
request for change of address; final statement from the First American Title
Insurance Company showing sale of their U.S. home on 27 April 2006; 12 July
2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner
indicated that she had been a Philippine resident since May 2005; affidavit from
Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that
she and her family stayed with affiant until the condominium was purchased);
and Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in the
U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by the
COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had been
timely changed as of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi,  but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all the
evidence presented by petitioner on the basis of the position that the earliest
date that petitioner could have started residence in the Philippines was in July
2006 when her application under R.A. No. 9225 was approved by the BI. In this
regard, COMELEC relied on Coquilla v. COMELEC,155 Japzon v.
COMELEC156  and Caballero v. COMELEC.  157 During the oral arguments, the
private respondents also added Reyes v. COMELEC.158  Respondents contend that
these cases decree that the stay of an alien former Filipino cannot be counted
until he/she obtains a permanent resident visa or reacquires Philippine
citizenship, a visa-free entry under a balikbayan  stamp being insufficient. Since
petitioner was still an American (without any resident visa) until her reacquisition
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of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006
cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very different
from her situation. In Coquilla v. COMELEC,159 the only evidence presented was a
community tax certificate secured by the candidate and his declaration that he
would be running in the elections. Japzon v. COMELEC160  did not involve a
candidate who wanted to count residence prior to his reacquisition of Philippine
citizenship. With the Court decreeing that residence is distinct from citizenship,
the issue there was whether the candidate's acts after reacquisition sufficed to
establish residence. In Caballero v. COMELEC,  161 the candidate admitted that his
place of work was abroad and that he only visited during his frequent vacations.
In Reyes v. COMELEC,162 the candidate was found to be an American citizen who
had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue. On
residence, the only proof she offered was a seven-month stint as provincial
officer. The COMELEC, quoted with approval by this Court, said that "such fact
alone is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four cases
cited by the respondents, the Court had no choice but to hold that residence
could be counted only from acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is
overwhelming and taken together leads to no other conclusion that she decided
to permanently abandon her U.S. residence (selling the house, taking the
children from U.S. schools, getting quotes from the freight company, notifying
the U.S. Post Office of the abandonment of their address in the U.S., donating
excess items to the Salvation Army, her husband resigning from U.S.
employment right after selling the U.S. house) and permanently relocate to the
Philippines and actually re-established her residence here on 24 May 2005
(securing T.I.N, enrolling her children in Philippine schools, buying property here,
constructing a residence here, returning to the Philippines after all trips abroad,
her husband getting employed here). Indeed, coupled with her eventual
application to reacquire Philippine citizenship and her family's actual continuous
stay in the Philippines over the years, it is clear that when petitioner returned on
24 May 2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan.  A closer look at R.A. No. 6768
as amended, otherwise known as the "An Act Instituting a Balikbayan Program,"
shows that there is no overriding intent to treat balikbayans  as temporary
visitors who must leave after one year. Included in the law is a former Filipino
who has been naturalized abroad and "comes or returns to the
Philippines." 163 The law institutes a balikbayan  program "providing the
opportunity to avail of the necessary training to enable the balikbayan  to become
economically self-reliant members of society upon their return to the
country"164in line with the government's "reintegration
program."165 Obviously, balikbayans  are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan  and help
him reintegrate into society, it would be an unduly harsh conclusion to say in
absolute terms that the balikbayan  must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary formal
and legal requirements of repatriation. And that is exactly what petitioner did -
she reestablished life here by enrolling her children and buying property while
awaiting the return of her husband and then applying for repatriation shortly
thereafter.
No case similar to petitioner's, where the former Filipino's evidence of change in
domicile is extensive and overwhelming, has as yet been decided by the Court.
Petitioner's evidence of residence is unprecedented. There is no judicial
precedent that comes close to the facts of residence of petitioner. There is no
indication in Coquilla v. COMELEC,166 and the other cases cited by the
respondents that the Court intended to have its rulings there apply to a situation
where the facts are different. Surely, the issue of residence has been decided
particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of
petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10)
years and eleven (11) months by 9 May 2016 in her 2015 COC was false because
she put six ( 6) years and six ( 6) months as "period of residence before May 13,
2013" in her 2012 COC for Senator. Thus, according to the COMELEC, she
started being a Philippine resident only in November 2006. In doing so, the
COMELEC automatically assumed as true the statement in the 2012 COC and the
2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the date
required in the 2013 COC as the period of residence as of the day she submitted
that COC in 2012. She said that she reckoned residency from April-May 2006
which was the period when the U.S. house was sold and her husband returned
to the Philippines. In that regard, she was advised by her lawyers in 2015 that
residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of
residence before 13 May 2013) as inquiring about residence as of the time she
submitted the COC, is bolstered by the change which the COMELEC itself
introduced in the 2015 COC which is now "period of residence in the Philippines
up to the day before May 09, 2016." The COMELEC would not have revised the
query if it did not acknowledge that the first version was vague.
That petitioner could have reckoned residence from a date earlier than the sale
of her U.S. house and the return of her husband is plausible given the evidence
192
that she had returned a year before. Such evidence, to repeat, would include her
passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a
binding and conclusive admission against petitioner. It could be given in evidence
against her, yes, but it was by no means conclusive. There is precedent after all
where a candidate's mistake as to period of residence made in a COC was
overcome by evidence.  In Romualdez-Marcos v. COMELEC, 167 the candidate
mistakenly put seven (7) months as her period of residence where the required
period was a minimum of one year. We said that "[i]t is the fact of residence,
not a statement in a certificate of candidacy which ought to be decisive in
determining whether or not an individual has satisfied the constitutions residency
qualification requirement."  The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the
Philippines from 24 May 2005. Had the COMELEC done its duty, it would have
seen that the 2012 COC and the 2015 COC both  correctly stated
the pertinent  period of residency.
The COMELEC, by its own admission, disregarded the evidence that petitioner
actually and physically returned here on 24 May 2005 not because it was false,
but only because COMELEC took the position that domicile could be established
only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it
does not take away the fact that in reality, petitioner had returned from the U.S.
and was here to stay permanently, on 24 May 2005. When she claimed to have
been a resident for ten (10) years and eleven (11) months, she could do so in
good faith.
For another, it could not be said that petitioner was attempting to hide anything.
As already stated, a petition for quo warranto  had been filed against her with the
SET as early as August 2015. The event from which the COMELEC pegged the
commencement of residence, petitioner's repatriation in July 2006 under R.A. No.
9225, was an established fact to repeat, for purposes of her senatorial
candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in the
2012 COC, petitioner recounted that this was first brought up in the media on 2
June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner
appears to have answered the issue immediately, also in the press. Respondents
have not disputed petitioner's evidence on this point. From that time therefore
when Rep. Tiangco discussed it in the media, the stated period of residence in
the 2012 COC and the circumstances that surrounded the statement were
already matters of public record and were not hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET
petition for quo warranto.  Her Verified Answer, which was filed on 1 September
2015, admitted that she made a mistake in the 2012 COC when she put in six
( 6) years and six ( 6) months as she misunderstood the question and could have
truthfully indicated a longer period. Her answer in the SET case was a matter of
public record. Therefore, when petitioner accomplished her COC for President on
15 October 2015, she could not be said to have been attempting to hide her
erroneous statement in her 2012 COC for Senator  which was expressly
mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's pronouncement
that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole ground for
denying due course to, and for the cancellation of, a COC. Further, as already
discussed, the candidate's misrepresentation in his COC must not only refer to a
material fact (eligibility and qualifications for elective office), but should evince a
deliberate intent to mislead, misinform or hide a fact which would otherwise
render a candidate ineligible. It must be made with an intention to deceive the
electorate as to one's qualifications to run for public office. 168
In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a
good number of evidenced dates all of which can evince animus manendi  to the
Philippines and animus non revertedi  to the United States of America. The
veracity of the events of coming and staying home was as much as dismissed as
inconsequential, the focus having been fixed at the petitioner's "sworn
declaration in her COC for Senator" which the COMELEC said "amounts to a
declaration and therefore an admission that her residence in the Philippines only
commence sometime in November 2006"; such that "based on this declaration,
[petitioner] fails to meet the residency requirement for President." This
conclusion, as already shown, ignores the standing jurisprudence that it is the
fact of residence, not the statement of the person that determines residence for
purposes of compliance with the constitutional requirement of residency for
election as President. It ignores the easily researched matter that cases on
questions of residency have been decided favorably for the candidate on the
basis of facts of residence far less in number, weight and substance than that
presented by petitioner.169 It ignores, above all else, what we consider as a
primary reason why petitioner cannot be bound by her declaration in her COC for
Senator which declaration was not even considered by the SET as an issue
against her eligibility for Senator. When petitioner made the declaration in her
COC for Senator that she has been a resident for a period of six (6) years and six
(6) months counted up to the 13 May 2013 Elections, she naturally had as
reference the residency requirements for election as Senator which was satisfied
by her declared years of residence. It was uncontested during the oral
arguments before us that at the time the declaration for Senator was made,
petitioner did not have as yet any intention to vie for the Presidency in 2016 and
193
that the general public was never made aware by petitioner, by word or action,
that she would run for President in 2016. Presidential candidacy has a length-of-
residence different from that of a senatorial candidacy. There are facts of
residence other than that which was mentioned in the COC for Senator. Such
other facts of residence have never been proven to be false, and these, to repeat
include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband
however stayed in the USA to finish pending projects and arrange the sale of
their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan City.
[Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in
Assumption College in Makati City in 2005. Anika was enrolled in Learning
Connection in San Juan in 2007, when she was already old enough to go to
school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One
Wilson Place Condominium in San Juan. [Petitioner] and her family lived in Unit
7F until the construction of their family home in Corinthian Hills was completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that her
former lawyer who handled [petitioner's] adoption in 1974 failed to secure from
the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating
[petitioner's] new name and stating that her parents are "Ronald Allan K. Poe"
and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise the
disposal of some of the family's remaining household
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March 2006.
In late March 2006, [petitioner's] husband informed the United States Postal
Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a Philippine
company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian
Hills, where they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let
the case fall under the exclusive ground of false representation, to consider no
other date than that mentioned by petitioner in her COC for Senator.
All put together, in the matter of the citizenship and residence of petitioner for
her candidacy as President of the Republic, the questioned Resolutions of the
COMELEC in Division and En Banc  are, one and all, deadly diseased with grave
abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second Division, in
SPA No. 15-001 (DC), entitled Estrella  C. Elamparo, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent,  stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines in
the May 9, 2016 National and Local Elections filed by respondent Mary Grace
Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division, in
the consolidated cases SPA No. 15-002 (DC) entitled Francisco  S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;  SPA
No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace
Natividad Sonora Poe-Llamanzares, respondent;  and SPA No. 15-139 (DC)
entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-
Llamanzares,  respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to GRANT the petitions and cancel the Certificate of Candidacy of
MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position
of President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc,  upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby
RESOLVES, to DENY the Verified Motion for Reconsideration of SENATOR MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11
December 2015 of the Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc,  upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD
SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for
President in the National and Local Elections of 9 May 2016.
SO ORDERED.
JOSE PORTUGAL PEREZ
194

EN BANC
[G.R. No. 139465. January 18, 2000]
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION,
Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK
B. JIMENEZ, respondents.  jurisdiction (Ibid., p. 27), or to require disclosure of information by means of
Constitutional Law; Extradition; Due Process; The only duty of the Secretary of
Justice is to file the extradition petition after the request and all the supporting
papers are forwarded to him by the Secretary of Foreign Affairs .—A strict
observance of the Extradition Law indicates that the only duty of the Secretary of
Justice is to file the extradition petition after the request and all the supporting
papers are forwarded to him by the Secretary of Foreign Affairs. It is the latter
official who is authorized to evaluate the extradition papers, to assure their
sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine
whether or not the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation. Ipso
facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law,
the Secretary of Justice has the ministerial duty of filing the extradition papers.
Same; Same; Same; The evaluation process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the
exercise of an administrative body’s quasijudicial power.—The evaluation
process, just like the extradition proceedings proper, belongs to a class by itself.
It is sui generis. It is not a criminal investigation, but it is also erroneous to say
that it is purely an exercise of ministerial functions. At such stage, the executive
authority has the power: (a) to make a technical assessment of the
completeness and sufficiency of the extradition papers; (b) to outrightly deny the
request if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether or not
the request is politically motivated, or that the offense is a military one which is
not punishable under non-military penal legislation (tsn, August 31, 1999, pp.
28-29; Article 2 and Paragraph [3], Article 3, RP-US Extradition Treaty). Hence,
said process may be characterized as an investigative or inquisitorial process in
contrast to a proceeding conducted in the exercise of an administrative body’s
quasi-judicial power.
Same; Same; Same; What a quasi-judicial proceeding involve .—In administrative
law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence;
(b) determining facts based upon the evidence presented; and (c) rendering an
order or decision supported by the facts proved (De Leon, Administrative Law:
Text and Cases, 1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1).
Inquisitorial power, which is also known as examining or investigatory power, is
one of the determinative powers of an administrative body which better enables
it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law, 1996 ed.,
p. 26). This power allows the administrative body to inspect the records and
premises, and investigate the activities, of persons or entities coming under its
accounts, records, reports, testimony of witnesses, production of documents, or
otherwise (De Leon, op. cit., p. 64).
Same; Same; Same; Same; An investigatory body does not exercise judicial
functions and its power is limited to investigating the facts and making findings
in respect thereto; Its only power is to determine whether the papers comply
with the requirements of the law and the treaty and, therefore, sufficient to be
the basis of an extradition petition.—In Ruperto v. Torres (100 Phil. 1098 [1957],
unreported), the Court had occasion to rule on the functions of an investigatory
body with the sole power of investigation. It does not exercise judicial functions
and its power is limited to investigating the facts and making findings in respect
thereto. The Court laid down the test of determining whether an administrative
body is exercising judicial functions or merely investigatory functions:
Adjudication signifies the exercise of power and authority to adjudicate upon the
rights and obligations of the parties before it. Hence, if the only purpose for
investigation is to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial
discretion and judgment. The above description in Ruperto applies to an
administrative body authorized to evaluate extradition documents. The body has
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no power to adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is to determine
whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is
thus merely initial and not final. The body has no power to determine whether or
not the extradition should be effected. That is the role of the court. The body’s
power is limited to an initial finding of whether or not the extradition petition can
be filed in court.
Same; Same; Same; Same; The evaluation process is akin to an administrative
agency conducting an investigative proceeding, the consequences of which are
essentially criminal; In essence the evaluation process partakes of the nature of
a criminal investigation.—Logically, although the Extradition Law is silent on this
respect, the provisions only mean that once a request is forwarded to the
Requested State, the prospective extraditee may be continuously detained, or if
not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty),
for he will only be discharged if no request is submitted. Practically, the purpose
of this detention is to prevent his possible flight from the Requested State.
Second, the temporary arrest of the prospective extraditee during the pendency
of the extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee’s liberty as early
as during the evaluation stage. It is not only an imagined threat to his liberty,
but a very imminent one. Because of these possible consequences, we conclude
that the evaluation process is akin to an administrative agency conducting an
investigative proceeding, the consequences of which are essentially criminal
since such technical assessment sets off or commences the procedure for, and
ultimately, the deprivation of liberty of a prospective extraditee. As described by
petitioner himself, this is a “tool” for criminal law enforcement (p. 78, Rollo). In
essence, therefore, the evaluation process partakes of the nature of a criminal
investigation.
Same; Same; Same; Same; Test to determine whether a proceeding is civil or
criminal.—There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970
[1962]), where the Court, citing American jurisprudence, laid down the test to
determine whether a proceeding is civil or criminal: If the proceeding is under a
statute such that if an indictment is presented the forfeiture can be included in
the criminal case, such proceeding is criminal in nature, although it may be civil
in form; and where it must be gathered from the statute that the action is meant
to be criminal in its nature, it cannot be considered as civil. If, however, the
proceeding does not involve the conviction of the wrongdoer for the offense
charged, the proceeding is civil in nature.
Same; Same; Same; Due process is comprised of substantive and procedural
due process; The basic rights of notice and hearing pervade not only in criminal
and civil proceedings, but in administrative proceedings as well .—Due process is
comprised of two components—substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life,
liberty, or property, and procedural due process which consists of the two basic
rights of notice and hearing, as well as the guarantee of being heard by an
impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-
106). True to the mandate of the due process clause, the basic rights of notice
and hearing pervade not only in criminal and civil proceedings, but in
administrative proceedings as well. Non-observance of these rights will invalidate
the proceedings. Individuals are entitled to be notified of any pending case
affecting their interests, and upon notice, they may claim the right to appear
therein and present their side and to refute the position of the opposing parties.
Same; Same; Same; Same; The notice and hearing requirements of
administrative due process cannot be dispensed with and shelved aside.—Worthy
of inquiry is the issue of whether or not there is tentativeness of administrative
action. Is private respondent precluded from enjoying the right to notice and
hearing at a later time without prejudice to him? Here lies the peculiarity and
deviant characteristic of the evaluation procedure. On one hand, there is yet no
extraditee, but ironically on the other, it results in an administrative
determination which, if adverse to the person involved, may cause his immediate
incarceration. The grant of the request shall lead to the filing of the extradition
petition in court. The “accused” (as Section 2[c] of Presidential Decree No. 1069
calls him), faces the threat of arrest, not only after the extradition petition is filed
in court, but even during the evaluation proceeding itself by virtue of the
provisional arrest allowed under the treaty and the implementing law. The
prejudice to the “accused” is thus blatant and manifest. Plainly, the notice and
hearing requirements of administrative due process cannot be dispensed with
and shelved aside.
DECISION
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast and
overwhelming powers of government. His only guarantee against oppression and
tyranny are his fundamental liberties under the Bill of Rights which shield him in
times of need. The Court is now called to decide whether to uphold a citizens
basic due process rights, or the governments ironclad duties under a treaty. The
bugle sounds and this Court must once again act as the faithful guardian of the
fundamental writ.
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The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential
Decree No. 1069 "Prescribing the Procedure for the Extradition of Persons Who
Have Committed Crimes in a Foreign Country". The Decree is founded on: the
doctrine of incorporation under the Constitution; the mutual concern for the
suppression of crime both in the state where it was committed and the state
where the criminal may have escaped; the extradition treaty with the Republic of
Indonesia and the intention of the Philippines to enter into similar treaties with
other interested countries; and the need for rules to guide the executive
department and the courts in the proper implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed in Manila
the "Extradition Treaty Between the Government of the Republic of the
Philippines and the Government of the United States of America" (hereinafter
referred to as the RP-US Extradition Treaty). The Senate, by way of Resolution
No. 11, expressed its concurrence in the ratification of said treaty. It also
expressed its concurrence in the Diplomatic Notes correcting Paragraph (5)(a),
Article 7 thereof (on the admissibility of the documents accompanying an
extradition request upon certification by the principal diplomatic or consular
officer of the requested state resident in the Requesting State). Kycalr
On June 18, 1999, the Department of Justice received from the Department of
Foreign Affairs U. S. Note Verbale No. 0522 containing a request for the
extradition of private respondent Mark Jimenez to the United States. Attached to
the Note Verbale were the Grand Jury Indictment, the warrant of arrest issued
by the U.S. District Court, Southern District of Florida, and other supporting
documents for said extradition. Based on the papers submitted, private
respondent appears to be charged in the United States with violation of the
following provisions of the United States Code (USC):
A)......18 USC 371 (Conspiracy to commit offense or to defraud the United
States; two [2] counts; Maximum Penalty 5 years on each count);
B)......26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum
Penalty 5 years on each count);
C)......18 USC 1343 (Fraud by wire, radio, or television; two [2] counts;
Maximum Penalty 5 years on each count);
D)......18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty
5 years on each count);
E)......2 USC 441f (Election contributions in name of another; thirty-three [33]
counts; Maximum Penalty less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and
authorizing a panel of attorneys to take charge of and to handle the case
pursuant to Section 5(1) of Presidential Decree No. 1069. Accordingly, the panel
began with the "technical evaluation and assessment" of the extradition request
and the documents in support thereof. The panel found that the "official English
translation of some documents in Spanish were not attached to the request and
that there are some other matters that needed to be addressed" (p. 15,
Rollo). Calrky
Pending evaluation of the aforestated extradition documents, private respondent,
through counsel, wrote a letter dated July 1, 1999 addressed to petitioner
requesting copies of the official extradition request from the U. S. Government,
as well as all documents and papers submitted therewith; and that he be given
ample time to comment on the request after he shall have received copies of the
requested papers. Private respondent also requested that the proceedings on the
matter be held in abeyance in the meantime.
Later, private respondent requested that preliminarily, he be given at least a
copy of, or access to, the request of the United States Government, and after
receiving a copy of the Diplomatic Note, a period of time to amplify on his
request.
In response to private respondents July 1, 1999 letter, petitioner, in a reply-letter
dated July 13, 1999 (but received by private respondent only on August 4,
1999), denied the foregoing requests for the following reasons:
1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation
by this Department of the sufficiency of the extradition documents submitted in
accordance with the provisions of the extradition treaty and our extradition law.
Article 7 of the Extradition Treaty between the Philippines and the United States
enumerates the documentary requirements and establishes the procedures under
which the documents submitted shall be received and admitted as evidence.
Evidentiary requirements under our domestic law are also set forth in Section 4
of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a
preliminary investigation nor akin to preliminary investigation of criminal cases.
We merely determine whether the procedures and requirements under the
relevant law and treaty have been complied with by the Requesting Government.
The constitutionally guaranteed rights of the accused in all criminal prosecutions
are therefore not available.
It is only after the filing of the petition for extradition when the person sought to
be extradited will be furnished by the court with copies of the petition, request
197
and extradition documents and this Department will not pose any objection to a
request for ample time to evaluate said documents. Mesm
2. The formal request for extradition of the United States contains grand jury
information and documents obtained through grand jury process covered by
strict secrecy rules under United States law. The United States had to secure
orders from the concerned District Courts authorizing the United States to
disclose certain grand jury information to Philippine government and law
enforcement personnel for the purpose of extradition of Mr. Jimenez. Any further
disclosure of the said information is not authorized by the United States District
Courts. In this particular extradition request the United States Government
requested the Philippine Government to prevent unauthorized disclosure of the
subject information. This Departments denial of your request is consistent with
Article 7 of the RP-US Extradition Treaty which provides that the Philippine
Government must represent the interests of the United States in any proceedings
arising out of a request for extradition. The Department of Justice under P.D. No.
1069 is the counsel of the foreign governments in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in
connection with an extradition request. Article 26 of the Vienna Convention on
the Law of Treaties, to which we are a party provides that "[E]very treaty in
force is binding upon the parties to it and must be performed by them in good
faith". Extradition is a tool of criminal law enforcement and to be effective,
requests for extradition or surrender of accused or convicted persons must be
processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed
with the Regional Trial Court of the National Capital Judicial Region a petition
against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director
of the National Bureau of Investigation, for mandamus (to compel herein
petitioner to furnish private respondent the extradition documents, to give him
access thereto, and to afford him an opportunity to comment on, or oppose, the
extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioners letter dated July 13, 1999);
and prohibition (to restrain petitioner from considering the extradition request
and from filing an extradition petition in court; and to enjoin the Secretary of
Foreign Affairs and the Director of the NBI from performing any act directed to
the extradition of private respondent to the United States), with an application
for the issuance of a temporary restraining order and a writ of preliminary
injunction (pp. 104-105, Rollo). Scslx
The aforementioned petition was docketed as Civil Case No. 99-94684 and
thereafter raffled to Branch 25 of said regional trial court stationed in Manila
which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner,
who appeared in his own behalf, moved that he be given ample time to file a
memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the previous day,
disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary
of Justice, the Secretary of Foreign Affairs and the Director of the National
Bureau of Investigation, their agents and/or representatives to maintain the
status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United
States Government for the extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and from performing any act
directed to the extradition of the petitioner to the United States, for a period of
twenty (20) days from service on respondents of this Order, pursuant to Section
5, Rule 58 of the 1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction,
as agreed upon by the counsels for the parties herein, is set on August 17, 1999
at 9:00 oclock in the morning. The respondents are, likewise, ordered to file their
written comment and/or opposition to the issuance of a Preliminary Injunction on
or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR
WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER
BECAUSE: Slxs c
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE
ACTS COMPLAINED OF, I. E., TO DESIST FROM REFUSING PRIVATE
RESPONDENT ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY
TO FILE A COMMENT ON, OR OPPOSITION TO, THE REQUEST, THE MAIN
PRAYER FOR A WRIT OF MANDAMUS IN THE PETITION FOR MANDAMUS,
CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO
CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
198
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL
DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE
EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS
FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND
ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his comment.
Also issued, as prayed for, was a temporary restraining order (TRO)
providing: slx mis
NOW, THEREFORE, effective immediately and continuing until further orders
from this Court, You, Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your place or stead are
hereby ORDERED to CEASE and DESIST from enforcing the assailed order dated
August 9, 1999 issued by public respondent in Civil Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court
of the Philippines, this 17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which the
parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive
issues are patent. However, a review of these issues as well as the extensive
arguments of both parties, compel us to delineate the focal point raised by the
pleadings: During the evaluation stage of the extradition proceedings, is private
respondent entitled to the two basic due process rights of notice and hearing? An
affirmative answer would necessarily render the proceedings at the trial court,
moot and academic (the issues of which are substantially the same as those
before us now), while a negative resolution would call for the immediate lifting of
the TRO issued by this Court dated August 24, 1999, thus allowing petitioner to
fast-track the process leading to the filing of the extradition petition with the
proper regional trial court. Corollarily, in the event that private respondent is
adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal
commitments and obligations of the Philippine Government under the RP-US
Extradition Treaty? And assuming that the result would indeed be a breach, is
there any conflict between private respondents basic due process rights and the
provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go
directly into the substantive merits of the case, brushing aside peripheral
procedural matters which concern the proceedings in Civil Case No. 99-94684,
particularly the propriety of the filing of the petition therein, and of the issuance
of the TRO of August 17, 1999 by the trial court. Missdaa
To be sure, the issues call for a review of the extradition procedure. The RP-US
Extradition Treaty which was executed only on November 13, 1994, ushered into
force the implementing provisions of Presidential Decree No. 1069, also called as
the Philippine Extradition Law. Section 2(a) thereof defines extradition as "the
removal of an accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or government to
hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." The portions of the Decree relevant to the
instant case which involves a charged and not convicted individual, are
abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed
to the Secretary of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of
arrest issued by the authority of the Requesting State having jurisdiction over the
matter, or some other instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest
particulars as to the name and identity of the accused, his whereabouts in the
Philippines, if known, the acts or omissions complained of, and the time and
place of the commission of these acts; Sda adsc
3. The text of the applicable law or a statement of the contents of said law, and
the designation or description of the offense by the law, sufficient for evaluation
of the request; and
4. Such other documents or information in support of the request.
(Section 4, Presidential Decree No. 1069.)
Section 5 of the Presidential Decree, which sets forth the duty of the Secretary of
Foreign Affairs, pertinently provides:
199
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails
to meet the requirements of this law and the relevant treaty or convention, he
shall forward the request together with the related documents to the Secretary
of Justice, who shall immediately designate and authorize an attorney in his
office to take charge of the case.
The above provision shows only too clearly that the executive authority given the
task of evaluating the sufficiency of the request and the supporting documents is
the Secretary of Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty,
the executive authority must ascertain whether or not the request is supported
by:
1. Documents, statements, or other types of information which describe the
identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of
the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the
offense; Rtc spped
5. A statement of the provisions of the law describing any time limit on the
prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3
or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide
probable cause for his arrest and committal for trial if the offense had been
committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent
authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the
accompanying documents received in support of the request had been certified
by the principal diplomatic or consular officer of the Requested State resident in
the Requesting State (Embassy Note No. 052 from U. S. Embassy; Embassy Note
No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall
not be granted if the executive authority of the Requested State determines that
the request is politically motivated, or that the offense is a military offense which
is not punishable under non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition
request and its supporting documents are sufficient and complete in form and
substance, he shall deliver the same to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of
the case (Paragraph [1], Section 5, P. D. No. 1069). The lawyer designated shall
then file a written petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request under consideration
(Paragraph [2], ibid.). Korte
The presiding judge of the regional trial court, upon receipt of the petition for
extradition, shall, as soon as practicable, issue an order summoning the
prospective extraditee to appear and to answer the petition on the day and hour
fixed in the order. The judge may issue a warrant of arrest if it appears that the
immediate arrest and temporary detention of the accused will best serve the
ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight
of the prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition
proceeding is criminal, civil, or a special proceeding. Nevertheless, Paragraph [1],
Section 9 thereof provides that in the hearing of the extradition petition, the
provisions of the Rules of Court, insofar as practicable and not inconsistent with
the summary nature of the proceedings, shall apply. During the hearing, Section
8 of the Decree provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the
proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the
extradition and giving the reasons therefor upon a showing of the existence of
a prima facie case, or dismiss the petition (Section 10, ibid.). Said decision is
appealable to the Court of Appeals, whose decision shall be final and
immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period to file brief
(Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition
is extraditable based on the application of the dual criminality rule and other
conditions mentioned in Article 2 of the RP-US Extradition Treaty. The trial court
200
also determines whether or not the offense for which extradition is requested is
a political one (Paragraph [1], Article 3, RP-US Extradition Treaty).
With the foregoing abstract of the extradition proceedings as backdrop, the
following query presents itself: What is the nature of the role of the Department
of Justice at the evaluation stage of the extradition proceedings? Sclaw
A strict observance of the Extradition Law indicates that the only duty of the
Secretary of Justice is to file the extradition petition after the request and all the
supporting papers are forwarded to him by the Secretary of Foreign Affairs. It is
the latter official who is authorized to evaluate the extradition papers, to assure
their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to determine
whether or not the request is politically motivated, or that the offense is a
military offense which is not punishable under non-military penal legislation. Ipso
facto, as expressly provided in Paragraph [1], Section 5 of the Extradition Law,
the Secretary of Justice has the ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that
there was failure to abide by the provisions of Presidential Decree No. 1069. For
while it is true that the extradition request was delivered to the Department of
Foreign Affairs on June 17, 1999, the following day or less than 24 hours later,
the Department of Justice received the request, apparently without the
Department of Foreign Affairs discharging its duty of thoroughly evaluating the
same and its accompanying documents. The statement of an assistant secretary
at the Department of Foreign Affairs that his Department, in this regard, is
merely acting as a post office, for which reason he simply forwarded the request
to the Department of Justice, indicates the magnitude of the error of the
Department of Foreign Affairs in taking lightly its responsibilities. Thereafter, the
Department of Justice took it upon itself to determine the completeness of the
documents and to evaluate the same to find out whether they comply with the
requirements laid down in the Extradition Law and the RP-US Extradition Treaty.
Petitioner ratiocinates in this connection that although the Department of Justice
had no obligation to evaluate the extradition documents, the Department also
had to go over them so as to be able to prepare an extradition petition (tsn,
August 31, 1999, pp. 24-25). Notably, it was also at this stage where private
respondent insisted on the following: (1) the right to be furnished the request
and the supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in
support of the opposition; and (3) that the evaluation proceedings be held in
abeyance pending the filing of private respondent's opposition to the
request. Kyle
The two Departments seem to have misread the scope of their duties and
authority, one abdicating its powers and the other enlarging its commission. The
Department of Foreign Affairs, moreover, has, through the Solicitor General, filed
a manifestation that it is adopting the instant petition as its own, indirectly
conveying the message that if it were to evaluate the extradition request, it
would not allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the
Department of Foreign Affairs thoroughly reviewed the extradition request and
supporting documents and that it arrived at a well-founded judgment that the
request and its annexed documents satisfy the requirements of law. The
Secretary of Justice, eminent as he is in the field of law, could not privately
review the papers all by himself. He had to officially constitute a panel of
attorneys. How then could the DFA Secretary or his undersecretary, in less than
one day, make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a
class by itself. It is sui generis. It is not a criminal investigation, but it is also
erroneous to say that it is purely an exercise of ministerial functions. At such
stage, the executive authority has the power: (a) to make a technical
assessment of the completeness and sufficiency of the extradition papers; (b) to
outrightly deny the request if on its face and on the face of the supporting
documents the crimes indicated are not extraditable; and (c) to make a
determination whether or not the request is politically motivated, or that the
offense is a military one which is not punishable under non-military penal
legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3],
Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as
an investigative or inquisitorial process in contrast to a proceeding conducted in
the exercise of an administrative bodys quasi-judicial power. Ex sm
In administrative law, a quasi-judicial proceeding involves: (a) taking and
evaluation of evidence; (b) determining facts based upon the evidence
presented; and (c) rendering an order or decision supported by the facts proved
(De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198, citing Morgan
vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
examining or investigatory power, is one of the determinative powers of an
administrative body which better enables it to exercise its quasi-judicial authority
(Cruz, Phil. Administrative Law, 1996 ed., p. 26). This power allows the
administrative body to inspect the records and premises, and investigate the
activities, of persons or entities coming under its jurisdiction ( Ibid., p. 27), or to
require disclosure of information by means of accounts, records, reports,
testimony of witnesses, production of documents, or otherwise ( De Leon, op.
cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing
evidence, which is a useful aid or tool in an administrative agencys performance
of its rule-making or quasi-judicial functions. Notably, investigation is
indispensable to prosecution.
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In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion
to rule on the functions of an investigatory body with the sole power of
investigation. It does not exercise judicial functions and its power is limited to
investigating the facts and making findings in respect thereto. The Court laid
down the test of determining whether an administrative body is exercising
judicial functions or merely investigatory functions: Adjudication signifies the
exercise of power and authority to adjudicate upon the rights and obligations of
the parties before it. Hence, if the only purpose for investigation is to evaluate
evidence submitted before it based on the facts and circumstances presented to
it, and if the agency is not authorized to make a final pronouncement affecting
the parties, then there is an absence of judicial discretion and judgment. Mse sm
The above description in Ruperto applies to an administrative body authorized to
evaluate extradition documents. The body has no power to adjudicate in regard
to the rights and obligations of both the Requesting State and the prospective
extraditee. Its only power is to determine whether the papers comply with the
requirements of the law and the treaty and, therefore, sufficient to be the basis
of an extradition petition. Such finding is thus merely initial and not final. The
body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The bodys power is limited to an initial
finding of whether or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the
evaluation procedure is characterized by certain peculiarities. Primarily, it sets
into motion the wheels of the extradition process. Ultimately, it may result in the
deprivation of liberty of the prospective extraditee. This deprivation can be
effected at two stages: First, the provisional arrest of the prospective extraditee
pending the submission of the request. This is so because the Treaty provides
that in case of urgency, a contracting party may request the provisional arrest of
the person sought pending presentation of the request (Paragraph [1], Article 9,
RP-US Extradition Treaty), but he shall be automatically discharged after 60 days
if no request is submitted (Paragraph 4). Presidential Decree No. 1069 provides
for a shorter period of 20 days after which the arrested person could be
discharged (Section 20[d]). Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is forwarded to the
Requested State, the prospective extraditee may be continuously detained, or if
not, subsequently rearrested (Paragraph [5], Article 9, RP-US Extradition Treaty),
for he will only be discharged if no request is submitted. Practically, the purpose
of this detention is to prevent his possible flight from the Requested
State. Second, the temporary arrest of the prospective extraditee during the
pendency of the extradition petition in court (Section 6, Presidential Decree No.
1069).
Clearly, there is an impending threat to a prospective extraditees liberty as early
as during the evaluation stage. It is not only an imagined threat to his liberty,
but a very imminent one. Sc lex
Because of these possible consequences, we conclude that the evaluation
process is akin to an administrative agency conducting an investigative
proceeding, the consequences of which are essentially criminal since such
technical assessment sets off or commences the procedure for, and ultimately,
the deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence,
therefore, the evaluation process partakes of the nature of a criminal
investigation. In a number of cases, we had occasion to make available to a
respondent in an administrative case or investigation certain constitutional rights
that are ordinarily available only in criminal prosecutions. Further, as pointed out
by Mr. Justice Mendoza during the oral arguments, there are rights formerly
available only at the trial stage that had been advanced to an earlier stage in the
proceedings, such as the right to counsel and the right against self-incrimination
(tsn, August 31, 1999, p. 135;Escobedo vs. Illinois, 378 U.S. 478; Gideon vs.
Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that
the right against self-incrimination under Section 17, Article III of the 1987
Constitution which is ordinarily available only in criminal prosecutions, extends to
administrative proceedings which possess a criminal or penal aspect, such as an
administrative investigation of a licensed physician who is charged with
immorality, which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA
1059 [1962]), pointed out that the revocation of ones license as a medical
practitioner, is an even greater deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained
wealth against a respondent which was filed under Republic Act No. 1379, or the
Anti-Graft Law. Again, we therein ruled that since the investigation may result in
forfeiture of property, the administrative proceedings are deemed criminal or
penal, and such forfeiture partakes the nature of a penalty. There is also the
earlier case of Almeda, Sr. vs. Perez  (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine whether a
proceeding is civil or criminal: If the proceeding is under a statute such that if an
indictment is presented the forfeiture can be included in the criminal case, such
proceeding is criminal in nature, although it may be civil in form; and where it
must be gathered from the statute that the action is meant to be criminal in its
nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding
is civil in nature. x law
The cases mentioned above refer to an impending threat of deprivation of ones
property or property right. No less is this true, but even more so in the case
before us, involving as it does the possible deprivation of liberty, which, based on
the hierarchy of constitutionally protected rights, is placed second only to life
itself and enjoys precedence over property, for while forfeited property can be
202
returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.
By comparison, a favorable action in an extradition request exposes a person to
eventual extradition to a foreign country, thus saliently exhibiting the criminal or
penal aspect of the process. In this sense, the evaluation procedure is akin to a
preliminary investigation since both procedures may have the same result the
arrest and imprisonment of the respondent or the person charged. Similar to the
evaluation stage of extradition proceedings, a preliminary investigation, which
may result in the filing of an information against the respondent, can possibly
lead to his arrest, and to the deprivation of his liberty.
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8,
Petitioners Memorandum) that the extradition treaty is neither a piece of criminal
legislation nor a criminal procedural statute is not well-taken. Wright is not
authority for petitioners conclusion that his preliminary processing is not akin to
a preliminary investigation. The characterization of a treaty in Wright was in
reference to the applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice, information, and hearing.
As early as 1884, the United States Supreme Court ruled that "any legal
proceeding enforced by public authority, whether sanctioned by age or custom,
or newly devised in the discretion of the legislative power, in furtherance of the
general public good, which regards and preserves these principles of liberty and
justice, must be held to be due process of law" (Hurtado vs. California, 110 U.S.
516). Compliance with due process requirements cannot be deemed non-
compliance with treaty commitments.
The United States and the Philippines share a mutual concern about the
suppression and punishment of crime in their respective jurisdictions. At the
same time, both States accord common due process protection to their
respective citizens. Sc
The due process clauses in the American and Philippine Constitutions are not
only worded in exactly identical language and terminology, but more importantly,
they are alike in what their respective Supreme Courts have expounded as the
spirit with which the provisions are informed and impressed, the elasticity in their
interpretation, their dynamic and resilient character which make them capable of
meeting every modern problem, and their having been designed from earliest
time to the present to meet the exigencies of an undefined and expanding
future. The requirements of due process are interpreted in both the United
States and the Philippines as not denying to the law the capacity for progress
and improvement. Toward this effect and in order to avoid the confines of a legal
straitjacket, the courts instead prefer to have the meaning of the due process
clause "gradually ascertained by the process of inclusion and exclusion in the
course of the decisions of cases as they arise" (Twining vs. New Jersey , 211 U.S.
78). Capsulized, it refers to "the embodiment of the sporting idea of fair play"
(Ermita-Malate Hotel and Motel Owners Association vs. City Mayor of Manila , 20
SCRA 849 [1967]). It relates to certain immutable principles of justice which
inhere in the very idea of free government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process which
requires the intrinsic validity of the law in interfering with the rights of the person
to his life, liberty, or property, and procedural due process which consists of the
two basic rights of notice and hearing, as well as the guarantee of being heard
by an impartial and competent tribunal (Cruz, Constitutional Law, 1993 Ed., pp.
102-106).
True to the mandate of the due process clause, the basic rights of notice and
hearing pervade not only in criminal and civil proceedings, but in administrative
proceedings as well. Non-observance of these rights will invalidate the
proceedings. Individuals are entitled to be notified of any pending case affecting
their interests, and upon notice, they may claim the right to appear therein and
present their side and to refute the position of the opposing parties ( Cruz, Phil.
Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondents basic due process rights, granting him the right to be furnished a
copy of the complaint, the affidavits, and other supporting documents, and the
right to submit counter-affidavits and other supporting documents within ten
days from receipt thereof. Moreover, the respondent shall have the right to
examine all other evidence submitted by the complainant. Scmis
These twin rights may, however, be considered dispensable in certain instances,
such as:
1. In proceedings where there is an urgent need for immediate action, like the
summary abatement of a nuisance per se (Article 704, Civil Code), the preventive
suspension of a public servant facing administrative charges (Section 63, Local
Government Code, B. P. Blg. 337), the padlocking of filthy restaurants or
theaters showing obscene movies or like establishments which are immediate
threats to public health and decency, and the cancellation of a passport of a
person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the
respondent is not precluded from enjoying the right to notice and hearing at a
later time without prejudice to the person affected, such as the summary
distraint and levy of the property of a delinquent taxpayer, and the replacement
of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise
them had not been claimed.
203
Applying the above principles to the case at bar, the query may be asked: Does
the evaluation stage of the extradition proceedings fall under any of the
described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which
are quite noteworthy considering that the subject treaty involves the U.S.
Government. Mis sc
American jurisprudence distinguishes between interstate rendition or extradition
which is based on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2),
and international extradition proceedings. In interstate rendition or extradition,
the governor of the asylum state has the duty to deliver the fugitive to the
demanding state. The Extradition Clause and the implementing statute are given
a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have
been charged with crime (31A Am Jur 2d 754-755). In order to achieve
extradition of an alleged fugitive, the requisition papers or the demand must be
in proper form, and all the elements or jurisdictional facts essential to the
extradition must appear on the face of the papers, such as the allegation that
the person demanded was in the demanding state at the time the offense
charged was committed, and that the person demanded is charged with the
commission of the crime or that prosecution has been begun in the demanding
state before some court or magistrate (35 C.J.S. 406-407). The extradition
documents are then filed with the governor of the asylum state, and must
contain such papers and documents prescribed by statute, which essentially
include a copy of the instrument charging the person demanded with a crime,
such as an indictment or an affidavit made before a magistrate. Statutory
requirements with respect to said charging instrument or papers are mandatory
since said papers are necessary in order to confer jurisdiction on the governor of
the asylum state to effect the extradition (35 C.J.S. 408-410). A statutory
provision requiring duplicate copies of the indictment, information,
affidavit, or judgment of conviction or sentence and other instruments
accompanying the demand or requisitions be furnished and delivered
to the fugitive or his attorney is directory. However, the right being
such a basic one has been held to be a right mandatory on
demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr.
407 and Ex parte Tucker, Cr., 324, S.W.2d 853). Mis spped
In international proceedings, extradition treaties generally provide for the
presentation to the executive authority of the Requested State of a requisition or
demand for the return of the alleged offender, and the designation of the
particular officer having authority to act in behalf of the demanding nation
(31A Am Jur 2d 815).
In petitioners memorandum filed on September 15, 1999, he attached thereto a
letter dated September 13, 1999 from the Criminal Division of the U.S.
Department of Justice, summarizing the U.S. extradition procedures and
principles, which are basically governed by a combination of treaties (with special
reference to the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic channel. In
urgent cases, requests for the provisional arrest of an individual may be made
directly by the Philippine Department of Justice to the U.S. Department of
Justice, and vice-versa. In the event of a provisional arrest, a formal request for
extradition is transmitted subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request
to the Department of Justice. Before doing so, the Department of State prepares
a declaration confirming that a formal request has been made, that the treaty is
in full force and effect, that under Article 17 thereof the parties provide
reciprocal legal representation in extradition proceedings, that the offenses are
covered as extraditable offenses under Article 2 thereof, and that the documents
have been authenticated in accordance with the federal statute that ensures
admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of
the prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is
authorized to hold a hearing to consider the evidence offered in support of the
extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is
extraditable to the foreign country. The court must also determine that (a) it has
jurisdiction over the defendant and jurisdiction to conduct the hearing; (b) the
defendant is being sought for offenses for which the applicable treaty permits
extradition; and (c) there is probable cause to believe that the defendant is the
person sought and that he committed the offenses charged (Ibid.) Spped
5. The judge or magistrate judge is vested with jurisdiction to certify
extraditability after having received a "complaint made under oath, charging any
person found within his jurisdiction" with having committed any of the crimes
provided for by the governing treaty in the country requesting extradition (Ibid.)
[In this regard, it is noted that a long line of American decisions pronounce that
international extradition proceedings partake of the character of a preliminary
examination before a committing magistrate, rather than a trial of the guilt or
innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and
certifies the persons extraditability. The court then forwards this certification of
extraditability to the Department of State for disposition by the Secretary of
State. The ultimate decision whether to surrender an individual rests with the
Secretary of State (18 U.S.C. 3186).
204
7. The subject of an extradition request may not litigate questions concerning
the motives of the requesting government in seeking his extradition. However, a
person facing extradition may present whatever information he deems relevant
to the Secretary of State, who makes the final determination whether to
surrender an individual to the foreign government concerned.
From the foregoing, it may be observed that in the United States, extradition
begins and ends with one entity the Department of State which has the power to
evaluate the request and the extradition documents in the beginning, and, in the
person of the Secretary of State, the power to act or not to act on the courts
determination of extraditability. In the Philippine setting, it is the Department of
Foreign Affairs which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp. 10-12), then
forwards the request to the Department of Justice for the preparation and filing
of the petition for extradition. Sadly, however, the Department of Foreign Affairs,
in the instant case, perfunctorily turned over the request to the Department of
Justice which has taken over the task of evaluating the request as well as
thereafter, if so warranted, preparing, filing, and prosecuting the petition for
extradition. Jo spped
Private respondent asks what prejudice will be caused to the U.S. Government
should the person sought to be extradited be given due process rights by the
Philippines in the evaluation stage. He emphasizes that petitioners primary
concern is the possible delay in the evaluation process.
We agree with private respondents citation of an American Supreme Court
ruling:
The establishment of prompt efficacious procedures to achieve legitimate state
ends is a proper state interest worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher values than speed and
efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the
Due Process Clause, in particular, that they were designed to protect the fragile
values of a vulnerable citizenry from the overbearing concern for efficiency and
efficacy that may characterize praiseworthy government officials no less, and
perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine
Government that no right that of liberty secured not only by the Bills of Rights of
the Philippines Constitution but of the United States as well, is sacrificed at the
altar of expediency.
(pp. 40-41, Private Respondents Memorandum.) Spped jo
In the Philippine context, this Courts ruling is invoked:
One of the basic principles of the democratic system is that where the rights of
the individual are concerned, the end does not justify the means. It is not
enough that there be a valid objective; it is also necessary that the means
employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the
strongest moral conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individuals rights. It is no
exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who
would deny him that right (Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that extradition is a tool of
criminal law enforcement. To be effective, requests for extradition or the
surrender of accused or convicted persons must be processed expeditiously.
Nevertheless, accelerated or fast-tracked proceedings and adherence to fair
procedures are, however, not always incompatible. They do not always clash in
discord. Summary does not mean precipitous haste. It does not carry a disregard
of the basic principles inherent in "ordered liberty." Miso
Is there really an urgent need for immediate action at the evaluation stage? At
that point, there is no extraditee yet in the strict sense of the word. Extradition
may or may not occur. In interstate extradition, the governor of the asylum state
may not, in the absence of mandatory statute, be compelled to act favorably (37
C.J.S. 387) since after a close evaluation of the extradition papers, he may hold
that federal and statutory requirements, which are significantly jurisdictional,
have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty,
the executive authority of the requested state has the power to deny the behest
from the requesting state. Accordingly, if after a careful examination of the
extradition documents the Secretary of Foreign Affairs finds that the request fails
to meet the requirements of the law and the treaty, he shall not forward the
request to the Department of Justice for the filing of the extradition petition since
non-compliance with the aforesaid requirements will not vest our government
with jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted
notable efforts in assuring compliance with the requirements of the law and the
treaty since it even informed the U.S. Government of certain problems in the
extradition papers (such as those that are in Spanish and without the official
English translation, and those that are not properly authenticated). In fact,
petitioner even admits that consultation meetings are still supposed to take place
between the lawyers in his Department and those from the U.S. Justice
Department. With the meticulous nature of the evaluation, which cannot just be
completed in an abbreviated period of time due to its intricacies, how then can
we say that it is a proceeding that urgently necessitates immediate and prompt
action where notice and hearing can be dispensed with?
205
Worthy of inquiry is the issue of whether or not there is tentativeness of
administrative action. Is private respondent precluded from enjoying the right to
notice and hearing at a later time without prejudice to him? Here lies the
peculiarity and deviant characteristic of the evaluation procedure. On one hand,
there is yet no extraditee, but ironically on the other, it results in an
administrative determination which, if adverse to the person involved, may cause
his immediate incarceration. The grant of the request shall lead to the filing of
the extradition petition in court. The "accused" (as Section 2[c] of Presidential
Decree No. 1069 calls him), faces the threat of arrest, not only after the
extradition petition is filed in court, but even during the evaluation proceeding
itself by virtue of the provisional arrest allowed under the treaty and the
implementing law. The prejudice to the "accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process
cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private respondent
likewise invokes Section 7 of Article III which reads: Nex old
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.
The above provision guarantees political rights which are available to citizens of
the Philippines, namely: (1) the right to information on matters of public
concern, and (2) the corollary right of access to official records and documents.
The general right guaranteed by said provision is the right to information on
matters of public concern. In its implementation, the right of access to official
records is likewise conferred. These cognate or related rights are "subject to
limitations as may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that ultimately it is
an informed and critical public opinion which alone can protect the values of
democratic government (Ibid.).
Petitioner argues that the matters covered by private respondents letter-request
dated July 1, 1999 do not fall under the guarantee of the foregoing provision
since the matters contained in the documents requested are not of public
concern. On the other hand, private respondent argues that the distinction
between matters vested with public interest and matters which are of purely
private interest only becomes material when a third person, who is not directly
affected by the matters requested, invokes the right to information. However, if
the person invoking the right is the one directly affected thereby, his right to
information becomes absolute.
The concept of matters of public concern escapes exact definition. Strictly
speaking, every act of a public officer in the conduct of the governmental
process is a matter of public concern (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 336). This concept embraces a broad
spectrum of subjects which the public may want to know, either because these
directly affect their lives or simply because such matters arouse the interest of an
ordinary citizen (Legaspi v. Civil Service Commission,  150 SCRA 530 [1987]).
Hence, the real party in interest is the people and any citizen has
"standing".Mani kx
When the individual himself is involved in official government action because said
action has a direct bearing on his life, and may either cause him some kind of
deprivation or injury, he actually invokes the basic right to be notified under
Section 1 of the Bill of Rights and not exactly the right to information on matters
of public concern. As to an accused in a criminal proceeding, he invokes Section
14, particularly the right to be informed of the nature and cause of the
accusation against him.
The right to information is implemented by the right of access to information
within the control of the government (Bernas, The 1987 Constitution of the
Republic of the Philippines, 1996 ed., p. 337). Such information may be
contained in official records, and in documents and papers pertaining to official
acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official
government action from the U. S. Government. No official action from our
country has yet been taken. Moreover, the papers have some relation to matters
of foreign relations with the U. S. Government. Consequently, if a third party
invokes this constitutional provision, stating that the extradition papers are
matters of public concern since they may result in the extradition of a Filipino,
we are afraid that the balance must be tilted, at such particular time, in favor of
the interests necessary for the proper functioning of the government. During the
evaluation procedure, no official governmental action of our own government
has as yet been done; hence the invocation of the right is premature. Later, and
in contrast, records of the extradition hearing would already fall under matters of
public concern, because our government by then shall have already made an
official decision to grant the extradition request. The extradition of a fellow
Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant
controversy: Would private respondents entitlement to notice and hearing during
the evaluation stage of the proceedings constitute a breach of the legal duties of
the Philippine Government under the RP-Extradition Treaty? Assuming the
answer is in the affirmative, is there really a conflict between the treaty and the
due process clause in the Constitution?
206
First and foremost, let us categorically say that this is not the proper time to pass
upon the constitutionality of the provisions of the RP-US Extradition Treaty nor
the Extradition Law implementing the same. We limit ourselves only to the effect
of the grant of the basic rights of notice and hearing to private respondent on
foreign relations. Maniks
The rule of pacta sunt servanda, one of the oldest and most fundamental
maxims of international law, requires the parties to a treaty to keep their
agreement therein in good faith. The observance of our country's legal duties
under a treaty is also compelled by Section 2, Article II of the Constitution which
provides that "[t]he 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." Under the doctrine of incorporation,
rules of international law form part of the law of the land and no further
legislative action is needed to make such rules applicable in the domestic sphere
(Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local
courts) are confronted with situations in which there appears to be a conflict
between a rule of international law and the provisions of the constitution or
statute of the local state. Efforts should first be exerted to harmonize them, so
as to give effect to both since it is to be presumed that municipal law was
enacted with proper regard for the generally accepted principles of international
law in observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation,
however, where the conflict is irreconcilable and a choice has to be made
between a rule of international law and municipal law, jurisprudence dictates
that municipal law should be upheld by the municipal courts ( Ichong vs.
Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are
organs of municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has been made
part of the law of the land does not pertain to or imply the primacy of
international law over national or municipal law in the municipal sphere. The
doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national
legislative enactments. Accordingly, the principle lex posterior derogat
priori takes effect a treaty may repeal a statute and a statute may repeal a
treaty. In states where the constitution is the highest law of the land, such as
the Republic of the Philippines, both statutes and treaties may be invalidated if
they are in conflict with the constitution (Ibid.). Manikan
In the case at bar, is there really a conflict between international law and
municipal or national law? En contrario, these two components of the law of the
land are not pitted against each other. There is no occasion to choose which of
the two should be upheld. Instead, we see a void in the provisions of the RP-US
Extradition Treaty, as implemented by Presidential Decree No. 1069, as regards
the basic due process rights of a prospective extraditee at the evaluation stage
of extradition proceedings. From the procedures earlier abstracted, after the
filing of the extradition petition and during the judicial determination of the
propriety of extradition, the rights of notice and hearing are clearly granted to
the prospective extraditee. However, prior thereto, the law is silent as to these
rights. Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently,
he describes the evaluation procedure as an "ex parte technical assessment" of
the sufficiency of the extradition request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play.
An application of the basic twin due process rights of notice and hearing will not
go against the treaty or the implementing law. Neither the Treaty nor the
Extradition Law precludes these rights from a prospective extraditee. Similarly,
American jurisprudence and procedures on extradition pose no proscription. In
fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the
governor of the asylum state, and if he does, his right to be supplied the same
becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government
to prevent unauthorized disclosure of confidential information. Hence, the
secrecy surrounding the action of the Department of Justice Panel of Attorneys.
The confidentiality argument is, however, overturned by petitioners revelation
that everything it refuses to make available at this stage would be obtainable
during trial. The Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury information. If the
information is truly confidential, the veil of secrecy cannot be lifted at any stage
of the extradition proceedings. Not even during trial. Oldmis o
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well
as American jurisprudence and procedures on extradition, for any prohibition
against the conferment of the two basic due process rights of notice and hearing
during the evaluation stage of the extradition proceedings. We have to consider
similar situations in jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation process and
a preliminary investigation since both procedures may result in the arrest of the
respondent or the prospective extraditee. In the evaluation process, a provisional
arrest is even allowed by the Treaty and the Extradition Law (Article 9, RP-US
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Extradition Treaty; Sec. 20, Presidential Decree No. 1069). Following petitioners
theory, because there is no provision of its availability, does this imply that for a
period of time, the privilege of the writ of habeas corpus is suspended, despite
Section 15, Article III of the Constitution which states that "[t]he privilege of the
writ of habeas corpus shall not be suspended except in cases of invasion or
rebellion when the public safety requires it"? Petitioners theory would also infer
that bail is not available during the arrest of the prospective extraditee when the
extradition petition has already been filed in court since Presidential Decree No.
1069 does not provide therefor, notwithstanding Section 13, Article III of the
Constitution which provides that "[a]ll persons, except those charged with
offenses punishable by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended " Can
petitioner validly argue that since these contraventions are by virtue of a treaty
and hence affecting foreign relations, the aforestated guarantees in the Bill of
Rights could thus be subservient thereto? Ncm
The basic principles of administrative law instruct us that "the essence of due
process in administrative proceedings is an opportunity to explain ones side or an
opportunity to seek reconsideration of the actions or ruling complained of
(Mirano vs. NLRC, 270 SCRA 96 [1997]; Padilla vs. NLRC, 273 SCRA 457
[1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA
315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs.
NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the
method or manner by which the law is enforced (Corona vs. United Harbor Pilots
Association of the Phils., 283 SCRA 31 [1997]). This Court will not tolerate the
least disregard of constitutional guarantees in the enforcement of a law or treaty.
Petitioners fears that the Requesting State may have valid objections to the
Requested States non-performance of its commitments under the Extradition
Treaty are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves
to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance
System vs. Court of Appeals (201 SCRA 661 [1991]) and Go vs. National Police
Commission (271 SCRA 447 [1997]) where we ruled that in summary
proceedings under Presidential Decree No. 807 (Providing for the Organization of
the Civil Service Commission in Accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and for Other Purposes), and Presidential
Decree No. 971 (Providing Legal Assistance for Members of the Integrated
National Police who may be charged for Service-Connected Offenses and
Improving the Disciplinary System in the Integrated National Police,
Appropriating Funds Therefor and for other purposes), as amended by
Presidential Decree No. 1707, although summary dismissals may be effected
without the necessity of a formal investigation, the minimum requirements of
due process still operate. As held in GSIS vs. Court of Appeals:
... [I]t is clear to us that what the opening sentence of Section 40 is saying is
that an employee may be removed or dismissed even without formal
investigation, in certain instances. It is equally clear to us that an employee must
be informed of the charges preferred against him, and that the normal way by
which the employee is so informed is by furnishing him with a copy of the
charges against him. This is a basic procedural requirement that a statute cannot
dispense with and still remain consistent with the constitutional provision on due
process. The second minimum requirement is that the employee charged with
some misfeasance or malfeasance must have a reasonable opportunity to
present his side of the matter, that is to say, his defenses against the charges
levelled against him and to present evidence in support of his defenses. Ncmmis
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we
upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present
danger of loss of property or employment, but of liberty itself, which may
eventually lead to his forcible banishment to a foreign land. The convergence of
petitioners favorable action on the extradition request and the deprivation of
private respondents liberty is easily comprehensible.
We have ruled time and again that this Courts equity jurisdiction, which is aptly
described as "justice outside legality," may be availed of only in the absence of,
and never against, statutory law or judicial pronouncements ( Smith Bell & Co.,
Inc. vs. Court of Appeals, 267 SCRA 530 [1997]; David-Chan vs. Court of
Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at bar does
not even call for "justice outside legality," since private respondents due process
rights, although not guaranteed by statute or by treaty, are protected by
constitutional guarantees. We would not be true to the organic law of the land if
we choose strict construction over guarantees against the deprivation of liberty.
That would not be in keeping with the principles of democracy on which our
Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents
of liberty and government authority, he must ever hold the oar of freedom in the
stronger arm, lest an errant and wayward course be laid.
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WHEREFORE, in view of the foregoing premises, the instant petition is hereby     ABAD,
DISMISSED for lack of merit. Petitioner is ordered to furnish private respondent
copies of the extradition request and its supporting papers, and to grant him a     VILLARAMA, JR.,
reasonable period within which to file his comment with supporting evidence.     PEREZ, and
The incidents in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.     MENDOZA, JJ.

SO ORDERED.       

COMMISSION ON ELECTIONS,   Promulgated:

Republic of the Philippines Respondent.   April 8, 2010

Supreme Court x-------------------------------------------------

Baguio City Constitutional Law; Election Law; Party-List System; The enumeration of

marginalized and under-represented sectors is not exclusive.—As we explicitly
EN BANC ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, 359
SCRA 698 (2001), “the enumeration of marginalized and under-represented
  sectors is not exclusive.” The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies with the
ANG LADLAD LGBT PARTY   G.R. No. 190582
requirements of the Constitution and RA 7941.
represented herein by its Chair,    
Same; Same; Same; Aside from Commission on Elections’ (COMELEC’s) moral
DANTON REMOTO,     objection and the belated allegation of non-existence, nowhere in the records
has the respondent ever found/ruled that Ang Ladlad is not qualified to register
Petitioner,   Present: as a party-list organization under any of the requisites under Republic Act No.
      7941 or the guidelines in Ang Bagong Bayani.—We find that Ang Ladlad has
sufficiently demonstrated its compliance with the legal requirements for
    PUNO, C. J., accreditation. Indeed, aside from COMELEC’s moral objection and the belated
allegation of non-existence, nowhere in the records has the respondent ever
    CARPIO,
found/ruled that Ang Ladlad is not qualified to register as a party-list
    CORONA, organization under any of the requisites under RA 7941 or the guidelines in Ang
Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad’s morality, or
    CARPIO MORALES, lack thereof.
    VELASCO, JR., Same; Same; Same; It was grave violation of the non-establishment clause for
    NACHURA, the Commission on Elections (COMELEC) to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.—Our Constitution provides in Article III,
    LEONARDO-DE CASTRO, Section 5 that “[n]o law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof.” At bottom, what our non-establishment
- versus -   BRION, clause calls for is “government neutrality in religious matters.” Clearly,
    PERALTA, “governmental reliance on religious justification is inconsistent with this policy of
neutrality.” We thus find that it was grave violation of the non-establishment
    BERSAMIN, clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion
of Ang Ladlad.
    DEL CASTILLO,

209
Same; Same; Same; Through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. —We are
not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not
difficult to imagine the reasons behind this censure—religious beliefs, convictions
about the preservation of marriage, family, and procreation, even dislike or
distrust of homosexuals themselves and their perceived lifestyle. Nonetheless,
we recall that the Philippines has not seen fit to criminalize homosexual conduct.
Evidently, therefore, these “generally accepted public morals” have not been
convincingly transplanted into the realm of law.
Election Law; Party-List System; Civil Law; “Nuisance,” Defined .—Article 694 of
the Civil Code defines a nuisance as “any act, omission, establishment, condition
of property, or anything else which shocks, defies, or disregards decency or
morality,” the remedies for which are a prosecution under the Revised Penal
Code or any local ordinance, a civil action, or abatement without judicial
proceedings.
Same; Same; Evidence; A mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial determination
of liability or culpability.—A violation of Article 201 of the Revised Penal Code,
requires proof beyond reasonable doubt to support a criminal conviction. It
hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of liability
or culpability.
Same; Same; Moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list
system.—We hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in
the party-list system. The denial of Ang Ladlad’s registration on purely moral
grounds amounts more to a statement of dislike and disapproval of homosexuals,
rather than a tool to further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal
protection clause.
Constitutional Law; Election Law; Party-List System; Equal Protection Clause;
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, the Supreme Court will uphold the classification
as long as it bears a rational relationship to some legitimate government end .—
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it
bears a rational relationship to some legitimate government end. In Central Bank
Employees Association, Inc. v. Banko Sentral ng Pilipinas , 446 SCRA 299 (2004),
we declared that “[i]n our jurisdiction, the standard of analysis of equal
protection challenges x x x have followed the ‘rational basis’ test, coupled with a
deferential attitude to legislative classifications and a reluctance to invalidate a
law unless there is a showing of a clear and unequivocal breach of the
Constitution.”
Same; Same; Same; Same; Law of general application should apply with equal
force to Lesbian, Gay, Bisexual and Transgender (LGBTs), and they deserve to
participate in the party-list system on the same basis as other marginalized and
under-represented sectors.—From the standpoint of the political process, the
lesbian, gay, bisexual, and transgender have the same interest in participating in
the party-list system on the same basis as other political parties similarly
situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to
participate in the party-list system on the same basis as other marginalized and
under-represented sectors.
Same; Same; Freedom of Expression; Freedom of expression constitutes one of
the essential foundations of a democratic society, and this freedom applies not
only to those that are favorably received but also to those that offend, shock or
disturb.—Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed
in this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an approved message
or discouraging a disfavored one.
Same; Same; Same; Freedom of Association; Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association guarantee .—A political
group should not be hindered solely because it seeks to publicly debate
controversial political issues in order to find solutions capable of satisfying
everyone concerned. Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection
of the freedom of association guarantee.
Same; Party-List System; Equal Protection Clause; The principle of non-
discrimination requires that laws of general application relating to elections be
applied equally to all persons, regardless of sexual orientation .—The principle of
non-discrimination requires that laws of general application relating to elections
be applied equally to all persons, regardless of sexual orientation. Although
sexual orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee
210
has opined that the reference to “sex” in Article 26 should be construed to
include “sexual orientation.” Additionally, a variety of United Nations bodies have
declared discrimination on the basis of sexual orientation to be prohibited under
various international agreements.
Same; Same; Same; Yogyakarta Principles; Using even the most liberal of
lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are—at best—de lege ferenda—and do not
constitute binding obligations on the Philippines.—Using even the most liberal of
lenses, these Yogyakarta Principles, consisting of a declaration formulated by
various international law professors, are—at best—de lege ferenda—and do not
constitute binding obligations on the Philippines. Indeed, so much of
contemporary international law is characterized by the “soft law” nomenclature,
i.e., international law is full of principles that promote international cooperation,
harmony, and respect for human rights, most of which amount to no more than
well-meaning desires, without the support of either State practice or opinio juris.
PUNO, C.J., Separate Concurring Opinion:
Constitutional Law; Election Law; Party-List System; View that the assailed
Resolutions of the Commission on Elections (COMELEC) run afoul of the non-
establishment clause of the Constitution.—The assailed Resolutions of the
Commission on Elections (COMELEC) run afoul of the non-establishment clause
of the Constitution. There was cypher effort on the part of the COMELEC to
couch its reasoning in legal—much less constitutional—terms, as it denied Ang
Ladlad’s petition for registration as a sectoral party principally on the ground that
it “tolerates immorality which offends religious (i.e., Christian and Muslim)
beliefs.” To be sure, the COMELEC’s ruling is completely antithetical to the
fundamental rule that “[t]he public morality expressed in the law is necessarily
secular[,] for in our constitutional order, the religion clauses prohibit the state
from establishing a religion, including the morality it sanctions.”
Same; Same; Same; View that the assailed resolutions of the Commission on
Elections (COMELEC) are violative of the constitutional directive that no religious
test shall be required for the exercise of civil or political rights .—The assailed
resolutions of the COMELEC are violative of the constitutional directive that no
religious test shall be required for the exercise of civil or political rights. Ang
Ladlad’s right of political participation was unduly infringed when the COMELEC,
swayed by the private biases and personal prejudices of its constituent members,
arrogated unto itself the role of a religious court or worse, a morality police.
Same; Same; Same; View that the Commission on Elections (COMELEC)
capitalized on Ang Ladlad’s definition of the term “sexual orientation,” as well as
its citation of the number of Filipino men who have sex with men, as basis for
the declaration that the party espouses and advocates sexual immorality; This
position would deny homosexual and bixesual individuals a fundamental element
of personal identity and a legitimate exercise of personal liberty .—The COMELEC
capitalized on Ang Ladlad’s definition of the term “sexual orientation,” as well as
its citation of the number of Filipino men who have sex with men, as basis for
the declaration that the party espouses and advocates sexual immorality. This
position, however, would deny homosexual and bisexual individuals a
fundamental element of personal identity and a legitimate exercise of personal
liberty. For, the “ability to [independently] define one’s identity that is central to
any concept of liberty” cannot truly be exercised in a vacuum; we all depend on
the “emotional enrichment from close ties with others.”
Same; Same; Same; View that at the heart of liberty is the right to define one’s
own concept of existence, of meaning, of the universe, and of the mystery of
human life.—It has been said that freedom extends beyond spatial bounds.
Liberty presumes an autonomy of self that includes freedom of thought, belief,
expression, and certain intimate conduct. These matters, involving the most
intimate and personal choices a person may make in a lifetime, choices central to
personal dignity and autonomy, are central to the liberty protected by the due
process clause. At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe, and of the mystery of human life. Beliefs
about these matters could not define the attributes of personhood were they
formed under compulsion of the State.
Same; Same; Same; View that a classification based on gender or sexual
orientation is a quasi-suspect classification, as to trigger a heightened level of
review.—The ponencia of Mr. Justice Del Castillo refused to characterize
homosexuals and bisexuals as a class in themselves for purposes of the equal
protection clause. Accordingly, it struck down the assailed Resolutions using the
most liberal basis of judicial scrutiny, the rational basis test, according to which
government need only show that the challenged classification is rationally related
to serving a legitimate state interest. I humbly submit, however, that a
classification based on gender or sexual orientation is a quasi-suspect
classification, as to trigger a heightened level of review.
Same; Same; Same; View that gay persons are entitled to heightened
constitutional protection despite some recent political progress .—It would not be
difficult to conclude that gay persons are entitled to heightened constitutional
protection despite some recent political progress. The discrimination that they
have suffered has been so pervasive and severe—even though their sexual
orientation has no bearing at all on their ability to contribute to or perform in
society—that it is highly unlikely that legislative enactments alone will suffice to
eliminate that discrimination.
Same; Same; Same; View that any state action singling lesbians, gays, bisexuals
and trans-genders out for disparate treatment is subject to heightened judicial
scrutiny to ensure that it is not the product of historical prejudice and
stereotyping.—It is therefore respectfully submitted that any state action singling
211
lesbians, gays, bisexuals and trans-genders out for disparate treatment is subject
to heightened judicial scrutiny to ensure that it is not the product of historical
prejudice and stereotyping.
Same; Same; Same; View that the position that the Lesbian, Gay, Bisexual and
Transgender (LGBT) community cannot participate in the party-list system
because it is not a “marginalized and underrepresented sector” is belied by the
Supreme Court ruling in Ang Bagong Bayani-OFW Labor Party vs. COMELEC,
where the Court held that the enumeration of marginalized and
underrepresented sectors is not exclusive.—It has been suggested that the LGBT
community cannot participate in the party-list system because it is not a
“marginalized and underrepresented sector” enumerated either in the
Constitution or Republic Act No. (RA) 7941. However, this position is belied by
our ruling in Ang Bagong Bayani-OFW Labor Party v. COMELEC, 359 SCRA 698
(2001), where we clearly held that the enumeration of marginalized and
underrepresented sectors in RA 7941 is not exclusive.
CORONA, J., Dissenting Opinion:
Constitutional Law; Election Law; Party-List System; View that the party-list
system is essentially a tool for the advancement of social justice with the
fundamental purpose of affording opportunity to marginalized and
underrepresented sectors to participate in the shaping of public policy and the
crafting of national laws.—The party-list system is an innovation of the 1987
Constitution. It is essentially a tool for the advancement of social justice with the
fundamental purpose of affording opportunity to marginalized and
underrepresented sectors to participate in the shaping of public policy and the
crafting of national laws. It is premised on the proposition that the advancement
of the interests of the marginalized sectors contributes to the advancement of
the common good and of our nation’s democratic ideals.
Same; Same; Same; Congress; View that the Constitution left the matter of
determining the groups or sectors that may qualify as “marginalized” to the
hands of Congress.—The Constitution left the matter of determining the groups
or sectors that may qualify as “marginalized” to the hands of Congress. Pursuant
to this constitutional mandate, RA 7941 or the Party-List System Act was enacted
in 1995.
Same; Same; Same; View that the Supreme Court stressed that the party-list
system is reserved only for those sectors marginalized and underrepresented in
the past.—In Ang Bagong Bayani-OFW Labor Party, 359 SCRA 698 (2001), the
Court stressed that the party-list system is reserved only for those sectors
marginalized and underrepresented in the past (e.g., labor, peasant, fisherfolk,
urban poor, indigenous cultural communities, elderly, handicapped, women,
youth, veterans, overseas workers, professionals and even those in the
underground movement who wish to come out and participate). They are those
sectors traditionally and historically marginalized and deprived of an opportunity
to participate in the formulation of national policy although their sectoral
interests are also traditionally and historically regarded as vital to the national
interest.
Same; Same; Same; View that the concept of marginalized and
underrepresented sectors under the party-list scheme has been carefully refined
by concrete examples involving sectors deemed to be significant in our legal
tradition.—The concept of marginalized and underrepresented sectors under the
party-list scheme has been carefully refined by concrete examples involving
sectors deemed to be significant in our legal tradition. They are essentially
sectors with a constitutional bond, that is, specific sectors subject of specific
provisions in the Constitution, namely, labor, peasant, urban poor, indigenous
cultural communities, women, youth, veterans, fisherfolk, elderly, handicapped,
overseas workers and professionals.
Same; Same; Same; View that marginalized sectors should be given a say in
governance through the party-list system, not simply because they desire to say
something constructive but because they deserve to be heard on account of
their traditionally and historically decisive role in Philippine society .—The long-
muffled voices of marginalized sectors must be heard because their respective
interests are intimately and indispensably woven into the fabric of the na tional
democratic agenda. The social, economic and political aspects of discrimination
and marginalization should not be divorced from the role of a particular sector or
group in the advancement of the collective goals of Philippine society as a whole.
In other words, marginalized sectors should be given a say in governance
through the party-list system, not simply because they desire to say something
constructive but because they deserve to be heard on account of their
traditionally and historically decisive role in Philippine society.
Same; Same; Same; View that the majority’s decision is cryptic and wanting
when it makes short shrift of the issue of whether petitioner is a marginalized
and underrepresented sector.—The enumeration of sectors considered as
marginalized and underrepresented in the fundamental law and in the
implementing law (RA 7941) cannot be without significance. To ignore them is to
disregard the texts of the Constitution and of RA 7941. For, indeed, the very first
of Ang Bagong Bayani-OFW Labor Party’s eight guidelines for screening party-list
participants is this: the parties, sectors or organizations “must represent the
marginalized and underrepresented groups identified in Section 5 of RA 7941.”
For this reason, I submit the majority’s decision is cryptic and wanting when it
makes short shrift of the issue of whether petitioner is a marginalized and
underrepresented sector in the following manner.
Same; Same; Same; View that marginalized sectors qualified to participate in the
party-list system but not mentioned in Section 5(2), Article VI are “such other
212
sectors as may be provided by law” duly enacted by Congress .—Marginalized
sectors qualified to participate in the party-list system but not mentioned in
Section 5(2), Article VI are “such other sectors as may be provided by law” duly
enacted by Congress. It is also consistent with the basic canon of statutory
construction, ejusdem generis, which requires that a general word or phrase that
follows an enumeration of particular and specific words of the same class, the
general word or phrase should be construed to include, or to be restricted to
persons, things or cases, akin to, resembling, or of the same kind or class as
those specifically mentioned.
Same; Same; Same; View that even assuming that petitioner was able to show
that the community of lesbians, gays, bisexuals and transsexuals (LGBT) is
underrepresented, it cannot be properly considered as marginalized under the
party-list system.—Even assuming that petitioner was able to show that the
community of lesbians, gays, bisexuals and transsexuals (LGBT) is
underrepresented, it cannot be properly considered as marginalized under the
party-list system. First, petitioner is not included in the sectors mentioned in
Section 5(2), Article VI of the Constitution and Section 5 of RA 7941. Unless an
overly strained interpretation is resorted to, the LGBT sector cannot establish a
close connection to any of the said sectors. Indeed, petitioner does not even try
to show its link to any of the said sectors. Rather, it represents itself as an
altogether distinct sector with its own peculiar interests and agenda.
Same; Same; Same; View that only sectors expressly or closely related to those
sectors mentioned in Section 5 of Republic Act (RA) No. 7941 are qualified to
participate in the party-list system.—In this instance, Congress, in the exercise of
its authority under Section 5(2), Article VI of the Constitution, enacted RA 7941.
Sections 2, 3(d) and (5) of the said law instituted a policy when it enumerated
certain sectors as qualified marginalized and underrepresented sectors under the
party-list system. Respect for that policy and fidelity to the Court’s duty in our
scheme of government require us to declare that only sectors expressly
mentioned or closely related to those sectors mentioned in Section 5 of RA 7941
are qualified to participate in the party-list system.
Same; Same; Same; View that until and unless Congress amends the law to
include the Lesbian, Gay, Bisexual and Transgender (LGBTs) and other sectors in
the party-list system, deference to Congress’ determination on the matter is
proper.—The Court is called upon to exercise judicial restraint in this case by
strictly adhering to, rather than expanding, legislative policy on the matter of
marginalized sectors as expressed in the enumeration in Section 5 of RA 7941.
The Court has no power to amend and expand Sections 2, 3(d) and 5 of RA 7941
in the guise of interpretation. The Constitution expressly and exclusively vests
the authority to determine “such other [marginalized] sectors” qualified to
participate in the party-list system to Congress. Thus, until and unless Congress
amends the law to include the LGBT and other sectors in the party-list system,
deference to Congress’ determination on the matter is proper.
Same; Same; Same; View that the party-list system was not designed as a tool
to advocate tolerance and acceptance of any and all socially misunderstood
sectors.—While bigotry, social stereotyping and other forms of discrimination
must be given no place in a truly just, democratic and libertarian society, the
party-list system has a well-defined purpose. The party-list system was not
designed as a tool to advocate tolerance and acceptance of any and all socially
misunderstood sectors. Rather, it is a platform for the realization of the
aspirations of marginalized sectors whose interests are, by nature and history,
also the nation’s but which interests have not been sufficiently brought to public
attention because of these sectors’ underrepresentation.
Same; Same; Same; View that Congress was given by the Constitution full
discretion to determine what sectors may qualify as marginalized and
underrepresented, the Court’s task is to respect that legislative determination by
strictly adhering to it.—Congress was given by the Constitution full discretion to
determine what sectors may qualify as marginalized and underrepresented. The
Court’s task is to respect that legislative determination by strictly adhering to it.
If we effectively and unduly expand such congressional determination, we will be
dabbling in policy-making, an act of political will and not of judicial judgment.
ABAD, J., Separate Opinion:
Constitutional Law; Election Law; Party-List System; View that the underlying
policy of Republic Act No. 7941 or The Party-List System Act is to give the
marginalized and underrepresented sectors of society an opportunity to take a
direct part in enacting the laws of the land.—The underlying policy of R.A. 7941
or The Party-List System Act is to give the marginalized and underrepresented
sectors of society an opportunity to take a direct part in enacting the laws of the
land. In Ang Bagong Bayani-OFW Labor Party v. Commission on Elections
(COMELEC), 359 SCRA 698 (2001), the Court laid down guidelines for
accreditation, but these seem to leave the COMELEC like everyone else even
more perplexed and dumbfounded about what organizations, clubs, or
associations can pass for sectoral parties with a right to claim a seat in the House
of Representatives. The Court can, in adjudicating this case, unravel some of the
difficulties.
Same; Same; Same; View that the Commission on Elections (COMELEC) erred
when it denied Ang Ladlad’s petition for sectoral party accreditation on religious
and moral grounds—the COMELEC has never applied these tests on regular
candidates for Congress.—Here, I fully agree that the COMELEC erred when it
denied Ang Ladlad’s petition for sectoral party accreditation on religious and
moral grounds. The COMELEC has never applied these tests on regular
candidates for Congress. There is no reason for it to apply them on Ang Ladlad.
But the ponencia already amply and lucidly discussed this point.
213
Same; Same; Same; View that a reading of Ang Bagong Bayani will show that,
based on the Court’s reading, neither the Constitution nor Republic Act No. 7941
intends the excessively limited coverage that the Commission on Elections
(COMELEC) now suggests.—The COMELEC’s proposition imposes an unwarranted
restriction which is inconsistent with the purpose and spirit of the Constitution
and the law. A reading of Ang Bagong Bayani will show that, based on the
Court’s reading, neither the Constitution nor R.A. 7941 intends the excessively
limited coverage that the COMELEC now suggests. In fact, the Court said in that
case that the list in R.A. 7941 is not exclusive. Thus, while the party-list system
is not meant for all sectors of society, it was envisioned as a social justice tool for
the marginalized and underrepresented in general.
Same; Same; Same; View that Congress did not provide a definition of the term
“marginalized and underrepresented.”—Congress did not provide a definition of
the term “marginalized and underrepresented.” Nor did the Court dare provide
one in its decision in Ang Bagong Bayani. It is possible, however, to get a sense
of what Congress intended in adopting such term. No doubt, Congress crafted
that term—marginalized and underrepresented—from its reading of the concrete
examples that the Constitution itself gives of groupings that are entitled to
accreditation. These examples are the labor, the peasant, the urban poor, the
indigenous cultural minorities, the women, and the youth sectors. Fortunately,
quite often ideas are best described by examples of what they are, which was
what those who drafted the 1987 Constitution did, rather than by an abstract
description of them.
Same; Same; Same; View that an interpretation that will allow concretely or
specifically defined groups to seek election as a separate party-list sector by
itself will result in riot and redundancy in the mix of sectoral parties grabbing
seats in the House of Representatives .—An interpretation that will allow
concretely or specifically defined groups to seek election as a separate party-list
sector by itself will result in riot and redundancy in the mix of sectoral parties
grabbing seats in the House of Representatives. It will defeat altogether the
objectives of the party-list system. If they can muster enough votes, the country
may have a party-list of pedicab drivers and another of tricycle drivers. There
will be an irrational apportionment of party-list seats in the legislature.
Same; Same; Same; View that applying the universally accepted estimate that
one out of every 10 persons is a Lesbian, Gay, Bisexual and Transgender
(LGBTs) of a certain kind, the Filipino LGBTs should now stand at about 8.7
million.—In this case, Ang Ladlad represents men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered persons (LGBTs).
Applying the universally accepted estimate that one out of every 10 persons is an
LGBT of a certain kind, the Filipino LGBTs should now stand at about 8.7 million.
Despite this, however, they are by and large, subtly if not brutally, excluded from
the mainstream, discriminated against, and persecuted. That the COMELEC
denied Ang Ladlad’s petition on religious and moral grounds is proof of this
discrimination.
Same; Same; Same; View that Ang Ladlad has amply proved that it meets the
requirements for sectoral party accreditation—their members are in the
vulnerable class like the women and the youth.—Ang Ladlad has amply proved
that it meets the requirements for sectoral party accreditation. Their members
are in the vulnerable class like the women and the youth. Ang Ladlad represents
a narrow definition of its class (LGBTs) rather than a concrete and specific
definition of a sub-group within the class (group of gay beauticians, for
example). The people that Ang Ladlad seeks to represent have a national
presence.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette[1]
One unavoidable consequence of everyone having the freedom to choose is that
others may make different choices choices we would not make for ourselves,
choices we may disapprove of, even choices that may shock or offend or anger
us. However, choices are not to be legally prohibited merely because they are
different, and the right to disagree and debate about important questions of
public policy is a core value protected by our Bill of Rights. Indeed, our
democracy is built on genuine recognition of, and respect for, diversity and
difference in opinion.
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are
concerned, harmony among those theoretically opposed is an insurmountable
goal. Yet herein lies the paradox philosophical justifications about what is moral
are indispensable and yet at the same time powerless to create agreement. This
Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy
than rhetoric. This will allow persons of diverse viewpoints to live together, if not
harmoniously, then, at least, civilly.
Factual Background
214
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang
Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution)
and December 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots in the
COMELECs refusal to accredit Ang Ladlad as a party-list organization under
Republic Act (RA) No. 7941, otherwise known as the Party-List System Act. [4]
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs).
Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC
in 2006. The application for accreditation was denied on the ground that the
organization had no substantial membership base. On August 17, 2009, Ang
Ladlad again filed a Petition[5] for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are victims of
exclusion, discrimination, and violence; that because of negative societal
attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang
Ladlad complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections.[6] Ang Ladlad laid
out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance. [7]
On November 11, 2009, after admitting the petitioners evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino
Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual
attraction to, and intimate and sexual relations with, individuals of a different
gender, of the same gender, or more than one gender.
This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did
change the natural use into that which is against nature: And likewise also the
men, leaving the natural use of the woman, burned in their lust one toward
another; men with men working that which is unseemly, and receiving in
themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women ye are indeed a
people transgressing beyond bounds. (7.81) And we rained down on them a
shower (of brimstone): Then see what was the end of those who indulged in sin
and crime! (7:84) He said: O my Lord! Help Thou me against people who do
mischief (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2,
2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the
Petitions par. 6F: Consensual partnerships or relationships by gays and lesbians
who are already of age. It is further indicated in par. 24 of the Petition which
waves for the record: In 2007, Men Having Sex with Men or MSMs in
the Philippines were estimated as 670,000 (Genesis 19 is the history
of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal
Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as
Any act, omission, establishment, business, condition of property, or anything
else which x x x (3) shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties may
establish such stipulations, clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law, morals, good customs, public
order or public policy. Art 1409 of the Civil Code provides that Contracts whose
cause, object or purpose is contrary to law, morals, good customs, public order
or public policy are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes Immoral doctrines, obscene publications and
exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. The penalty of prision mayor or a fine ranging from six thousand to
twelve thousand pesos, or both such imprisonment and fine, shall be imposed
upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
215
2.  (a) The authors of obscene literature, published with their knowledge in any
form; the editors publishing such literature; and the owners/operators of the
establishment selling the same;  benefit the nation as a whole, to become members of the House of
(b)  Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays, scenes, acts or shows, whether
live or in film, which are prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no other purpose but to satisfy
the market for violence, lust or pornography; (3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law,
public order, morals, good customs, established policies, lawful orders, decrees
and edicts.
3.  Those who shall sell, give away or exhibit films, prints, engravings, sculpture
or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it or any of
its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections.
Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings of our faith.
Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one
article that older practicing homosexuals are a threat to the youth.  As an agency
of the government, ours too is the States avowed duty under Section 13, Article
II of the Constitution to protect our youth from moral and spiritual degradation. [8]
When Ang Ladlad sought reconsideration,[9] three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal,
Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to
deny Ang Ladlads Motion for Reconsideration  (Commissioners Nicodemo T.
Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman,
breaking the tie and speaking for the majority in his Separate Opinion, upheld
the First Assailed Resolution, stating that:
I.                 The Spirit of Republic Act No. 7941
Ladlad  is applying for accreditation as a sectoral party in the party-list system.
Even assuming that it has properly proven its under-representation and
marginalization, it cannot be said that Ladlads expressed sexual orientations per
se  would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-
list system of electing congressional representatives is to enable Filipino citizens
belonging to marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who could
contribute to the formulation and enactment of appropriate legislation that will
Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative organizations
would have found themselves into the party-list race. But that is not the
intention of the framers of the law. The party-list system is not a tool to
advocate tolerance and acceptance of misunderstood persons or groups of
persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the
nations only that their interests have not been brought to the attention of the
nation because of their under representation. Until the time comes
when Ladlad  is able to justify that having mixed sexual orientations
and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II.             No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a special class of individuals. x x xSignificantly, it has also
been held that homosexuality is not a constitutionally protected fundamental
right, and that nothing in the U.S. Constitution discloses a comparable intent to
protect or promote the social or legal equality of homosexual relations, as in the
case of race or religion or belief.
xxxx
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is
elevated, there can be no denying that Ladlad constituencies are still males and
females, and they will remain either male or female protected by the
same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious groups
moral rules on Ladlad. Rather, what are being adopted as moral parameters and
precepts are generally accepted public morals. They are possibly religious-based,
but as a society, the Philippines cannot ignore its more than 500 years
of Muslim and Christian upbringing, such that some moral precepts
espoused by said religions have sipped [sic] into society and these are
not publicly accepted moral norms.
216
V.           Legal Provisions
But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor  upon Those who shall publicly expound or proclaim doctrines openly
contrary to public morals. It penalizes immoral doctrines, obscene publications
and exhibition and indecent shows. Ang Ladlad  apparently falls under these legal
provisions. This is clear from its Petitions paragraph 6F: Consensual partnerships
or relationships by gays and lesbians who are already of age It is further
indicated in par. 24 of the Petition which waves for the record: In 2007, Men
Having Sex with Men or MSMs in the Philippines were estimated as 670,000.
Moreoever, Article 694 of the Civil Code defines nuisance as any act, omission x
x x or anything else x x x which shocks, defies or disregards decency or morality
x x x. These are all unlawful.[10]
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul
the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlads application for accreditation.Ang Ladlad also sought the issuance ex
parte  of a preliminary mandatory injunction against the COMELEC, which had
previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file
its Comment on behalf of COMELEC not later than 12:00 noon of January 11,
2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for
Extension, requesting that it be given until January 16, 2010 to Comment.
[12]
 Somewhat surprisingly, the OSG later filed a Comment in support of
petitioners application.[13] Thus, in order to give COMELEC the opportunity to fully
ventilate its position, we required it to file its own comment. [14] The COMELEC,
through its Law Department, filed its Comment on February 2, 2010.[15]
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until
further orders from this Court, directing the COMELEC to cease and desist from
implementing the Assailed Resolutions.[16]
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed
a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto
its Comment-in-Intervention.[17]The CHR opined that the denial of Ang
Ladlads petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene[18] which motion was granted on February 2, 2010.[19]
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the Assailed
Resolutions contravened its constitutional rights to privacy, freedom of speech
and assembly, and equal protection of laws, as well as constituted violations of
the Philippines international obligations against discrimination based on sexual
orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC
erred in denying petitioners application for registration since there was no basis
for COMELECs allegations of immorality. It also opined that LGBTs have their
own special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported
violations of petitioners freedom of speech, expression, and assembly were
concerned, the OSG maintained that there had been no restrictions on these
rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that the
petition was validly dismissed on moral grounds. It also argued for the first
time  that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in its
petition when it alleged its national existence contrary to actual verification
reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic
Act No.  7941
The COMELEC denied Ang Ladlads application for registration on the ground that
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it
associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani  stands for
the proposition that only those sectors specifically enumerated in the law or
related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans, overseas workers,
and professionals) may be registered under the party-list system. As we explicitly
ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections ,[20] the
enumeration of marginalized and under-represented sectors is not exclusive. The
crucial element is not whether a sector is specifically enumerated, but whether a
217
particular organization complies with the requirements of the Constitution and RA                   Gay, Bisexual, & Transgender Youth Association (GABAY)
7941.
                  Gay and Lesbian Activists Network for Gender Equality (GALANG)
Respondent also argues that Ang Ladlad made untruthful statements in its Metro Manila
petition when it alleged that it had nationwide existence through its members
and affiliate organizations. The COMELEC claims that upon verification by its field                   Gay Mens Support Group (GMSG) Metro Manila
personnel, it was shown that save for a few isolated places in the country,                   Gay United for Peace and Solidarity (GUPS) Lanao del Norte
petitioner does not exist in almost all provinces in the country. [21]
                  Iloilo City Gay Association Iloilo City
This argument that petitioner made untruthful statements in its petition when it
alleged its national existence is a new one; previously, the COMELEC claimed                   Kabulig Writers Group Camarines Sur
that petitioner was not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with                   Lesbian Advocates Philippines, Inc. (LEAP)
laws, rules, or regulations relating to the elections. Nowhere was this ground for
                  LUMINA Baguio City
denial of petitioners accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of                   Marikina Gay Association Metro Manila
petitioners alleged non-existence were already available to the COMELEC prior to
the issuance of the First Assailed Resolution. At best, this is irregular procedure;                   Metropolitan Community Church (MCC) Metro Manila
at worst, a belated afterthought, a change in respondents theory, and a serious
                  Naga City Gay Association Naga City
violation of petitioners right to procedural due process.
                  ONE BACARDI
Nonetheless, we find that there has been no misrepresentation. A cursory
perusal of Ang Ladlads initial petition shows that it never claimed to exist in each                   Order of St. Aelred (OSAe) Metro Manila
province of the Philippines. Rather, petitioner alleged that the LGBT community
in the Philippines was estimated to constitute at least 670,000 persons; that it                   PUP LAKAN
had 16,100 affiliates and members around the country, and 4,044 members in its
electronic discussion group.[22] Ang Ladlad also represented itself to be a national                   RADAR PRIDEWEAR
LGBT umbrella organization with affiliates around the Philippines composed of                   Rainbow Rights Project (R-Rights), Inc. Metro Manila
the following LGBT networks:
                  San Jose del Monte Gay Association Bulacan
                  Abra Gay Association
                  Sining Kayumanggi Royal Family Rizal
                  Aklan Butterfly Brigade (ABB) Aklan
                  Society of Transexual Women of the Philippines (STRAP)
                  Albay Gay Association Metro Manila
                  Arts Center of Cabanatuan City Nueva Ecija                   Soul Jive Antipolo, Rizal
                  Boys Legion Metro Manila                   The Link Davao City
                  Cagayan de Oro People Like Us (CDO PLUS)                   Tayabas Gay Association Quezon
                  Cant Live in the Closet, Inc. (CLIC) Metro Manila                   Womens Bisexual Network Metro Manila
                  Cebu Pride Cebu City                   Zamboanga Gay Association Zamboanga City[23]
                  Circle of Friends Since the COMELEC only searched for the names ANG LADLAD LGBT
                  Dipolog Gay Association Zamboanga del Norte or LADLAD LGBT, it is no surprise that they found that petitioner had no
218
presence in any of these regions. In fact, if COMELECs findings are to be
believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlads principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELECs moral objection and the belated allegation of non-existence, nowhere
in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under
RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC
claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for
Registration
Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof.
At bottom, what our non-establishment clause calls for is government neutrality
in religious matters.[24] Clearly, governmental reliance on religious justification is
inconsistent with this policy of neutrality.[25] We thus find that it was grave
violation of the non-establishment clause for the COMELEC to utilize the Bible
and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some
justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:[26]
 
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public moral
disputes may be resolved only on grounds articulable in secular terms."
Otherwise, if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would require conformity to
what some might regard as religious programs or agenda. The non-believers
would therefore be compelled to conform to a standard of conduct buttressed by
a religious belief, i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are second-class
citizens.
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose. That is,
the government proscribes this conduct because it is "detrimental (or dangerous)
to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on religion might have
a compelling influence on those engaged in public deliberations over what
actions would be considered a moral disapprobation punishable by law. After all,
they might also be adherents of a religion and thus have religious opinions and
moral codes with a compelling influence on them; the human mind endeavors to
regulate the temporal and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an
articulable and discernible secular purpose and justification to pass scrutiny of
the religion clauses. x x x Recognizing the religious nature of the Filipinos and
the elevating influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a benevolent neutrality.
Benevolent neutrality recognizes that government must pursue its secular goals
and interests but at the same time strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests. [27]
Public Morals as a Ground to Deny Ang Ladlads Petition for
Registration
Respondent suggests that although the moral condemnation of homosexuality
and homosexual conduct may be religion-based, it has long been transplanted
into generally accepted public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group consists
of LGBTs but because of the danger it poses to the people especially the youth.
Once it is recognized by the government, a sector which believes that there is
nothing wrong in having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish in our civilized
society. Any society without a set of moral precepts is in danger of losing its own
existence.[28]
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure religious
beliefs, convictions about the preservation of marriage, family, and procreation,
even dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize
219
homosexual conduct. Evidently, therefore, these generally accepted public
morals have not been convincingly transplanted into the realm of law.[29]
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that there should have been a
finding by the COMELEC that the groups members have committed or are
committing immoral acts.[30] The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of a
different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and
action. Reduction ad absurdum. If immoral thoughts could be penalized,
COMELEC would have its hands full of disqualification cases against both the
straights and the gays. Certainly this is not the intendment of the law.[31]
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC
condescended to justify its position that petitioners admission into the party-list
system would be so harmful as to irreparably damage the moral fabric of
society. We, of course, do not suggest that the state is wholly without authority
to regulate matters concerning morality, sexuality, and sexual relations, and we
recognize that the government will and should continue to restrict behavior
considered detrimental to society. Nonetheless, we cannot countenance
advocates who, undoubtedly with the loftiest of intentions, situate morality on
one end of an argument or another, without bothering to go through the rigors
of legal reasoning and explanation. In this, the notion of morality is robbed of all
value. Clearly then, the bare invocation of morality will not remove an issue from
our scrutiny.
We also find the COMELECs reference to purported violations of our penal and
civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code
defines a nuisance as any act, omission, establishment, condition of property, or
anything else which shocks, defies, or disregards decency or morality, the
remedies for which are a prosecution under the Revised Penal Code or any local
ordinance, a civil action, or abatement without judicial proceedings.[32] A violation
of Article 201 of the Revised Penal Code, on the other hand, requires proof
beyond reasonable doubt to support a criminal conviction. It hardly needs to be
emphasized that mere allegation of violation of laws is not proof, and a mere
blanket invocation of public morals cannot replace the institution of civil or
criminal proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in
the party-list system. The denial of Ang Ladlads registration on purely moral
grounds amounts more to a statement of dislike and disapproval of homosexuals,
rather than a tool to further any substantial public interest.Respondents blanket
justifications give rise to the inevitable conclusion that the COMELEC targets
homosexuals themselves as a class, not because of any particular morally
reprehensible act.It is this selective targeting that implicates our equal protection
clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides nor shall any person be denied equal protection of the laws, courts have
never interpreted the provision as an absolute prohibition on
classification. Equality, said Aristotle, consists in the same treatment of similar
persons.[33] The equal protection clause guarantees that no person or class of
persons shall be deprived of the same protection of laws which is enjoyed by
other persons or other classes in the same place and in like circumstances. [34]
Recent jurisprudence has affirmed that if a law neither burdens a fundamental
right nor targets a suspect class, we will uphold the classification as long as it
bears a rational relationship to some legitimate government end. [35] In Central
Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas,[36] we declared
that [i]n our jurisdiction, the standard of analysis of equal protection challenges x
x x have followed the rational basis test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a
showing of a clear and unequivocal breach of the Constitution.[37]
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient
reason to disqualify the petitioner. Unfortunately for the respondent, the
Philippine electorate has expressed no such belief. No law exists to criminalize
homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here that is, moral disapproval
of an unpopular minority is not a legitimate state interest that is sufficient to
satisfy rational basis review under the equal protection clause. The COMELECs
differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute
to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored
group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on
the same basis as other political parties similarly situated. State intrusion in this
case is equally burdensome. Hence, laws of general application should apply with
equal force to LGBTs, and they deserve to participate in the party-list system on
the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs
from heterosexuals insofar as the party-list system is concerned does not imply
220
that any other law distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the OSGs position
that homosexuals are a class in themselves for the purposes of the equal
protection clause.[38] We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not received
sufficient evidence to this effect, and it is simply unnecessary to make such a
ruling today. Petitioner itself has merely demanded that it be recognized under
the same basis as all other groups similarly situated, and that the COMELEC
made an unwarranted and impermissible classification not justified by the
circumstances of the case.
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal
democratic means.[39] It is in the public square that deeply held convictions and
differing opinions should be distilled and deliberated upon. As we held in Estrada
v. Escritor:[40]
In a democracy, this common agreement on political and moral ideas is distilled
in the public square. Where citizens are free, every opinion, every prejudice,
every aspiration, and every moral discernment has access to the public square
where people deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious belief, and these
citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median
groups. Nevertheless, in the very act of adopting and accepting a constitution
and the limits it specifies including protection of religious freedom "not only for a
minority, however small not only for a majority, however large but for each of
us" the majority imposes upon itself a self-denying ordinance. It promises not to
do what it otherwise could do: to ride roughshod over the dissenting minorities
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are favorably
received but also to those that offend, shock, or disturb. Any restriction imposed
in this sphere must be proportionate to the legitimate aim pursued. Absent any
compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an approved message
or discouraging a disfavored one.
This position gains even more force if one considers that homosexual conduct is
not illegal in this country. It follows that both expressions concerning ones
homosexuality and the activity of forming a political association that supports
LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public morality
does not justify criminalizing same-sex conduct.[41] European and United Nations
judicial decisions have ruled in favor of gay rights claimants on both privacy and
equality grounds, citing general privacy and equal protection provisions in foreign
and international texts.[42] To the extent that there is much to learn from other
jurisdictions that have reflected on the issues we face here, such jurisprudence is
certainly illuminating. These foreign authorities, while not formally binding on
Philippine courts, may nevertheless have persuasive influence on the Courts
analysis.
In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular expression
of opinion, public institutions must show that their actions were caused by
something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.[43]
With respect to freedom of association for the advancement of ideas and beliefs,
in Europe, with its vibrant human rights tradition, the European Court of Human
Rights (ECHR) has repeatedly stated that a political party may campaign for a
change in the law or the constitutional structures of a state if it uses legal and
democratic means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that challenge the
existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of
association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population.[44]A political group should not be
hindered solely because it seeks to publicly debate controversial political issues in
order to find solutions capable of satisfying everyone concerned. [45] Only if a
political party incites violence or puts forward policies that are incompatible with
democracy does it fall outside the protection of the freedom of association
guarantee.[46]
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and
express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals of the
same sex are morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of one
221
part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay
rights litigants. It well may be that this Decision will only serve to highlight the
discrepancy between the rigid constitutional analysis of this Court and the more
complex moral sentiments of Filipinos. We do not suggest that public opinion,
even at its most liberal, reflect a clear-cut strong consensus favorable to gay
rights claims and we neither attempt nor expect to affect individual perceptions
of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of
their right to voluntarily associate, then there has been no restriction on their
freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the party-
list system. This lawful exercise of duty cannot be said to be a transgression of
Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlads petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list elections
This argument is puerile. The holding of a public office is not a right but a
privilege subject to limitations imposed by law. x x x [47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral
objection offered by the COMELEC was not a limitation imposed by law. To the
extent, therefore, that the petitioner has been precluded, because of COMELECs
action, from publicly expressing its views as a political party and participating on
an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioners
fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in
its attempt to bring about a more just and humane world order. For individuals
and groups struggling with inadequate structural and governmental support,
international human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms may become
actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect
and promote human rights. In particular, we explicitly recognize the principle of
non-discrimination as it relates to the right to electoral participation, enunciated
in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as
follows
Article 26
All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of
sexual orientation. Although sexual orientation is not specifically enumerated as
a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human
Rights Committee has opined that the reference to sex in Article 26 should be
construed to include sexual orientation.[48] Additionally, a variety of United
Nations bodies have declared discrimination on the basis of sexual orientation to
be prohibited under various international agreements. [49]
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25 
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
222
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing the
free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention,  the scope of the right to
electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to Vote) as
follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to
take part in the conduct of public affairs, the right to vote and to be elected and
the right to have access to public service. Whatever form of constitution or
government is in force, the Covenant requires States to adopt such legislative
and other measures as may be necessary to ensure that citizens have an
effective opportunity to enjoy the rights it protects. Article 25 lies at the core of
democratic government based on the consent of the people and in conformity
with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as minimum
age, must be justifiable on objective and reasonable criteria. Persons who are
otherwise eligible to stand for election should not be excluded by unreasonable
or discriminatory requirements such as education, residence or descent, or by
reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties
should indicate and explain the legislative provisions which exclude any group or
category of persons from elective office.[50]
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the
blanket invocation of international law is not the panacea for all social ills. We
refer now to the petitioners invocation of the Yogyakarta Principles  (the
Application of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),[51] which petitioner declares to reflect binding principles of
international law.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines. There are
declarations and obligations outlined in said Principles which are not reflective of
the current state of international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the Statute of the
International Court of Justice.[52] Petitioner has not undertaken any objective and
rigorous analysis of these alleged principles of international law to ascertain their
true status.
 We also hasten to add that not everything that society or a certain segment of
society wants or demands is automatically a human right. This is not an arbitrary
human intervention that may be added to or subtracted from at will. It is
unfortunate that much of what passes for human rights today is a much broader
context of needs that identifies many social desires as rights in order to further
claims that international law obliges states to sanction these innovations. This
has the effect of diluting real human rights, and is a result of the notion that if
wants are couched in rights language, then they are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are at best de
lege ferenda  and do not constitute binding obligations on the
Philippines. Indeed, so much of contemporary international law is characterized
by the soft law nomenclature, i.e., international law is full of principles that
promote international cooperation, harmony, and respect for human rights, most
of which amount to no more than well-meaning desires, without the support of
either State practice or opinio juris.[53]
 As a final note, we cannot help but observe that the social issues presentedby
this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Courts role is
not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to withstand
vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
Commission on Elections dated November 11, 2009 and December 16, 2009 in
SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is
directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
EN BANC
[G.R. No. 141284. August 15, 2000]
223
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO
B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and
GEN. ANGELO REYES, respondents.
DECISION
Judicial Review; Requisites.—When questions of constitutional significance are
raised, the Court can exercise its power of judicial review only if the following
requisites are complied with, namely: (1) the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at the
earliest opportunity; and (4) the constitutional question is the lis mota of the
case.
Same; Same; Parties; “Locus Standi”; Words and Phrases; “Legal Standing” or
“Locus Standi,” “Interest,” Explained.—“Legal standing” or locus standi has been
defined as a personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental act that is
being challenged. The term “interest” means a material interest, an interest in
issue affected by the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. The gist of the question of standing is
whether a party alleges “such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional
questions.”
Same; Same; Same; Integrated Bar of the Philippines; The mere invocation by
the Integrated Bar of the Philippines of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
in this case—this is too general an interest which is shared by other groups and
the whole citizenry.—The IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
in this case. This is too general an interest which is shared by other groups and
the whole citizenry. Based on the standards above-stated; the IBP has failed to
present a specific and substantial interest in the resolution of the case.
Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of
Court, is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of
the Marines.
Same; Same; Same; Same; The interest of the National President of the
Integrated Bar of the Philippines who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action. —It should also
be noted that the interest of the National President of the IBP who signed the
petition, is his alone, absent a formal board resolution authorizing him to file the
present action. To be sure, members of the BAR, those in the judiciary included,
have varying opinions on the issue. Moreover, the IBP, assuming that it has duly
authorized the National President to file the petition, has not shown any specific
injury which it has suffered or may suffer by virtue of the questioned
governmental act. Indeed, none of its members, whom the IBP purportedly
represents, has sustained any form of injury as a result of the operation of the
joint visibility patrols. Neither is it alleged that any of its members has been
arrested or that their civil liberties have been violated by the deployment of the
Marines. What the IBP projects as injurious is the supposed “militarization” of law
enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed “injury”
not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing.
Same; Same; Same; Same; The Supreme Court, however, does not categorically
rule that the Integrated Bar of the Philippines has absolutely no standing to raise
constitutional issues how or in the future, but the Integrated Bar of the
Philippines must, by way of allegations and proof, satisfy the Court that it has
sufficient stake to obtain judicial resolution of the controversy .—Since petitioner
has not successfully established a direct and personal injury as a consequence of
the questioned act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court that
it has sufficient stake to obtain judicial resolution of the controversy.
Same; Same; Same; Same; The Supreme Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal standing
when paramount interest is involved; In this case, a reading of the petition
shows that the Integrated Bar of the Philippines has advanced constitutional
issues which deserve the attention of the Supreme Court in view of their
seriousness, novelty and weight as precedents.—Having stated the foregoing, it
must be emphasized that this Court has the discretion to take cognizance of a
suit which does not satisfy the requirement of legal standing when paramount
interest is involved. In not a few cases, the Court has adopted a liberal attitude
on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people. Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure. In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view
of their seriousness, novelty and weight as precedents. Moreover, because peace
and order are under constant threat and lawless violence occurs in increasing
tempo, undoubtedly aggravated by the Mindanao insurgency problem, the legal
controversy raised in the petition almost certainly will not go away. It will stare
us in the face again. It, therefore, behooves the Court to relax the rules on
standing and to resolve the issue now, rather than later.
Same; Presidency; Commander-in-Chief Clause; “Calling Out” Power; While the
Supreme Court gives considerable weight to the parties’ formulation of the
issues, the resolution of the controversy may warrant a creative approach that
goes beyond the narrow confines of the issues raised; Even as the parties are in
224
agreement that the power exercised by the President is the power to call out the
armed forces, the Court is of the view that the power involved may be no more
than the maintenance of peace and order and promotion of the general welfare .
—As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties’ formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare. For one,
the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision.
Same; Same; Political Questions; Separation of Powers; As a general proposition,
a controversy is justiciable if it refers to a matter which is appropriate for court
review; One class of cases wherein the Court hesitates to rule on are “political
questions”; The political question being a function of the separation of powers,
the courts will not normally interfere with the workings of another co-equal
branch unless the case shows a clear need for the courts to step in to uphold the
law and the Constitution.—As a general proposition, a controversy is justiciable if
it refers to a matter which is appropriate for court review. It pertains to issues
which are inherently susceptible of being decided on grounds recognized by law.
Nevertheless, the Court does not automatically assume jurisdiction over actual
constitutional cases brought before it even in instances that are ripe for
resolution. One class of cases wherein the Court hesitates to rule on are “political
questions.” The reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or measure
being assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the workings of
another co-equal branch unless the case shows a clear need for the courts to
step in to uphold the law and the Constitution.
Same; Same; Same; Same; When the grant of power is qualified, conditional or
subject to limitations, the issue of whether the prescribed qualifications or
conditions have been met or the limitations respected, is justiciable—the
problem being one of legality or validity, not its wisdom .—The 1987 Constitution
expands the concept of judicial review by providing that “(T)he Judicial power
shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.” Under this definition, the Court cannot agree
with the Solicitor General that the issue involved is a political question beyond
the jurisdiction of this Court to review. When the grant of power is qualified,
conditional or subject to limitations, the issue of whether the prescribed
qualifications or conditions have been met or the limitations respected, is
justiciable—the problem being one of legality or validity, not its wisdom.
Moreover, the jurisdiction to delimit constitutional boundaries has been given to
this Court. When political questions are involved, the Constitution limits the
determination as to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose action
is being questioned.
Same; Same; Same; Words and Phrases; By grave abuse of discretion is meant
simply capricious or whimsical exercise of judgment that is patent and gross as
to amount to an evasion of positive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or hostility; A
showing that plenary power is granted either department of government, may
not be an obstacle to judicial inquiry, for the improvident exercise or abuse
thereof may give rise to justiciable controversy.—By grave abuse of discretion is
meant simply capricious or whimsical exercise of judgment that is patent and
gross as to amount to an evasion of positive duty or a virtual refusal to perform
a duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or
hostility. Under this definition, a court is without power to directly decide matters
over which full discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of the President,
it may look into the question of whether such exercise has been made in grave
abuse of discretion. A showing that plenary power is granted either department
of government, may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy.
Same; Same; Commander-in-Chief Clause; “Calling Out” Power; In view of the
constitutional intent to give the President full discretionary power to determine
the necessity of calling out the armed forces, it is incumbent upon the petitioner
to show that the President’s decision is totally bereft of factual basis; In the
performance of the Supreme Court’s duty of “purposeful hesitation” before
declaring an act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with the President’s
judgment—to doubt is to sustain.—When the President calls the armed forces to
prevent or suppress lawless violence, invasion or rebellion, he necessarily
exercises a discretionary power solely vested in his wisdom. This is clear from
the intent of the framers and from the text of the Constitution itself. The Court,
thus, cannot be called upon to overrule the President’s wisdom or substitute its
own. However, this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional
intent to give the President full discretionary power to determine the necessity of
calling out the armed forces, it is incumbent upon the petitioner to show that the
President’s decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion
that there exist no justification for calling out the armed forces. There is,
likewise, no evidence to support the proposition that grave abuse was committed
because the power to call was exercised in such a manner as to violate the
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constitutional provision on civilian supremacy over the military. In the
performance of this Court’s duty of “purposeful hesitation” before declaring an
act of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the President’s
judgment. To doubt is to sustain.
Same; Same; Same; Same; Statutory Construction; Unlike in the power to
suspend the privilege of the writ of habeas corpus or the power to proclaim
martial law in relation to which the Constitution has empowered Congress to
revoke such suspension or proclamation and the Supreme Court to review the
sufficiency of the factual basis thereof there is no such equivalent provision
dealing with the revocation or review of the President’s action to call out the
armed forces, a distinction which places the calling out power in a different
category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus .—Under the foregoing provisions, Congress
may revoke such proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President’s action to call
out the armed forces. The distinction places the calling out power in a different
category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution
would have simply lumped together the three powers and provided for their
revocation and review without any qualification. Expressio unius est exclusio
alterius. Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. That the intent of
the Constitution is exactly what its letter says, i.e., that the power to call is fully
discretionary to the President, is extant in the deliberation of the Constitutional
Commission.
Same; Same; Same; Same; The reason for the difference in the treatment of the
power to suspend the privilege of the writ of habeas corpus, the power to
declare martial law and the power to call out the armed forces highlights the
intent to grant the President the widest leeway and broadest discretion in using
the power to call out because it is considered as the lesser and more benign
power compared to the two other powers. ---The reason for the difference in the
treatment of the aforementioned powers highlights the intent to grant the
President the widest leeway and broadest discretion in using the power to call
out because it is considered as the lesser and more benign power compared to
the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law, both of which involve the curtailment and suppression of
certain basic civil rights and individual freedoms, and thus necessitating
safeguards by Congress and review by this Court. Moreover, under Section 18,
Article VII of the Constitution, in the exercise of the power to suspend the
privilege of the writ of habeas corpus or to impose martial law, two conditions
must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the
power to call out the armed forces. The only criterion is that “whenever it
becomes necessary,” the President may call the armed forces “to prevent or
suppress lawless violence, invasion or rebellion.” The implication is that the
President is given full discretion and wide latitude in the exercise of the power to
call as compared to the two other powers.
Same; Same; Same; Same; If the petitioner fails, by way of proof to support the
assertion that the President acted without factual basis, then the Supreme Court
cannot undertake an independent investigation beyond the pleadings. —If the
petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be
of a nature not constituting technical proof.
Same; Same; Same; Same; Judicial Notice; The Court takes judicial notice of the
recent bombings perpetrated by lawless elements in shopping malls, public
utilities, and other public places. —The President has already determined the
necessity and factual basis for calling the armed forces. In his Memorandum, he
categorically asserted that, “[V]iolent crimes like bank/store robberies, holdups,
kidnappings and carnappings continue to occur in Metro Manila . . .” We do not
doubt the veracity of the President’s assessment of the situation, especially in
the light of present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls, public utilities,
and other public places. These are among the areas of deployment described in
the LOI 2000. Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law enforcement and in the
exercise of this constitutional power.
Same; Same; Same; Same; Civilian Supremacy Clause; The deployment of the
Marines in the metropolis for civilian law enforcement does not constitute a
breach of the civilian supremacy clause.—The deployment of the Marines does
not constitute a breach of the civilian supremacy clause. The calling of the
Marines in this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint visibility
patrols is appropriately circumscribed. The limited participation of the Marines is
evident in the provisions of the LOI itself, which sufficiently provides the metes
and bounds of the Marines’ authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader
of the PNP-Philippine Marines joint visibility patrols. Under the LOI, the police
forces are tasked to brief or orient the soldiers on police patrol procedures. It is
their responsibility to direct and manage the deployment of the Marines. It is,
likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers. In view of the foregoing, it cannot be
226
properly argued that military authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not unmake the
civilian character of the police force. Neither does it amount to an “insidious
incursion” of the military in the task of law enforcement in violation of Section
5(4), Article XVI of the Constitution.
Same; Same; Same; Same; Same; Philippine National Police (PNP); Where none
of the Marines was incorporated or enlisted as members of the Philippine
National Police, there can be no appointment to a civilian position to speak of—
the deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the Philippine National Police. —In this regard, it is not
correct to say that General Angelo Reyes, Chief of Staff of the AFP, by his alleged
involvement in civilian law enforcement, has been virtually appointed to a civilian
post in derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian institution,
the PNP, and not with the military. Such being the case, it does not matter
whether the APP Chief actually participates in the Task Force Tulungan since he
does not exercise any authority or control over the same. Since none of the
Marines was incorporated or enlisted as members of the PNP, there can be no
appointment to a civilian position to speak of. Hence, the deployment of the
Marines in the joint visibility patrols does not destroy the civilian character of the
PNP.
Same; Same; Same; Same; Same; Words and Phrases; “Regulatory Power”
“Proscriptive Power,” and “Compulsory Power,” Distinguished .—A power
regulatory in nature is one which controls or directs. It is proscriptive if it
prohibits or condemns and compulsory if it exerts some coercive force. See US v.
Yunis, 681 F.Supp 891 (D.D.C., 1988). See also FOURTH AMENDMENT AND
POSSE COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN CIVIL
LAW ENFORCEMENT, 54 George Washington Law Review, pp. 404-433 (1986),
which discusses the four divergent standards for assessing acceptable
involvement of military personnel in civil law enforcement. See likewise
HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE
LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973.
Same; Same; Same; Same; Same; Even if the Court were to apply the rigid
standards to determine whether there is permissible use of the military in civilian
law enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed .—Even if the Court were to
apply the above rigid standards to the present case to determine whether there
is permissible use of the military in civilian law enforcement, the conclusion is
inevitable that no violation of the civilian supremacy clause in the Constitution is
committed. On this point, the Court agrees with the observation of the Solicitor
General: 3. The designation of tasks in Annex A does not constitute the exercise
of regulatory, proscriptive, or compulsory military power. First, the soldiers do
not control or direct the operation. This is evident from Nos. 6, 8(k) and 9(a) of
Annex A. These soldiers, second, also have no power to prohibit or condemn. In
No. 9(d) of Annex A, all arrested persons are brought to the nearest police
stations for proper disposition. And last, these soldiers apply no coercive force.
The materials or equipment issued to them, as shown in No. 8(c) of Annex A, are
all low impact and defensive in character. The conclusion is that there being no
exercise of regulatory, proscriptive or compulsory military power, the deployment
of a handful of Philippine Marines constitutes no impermissible use of military
power for civilian law enforcement.
Same; Same; Same; Same; Unless the petitioner can show that in the
deployment of the Marines, the President has violated the fundamental law,
exceeded his authority or jeopardized the civil liberties of the people, the
Supreme Court is not inclined to overrule the President’s determination of the
factual basis for the calling of the Marines to prevent or suppress lawless
violence.—It appears that the present petition is anchored on fear that once the
armed forces are deployed, the military will gain ascendancy, and thus place in
peril our cherished liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that—calling out the armed forces. Unless,
petitioner IBP can show, which it has not, that in the deployment of the Marines,
the President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the President’s determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence.
Freedom; Civil Liberties; Freedom and democracy will be in full bloom only when
people feel secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst .—Since the institution of the
joint visibility patrol in January, 2000, not a single citizen has complained that his
political or civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil liberties of
the people that the joint visibility patrol was conceived. Freedom and democracy
will be in full bloom only when people feel secure in their homes and in the
streets, not when the shadows of violence and anarchy constantly lurk in their
midst.
PUNO, J., Separate Opinion:
Judicial Review; Political Questions; Commander-in-Chief Clause; “Calling Out”
Power; If the government attempt in the instant case to foist the political
question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny succeeded, it would have
diminished the power of judicial review and weakened the checking authority of
the Supreme Court over the Chief Executive when he exercises such powers. —If
the case at bar is significant, it is because of the government attempt to foist the
political question doctrine to shield an executive act done in the exercise of the
commander-in-chief powers from judicial scrutiny. If the attempt succeeded, it
would have diminished the power of judicial review and weakened the checking
authority of this Court over the Chief Executive when he exercises his
commander-in-chief powers. The attempt should remind us of the tragedy that
befell the country when this Court sought refuge in the political question doctrine
and forfeited its most important role as protector of the civil and political rights
of our people. The ongoing conflict in Mindanao may worsen and can force the
Chief Executive to resort to the use of his greater commander-in-chief powers,
hence, this Court should be extra cautious in assaying similar attempts. A laid
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back posture may not sit well with our people considering that the 1987
Constitution strengthened the checking powers of this Court and expanded its
jurisdiction precisely to stop any act constituting “x x x grave abuse of discretion
x x x on the part of any branch or instrumentality of the Government.”
Same; Same; Same; Same; Constitutional Law; Two lessons were not lost to the
members of the Constitutional Commission that drafted the 1987 Constitution—
the first was the need to grant the Supreme Court the express power to review
the exercise of the powers as Commander-in-chief by the President and deny it
of any discretion to decline its exercise, and the second was the need to compel
the Court to be proactive by expanding its jurisdiction and, thus, reject its laid
back stance against acts constituting grave abuse of discretion on the part of
any branch or instrumentality of government.—Two lessons were not lost, to the
members of the Constitutional Commission that drafted the 1987 Constitution.
The first was the need to grant this Court the express power to review the
exercise of the powers as commander-in-chief by the President and deny it of
any discretion to decline its exercise . The second was the need to compel the
Court to be pro-active by expanding its jurisdiction and, thus, reject its laid back
stance against acts constituting grave abuse of discretion on the part of any
branch or instrumentality of government. Then Chief Justice Roberto Concepcion,
a member of the Constitutional Commission, worked for the insertion of the
second paragraph of Section 1, Article VIII in the draft Constitution.
Same; Same; Same; Same; Same; Statutory Construction; The proceedings of
the Constitutional Convention are less conclusive on the proper construction of
the fundamental law than are legislative proceedings of the proper construction
of a statute—the conventional wisdom is that the Constitution does not derive its
force from the convention which framed it, but from the people who ratified it,
the intent to be arrived at is that of the people .—It must be borne in mind,
however, that while a member’s opinion expressed on the floor of the
Constitutional Convention is valuable, it is not necessarily expressive of the
people’s intent. The proceedings of the Convention are less conclusive on the
proper construction of the fundamental law than are legislative proceedings of
the proper construction of a statute, for in the latter case it is the intent of the
legislature the courts seek, while in the former, courts seek to arrive at the intent
of the people through the discussions and deliberations of their representatives.
The conventional wisdom is that the Constitution does not derive its force from
the convention which framed it, but from the people who ratified it, the intent to
be arrived at is that of the people.
Same; Same; Same; Same; Same; Same; Given the light of our constitutional
history, the express grant of power to the Supreme Court to review the
sufficiency of the factual bases used by the President in the suspension of the
privilege of the writ of habeas corpus and the declaration of martial law merely
means that the Court cannot decline the exercise of its power because of the
political question doctrine as it did in the past —It is true that the third paragraph
of Section 18, Article VII of the 1987 Constitution expressly gives the Court the
power to review the sufficiency of the factual bases used by the President in the
suspension of the privilege of the writ of habeas corpus and the declaration of
martial law. It does not follow, however, that just because the same provision
did not grant to this Court the power to review the exercise of the calling out
power by the President, ergo, this Court cannot pass upon the validity of its
exercise. Given the light of our constitutional history, this express grant of power
merely means that the Court cannot decline the exercise of its power because of
the political question doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check the exercise of the
commander-in-chief powers of the President. It eliminated the discretion of the
Court not to wield its power of review thru the use of the political question
doctrine.
Same; Same; Same; Same; Same; Same; Even as it may be conceded that the
calling out power may be a “lesser power” compared to the power to suspend
the privilege of the writ of habeas corpus and the power to declare martial law,
its exercise cannot be left to the absolute discretion of the Chief Executive as
Commander-in-Chief of the armed forces, as its impact on the rights of our
people protected by the Constitution cannot be downgraded .—It may be
conceded that the calling out power may be a “lesser power” compared to the
power to suspend the privilege of the writ of habeas corpus and the power to
declare martial law. Even then, its exercise cannot be left to the absolute
discretion of the Chief Executive as Commander-in-Chief of the armed forces, as
its impact on the rights of our people protected by the Constitution cannot be
downgraded. We cannot hold that acts of the commander-in-chief cannot be
reviewed on the ground that they have lesser impact on the civil and political
rights of our people. The exercise of the calling out power may be “benign” in
the case at bar but may not be so in future cases.
Same; Same; When private justiciable rights are involved in a suit, the Court
must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved .—We should not water down the
ruling that deciding whether a matter has been committed by the Constitution to
another branch of government, or whether the action of that branch exceeds
whatever authority has been committed, is a delicate exercise in constitutional
interpretation, and is a responsibility of the Court as ultimate interpreter of the
fundamental law. When private justiciable rights are involved in a suit, the Court
must not refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved. Every officer under a constitutional
government must act according to law and subject to the controlling power of
the people, acting through the courts, as well as through the executive and
legislative. One department is just as representative of the other, and the
judiciary is the department which is charged with the special duty of determining
the limitations which the law places upon all official action. This historic role of
the Court is the foundation stone of a government of laws and not of men.
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
228
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the Marines) to join the Philippine National
Police (the PNP) in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The Secretary of National Defense,
the Chief of Staff of the Armed Forces of the Philippines (the AFP), the Chief of
the PNP and the Secretary of the Interior and Local Government were tasked to
execute and implement the said order. In compliance with the presidential
mandate, the PNP Chief, through Police Chief Superintendent Edgar B. Aglipay,
formulated Letter of Instruction 02/2000[1] (the LOI) which detailed the manner
by which the joint visibility patrols, called Task Force Tulungan,  would be
conducted.[2] Task Force Tulungan  was placed under the leadership of the Police
Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment
of the Marines in a Memorandum, dated 24 January 2000, addressed to the Chief
of Staff of the AFP and the PNP Chief.[3] In the Memorandum, the President
expressed his desire to improve the peace and order situation in Metro Manila
through a more effective crime prevention program including increased police
patrols.[4] The President further stated that to heighten police visibility in the
metropolis, augmentation from the AFP is necessary. [5] Invoking his powers as
Commander-in-Chief under Section 18, Article VII of the Constitution, the
President directed the AFP Chief of Staff and PNP Chief to coordinate with each
other for the proper deployment and utilization of the Marines to assist the PNP
in preventing or suppressing criminal or lawless violence. [6] Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the
situation shall have improved.[7]
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols
as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila
for the suppression of crime prevention and other serious threats to national
security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary
criminals but also by organized syndicates whose members include active and
former police/military personnel whose training, skill, discipline and firepower
prove well-above the present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the conduct of police
visibility patrol in urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-
PM visibility patrols to keep Metro Manila streets crime-free, through a sustained
street patrolling to minimize or eradicate all forms of high-profile crimes
especially those perpetrated by organized crime syndicates whose members
include those that are well-trained, disciplined and well-armed active or former
PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro
Manila and to preserve the internal security of the state against insurgents and
other serious threat to national security, although the primary responsibility over
Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of
high-profile crimes perpetrated by organized crime syndicates operating in Metro
Manila. This concept requires the military and police to work cohesively and unify
efforts to ensure a focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside from
neutralizing crime syndicates is to bring a wholesome atmosphere wherein
delivery of basic services to the people and development is achieved. Hand-in-
hand with this joint NCRPO-Philippine Marines visibility patrols, local Police Units
are responsible for the maintenance of peace and order in their locality.
c. To ensure the effective implementation of this project, a provisional Task
Force TULUNGAN shall be organized to provide the mechanism, structure, and
procedures for the integrated planning, coordinating, monitoring and assessing
the security situation.
xxx.[8]
The selected areas of deployment under the LOI are: Monumento Circle, North
Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall, Makati
Commercial Center, LRT/MRT Stations and the NAIA and Domestic Airport. [9]
229
On 17 January 2000, the Integrated Bar of the Philippines (the IBP) filed the
instant petition to annul LOI 02/2000 and to declare the deployment of the
Philippine Marines, null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS
VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD
JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR LAW
ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN DEROGATION OF
ARTICLE II, SECTION 3 OF THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE
MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW ENFORCEMENT) IN
DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY ON THE
MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE POWERFUL
THAN WHAT IT SHOULD REALLY BE UNDER THE CONSTITUTION.[10]
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP questions
the validity of the deployment and utilization of the Marines to assist the PNP in
law enforcement.
Without granting due course to the petition, the Court in a Resolution,[11] dated
25 January 2000, required the Solicitor General to file his Comment on the
petition. On 8 February 2000, the Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner
has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that the
organization and conduct of police visibility patrols, which feature the team-up of
one police officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has
legal standing; (2) Whether or not the Presidents factual determination of the
necessity of calling the armed forces is subject to judicial review; and, (3)
Whether or not the calling of the armed forces to assist the PNP in joint visibility
patrols violates the constitutional provisions on civilian supremacy over the
military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites
of standing to raise the issues in the petition. Second, the President did not
commit grave abuse of discretion amounting to lack or excess of jurisdiction nor
did he commit a violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of
the Government.
When questions of constitutional significance are raised, the Court can exercise
its power of judicial review only if the following requisites are complied with,
namely: (1) the existence of an actual and appropriate case; (2) a personal and
substantial interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question is the lis mota  of the case.[12]
The IBP has not sufficiently complied with the requisites of standing in
this case.
Legal standing or locus standi  has been defined as a personal and substantial
interest in the case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged.[13] The term interest
means a material interest, an interest in issue affected by the decree, as
distinguished from mere interest in the question involved, or a mere incidental
interest.[14] The gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions. [15]
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient to clothe it with standing
230
in this case. This is too general an interest which is shared by other groups and
the whole citizenry. Based on the standards above-stated, the IBP has failed to
present a specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court,
is to elevate the standards of the law profession and to improve the
administration of justice is alien to, and cannot be affected by the deployment of
the Marines. It should also be noted that the interest of the National President of
the IBP who signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover, the
IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer by
virtue of the questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury as a result of
the operation of the joint visibility patrols. Neither is it alleged that any of its
members has been arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the supposed
militarization of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run. Not only is the
presumed injury not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing. Since petitioner
has not successfully established a direct and personal injury as a consequence of
the questioned act, it does not possess the personality to assail the validity of
the deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or in
the future. The IBP must, by way of allegations and proof, satisfy this Court that
it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement of
legal standing when paramount interest is involved.[16] In not a few cases, the
Court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people.
[17]
 Thus, when the issues raised are of paramount importance to the public, the
Court may brush aside technicalities of procedure.[18] In this case, a reading of
the petition shows that the IBP has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and weight as
precedents.Moreover, because peace and order are under constant threat and
lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost
certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now,
rather than later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of
the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion. What the IBP questions, however, is the
basis for the calling of the Marines under the aforestated provision. According to
the IBP, no emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless violence, invasion
or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court review the sufficiency of the factual basis for said troop [Marine]
deployment.[19]
The Solicitor General, on the other hand, contends that the issue pertaining to
the necessity of calling the armed forces is not proper for judicial scrutiny since it
involves a political question and the resolution of factual issues which are beyond
the review powers of this Court.
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court gives
considerable weight to the parties formulation of the issues, the resolution of the
controversy may warrant a creative approach that goes beyond the narrow
confines of the issues raised. Thus, while the parties are in agreement that the
power exercised by the President is the power to call out the armed forces, the
Court is of the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general welfare. [20] For
one, the realities on the ground do not show that there exist a state of warfare,
widespread civil unrest or anarchy. Secondly, the full brunt of the military is not
brought upon the citizenry, a point discussed in the latter part of this decision. In
the words of the late Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the Presidents powers as
protector of the peace. [Rossiter, The American Presidency]. The power of the
President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to
the day-to-day problems of maintaining peace and order and ensuring domestic
tranquility in times when no foreign foe appears on the horizon. Wide discretion,
within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief
the enumeration of powers that follow cannot be said to exclude the Presidents
exercising as Commander-in-Chief powers short of the calling of the armed
231
forces, or suspending the privilege of the writ of habeas corpus or declaring
martial law, in order to keep the peace, and maintain public order and security.
xxx[21]
Nonetheless, even if it is conceded that the power involved is the Presidents
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar result.
We now address the Solicitor Generals argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and
thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which
is appropriate for court review.[22] It pertains to issues which are inherently
susceptible of being decided on grounds recognized by law. Nevertheless, the
Court does not automatically assume jurisdiction over actual constitutional cases
brought before it even in instances that are ripe for resolution. One class of
cases wherein the Court hesitates to rule on are political questions. The reason is
that political questions are concerned with issues dependent upon the wisdom,
not the legality, of a particular act or measure being assailed. Moreover, the
political question being a function of the separation of powers, the courts will not
normally interfere with the workings of another co-equal branch unless the case
shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Taada v. Cuenco[23]  puts it, 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 government. Thus, if an issue is clearly
identified by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is held to be
a political question. In the classic formulation of Justice Brennan in Baker v. Carr,
[24]
 [p]rominent 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 nonjudicial discretion; or the
impossibility of a courts 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 embarassment from multifarious pronouncements by various
departments on the one question.
The 1987 Constitution expands the concept of judicial review by providing that
(T)he Judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law. Judicial power includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of the Government.[25] Under this definition, the
Court cannot agree with the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to review. When the grant of power
is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations
respected, is justiciable - the problem being one of legality or validity, not its
wisdom.[26] Moreover, the jurisdiction to delimit constitutional boundaries has
been given to this Court.[27] When political questions are involved, the
Constitution limits the determination as to whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the
official whose action is being questioned.[28]
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or
a virtual refusal to perform a duty enjoined by law, or to act at all in
contemplation of law, as where the power is exercised in an arbitrary and
despotic manner by reason of passion or hostility.[29] Under this definition, a court
is without power to directly decide matters over which full discretionary authority
has been delegated. But while this Court has no power to substitute its judgment
for that of Congress or of the President, it may look into the question of whether
such exercise has been made in grave abuse of discretion.[30] A showing that
plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may
give rise to justiciable controversy.[31]
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary power
solely vested in his wisdom.This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to
overrule the Presidents wisdom or substitute its own.However, this does not
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave
abuse of discretion. In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the Presidents decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden
as there is no evidence to support the assertion that there exist no justification
for calling out the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Courts duty of
purposeful hesitation[32] before declaring an act of another branch as
232
unconstitutional, only where such grave abuse of discretion is clearly shown shall
the Court interfere with the Presidents judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to determine
the necessity for the exercise of such power. Section 18, Article VII of the
Constitution, which embodies the powers of the President as Commander-in-
Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ of habeas corpus, or place
the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis for
the exercise of the calling out power is also implied and further reinforced in the
rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus, the President shall submit a report
in person or in writing to the Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the
President. Upon the initiative of the President, the Congress may, in the same
manner, extend such proclamation or suspension for a period to be determined
by the Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of
a call.
The Supreme Court may 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 or the extension thereof, and must
promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor authorize
the conferment of jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically suspend the privilege of
the writ.
The suspension of the privilege of the writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the
revocation or review of the Presidents action to call out the armed forces. The
distinction places the calling out power in a different category from the power to
declare martial law and the power to suspend the privilege of the writ of habeas
corpus, otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and review without
any qualification. Expressio unius est exclusio alterius. Where the terms are
expressly limited to certain matters, it may not, by interpretation or construction,
be extended to other matters.[33] That the intent of the Constitution is
exactly what its letter says, i.e., that the power to call is fully discretionary to the
President, is extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated
power of the President as Commander-in-Chief. First, he can call out such Armed
Forces as may be necessary to suppress lawless violence; then he can suspend
the privilege of the writ of habeas corpus, then he can impose martial law. This
is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We are
making it subject to review by the Supreme Court and subject to concurrence by
the National Assembly. But when he exercises this lesser power of calling on the
Armed Forces, when he says it is necessary, it is my opinion that his judgment
cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: The President may call out such
armed forces to prevent or suppress lawless violence, invasion or rebellion. So
we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: The President....may
call out such Armed Forces to prevent or suppress lawless violence, invasion or
233
rebellion. So we feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or suspending the writ
of habeas corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is
it subject to judicial review.[34]
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of the
writ of habeas corpus  and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and individual
freedoms, and thus necessitating safeguards by Congress and review by this
Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the
power to suspend the privilege of the writ of habeas corpus or to impose martial
law, two conditions must concur: (1) there must be an actual invasion or
rebellion and, (2) public safety must require it. These conditions are not required
in the case of the power to call out the armed forces. The only criterion is that
whenever it becomes necessary, the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The implication is
that the President is given full discretion and wide latitude in the exercise of the
power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President
acted without factual basis, then this Court cannot undertake an independent
investigation beyond the pleadings. The factual necessity of calling out the
armed forces is not easily quantifiable and cannot be objectively established
since matters considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity, information
necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly
unavailable to the courts. In many instances, the evidence upon which the
President might decide that there is a need to call out the armed forces may be
of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast intelligence
network to gather information, some of which may be classified as highly
confidential or affecting the security of the state. In the exercise of the power to
call, on-the-spot decisions may be imperatively necessary in emergency
situations to avert great loss of human lives and mass destruction of
property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any effect
at all. Such a scenario is not farfetched when we consider the present situation
in Mindanao, where the insurgency problem could spill over the other parts of
the country. The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable prescription for
disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military
when in his judgment it is necessary to do so in order to prevent or suppress
lawless violence, invasion or rebellion. Unless the petitioner can show that the
exercise of such discretion was gravely abused, the Presidents exercise of
judgment deserves to be accorded respect from this Court.
The President has already determined the necessity and factual basis for calling
the armed forces. In his Memorandum, he categorically asserted that, [V]iolent
crimes like bank/store robberies, holdups, kidnappings and carnappings continue
to occur in Metro Manila...[35] We do not doubt the veracity of the Presidents
assessment of the situation, especially in the light of present developments. The
Court takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public places. These
are among the areas of deployment described in the LOI 2000. Considering all
these facts, we hold that the President has sufficient factual basis to call for
military aid in law enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy
clause nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the
calling of the Marines, the IBP asserts that by the deployment of the Marines, the
civilian task of law enforcement is militarized in violation of Section 3, Article
II[36] of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of the
civilian supremacy clause. The calling of the Marines in this case constitutes
permissible use of military assets for civilian law enforcement. The participation
of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the
provisions of the LOI itself, which sufficiently provides the metes and bounds of
the Marines authority. It is noteworthy that the local police forces are the ones in
charge of the visibility patrols at all times, the real authority belonging to the
PNP. In fact, the Metro Manila Police Chief is the overall leader of the PNP-
Philippine Marines joint visibility patrols.[37] Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures. [38] It is their
responsibility to direct and manage the deployment of the Marines. [39] It is,
234
likewise, their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers.[40] In view of the foregoing, it cannot
be properly argued that military authority is supreme over civilian
authority. Moreover, the deployment of the Marines to assist the PNP does not
unmake the civilian character of the police force. Neither does it amount to an
insidious incursion of the military in the task of law enforcement in violation of
Section 5(4), Article XVI of the Constitution.[41]
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of
the AFP, by his alleged involvement in civilian law enforcement, has been
virtually appointed to a civilian post in derogation of the aforecited provision. The
real authority in these operations, as stated in the LOI, is lodged with the head
of a civilian institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the Task
Force Tulungan  since he does not exercise any authority or control over the
same.Since none of the Marines was incorporated or enlisted as members of the
PNP, there can be no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not destroy the
civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no insidious
incursion of the military in civilian affairs nor can there be a violation of the
civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals that it
is not averse to requesting the assistance of the military in the implementation
and execution of certain traditionally civil functions. As correctly pointed out by
the Solicitor General, some of the multifarious activities wherein military aid has
been rendered, exemplifying the activities that bring both the civilian and the
military together in a relationship of cooperation, are:
1. Elections;[42]
2. Administration of the Philippine National Red Cross; [43]
3. Relief and rescue operations during calamities and disasters; [44]
4. Amateur sports promotion and development;[45]
5. Development of the culture and the arts; [46]
6. Conservation of natural resources; [47]
7. Implementation of the agrarian reform program;[48]
8. Enforcement of customs laws;[49]
9. Composite civilian-military law enforcement activities; [50]
10. Conduct of licensure examinations;[51]
11. Conduct of nationwide tests for elementary and high school students; [52]
12. Anti-drug enforcement activities;[53]
13. Sanitary inspections;[54]
14. Conduct of census work;[55]
15. Administration of the Civil Aeronautics Board; [56]
16. Assistance in installation of weather forecasting devices; [57]
17. Peace and order policy formulation in local government units. [58]
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned.[59] What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards the
use of military force for domestic purposes has persisted, [60] and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act[61] of the US, the use of the
military in civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:
1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air
Force as posse comitatus or otherwise to execute the laws shall be fined not
more than $10,000 or imprisoned not more than two years, or both. [62]
To determine whether there is a violation of the Posse Comitatus Act in the use
of military personnel, the US courts[63] apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers
at Wounded Knee in such a manner that the military personnel subjected the
citizens to the exercise of military power which was regulatory, proscriptive, or
compulsory[64] George Washington Law Review, pp. 404-433 (1986), which
discusses the four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise HONORED IN
235
THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE LAWS WITH when people feel secure in their homes and in the streets, not when the
MILITARY FORCE, 83 Yale Law Journal, pp. 130-152, 1973. 64 in nature, either shadows of violence and anarchy constantly lurk in their midst.
presently or prospectively?
WHEREFORE, premises considered, the petition is hereby DISMISSED.
x x x
SO ORDERED.
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-
Constitution or a statute, does not violate the Posse Comitatus Act unless it Santiago,  and De Leon, Jr., JJ.,  concur.
actually regulates, forbids or compels some conduct on the part of those claiming Bellosillo, J.,  on official leave.
relief. A mere threat of some future injury would be insufficient.(emphasis
supplied) Puno, J.,  see separate opinion.
Even if the Court were to apply the above rigid standards to the present case to Vitug, J.,  see separate opinion.
determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian Mendoza, J.,  see concurring and dissenting opinion.
supremacy clause in the Constitution is committed. On this point, the Court
Panganiban, J.,  in the result.
agrees with the observation of the Solicitor General:
Quisumbing, J.,  joins the opinion of J. Mendoza.
3. The designation of tasks in Annex A[65] does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not
control or direct the operation. This is evident from Nos. 6,[66] 8(k)[67] and 9(a)
[68]
 of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)[69] of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition.And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown in No. 8(c)
[70]
 of Annex A, are all low impact and defensive in character. The conclusion is
that there being no exercise of regulatory, proscriptive or compulsory military
power, the deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement. [71]

It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril our
cherished liberties. Such apprehensions, however, are unfounded. The power to
call the armed forces is just that - calling out the armed forces. Unless, petitioner
IBP can show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority or
jeopardized the civil liberties of the people, this Court is not inclined to overrule
the Presidents determination of the factual basis for the calling of the Marines to
prevent or suppress lawless violence. Republic of the Philippines
SUPREME COURT
One last point. Since the institution of the joint visibility patrol in January, 2000,
Manila
not a single citizen has complained that his political or civil rights have been
violated as a result of the deployment of the Marines. It was precisely to EN BANC
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom only G.R. No. L-45892             July 13, 1938

236
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  before the Acceptance Board because, if such circumstance exists, they can ask
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893             July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,  Commonwealth Act No. 1, known as the National Defense Law. It is alleged that
vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
1. NATIONAL DEFENSE; COMPULSORY MILITARY SERVICE; VIOLATION OF
SECTION 60 OF COMMONWEALTH ACT No. 1, REGARDING FAILURE TO
REGISTER IN THE MILITARY SERVICE.—The National Defense Law, in so far as
it establishes compulsory military service, does not go against section 2, Article II
of the Philippine Constitution but is, on the contrary, in faithful compliance
therewith. The duty of the Government to defend the State cannot be performed
except through an army. To leave the organization of an army to the will of the
citizens would be to make this duty of the Government excusable should there
be no sufficient men who volunteer to enlist therein.
2. ID.; ID.; IN THE UNITED STATES.—In the United States the courts have held
in a series of decisions that the compulsory military service adopted by reason of
the civil war and the world war does not violate the Constitution, because the
power to establish it is derived from that granted to Congress to declare war and
to organize and maintain an army. This is so because the right of the
Government to require compulsory military service is a consequence of its duty
to defend the State and is reciprocal with its duty to defend the life, liberty, and
property of the citizen. In the case of Jacobson vs. Massachusetts (197 U. S., 11;
25 Sup. Ct. Rep., 385), it was said that, without violating the Constitution a
person may be compelled by force, if need be, against his will, against his
pecuniary interests and even against his religious or political convictions, to take
his place in the ranks of the army of his country, and risk the chance of being
shot down in its defense.
3. ID.; ID.; ID.—In the case of United States vs. Olson (253 Fed., 233), it was
also said that this is not deprivation of property without due process of law,
because, in its just sense, there is no right of property to an office or
employment. The circumstance that these decisions refer to laws enacted by
reason of the actual existence of war does not make our case any different,
inasmuch as, in the last analysis, what justifies compulsory military service is the
defense of the State, whether actual or whether in preparation to make it more
effective, in case of need.
4. ID. ; ID.; PECUNIARY ALLOWANCE TO ATTEND TO FAMILY
RESPONSIBILITIES.—The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves
for deferment in complying with their duty and, at all events, they can obtain the
proper pecuniary allowance to attend to these family responsibilities (sections 65
and 69 of Commonwealth Act No. 1).
AVANCEÑA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino
and Primitivo de Sosa are charged with a violation of section 60 of
these two appellants, being Filipinos and having reached the age of twenty years
in 1936, willfully and unlawfully refused to register in the military service
between the 1st and 7th of April of said year, notwithstanding the fact that they
had been required to do so. The evidence shows that these two appellants were
duly notified by the corresponding authorities to appear before the Acceptance
Board in order to register for military service in accordance with law, and that
the said appellants, in spite of these notices, had not registered up to the date of
the filing of the information.
The appellants do not deny these facts, but they allege in defense that they have
not registered in the military service because Primitivo de Sosa is fatherless and
has a mother and a brother eight years old to support, and Tranquilino Lagman
also has a father to support, has no military learnings, and does not wish to kill
or be killed.
Each of these appellants was sentenced by the Court of First Instance to one
month and one day of imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the
accused were sentenced, is impugned on the ground that it is unconstitutional.
Section 2, Article II of the Constitution of the Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal
military or civil service.
The National Defense Law, in so far as it establishes compulsory military service,
does not go against this constitutional provision but is, on the contrary, in faithful
compliance therewith. The duty of the Government to defend the State cannot
be performed except through an army. To leave the organization of an army to
the will of the citizens would be to make this duty of the Government excusable
should there be no sufficient men who volunteer to enlist therein. 1ªvvphïl.nët
In the United States the courts have held in a series of decisions that the
compulsory military service adopted by reason of the civil war and the world war
does not violate the Constitution, because the power to establish it is derived
from that granted to Congress to declare war and to organize and maintain an
army. This is so because the right of the Government to require compulsory
237
military service is a consequence of its duty to defend the State and is reciprocal
with its duty to defend the life, liberty, and property of the citizen. In the case of
Jacobson vs. Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said
that, without violating the Constitution, a person may be compelled by force, if
need be, against his will, against his pecuniary interests, and even against his
religious or political convictions, to take his place in the ranks of the army of his
country, and risk the chance of being shot down in its defense. In the case of
United States vs. Olson (253 Fed., 233), it was also said that this is not
deprivation of property without due process of law, because, in its just sense,
there is no right of property to an office or employment.

The circumstance that these decisions refer to laws enacted by reason on the
actual existence of war does not make our case any different, inasmuch as, in
the last analysis, what justifies compulsory military service is the defense of the
State, whether actual or whether in preparation to make it more effective, in
case of need. The circumstance that the appellants have dependent families to
support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for
determent in complying with their duty and, at all events, they can obtain the
proper pecuniary allowance to attend to these family responsibilities (secs. 65
and 69 of Commonwealth Act No. 1).

The appealed judgment rendered in these two cases is affirmed, with the costs
to the appellants. So ordered.

Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 100150 January 5, 1994

238
BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND
GENEROSO OCAMPO, petitioners,  more severe cases of human rights violations. Delegate Garcia, for instance,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS
JOHN DOES, respondents.
The City Attorney for petitioners.
The Solicitor General for public respondent.
Constitutional Law; Bill of Rights; Human Rights; Commission on Human Rights;
Creation of.—The Commission on Human Rights was created by the 1987
Constitution. It was formally constituted by then President Corazon Aquino via
Executive Order No. 163, issued on 5 May 1987, in the exercise of her legislative
power at the time. It succeeded, but so superseded as well, the Presidential
Committee on Human Rights.
Same; Same; Same; Same; Words and Phrases; The phrase “human rights” is so
generic a term that any attempt to define it could at best be described as
inconclusive.—It can hardly be disputed that the phrase “human rights” is so
generic a term that any attempt to define it, albeit not a few have tried, could at
best be described as inconclusive. The Universal Declaration of Human Rights, or
more specifically, the International Covenant on Economic, Social and Cultural
Rights and International Covenant on Civil and Political Rights, suggests that the
scope of human rights can be understood to include those that relate to an
individual’s social, economic, cultural, political and civil relations. It thus seems to
closely identify the term to the universally accepted traits and attributes of an
individual, along with what is generally considered to be his inherent and
inalienable rights, encompassing almost all aspects of life.
Same; Same; Same; Same; Same; “Civil Rights”, defined.— The term “civil
rights,” has been defined as referring—“(to) those (rights) that belong to every
citizen of the state or country, or, in a wider sense, to all its inhabitants, and are
not connected with the organization or administration of government. They
include the rights of property, marriage, equal protection of the laws, freedom of
contract, etc. Or, as otherwise defined civil rights are rights appertaining to a
person by virtue of his citizenship in a state or community. Such term may also
refer, in its general sense, to rights capable of being enforced or redressed in a
civil action.” Also quite often mentioned are the guarantees against involuntary
servitude, religious persecution, unreasonable searches and seizures, and
imprisonment for debt.
Same; Same; Same; Same; Same; “Political Rights”, explained.—Political rights,
on the other hand, are said to refer to the right to participate, directly or
indirectly, in the establishment or administration of government, the right of
suffrage, the right to hold public office, the right of petition and, in general, the
right appurtenant to citizenship vis-a-vis the management of government.
Same; Same; Same; Same; The Constitutional Commission delegates envisioned
a Commission on Human Rights that would focus its attention to the more
severe cases of human rights violations. —Recalling the deliberation of the
Constitutional Commission, aforequoted, it is readily apparent that the delegates
envisioned a Commission on Human Rights that would focus its attention to the
mentioned such areas as the “(1) protection of rights of political detainees, (2)
treatment of prisoners and the prevention of tortures, (3) fair and public trials,
(4) cases of disappearances, (5) salvagings and hamletting, and (6) other crimes
committed against the religious.” While the enumeration has not likely been
meant to have any preclusive effect, more than just expressing a statement of
priority, it is, nonetheless, significant for the tone it has set. In any event, the
delegates did not apparently take comfort in peremptorily making a conclusive
delineation of the CHR’s scope of investigatorial jurisdiction. They have thus seen
it fit to resolve, instead, that “Congress may provide for other cases of violations
of human rights that should fall within the authority of the Commission, taking
into account its recommendation.”
Same; Same; Same; Same; Demolition of stalls, sari-sari stores and carinderia
does not fall within the compartment of “human rights violations involving civil
and political rights” intended by the Constitution. —In the particular case at hand,
there is no cavil that what are sought to be demolished are the stalls, sari-sari
stores and carinderia, as well as temporary shanties, erected by private
respondents on a land which is planned to be developed into a “People’s Park.”
More than that, the land adjoins the North EDSA of Quezon City which, this Court
can take judicial notice of, is a busy national highway. The consequent danger to
life and limb is not thus to be likewise simply ignored. It is indeed paradoxical
that a right which is claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is not, in fact, extant. Be that as it may, looking at
the standards hereinabove discoursed vis-a-vis the circumstances obtaining in
this instance, we are not prepared to conclude that the order for the demolition
of the stalls, sari-sari stores and carinderia of the private respondents can fall
within the compartment of “human rights violations involving civil and political
rights” intended by the Constitution.
Same; Same; Same; Same; Contempt; The CHR is constitutionally authorized to
cite or hold any person in direct or indirect contempt. —On its contempt powers,
the CHR is constitutionally authorized to “adopt its operational guidelines and
rules of procedure, and cite for contempt for violations thereof in accordance
with the Rules of Court.” Accordingly, the CHR acted within its authority in
providing in its revised rules, its power “to cite or hold any person in direct or
indirect contempt, and to impose the appropriate penalties in accordance with
the procedure and sanctions provided for in the Rules of Court.” That power to
cite for contempt, however, should be understood to apply only to violations of
its adopted operational guidelines and rules of procedure essential to carry out
its investigatorial powers. To exemplify, the power to cite for contempt could be
exercised against persons who refuse to cooperate with the said body, or who
unduly withhold relevant information, or who decline to honor summons, and the
like, in pursuing its investigative work.
Same; Same; Same; Same; An “order to desist”, however, is not investigatorial
in character but prescinds from an adjudicative power that the CHR does not
possess.—The “order to desist” (a semantic interplay for a restraining order) in
239
the instance before us, however, is not investigatorial in character but prescinds
from an adjudicative power that it does not possess.
Prohibition; Moot and Academic; Prohibition not moot simply because the
hearings in the proceedings sought to be restrained have been terminated where
resolution of the issues raised still to be promulgated. —The public respondent
explains that this petition for prohibition filed by the petitioners has become
moot and academic since the case before it (CHR Case No. 90-1580) has already
been fully heard, and that the matter is merely awaiting final resolution. It is true
that prohibition is a preventive remedy to restrain the doing of an act about to
be done, and not intended to provide a remedy for an act already accomplished.
Here, however, said Commission admittedly has yet to promulgate its resolution
in CHR Case No. 90-1580. The instant petition has been intended, among other
things, to also prevent CHR from precisely doing that.
VITUG, J.:
The extent of the authority and power of the Commission on Human Rights
("CHR") is again placed into focus in this petition for prohibition, with prayer for
a restraining order and preliminary injunction. The petitioners ask us to prohibit
public respondent CHR from further hearing and investigating CHR Case No. 90-
1580, entitled "Fermo, et al. vs. Quimpo, et al."
The case all started when a "Demolition Notice," dated 9 July 1990, signed by
Carlos Quimpo (one of the petitioners) in his capacity as an Executive Officer of
the Quezon City Integrated Hawkers Management Council under the Office of the
City Mayor, was sent to, and received by, the private respondents (being the
officers and members of the North EDSA Vendors Association, Incorporated). In
said notice, the respondents were given a grace-period of three (3) days (up to
12 July 1990) within which to vacate the questioned premises of North
EDSA.1Prior to their receipt of the demolition notice, the private respondents
were informed by petitioner Quimpo that their stalls should be removed to give
way to the "People's Park".2 On 12 July 1990, the group, led by their President
Roque Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with
the CHR against the petitioners, asking the late CHR Chairman Mary Concepcion
Bautista for a letter to be addressed to then Mayor Brigido Simon, Jr., of Quezon
City to stop the demolition of the private respondents' stalls, sari-sari stores,
and carinderia along North EDSA. The complaint was docketed as CHR Case No.
90-1580.3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to
desist from demolishing the stalls and shanties at North EDSA pending resolution
of the vendors/squatters' complaint before the Commission" and ordering said
petitioners to appear before the CHR.4
On the basis of the sworn statements submitted by the private respondents on
31 July 1990, as well as CHR's own ocular inspection, and convinced that on 28
July 1990 the petitioners carried out the demolition of private respondents'
stalls, sari-sari stores and carinderia,5 the CHR, in its resolution of 1 August 1990,
ordered the disbursement of financial assistance of not more than P200,000.00
in favor of the private respondents to purchase light housing materials and food
under the Commission's supervision and again directed the petitioners to "desist
from further demolition, with the warning that violation of said order would lead
to a citation for contempt and arrest." 6
A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction.
The motion also averred, among other things, that:
1. this case came about due to the alleged violation by the (petitioners) of the
Inter-Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed
on a moratorium in the demolition of the dwellings of poor dwellers in Metro-
Manila;
xxx xxx xxx
3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred
to therein refers to moratorium in the demolition of the structures of poor
dwellers;
4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;
5. that the complainants (were) occupying government land, particularly the
sidewalk of EDSA corner North Avenue, Quezon City; . . . and
6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if
already issued, upon grounds clearly specified by law and ordinance. 8
During the 12 September 1990 hearing, the petitioners moved for postponement,
arguing that the motion to dismiss set for 21 September 1990 had yet to be
resolved. The petitioners likewise manifested that they would bring the case to
the courts.
On 18 September 1990 a supplemental motion to dismiss was filed by the
petitioners, stating that the Commission's authority should be understood as
being confined only to the investigation of violations of civil and political rights,
and that "the rights allegedly violated in this case (were) not civil and political
rights, (but) their privilege to engage in business." 9
On 21 September 1990, the motion to dismiss was heard and submitted for
resolution, along with the contempt charge that had meantime been filed by the
private respondents, albeit vigorously objected to by petitioners (on the ground
that the motion to dismiss was still then unresolved). 10
240
In an Order,11 dated 25 September 1990, the CHR cited the petitioners in
contempt for carrying out the demolition of the stalls, sari-sari stores
and carinderia despite the "order to desist", and it imposed a fine of P500.00 on
each of them.
On 1 March 1991,12 the CHR issued an Order, denying petitioners' motion to
dismiss and supplemental motion to dismiss, in this wise:
Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of
the gross violations of their human and constitutional rights. The motion to
dismiss should be and is hereby DENIED for lack of merit.13
The CHR opined that "it was not the intention of the (Constitutional) Commission
to create only a paper tiger limited only to investigating civil and political rights,
but it (should) be (considered) a quasi-judicial body with the power to provide
appropriate legal measures for the protection of human rights of all persons
within the Philippines . . . ." It added:
The right to earn a living is a right essential to one's right to development, to life
and to dignity. All these brazenly and violently ignored and trampled upon by
respondents with little regard at the same time for the basic rights of women and
children, and their health, safety and welfare. Their actions have psychologically
scarred and traumatized the children, who were witness and exposed to such a
violent demonstration of Man's inhumanity to man.
In an Order,14 dated 25 April 1991, petitioners' motion for reconsideration was
denied.
Hence, this recourse.
The petition was initially dismissed in our resolution 15 of 25 June 1991; it was
subsequently reinstated, however, in our resolution16 of 18 June 1991, in which
we also issued a temporary restraining order, directing the CHR to "CEASE and
DESIST from further hearing CHR No. 90-1580."17
The petitioners pose the following:
Whether or not the public respondent has jurisdiction:
a) to investigate the alleged violations of the "business rights" of the private
respondents whose stalls were demolished by the petitioners at the instance and
authority given by the Mayor of Quezon City;
b) to impose the fine of P500.00 each on the petitioners; and
c) to disburse the amount of P200,000.00 as financial aid to the vendors affected
by the demolition.
In the Court's resolution of 10 October 1991, the Solicitor-General was excused
from filing his comment for public respondent CHR. The latter thus filed its own
comment,18 through Hon. Samuel Soriano, one of its Commissioners. The Court
also resolved to dispense with the comment of private respondent Roque Fermo,
who had since failed to comply with the resolution, dated 18 July 1991, requiring
such comment.
The petition has merit.
The Commission on Human Rights was created by the 1987 
Constitution.19 It was formally constituted by then President Corazon
Aquino via Executive Order No. 163,20 issued on 5 May 1987, in the exercise of
her legislative power at the time. It succeeded, but so superseded as well, the
Presidential Committee on Human Rights.21
The powers and functions22 of the Commission are defined by the 1987
Constitution, thus: to —
(1) Investigate, on its own or on complaint by any party, all forms of human
rights violations involving civil and political rights;
(2) Adopt its operational guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide
for preventive measures and legal aid services to the underprivileged whose
human rights have been violated or need protection;
(4) Exercise visitorial powers over jails, prisons, or detention facilities;
(5) Establish a continuing program of research, education, and information to
enhance respect for the primacy of human rights;
(6) Recommend to the Congress effective measures to promote human rights
and to provide for compensation to victims of violations of human rights, or their
families;
(7) Monitor the Philippine Government's compliance with international treaty
obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by it or under its authority;
(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;
(10) Appoint its officers and employees in accordance with law; and
241
(11) Perform such other duties and functions as may be provided by law.
In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR
theorizes that the intention of the members of the Constitutional Commission is
to make CHR a quasi-judicial body.23 This view, however, has not heretofore
been shared by this Court. In Cariño v. Commission on Human Rights, 24 the
Court, through then Associate Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated powers and functions that
bears any resemblance to adjudication or adjudgment," but that resemblance
can in no way be synonymous to the adjudicatory power itself. The Court
explained:
. . . (T)he Commission on Human Rights . . . was not meant by the fundamental
law to be another court or quasi-judicial agency in this country, or duplicate
much less take over the functions of the latter.
The most that may be conceded to the Commission in the way of adjudicative
power is that it may investigate, i.e., receive evidence and make findings of fact
as regards claimed human rights violations involving civil and political rights. But
fact finding is not adjudication, and cannot be likened to the judicial function of a
court of justice, or even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a
judicial function, properly speaking. To be considered such, the faculty of
receiving evidence and making factual conclusions in a controversy must be
accompanied by the authority of applying the law to those factual conclusions to
the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be
provided by law. This function, to repeat, the Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the
other kernel of this controversy and, its is, to determine the extent of CHR's
investigative power.
It can hardly be disputed that the phrase "human rights" is so generic a term
that any attempt to define it, albeit not a few have tried, could at best be
described as inconclusive. Let us observe. In a symposium on human rights in
the Philippines, sponsored by the University of the Philippines in 1977, one of the
questions that has been propounded is "(w)hat do you understand by "human
rights?" The participants, representing different sectors of the society, have
given the following varied answers:
Human rights are the basic rights which inhere in man by virtue of his humanity.
They are the same in all parts of the world, whether the Philippines or England,
Kenya or the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .
Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of
the accused to due process of law; political rights, such as the right to elect
public officials, to be elected to public office, and to form political associations
and engage in politics; and social rights, such as the right to an education,
employment, and social services.25
Human rights are the entitlement that inhere in the individual person from the
sheer fact of his humanity. . . . Because they are inherent, human rights are not
granted by the State but can only be recognized and protected by it.26
(Human rights include all) the civil, political, economic, social, and cultural rights
defined in the Universal Declaration of Human Rights. 27
Human rights are rights that pertain to man simply because he is human. They
are part of his natural birth, right, innate and inalienable. 28
The Universal Declaration of Human Rights, as well as, or more specifically, the
International Covenant on Economic, Social and Cultural Rights and International
Covenant on Civil and Political Rights, suggests that the scope of human rights
can be understood to include those that relate to an individual's social, economic,
cultural, political and civil relations. It thus seems to closely identify the term to
the universally accepted traits and attributes of an individual, along with what is
generally considered to be his inherent and inalienable rights, encompassing
almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our
1986 Constitutional Commission in adopting the specific provisions on human
rights and in creating an independent commission to safeguard these rights? It
may of value to look back at the country's experience under the martial law
regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly
represented perhaps of the sentiments expressed by others, comes from Mr.
Justice J.B.L. Reyes, a respected jurist and an advocate of civil liberties, who, in
his paper, entitled "Present State of Human Rights in the Philippines," 29 observes:
But while the Constitution of 1935 and that of 1973 enshrined in their Bill of
Rights most of the human rights expressed in the International Covenant, these
rights became unavailable upon the proclamation of Martial Law on 21
September 1972. Arbitrary action then became the rule. Individuals by the
thousands became subject to arrest upon suspicion, and were detained and held
for indefinite periods, sometimes for years, without charges, until ordered
released by the Commander-in-Chief or this representative. The right to petition
for the redress of grievances became useless, since group actions were
forbidden. So were strikes. Press and other mass media were subjected to
censorship and short term licensing. Martial law brought with it the suspension of
the writ of habeas corpus, and judges lost independence and security of tenure,
except members of the Supreme Court. They were required to submit letters of
resignation and were dismissed upon the acceptance thereof. Torture to extort
242
confessions were practiced as declared by international bodies like Amnesty
International and the International Commission of Jurists.
Converging our attention to the records of the Constitutional Commission, we
can see the following discussions during its 26 August 1986 deliberations:
MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of
the importance of human rights and also because civil and political rights have
been determined by many international covenants and human rights legislations
in the Philippines, as well as the Constitution, specifically the Bill of Rights and
subsequent legislation. Otherwise, if we cover such a wide territory in area, we
might diffuse its impact and the precise nature of its task, hence, its effectivity
would also be curtailed.
So, it is important to delienate the parameters of its tasks so that the
commission can be most effective.
MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every
single right of an individual involves his civil right or his political right. So, where
do we draw the line?
MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very
specific rights that are considered enshrined in many international documents
and legal instruments as constituting civil and political rights, and these are
precisely what we want to defend here.
MR. BENGZON. So, would the commissioner say civil and political rights as
defined in the Universal Declaration of Human Rights?
MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil
and Political Rights distinguished this right against torture.
MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed
to the proper courts and authorities.
xxx xxx xxx
MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings
cases which perhaps heretofore or at this moment are under the jurisdiction of
the ordinary investigative and prosecutorial agencies of the government. Am I
correct?
MR. GARCIA. No. We have already mentioned earlier that we would like to define
the specific parameters which cover civil and political rights as covered by the
international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which
we would now like to safeguard.
MR. BENGZON. Then, I go back to that question that I had. Therefore, what we
are really trying to say is, perhaps, at the proper time we could specify all those
rights stated in the Universal Declaration of Human Rights and defined as human
rights. Those are the rights that we envision here?
MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.
MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the
Bill of Rights covered by human rights?
MR. GARCIA. No, only those that pertain to civil and political rights .
xxx xxx xxx
MR. RAMA. In connection with the discussion on the scope of human rights, I
would like to state that in the past regime, everytime we invoke the violation of
human rights, the Marcos regime came out with the defense that, as a matter of
fact, they had defended the rights of people to decent living, food, decent
housing and a life consistent with human dignity.
So, I think we should really limit the definition of human rights to political
rights. Is that the sense of the committee, so as not to confuse the issue ?
MR. SARMIENTO. Yes, Madam President.
MR. GARCIA. I would like to continue and respond also to repeated points raised
by the previous speaker.
There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of
prisoners and the prevention of tortures; 3) fair and public trials; 4) cases of
disappearances; 5) salvagings and hamletting; and 6) other crimes committed
against the religious.
xxx xxx xxx
The PRESIDENT. Commissioner Guingona is recognized.
243
MR. GUINGONA. Thank You Madam President.
I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as
much as possible, without prejudice to future expansion. The coverage of the
concept and jurisdictional area of the term  "human rights". I was actually
disturbed this morning when the reference was made without qualification to the
rights embodied in the universal Declaration of Human Rights, although later on,
this was qualified to refer to civil and political rights contained therein.
If I remember correctly, Madam President, Commissioner Garcia, after
mentioning the Universal Declaration of Human Rights of 1948, mentioned or
linked the concept of human right with other human rights specified in other
convention which I do not remember. Am I correct?
MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture
of 1985?
MR. GUINGONA. I do not know, but the commissioner mentioned another.
MR. GARCIA. Madam President, the other one is the International Convention on
Civil and Political Rights of which we are signatory.
MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that
other convention which may not be specified here. I was wondering whether it
would be wise to link our concept of human rights to general terms like
"convention," rather than specify the rights contained in the convention.
As far as the Universal Declaration of Human Rights is concerned, the
Committee, before the period of amendments, could specify to us which of these
articles in the Declaration will fall within the concept of civil and political rights,
not for the purpose of including these in the proposed constitutional article, but
to give the sense of the Commission as to what human rights would be included,
without prejudice to expansion later on, if the need arises. For example, there
was no definite reply to the question of Commissioner Regalado as to whether
the right to marry would be considered a civil or a social right. It is not a civil
right?
MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision —
freedom from political detention and arrest prevention of torture, right to fair
and public trials, as well as crimes involving disappearance, salvagings,
hamlettings and collective violations. So, it is limited to politically related crimes
precisely to protect the civil and political rights of a specific group of individuals,
and therefore, we are not opening it up to all of the definite areas .
MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no
longer linking his concept or the concept of the Committee on Human Rights
with the so-called civil or political rights as contained in the Universal Declaration
of Human Rights.
MR. GARCIA. When I mentioned earlier the Universal Declaration of Human
Rights, I was referring to an international instrument.
MR. GUINGONA. I know.
MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as
we understand it in this Commission on Human Rights.
MR. GUINGONA. Madam President, I am not even clear as to the distinction
between civil and social rights.
MR. GARCIA. There are two international covenants: the International Covenant
and Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights. The second covenant contains all the different rights-the
rights of labor to organize, the right to education, housing, shelter, et cetera.
MR. GUINGONA. So we are just limiting at the moment the sense of the
committee to those that the Gentlemen has specified.
MR. GARCIA. Yes, to civil and political rights.
MR. GUINGONA. Thank you.
xxx xxx xxx
SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .
. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more
abused and oppressed. Another reason is, the cases involved are very delicate —
torture, salvaging, picking up without any warrant of arrest, massacre  — and the
persons who are allegedly guilty are people in power like politicians, men in the
military and big shots. Therefore, this Human Rights Commission must be
independent.
I would like very much to emphasize how much we need this commission,
especially for the little Filipino, the little individual who needs this kind of help
and cannot get it. And I think we should concentrate only on civil and political
violations because if we open this to land, housing and health, we will have no
place to go again and we will not receive any response . . . .30 (emphasis
supplied)
244
The final outcome, now written as Section 18, Article XIII, of the 1987
Constitution, is a provision empowering the Commission on Human Rights to
"investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights" (Sec. 1).
The term "civil rights,"31 has been defined as referring —
(t)o those (rights) that belong to every citizen of the state or country, or, in
wider sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined
civil rights are rights appertaining to a person by virtue of his citizenship in a
state or community. Such term may also refer, in its general sense, to rights
capable of being enforced or redressed in a civil action.
Also quite often mentioned are the guarantees against involuntary servitude,
religious persecution, unreasonable searches and seizures, and imprisonment for
debt.32
Political rights,33 on the other hand, are said to refer to the right to participate,
directly or indirectly, in the establishment or administration of government, the
right of suffrage, the right to hold public office, the right of petition and, in
general, the rights appurtenant to citizenship vis-a-vis the management of
government.34
Recalling the deliberations of the Constitutional Commission, aforequoted, it is
readily apparent that the delegates envisioned a Commission on Human Rights
that would focus its attention to the more severe cases of human rights
violations. Delegate Garcia, for instance, mentioned such areas as the "(1)
protection of rights of political detainees, (2) treatment of prisoners and the
prevention of tortures, (3) fair and public trials, (4) cases of disappearances, (5)
salvagings and hamletting, and (6) other crimes committed against the
religious." While the enumeration has not likely been meant to have any
preclusive effect, more than just expressing a statement of priority, it is,
nonetheless, significant for the tone it has set. In any event, the delegates did
not apparently take comfort in peremptorily making a conclusive delineation of
the CHR's scope of investigatorial jurisdiction. They have thus seen it fit to
resolve, instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission, taking into
account its recommendation."35
In the particular case at hand, there is no cavil that what are sought to be
demolished are the stalls, sari-sari stores and carinderia, as well as temporary
shanties, erected by private respondents on a land which is planned to be
developed into a "People's Park". More than that, the land adjoins the North
EDSA of Quezon City which, this Court can take judicial notice of, is a busy
national highway. The consequent danger to life and limb is not thus to be
likewise simply ignored. It is indeed paradoxical that a right which is claimed to
have been violated is one that cannot, in the first place, even be invoked, if it is,
in fact, extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance, we are not
prepared to conclude that the order for the demolition of the stalls, sari-
sari stores and carinderia of the private respondents can fall within the
compartment of "human rights violations involving civil and political rights"
intended by the Constitution.
On its contempt powers, the CHR is constitutionally authorized to "adopt its
operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court." Accordingly, the CHR
acted within its authority in providing in its revised rules, its power "to cite or
hold any person in direct or indirect contempt, and to impose the appropriate
penalties in accordance with the procedure and sanctions provided for in the
Rules of Court." That power to cite for contempt, however, should be understood
to apply only to violations of its adopted operational guidelines and rules of
procedure essential to carry out its investigatorial powers. To exemplify, the
power to cite for contempt could be exercised against persons who refuse to
cooperate with the said body, or who unduly withhold relevant information, or
who decline to honor summons, and the like, in pursuing its investigative work.
The "order to desist" (a semantic interplay for a restraining order) in the instance
before us, however, is not investigatorial in character but prescinds from an
adjudicative power that it does not possess. In Export Processing Zone Authority
vs. Commission on Human Rights,36 the Court, speaking through Madame Justice
Carolina Griño-Aquino, explained:
The constitutional provision directing the CHR to "provide for preventive
measures and legal aid services to the underprivileged whose human rights have
been violated or need protection" may not be construed to confer jurisdiction on
the Commission to issue a restraining order or writ of injunction for, it that were
the intention, the Constitution would have expressly said so. "Jurisdiction is
conferred only by the Constitution or by law". It is never derived by implication.
Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of
preliminary injunction) which the CHR may seek from proper courts on behalf of
the victims of human rights violations. Not being a court of justice, the CHR itself
has no jurisdiction to issue the writ, for a writ of preliminary injunction may only
be issued "by the judge of any court in which the action is pending [within his
district], or by a Justice of the Court of Appeals, or of the Supreme Court. . . . A
writ of preliminary injunction is an ancillary remedy. It is available only in a
pending principal action, for the preservation or protection of the rights and
interests of a party thereto, and for no other purpose." (footnotes omitted).
245
The Commission does have legal standing to indorse, for appropriate action, its
findings and recommendations to any appropriate agency of government. 37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way

of financial aid to the vendors affected by the demolition is not an appropriate
issue in the instant petition. Not only is there lack of locus standi on the part of
the petitioners to question the disbursement but, more importantly, the matter
lies with the appropriate administrative agencies concerned to initially consider.

The public respondent explains that this petition for prohibition filed by the
petitioners has become moot and academic since the case before it (CHR Case
No. 90-1580) has already been fully heard, and that the matter is merely
awaiting final resolution. It is true that prohibition is a preventive remedy to
restrain the doing of an act about to be done, and not intended to provide a
remedy for an act already accomplished. 38 Here, however, said Commission
admittedly has yet to promulgate its resolution in CHR Case No. 90-1580. The
instant petition has been intended, among other things, to also prevent CHR
from precisely doing that.39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission
on Human Rights is hereby prohibited from further proceeding with CHR Case
No. 90-1580 and from implementing the P500.00 fine for contempt. The
temporary restraining order heretofore issued by this Court is made permanent.
No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Regalado, Davide, Jr., Romero, Nocon,
Bellosillo, Melo, Quiason and Puno, JJ., concur.

SECOND DIVISION

[G.R. No. 118978. May 23, 1997]

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY,* petitioner,

vs. NATIONAL LABOR RELATIONS COMMISSION and GRACE DE
GUZMAN, respondents.

Labor Law; Dismissals; Petitioner’s policy of not accepting or considering as

disqualified from work any woman worker who contracts marriage runs afoul of
the test of, and the right against discrimination afforded all women workers by
our labor laws and by no less than the Constitution. —In the case at bar,
petitioner’s policy of not accepting or considering as disqualified from work any
woman worker who contracts marriage runs afoul of the test of, and the right
against, discrimination, afforded all women workers by our labor laws and by no
less than the Constitution. Contrary to peti-tioner’s as sertion that it dismissed
private respondent from employment on account of her dishonesty, the record

246
discloses clearly that her ties with the company were dissolved principally
because of the company’s policy that married women are not qualified for
employment in PT&T, and not merely because of her supposed acts of
dishonesty.
Same; Same; While loss of confidence is a just cause for termination of
employment, it should not be simulated. —Verily, private respondent’s act of
concealing the true nature of her status from PT&T could not be properly
characterized as willful or in bad faith as s he was m oved to act the way she did
mainly because she wanted to retain a permanent job in a stable company. In
other words, she was practically forced by that very same illegal company policy
into misrepresenting her civil status for fear of being disqualified from work.
While loss of confidence is a just cause for termination of employment, it should
not be simulated. It must rest on an actual breach of duty committed by the
employee and not on the employer’s caprices. Furthermore, it should never be
used as a subterfuge for causes which are improper, illegal, or unjustified.
Same; Same; The primary standard of determining regular employment is the
reasonable connection between the activity performed by the employee in
relation to the business or trade of the employer. —Private respondent, it mus t
be observed, had gained regular status at the time of her dismissal. When she
was served her walking papers on January 29, 1992, she was about to complete
the probationary period of 150 days as she was contracted as a probationary
employee on September 2, 1991. That her dismissal would be effected just when
her probationary period was winding down clearly raises the plausible conclusion
that it was done in order to prevent her from earning security of tenure. On the
other hand, her earlier stints with the company as reliever were undoubtedly
those of a regular employee, even if the same were for fixed periods, as she
performed activities which were essential or necessary in the usual trade and
business of PT&T. The primary standard of determining regular employment is
the reasonable connection between the activity performed by the employee in
relation to the busines s or trade of the employer.
Same; Same; Policy of Philippine Air Lines requiring that prospective flight
attendants must be single and that they will be automatically separated from the
service once they marry declared void in Zialcita, et al. v. Philippine Air Lines. —It
would be worthwhile to reflect upon and adopt here the rationalization in
Zialcita, et al. vs. Philippine Air Lines , a decision that emanated from the Office
of the President. There, a policy of Philippine Air Lines requiring that prospective
flight attendants must be single and that they will be automatically s eparated
from the service once they marry was declared void, it being violative of the
clear mandate in Article 136 of the Labor Code with regard to discrimination
against married women.
Same; Same; While it is true that the parties to a contract may establish any
agreements, terms and conditions that they may deem convenient, the same
should not be contrary to law, morals, good customs, public order or public
policy.—Petitioner’s policy is not only in derogation of the provisions of Article
136 of the Labor Code on the right of a woman to be free from any kind of
stipulation against marriage in connection with her employment, but it likewise
assaults good morals and public policy, tending as it does to deprive a woman of
the freedom to choose her status, a privilege that by all accounts inheres in the
individual as an intangible and inalienable right. Hence, while it is true that the
parties to a contract may establish any agreements, terms, and conditions that
they may deem convenient, the same should not be contrary to law, morals,
good customs, public order, or public policy. Carried to its logical consequences,
it may even be said that petitioner’s policy against legitimate marital bonds
would encourage illicit or common-law relations and subvert the sacrament of
marriage.
Same; Same; The relations between capital and labor are not merely
contractual, impressed as they are with so much public interest that the same
should yield to the comm on good.—Parenthetically, the Civil Code provisions on
the contract of labor state that the relations between the parties, that is, of
capital and labor, are not merely contractual, impressed as they are with so
much public interest that the same should yield to the common good. It goes on
to intone that neither capital nor labor should visit acts of oppression against the
other, nor impair the interest or convenience of the public. In the final reckoning,
the danger of just such a policy against marriage followed by petitioner PT&T is
that it strikes at the very essence, ideals and purpose of marriage as an
inviolable social institution and, ultimately, of the family as the foundation of the
nation. That it must be effectively interdicted here in all its indirect, disguised or
dissembled forms as discriminatory conduct derogatory of the laws of the land is
not only in order but imperatively required.
DECISION
REGALADO, J.:
Seeking relief through the extraordinary writ of certiorari, petitioner Philippine
Telegraph and Telephone Company (hereafter, PT&T) invokes the alleged
concealment of civil status and defalcation of company funds as grounds to
terminate the services of an employee. That employee, herein private
respondent Grace de Guzman, contrarily argues that what really motivated PT&T
to terminate her services was her having contracted marriage during her
employment, which is prohibited by petitioner in its company policies. She thus
claims that she was discriminated against in gross violation of law, such a
proscription by an employer being outlawed by Article 136 of the Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a
Supernumerary Project Worker, for a fixed period from November 21, 1990 until
April 20, 1991 vice one C.F. Tenorio who went on maternity leave. [1] Under the
Reliever Agreement which she signed with petitioner company, her employment
was to be immediately terminated upon expiration of the agreed
period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991
to August 8, 1991, private respondents services as reliever were again engaged
by petitioner, this time in replacement of one Erlinda F. Dizon who went on leave
247
during both periods.[2] After August 8, 1991, and pursuant to their Reliever
Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join
petitioner company as a probationary employee, the probationary period to cover
150 days. In the job application form that was furnished her to be filled up for
the purpose, she indicated in the portion for civil status therein that she was
single although she had contracted marriage a few months earlier, that is, on
May 26, 1991.[3]
It now appears that private respondent had made the same representation in the
two successive reliever agreements which she signed on June 10, 1991 and July
8, 1991. When petitioner supposedly learned about the same later, its branch
supervisor in Baguio City, Delia M. Oficial, sent to private respondent a
memorandum dated January 15, 1992 requiring her to explain the
discrepancy. In that memorandum, she was reminded about the companys policy
of not accepting married women for employment. [4]
In her reply letter dated January 17, 1992, private respondent stated that she
was not aware of PT&Ts policy regarding married women at the time, and that
all along she had not deliberately hidden her true civil status. [5] Petitioner
nonetheless remained unconvinced by her explanations. Private respondent was
dismissed from the company effective January 29, 1992, [6] which she readily
contested by initiating a complaint for illegal dismissal, coupled with a claim for
non-payment of cost of living allowances (COLA), before the Regional Arbitration
Branch of the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private
respondent volunteered the information, and this was incorporated in the
stipulation of facts between the parties, that she had failed to remit the amount
of P2,380.75 of her collections. She then executed a promissory note for that
amount in favor of petitioner.[7] All of these took place in a formal proceeding
and with the agreement of the parties and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a
decision declaring that private respondent, who had already gained the status of
a regular employee, was illegally dismissed by petitioner. Her reinstatement, plus
payment of the corresponding back wages and COLA, was correspondingly
ordered, the labor arbiter being of the firmly expressed view that the ground
relied upon by petitioner in dismissing private respondent was clearly insufficient,
and that it was apparent that she had been discriminated against on account of
her having contracted marriage in violation of company rules.
On appeal to the National Labor Relations Commission (NLRC), said public
respondent upheld the labor arbiter and, in its decision dated April 29, 1994, it
ruled that private respondent had indeed been the subject of an unjust and
unlawful discrimination by her employer, PT&T. However, the decision of the
labor arbiter was modified with the qualification that Grace de Guzman deserved
to be suspended for three months in view of the dishonest nature of her acts
which should not be condoned. In all other respects, the NLRC affirmed the
decision of the labor arbiter, including the order for the reinstatement of private
respondent in her employment with PT&T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by
respondent NLRC in its resolution of November 9, 1994, hence this special civil
action assailing the aforestated decisions of the labor arbiter and respondent
NLRC, as well as the denial resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be
regarded with love and respect but, through the ages, men have responded to
that injunction with indifference, on the hubristic conceit that women constitute
the inferior sex. Nowhere has that prejudice against womankind been so
pervasive as in the field of labor, especially on the matter of equal employment
opportunities and standards. In the Philippine setting, women have traditionally
been considered as falling within the vulnerable groups or types of workers who
must be safeguarded with preventive and remedial social legislation against
discriminatory and exploitative practices in hiring, training, benefits, promotion
and retention.
The Constitution, cognizant of the disparity in rights between men and women in
almost all phases of social and political life, provides a gamut of protective
provisions. To cite a few of the primordial ones, Section 14, Article II [8] on the
Declaration of Principles and State Policies, expressly recognizes the role of
women in nation-building and commands the State to ensure, at all times, the
fundamental equality before the law of women and men. Corollary thereto,
Section 3 of Article XIII[9] (the progenitor whereof dates back to both the 1935
and 1973 Constitution) pointedly requires the State to afford full protection to
labor and to promote full employment and equality of employment opportunities
for all, including an assurance of entitlement to tenurial security of all
workers. Similarly, Section 14 of Article XIII[10] mandates that the State shall
protect working women through provisions for opportunities that would enable
them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more
frequency in the years since the Labor Code was enacted on May 1, 1974 as
Presidential Decree No. 442, largely due to our countrys commitment as a
signatory to the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).[11]
Principal among these laws are Republic Act No. 6727[12] which explicitly prohibits
discrimination against women with respect to terms and conditions of
employment, promotion, and training opportunities; Republic Act No.
6955[13] which bans the mail-order-bride practice for a fee and the export of
248
female labor to countries that cannot guarantee protection to the rights of
women workers; Republic Act No. 7192,[14] also known as the Women in
Development and Nation Building Act, which affords women equal opportunities
with men to act and to enter into contracts, and for appointment, admission,
training, graduation, and commissioning in all military or similar schools of the
Armed Forces of the Philippines and the Philippine National Police; Republic Act
No. 7322[15] increasing the maternity benefits granted to women in the private
sector; Republic Act No. 7877[16] which outlaws and punishes sexual harassment
in the workplace and in the education and training environment; and Republic
Act No. 8042,[17] or the Migrant Workers and Overseas Filipinos Act of 1995,
which prescribes as a matter of policy, inter alia, the deployment of migrant
workers, with emphasis on women, only in countries where their rights are
secure. Likewise, it would not be amiss to point out that in the Family Code,
[18]
 womens rights in the field of civil law have been greatly enhanced and
expanded.
In the Labor Code, provisions governing the rights of women workers are found
in Articles 130 to 138 thereof. Article 130 involves the right against particular
kinds of night work while Article 132 ensures the right of women to be provided
with facilities and standards which the Secretary of Labor may establish to
ensure their health and safety. For purposes of labor and social legislation, a
woman working in a nightclub, cocktail lounge, massage clinic, bar or other
similar establishments shall be considered as an employee under Article
138. Article 135, on the other hand, recognizes a womans right against
discrimination with respect to terms and conditions of employment on account
simply of sex. Finally, and this brings us to the issue at hand, Article 136
explicitly prohibits discrimination merely by reason of the marriage of a female
employee.
3. Acknowledged as paramount in the due process scheme is the constitutional
guarantee of protection to labor and security of tenure. Thus, an employer is
required, as a condition sine qua non prior to severance of the employment ties
of an individual under his employ, to convincingly establish, through substantial
evidence, the existence of a valid and just cause in dispensing with the services
of such employee, ones labor being regarded as constitutionally protected
property.
On the other hand, it is recognized that regulation of manpower by the company
falls within the so-called management prerogatives, which prescriptions
encompass the matter of hiring, supervision of workers, work assignments,
working methods and assignments, as well as regulations on the transfer of
employees, lay-off of workers, and the discipline, dismissal, and recall of
employees.[19] As put in a case, an employer is free to regulate, according to his
discretion and best business judgment, all aspects of employment, from hiring to
firing, except in cases of unlawful discrimination or those which may be provided
by law.[20]
In the case at bar, petitioners policy of not accepting or considering as
disqualified from work any woman worker who contracts marriage runs afoul of
the test of, and the right against, discrimination, afforded all women workers by
our labor laws and by no less than the Constitution. Contrary to petitioners
assertion that it dismissed private respondent from employment on account of
her dishonesty, the record discloses clearly that her ties with the company were
dissolved principally because of the companys policy that married women are not
qualified for employment in PT&T, and not merely because of her supposed acts
of dishonesty.
That it was so can easily be seen from the memorandum sent to private
respondent by Delia M. Oficial, the branch supervisor of the company, with the
reminder, in the words of the latter, that youre fully aware that the company is
not accepting married women employee (sic), as it was verbally instructed to
you.[21] Again, in the termination notice sent to her by the same branch
supervisor, private respondent was made to understand that her severance from
the service was not only by reason of her concealment of her married status but,
over and on top of that, was her violation of the companys policy against
marriage (and even told you that married women employees are not applicable
[sic] or accepted in our company.)[22] Parenthetically, this seems to be the
curious reason why it was made to appear in the initiatory pleadings that
petitioner was represented in this case only by its said supervisor and not by its
highest ranking officers who would otherwise be solidarily liable with the
corporation.[23]
Verily, private respondents act of concealing the true nature of her status from
PT&T could not be properly characterized as willful or in bad faith as she was
moved to act the way she did mainly because she wanted to retain a permanent
job in a stable company. In other words, she was practically forced by that very
same illegal company policy into misrepresenting her civil status for fear of being
disqualified from work. While loss of confidence is a just cause for termination of
employment, it should not be simulated.[24] It must rest on an actual breach of
duty committed by the employee and not on the employers caprices.
[25]
 Furthermore, it should never be used as a subterfuge for causes which are
improper, illegal, or unjustified.[26]
In the present controversy, petitioners expostulations that it dismissed private
respondent, not because the latter got married but because she concealed that
fact, does have a hollow ring. Her concealment, so it is claimed, bespeaks
dishonesty hence the consequent loss of confidence in her which justified her
dismissal. Petitioner would asseverate, therefore, that while it has nothing
against marriage, it nonetheless takes umbrage over the concealment of that
fact. This improbable reasoning, with interstitial distinctions, perturbs the Court
since private respondent may well be minded to claim that the imputation of
dishonesty should be the other way around.
249
Petitioner would have the Court believe that although private respondent defied
its policy against its female employees contracting marriage, what could be an
act of insubordination was inconsequential. What it submits as unforgivable is
her concealment of that marriage yet, at the same time, declaring that marriage
as a trivial matter to which it supposedly has no objection. In other words, PT&T
says it gives its blessings to its female employees contracting marriage, despite
the maternity leaves and other benefits it would consequently respond for and
which obviously it would have wanted to avoid. If that employee confesses such
fact of marriage, there will be no sanction; but if such employee conceals the
same instead of proceeding to the confessional, she will be dismissed. This line
of reasoning does not impress us as reflecting its true management policy or that
we are being regaled with responsible advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of
propositions which confuse through less than candid arguments. Indeed,
petitioner glosses over the fact that it was its unlawful policy against married
women, both on the aspects of qualification and retention, which compelled
private respondent to conceal her supervenient marriage. It was, however, that
very policy alone which was the cause of private respondents secretive conduct
now complained of. It is then apropos to recall the familiar saying that he who is
the cause of the cause is the cause of the evil caused.
Finally, petitioners collateral insistence on the admission of private respondent
that she supposedly misappropriated company funds, as an additional ground to
dismiss her from employment, is somewhat insincere and self-
serving. Concededly, private respondent admitted in the course of the
proceedings that she failed to remit some of her collections, but that is an
altogether different story. The fact is that she was dismissed solely because of
her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds.That the labor arbiter would thus consider
petitioners submissions on this supposed dishonesty as a mere afterthought, just
to bolster its case for dismissal, is a perceptive conclusion born of experience in
labor cases. For, there was no showing that private respondent deliberately
misappropriated the amount or whether her failure to remit the same was
through negligence and, if so, whether the negligence was in nature simple or
grave. In fact, it was merely agreed that private respondent execute a
promissory note to refund the same, which she did, and the matter was deemed
settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of
her dismissal. When she was served her walking papers on January 29, 1992,
she was about to complete the probationary period of 150 days as she was
contracted as a probationary employee on September 2, 1991. That her
dismissal would be effected just when her probationary period was winding down
clearly raises the plausible conclusion that it was done in order to prevent her
from earning security of tenure.[27] On the other hand, her earlier stints with the
company as reliever were undoubtedly those of a regular employee, even if the
same were for fixed periods, as she performed activities which were essential or
necessary in the usual trade and business of PT&T.[28] The primary standard of
determining regular employment is the reasonable connection between the
activity performed by the employee in relation to the business or trade of the
employer.[29]
As an employee who had therefore gained regular status, and as she had been
dismissed without just cause, she is entitled to reinstatement without loss of
seniority rights and other privileges and to full back wages, inclusive of
allowances and other benefits or their monetary equivalent. [30] However, as she
had undeniably committed an act of dishonesty in concealing her status, albeit
under the compulsion of an unlawful imposition of petitioner, the three-month
suspension imposed by respondent NLRC must be upheld to obviate the
impression or inference that such act should be condoned. It would be unfair to
the employer if she were to return to its fold without any sanction whatsoever
for her act which was not totally justified.Thus, her entitlement to back wages,
which shall be computed from the time her compensation was withheld up to the
time of her actual reinstatement, shall be reduced by deducting therefrom the
amount corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of
that adopted by petitioner PT&T. The Labor Code states, in no uncertain terms,
as follows:
ART. 136. Stipulation against marriage. - It shall be unlawful for an employer to
require as a condition of employment or continuation of employment that a
woman shall not get married, or to stipulate expressly or tacitly that upon getting
married, a woman employee shall be deemed resigned or separated, or to
actually dismiss, discharge, discriminate or otherwise prejudice a woman
employee merely by reason of marriage.
This provision had a studied history for its origin can be traced to Section 8 of
Presidential Decree No. 148,[31] better known as the Women and Child Labor
Law, which amended paragraph (c), Section 12 of Republic Act No. 679,
[32]
 entitled An Act to Regulate the Employment of Women and Children, to
Provide Penalties for Violations Thereof, and for Other Purposes. The forerunner
to Republic Act No. 679, on the other hand, was Act No. 3071 which became law
on March 16, 1923 and which regulated the employment of women and children
in shops, factories, industrial, agricultural, and mercantile establishments and
other places of labor in the then Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization
in Zialcita, et al. vs. Philippine Air Lines,[33] a decision that emanated from the
Office of the President. There, a policy of Philippine Air Lines requiring that
prospective flight attendants must be single and that they will be automatically
250
separated from the service once they marry was declared void, it being violative
of the clear mandate in Article 136 of the Labor Code with regard to
discrimination against married women. Thus:
Of first impression is the incompatibility of the respondents policy or regulation
with the codal provision of law. Respondent is resolute in its contention that
Article 136 of the Labor Code applies only to women employed in ordinary
occupations and that the prohibition against marriage of women engaged in
extraordinary occupations, like flight attendants, is fair and reasonable,
considering the pecularities of their chosen profession.
We cannot subscribe to the line of reasoning pursued by respondent. All along, it
knew that the controverted policy has already met its doom as early as March
13, 1973 when Presidential Decree No. 148, otherwise known as the Women and
Child Labor Law, was promulgated. But for the timidity of those affected or their
labor unions in challenging the validity of the policy, the same was able to obtain
a momentary reprieve. A close look at Section 8 of said decree, which amended
paragraph (c) of Section 12 of Republic Act No. 679, reveals that it is exactly the
same provision reproduced verbatim in Article 136 of the Labor Code, which was
promulgated on May 1, 1974 to take effect six (6) months later, or on November
1, 1974.
It cannot be gainsaid that, with the reiteration of the same provision in the new
Labor Code, all policies and acts against it are deemed illegal and therefore
abrogated. True, Article 132 enjoins the Secretary of Labor to establish standards
that will ensure the safety and health of women employees and in appropriate
cases shall by regulation require employers to determine appropriate minimum
standards for termination in special occupations, such as those of flight
attendants, but that is precisely the factor that militates against the policy of
respondent. The standards have not yet been established as set forth in the first
paragraph, nor has the Secretary of Labor issued any regulation affecting flight
attendants.
It is logical to presume that, in the absence of said standards or regulations
which are as yet to be established, the policy of respondent against marriage is
patently illegal. This finds support in Section 9 of the New Constitution, which
provides:
Sec. 9. The State shall afford protection to labor, promote full employment and
equality in employment, ensure equal work opportunities regardless of sex, race,
or creed, and regulate the relations between workers and employees. The State
shall assure the rights of workers to self-organization, collective bargaining,
security of tenure, and just and humane conditions of work x x x.
Moreover, we cannot agree to the respondents proposition that termination from
employment of flight attendants on account of marriage is a fair and reasonable
standard designed for their own health, safety, protection and welfare, as no
basis has been laid therefor. Actually, respondent claims that its concern is not
so much against the continued employment of the flight attendant merely by
reason of marriage as observed by the Secretary of Labor, but rather on the
consequence of marriage-pregnancy. Respondent discussed at length in the
instant appeal the supposed ill effects of pregnancy on flight attendants in the
course of their employment. We feel that this needs no further discussion as it
had been adequately explained by the Secretary of Labor in his decision of May
2, 1976.
In a vain attempt to give meaning to its position, respondent went as far as
invoking the provisions of Articles 52 and 216 of the New Civil Code on the
preservation of marriage as an inviolable social institution and the family as a
basic social institution, respectively, as bases for its policy of non-marriage. In
both instances, respondent predicates absence of a flight attendant from her
home for long periods of time as contributory to an unhappy married life. This is
pure conjecture not based on actual conditions, considering that, in this modern
world, sophisticated technology has narrowed the distance from one place to
another. Moreover, respondent overlooked the fact that married flight attendants
can program their lives to adapt to prevailing circumstances and events.
Article 136 is not intended to apply only to women employed in ordinary
occupations, or it should have categorically expressed so. The sweeping
intendment of the law, be it on special or ordinary occupations, is reflected in the
whole text and supported by Article 135 that speaks of non-discrimination on the
employment of women.
The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining
& Industrial Corporation[34]  considered as void a policy of the same nature. In
said case, respondent, in dismissing from the service the complainant, invoked a
policy of the firm to consider female employees in the project it was undertaking
as separated the moment they get married due to lack of facilities for married
women. Respondent further claimed that complainant was employed in the
project with an oral understanding that her services would be terminated when
she gets married. Branding the policy of the employer as an example of
discriminatory chauvinism tantamount to denying equal employment
opportunities to women simply on account of their sex, the appellate court struck
down said employer policy as unlawful in view of its repugnance to the Civil
Code, Presidential Decree No. 148 and the Constitution.
Under American jurisprudence, job requirements which establish employer
preference or conditions relating to the marital status of an employee are
categorized as a sex-plus discrimination where it is imposed on one sex and not
on the other. Further, the same should be evenly applied and must not inflict
adverse effects on a racial or sexual group which is protected by federal job
discrimination laws. Employment rules that forbid or restrict the employment of
married women, but do not apply to married men, have been held to violate Title
251
VII of the United States Civil Rights Act of 1964, the main federal statute SO ORDERED.
prohibiting job discrimination against employees and applicants on the basis of,
among other things, sex.[35] Romero, Puno, Mendoza, and Torres, Jr., JJ.,  concur.

Further, it is not relevant that the rule is not directed against all women but just
against married women. And, where the employer discriminates against married
women, but not against married men, the variable is sex and the discrimination
is unlawful.[36] Upon the other hand, a requirement that a woman employee must
remain unmarried could be justified as a bona fide occupational qualification, or
BFOQ, where the particular requirements of the job would justify the same, but
not on the ground of a general principle, such as the desirability of spreading
work in the workplace. A requirement of that nature would be valid provided it
reflects an inherent quality reasonably necessary for satisfactory job
performance. Thus, in one case, a no-marriage rule applicable to both male and
female flight attendants, was regarded as unlawful since the restriction was not
related to the job performance of the flight attendants. [37]

5. Petitioners policy is not only in derogation of the provisions of Article 136 of

the Labor Code on the right of a woman to be free from any kind of stipulation
against marriage in connection with her employment, but it likewise assaults
good morals and public policy, tending as it does to deprive a woman of the
freedom to choose her status, a privilege that by all accounts inheres in the
individual as an intangible and inalienable right. [38] Hence, while it is true that the
parties to a contract may establish any agreements, terms, and conditions that
they may deem convenient, the same should not be contrary to law, morals, Republic of the Philippines
good customs, public order, or public policy.[39] Carried to its logical SUPREME COURT
consequences, it may even be said that petitioners policy against legitimate Manila
marital bonds would encourage illicit or common-law relations and subvert the EN BANC
sacrament of marriage.

Parenthetically, the Civil Code provisions on the contract of labor state that the METROPOLITAN MANILA G.R. Nos. 171947-48
relations between the parties, that is, of capital and labor, are not merely
contractual, impressed as they are with so much public interest that the same DEVELOPMENT AUTHORITY,
should yield to the common good.[40] It goes on to intone that neither capital nor
DEPARTMENT OF ENVIRONMENT
labor should visit acts of oppression against the other, nor impair the interest or
convenience of the public.[41] In the final reckoning, the danger of just such a AND NATURAL RESOURCES, Present:
policy against marriage followed by petitioner PT&T is that it strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and, DEPARTMENT OF EDUCATION,
ultimately, of the family as the foundation of the nation. [42] That it must be
CULTURE AND SPORTS,[1] PUNO, C.J.,
effectively interdicted here in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land is not only in order but DEPARTMENT OF HEALTH, QUISUMBING,
imperatively required.
DEPARTMENT OF AGRICULTURE, YNARES-SANTIAGO,
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and
Telephone Company is hereby DISMISSED for lack of merit, with double costs DEPARTMENT OF PUBLIC CARPIO,
against petitioner.
252
WORKS AND HIGHWAYS, AUSTRIA-MARTINEZ, Remedial Law; Mandamus; Generally, the writ of mandamus lies to
require the execution of a ministerial duty; Mandamus is available to compel
DEPARTMENT OF BUDGET AND CORONA, action, when refused, on matters involving discretion, but not to direct the
exercise of judgment or discretion one way or the other.—The writ of mandamus
MANAGEMENT, PHILIPPINE CARPIO MORALES, lies to require the execution of a ministerial duty. A ministerial duty is one that
COAST GUARD, PHILIPPINE AZCUNA, “requires neither the exercise of official discretion nor judgment.” It connotes an
act in which nothing is left to the discretion of the person executing it. It is a
NATIONAL POLICE MARITIME TINGA, “simple, definite duty arising under conditions admitted or proved to exist and
imposed by law.” Mandamus is available to compel action, when refused, on
GROUP, and DEPARTMENT OF CHICO-NAZARIO, matters involving discretion, but not to direct the exercise of judgment or
discretion one way or the other.
THE INTERIOR AND LOCAL VELASCO, JR., Same; Same; Environmental Law; The Metropolitan Manila Development
Authority’s (MMDA’s) duty to put up an adequate and appropriate sanitary
GOVERNMENT, NACHURA,
landfill and solid waste and liquid disposal as well as other alternative garbage
Petitioners, REYES, disposal system is ministerial, its duty being a statutory imposition. —We wish to
state that petitioners’ obligation to perform their duties as defined by law, on one
LEONARDO-DE CASTRO, and hand, and how they are to carry out such duties, on the other, are two different
concepts. While the implementation of the MMDA’s mandated tasks may entail a
- versus - BRION, JJ. decision-making process, the enforcement of the law or the very act of doing
what the law exacts to be done is ministerial in nature and may be compelled by
CONCERNED RESIDENTS OF mandamus. We said so in Social Justice Society v. Atienza , 517 SCRA 657
(2007), in which the Court directed the City of Manila to enforce, as a matter of
MANILA BAY, represented and
ministerial duty, its Ordinance No. 8027 directing the three big local oil players to
joined by DIVINA V. ILAS, cease and desist from operating their business in the so-called “Pandacan
Terminals” within six months from the effectivity of the ordinance. But to
SABINIANO ALBARRACIN, illustrate with respect to the instant case, the MMDA’s duty to put up an
adequate and appropriate sanitary landfill and solid waste and liquid disposal as
MANUEL SANTOS, JR., DINAH well as other alternative garbage disposal systems is ministerial, its duty being a
statutory imposition. The MMDA’s duty in this regard is spelled out in Sec. 3(c) of
DELA PEA, PAUL DENNIS Republic Act No. (RA) 7924 creating the MMDA.
Same; Same; Same; The duty of putting up a proper waste disposal system
QUINTERO, MA. VICTORIA
cannot be characterized as discretionary, for, as earlier stated, discretion
LLENOS, DONNA CALOZA, presupposes the power or right given by law to public functionaries to act
officially according to their judgment or conscience. —The MMDA’s duty in the
FATIMA QUITAIN, VENICE area of solid waste disposal, as may be noted, is set forth not only in the
Environment Code (PD 1152) and RA 9003, but in its charter as well. This duty of
SEGARRA, FRITZIE TANGKIA, putting up a proper waste disposal system cannot be characterized as
discretionary, for, as earlier stated, discretion presupposes the power or right
SARAH JOELLE LINTAG, given by law to public functionaries to act officially according to their judgment
or conscience. A discretionary duty is one that “allows a person to exercise
HANNIBAL AUGUSTUS BOBIS,
judgment and choose to perform or not to perform.” Any suggestion that the
FELIMON SANTIAGUEL, and Promulgated: MMDA has the option whether or not to perform its solid waste disposal-related
duties ought to be dismissed for want of legal basis.
JAIME AGUSTIN R. OPOSA, Same; Same; Same; These government agencies are enjoined, as a
matter of statutory obligation, to perform certain functions relating directly or
Respondents. December 18, 2008 indirectly to the cleanup, rehabilitation, protection and preservation of the Manila
Bay.—A perusal of other petitioners’ respective charters or like enabling statutes
x-----------------------------------------------------------------------------------------x
253
and pertinent laws would yield this conclusion: these government agencies are
enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to perform
these duties.
Same; Same; Same; Section 17 of PD 1152 does not in any way state
that the government agencies concerned ought to confine themselves to the
containment, removal, and cleaning operations when a specific pollution incident
occurs.—Respondents are correct. For one thing, said Sec. 17 does not in any
way state that the government agencies concerned ought to confine themselves
to the containment, removal, and cleaning operations when a specific pollution
incident occurs. On the contrary, Sec. 17 requires them to act even in the
absence of a specific pollution incident, as long as water quality “has
deteriorated to a degree where its state will adversely affect its best usage.” This
section, to stress, commands concerned government agencies, when
appropriate, “to take such measures as may be necessary to meet the prescribed
water quality standards.” In fine, the underlying duty to upgrade the quality of
water is not conditional on the occurrence of any pollution incident.
Same; Same; Same; The complementary Sec. 17 of the Environment Code
comes into play and the specific duties of the agencies to clean up come in even
if there are no pollution incidents staring at them. —A perusal of Sec. 20 of the
Environment Code, as couched, indicates that it is properly applicable to a
specific situation in which the pollution is caused by polluters who fail to clean up
the mess they left behind. In such instance, the concerned government agencies
shall undertake the cleanup work for the polluters’ account. Petitioners’
assertion, that they have to perform cleanup operations in the Manila Bay only
when there is a water pollution incident and the erring polluters do not
undertake the containment, removal, and cleanup operations, is quite off mark.
As earlier discussed, the complementary Sec. 17 of the Environment Code comes
into play and the specific duties of the agencies to clean up come in even if there
are no pollution incidents staring at them. Petitioners, thus, cannot plausibly
invoke and hide behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the pretext
that their cleanup mandate depends on the happening of a specific pollution
incident.
Same; Same; Same; Sec. 16 of RA 9275, previously Sec. 20 of PD 1152,
covers for all intents and purposes a general cleanup situation.—Not to be
ignored of course is the reality that the government agencies concerned are so
undermanned that it would be almost impossible to apprehend the numerous
polluters of the Manila Bay. It may perhaps not be amiss to say that the
apprehension, if any, of the Manila Bay polluters has been few and far between.
Hence, practically nobody has been required to contain, remove, or clean up a
given water pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA
9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
Same; Same; Same; Different government agencies and instrumentalities
cannot shirk from their mandates, they must perform their basic functions in
cleaning up and rehabilitating the Manila Bay. —The era of delays,
procrastination, and ad hoc measures is over. Petitioners must transcend their
limitations, real or imaginary, and buckle down to work before the problem at
hand becomes unmanageable. Thus, we must reiterate that different
government agencies and instrumentalities cannot shirk from their mandates;
they must perform their basic functions in cleaning up and rehabilitating the
Manila Bay. We are disturbed by petitioners’ hiding behind two untenable claims:
(1) that there ought to be a specific pollution incident before they are required to
act; and (2) that the cleanup of the bay is a discretionary duty.
Environmental Law; Even assuming the absence of a categorical legal
provision specifically prodding petitioners to clean up the bay, they and the men
and women representing them cannot escape their obligation to future
generations of Filipinos to keep the waters of the Manila Bay clean and clear as
humanly as possible.—So it was that in Oposa v. Factoran, Jr., 224 SCRA 792
(1993), the Court stated that the right to a balanced and healthful ecology need
not even be written in the Constitution for it is assumed, like other civil and
political rights guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with intergenerational
implications. Even assuming the absence of a categorical legal provision
specifically prodding petitioners to clean up the bay, they and the men and
women representing them cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear as humanly as
possible. Anything less would be a betrayal of the trust reposed in them.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of climate change, has
of late gained the attention of the international community. Media have finally
trained their sights on the ill effects of pollution, the destruction of forests and
other critical habitats, oil spills, and the unabated improper disposal of garbage.
And rightly so, for the magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by itself.[2] But amidst
hard evidence and clear signs of a climate crisis that need bold action, the voice
of cynicism, naysayers, and procrastinators can still be heard.
This case turns on government agencies and their officers who, by the nature of
their respective offices or by direct statutory command, are tasked to protect and
preserve, at the first instance, our internal waters, rivers, shores, and seas
polluted by human activities. To most of these agencies and their official
complement, the pollution menace does not seem to carry the high national
priority it deserves, if their track records are to be the norm. Their cavalier
attitude towards solving, if not mitigating, the environmental pollution problem,
is a sad commentary on bureaucratic efficiency and commitment.
254
At the core of the case is the Manila Bay, a place with a proud historic past, once
brimming with marine life and, for so many decades in the past, a spot for
different contact recreation activities, but now a dirty and slowly dying expanse
mainly because of the abject official indifference of people and institutions that
could have otherwise made a difference.
This case started when, on January 29, 1999, respondents Concerned Residents
of Manila Bay filed a complaint before the Regional Trial Court (RTC) in Imus,
Cavite against several government agencies, among them the petitioners, for the
cleanup, rehabilitation, and protection of the Manila Bay. Raffled to Branch 20
and docketed as Civil Case No. 1851-99 of the RTC, the complaint alleged that
the water quality of the Manila Bay had fallen way below the allowable standards
set by law, specifically Presidential Decree No. (PD) 1152 or the Philippine
Environment Code. This environmental aberration, the complaint stated,
stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing acts of omission or
commission [of the defendants] resulting in the clear and present danger to
public health and in the depletion and contamination of the marine life of Manila
Bay, [for which reason] ALL defendants must be held jointly and/or solidarily
liable and be collectively ordered to clean up Manila Bay and to restore its water
quality to class B waters fit for swimming, skin-diving, and other forms of contact
recreation.[3]
In their individual causes of action, respondents alleged that the continued
neglect of petitioners in abating the pollution of the Manila Bay constitutes a
violation of, among others:
(1)               Respondents constitutional right to life, health, and a balanced
ecology;
(2)               The Environment Code (PD 1152);
(3)               The Pollution Control Law (PD 984);
(4)               The Water Code (PD 1067);
(5)               The Sanitation Code (PD 856);
(6)               The Illegal Disposal of Wastes Decree (PD 825);
(7)               The Marine Pollution Law (PD 979);
(8)               Executive Order No. 192;
(9)               The Toxic and Hazardous Wastes Law (Republic Act No. 6969);
(10)           Civil Code provisions on nuisance and human relations;
(11)           The Trust Doctrine and the Principle of Guardianship; and
(12)           International Law
Inter alia, respondents, as plaintiffs a quo, prayed that petitioners be ordered to
clean the Manila Bay and submit to the RTC a concerted concrete plan of action
for the purpose.
 
The trial of the case started off with a hearing at the Manila Yacht Club followed
by an ocular inspection of the Manila Bay. Renato T. Cruz, the Chief of the Water
Quality Management Section, Environmental Management Bureau, Department
of Environment and Natural Resources (DENR), testifying for petitioners, stated
that water samples collected from different beaches around the Manila Bay
showed that the amount of fecal coliform content ranged from 50,000 to 80,000
most probable number (MPN)/ml when what DENR Administrative Order No. 34-
90 prescribed as a safe level for bathing and other forms of contact recreational
activities, or the SB level, is one not exceeding 200 MPN/100 ml.[4]
Rebecca de Vera, for Metropolitan Waterworks and Sewerage System (MWSS)
and in behalf of other petitioners, testified about the MWSS efforts to reduce
pollution along the Manila Bay through the Manila Second Sewerage Project. For
its part, the Philippine Ports Authority (PPA) presented, as part of its evidence, its
memorandum circulars on the study being conducted on ship-generated waste
treatment and disposal, and its Linis Dagat (Clean the Ocean) project for the
cleaning of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate Manila Bay
On September 13, 2002, the RTC rendered a Decision[5] in favor of respondents.
The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is hereby rendered
ordering the abovenamed defendant-government agencies, jointly and solidarily,
to clean up and rehabilitate Manila Bay and restore its waters to SB classification
to make it fit for swimming, skin-diving and other forms of contact recreation. To
attain this, defendant-agencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and perform their
respective duties by devising a consolidated, coordinated and concerted scheme
of action for the rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain adequate
[sewerage] treatment facilities in strategic places under its jurisdiction and
increase their capacities.
Defendant LWUA, to see to it that the water districts under its wings, provide,
construct and operate sewage facilities for the proper disposal of waste.
255
Defendant DENR, which is the lead agency in cleaning up Manila Bay, to install,
operate and maintain waste facilities to rid the bay of toxic and hazardous
substances.
Defendant PPA, to prevent and also to treat the discharge not only of ship-
generated wastes but also of other solid and liquid wastes from docking vessels
that contribute to the pollution of the bay.
Defendant MMDA, to establish, operate and maintain an adequate and
appropriate sanitary landfill and/or adequate solid waste and liquid disposal as
well as other alternative garbage disposal system such as re-use or recycling of
wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic Resources, to
revitalize the marine life in Manila Bay and restock its waters with indigenous fish
and other aquatic animals.
Defendant DBM, to provide and set aside an adequate budget solely for the
purpose of cleaning up and rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and other nuisances that
obstruct the free flow of waters to the bay. These nuisances discharge solid and
liquid wastes which eventually end up in Manila Bay. As the construction and
engineering arm of the government, DPWH is ordered to actively participate in
removing debris, such as carcass of sunken vessels, and other non-
biodegradable garbage in the bay.
Defendant DOH, to closely supervise and monitor the operations of septic and
sludge companies and require them to have proper facilities for the treatment
and disposal of fecal sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the people through
education the importance of preserving and protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime Group, to protect at all
costs the Manila Bay from all forms of illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.
The MWSS, Local Water Utilities Administration (LWUA), and PPA filed before the
Court of Appeals (CA) individual Notices of Appeal which were eventually
consolidated and docketed as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works and Highways
(DPWH), Metropolitan Manila Development Authority (MMDA), Philippine Coast
Guard (PCG), Philippine National Police (PNP) Maritime Group, and five other
executive departments and agencies filed directly with this Court a petition for
review under Rule 45. The Court, in a Resolution of December 9, 2002, sent the
said petition to the CA for consolidation with the consolidated appeals of MWSS,
LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main that the pertinent
provisions of the Environment Code (PD 1152) relate only to the cleaning of
specific pollution incidents and do not cover cleaning in general. And apart from
raising concerns about the lack of funds appropriated for cleaning purposes,
petitioners also asserted that the cleaning of the Manila Bay is not a ministerial
act which can be compelled by mandamus.
The CA Sustained the RTC
By a Decision[6] of September 28, 2005, the CA denied petitioners appeal and
affirmed the Decision of the RTC in toto, stressing that the trial courts decision
did not require petitioners to do tasks outside of their usual basic functions under
existing laws.[7]
Petitioners are now before this Court praying for the allowance of their Rule 45
petition on the following ground and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE PASSED
UPON BY THE HONORABLE COURT, I.E., IT AFFIRMED THE TRIAL COURTS
DECISION DECLARING THAT SECTION 20 OF [PD] 1152 REQUIRES CONCERNED
GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS SPILLED AND
DISCHARGED IN THE WATER SUCH AS FECAL COLIFORMS.
ARGUMENTS
I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE CLEANING OF
SPECIFIC POLLUTION INCIDENTS AND [DO] NOT COVER CLEANING IN
GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS NOT A
MINISTERIAL ACT OF PETITIONERS THAT CAN BE COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and 20 of PD 1152 under
the headings, Upgrading of Water Quality and Clean-up Operations, envisage a
cleanup in general or are they limited only to the cleanup of specific pollution
incidents? And second, can petitioners be compelled by mandamus to clean up
and rehabilitate the ManilaBay?
256
On August 12, 2008, the Court conducted and heard the parties on oral
arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of mandamus under the
premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution of a ministerial
duty.[8] A ministerial duty is one that requires neither the exercise of official
discretion nor judgment.[9] It connotes an act in which nothing is left to the
discretion of the person executing it. It is a simple, definite duty arising under
conditions admitted or proved to exist and imposed by law.[10] Mandamus is
available to compel action, when refused, on matters involving discretion, but
not to direct the exercise of judgment or discretion one way or the other.
Petitioners maintain that the MMDAs duty to take measures and maintain
adequate solid waste and liquid disposal systems necessarily involves policy
evaluation and the exercise of judgment on the part of the agency concerned.
They argue that the MMDA, in carrying out its mandate, has to make decisions,
including choosing where a landfill should be located by undertaking feasibility
studies and cost estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory command is clear
and that petitioners duty to comply with and act according to the clear mandate
of the law does not require the exercise of discretion. According to respondents,
petitioners, the MMDA in particular, are without discretion, for example, to
choose which bodies of water they are to clean up, or which discharge or spill
they are to contain. By the same token, respondents maintain that petitioners
are bereft of discretion on whether or not to alleviate the problem of solid and
liquid waste disposal; in other words, it is the MMDAs ministerial duty to attend
to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to perform their duties as
defined by law, on one hand, and how they are to carry out such duties, on the
other, are two different concepts. While the implementation of the MMDAs
mandated tasks may entail a decision-making process, the enforcement of the
law or the very act of doing what the law exacts to be done is ministerial in
nature and may be compelled by mandamus. We said so in Social Justice Society
v. Atienza[11]  in which the Court directed the City of Manila to enforce, as a
matter of ministerial duty, its Ordinance No. 8027 directing the three big local oil
players to cease and desist from operating their business in the so-called
Pandacan Terminals within six months from the effectivity of the ordinance. But
to illustrate with respect to the instant case, the MMDAs duty to put up an
adequate and appropriate sanitary landfill and solid waste and liquid disposal as
well as other alternative garbage disposal systems is ministerial, its duty being a
statutory imposition. The MMDAs duty in this regard is spelled out in Sec. 3(c) of
Republic Act No. (RA) 7924 creating the MMDA. This section defines and
delineates the scope of the MMDAs waste disposal services to include
Solid waste disposal and management which include formulation and
implementation of policies, standards, programs and projects for proper and
sanitary waste disposal.  It shall likewise include the establishment and
operation of sanitary land fill and related facilities and the implementation
of other alternative programs intended to reduce, reuse and recycle solid waste.
(Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the Ecological Solid Waste
Management Act (RA 9003) which prescribes the minimum criteria for the
establishment of sanitary landfills and Sec. 42 which provides the minimum
operating requirements that each site operator shall maintain in the operation of
a sanitary landfill. Complementing Sec. 41 are Secs. 36 and 37 of RA 9003,
[12]
 enjoining the MMDA and local government units, among others, after the
effectivity of the law on February 15, 2001, from using and operating open
dumps for solid waste and disallowing, five years after such effectivity, the use of
controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may be noted, is set
forth not only in the Environment Code (PD 1152) and RA 9003, but in its charter
as well. This duty of putting up a proper waste disposal system cannot be
characterized as discretionary, for, as earlier stated, discretion presupposes the
power or right given by law to public functionaries to act officially according to
their judgment or conscience.[13] A discretionary duty is one that allows a person
to exercise judgment and choose to perform or not to perform. [14] Any suggestion
that the MMDA has the option whether or not to perform its solid waste disposal-
related duties ought to be dismissed for want of legal basis.
A perusal of other petitioners respective charters or like enabling statutes and
pertinent laws would yield this conclusion: these government agencies are
enjoined, as a matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation, protection, and
preservation of the Manila Bay. They are precluded from choosing not to perform
these duties. Consider:
(1) The DENR, under Executive Order No. (EO) 192,[15] is the primary agency
responsible for the conservation, management, development, and proper use of
the countrys environment and natural resources. Sec. 19 of the Philippine Clean
257
Water Act of 2004 (RA 9275), on the other hand, designates the DENR as the
primary government agency responsible for its enforcement and implementation,
more particularly over all aspects of water quality management. On water
pollution, the DENR, under the Acts Sec. 19(k), exercises jurisdiction over all
aspects of water pollution, determine[s] its location, magnitude, extent, severity,
causes and effects and other pertinent information on pollution, and [takes]
measures, using available methods and technologies, to prevent and abate such
pollution.
The DENR, under RA 9275, is also tasked to prepare a National Water Quality
Status Report, an Integrated Water Quality Management Framework, and a 10-
year Water Quality Management Area Action Plan which is nationwide in scope
covering the Manila Bay and adjoining areas. Sec. 19 of RA 9275 provides:
Sec. 19 Lead Agency.The [DENR] shall be the primary government agency
responsible for the implementation and enforcement of this Act x x x unless
otherwise provided herein. As such, it shall have the following functions, powers
and responsibilities:
a)      Prepare a National Water Quality Status report within twenty-four (24)
months from the effectivity of this Act: Provided, That the Department shall
thereafter review or revise and publish annually, or as the need arises, said
report;
b)      Prepare an Integrated Water Quality Management Framework within
twelve (12) months following the completion of the status report;
c)      Prepare a ten (10) year Water Quality Management Area Action Plan within
12 months following the completion of the framework for each designated water
management area. Such action plan shall be reviewed by the water quality
management area governing board every five (5) years or as need arises.
The DENR has prepared the status report for the period 2001 to 2005 and is in
the process of completing the preparation of the Integrated Water Quality
Management Framework.[16] Within twelve (12) months thereafter, it has to
submit a final Water Quality Management Area Action Plan.[17] Again, like the
MMDA, the DENR should be made to accomplish the tasks assigned to it under
RA 9275.
Parenthetically, during the oral arguments, the DENR Secretary manifested that
the DENR, with the assistance of and in partnership with various government
agencies and non-government organizations, has completed, as of December
2005, the final draft of a comprehensive action plan with estimated budget and
time frame, denominated as Operation Plan for the Manila Bay Coastal
Strategy, for the rehabilitation, restoration, and rehabilitation of the Manila Bay.
The completion of the said action plan and even the implementation of some of
its phases should more than ever prod the concerned agencies to fast track what
are assigned them under existing laws.
(2) The MWSS, under Sec. 3 of RA 6234,[18] is vested with jurisdiction,
supervision, and control over all waterworks and sewerage systems in the
territory comprising what is now the cities of Metro Manila and several towns of
the provinces of Rizal and Cavite, and charged with the duty:
(g) To construct, maintain, and operate such sanitary sewerages as may be
necessary for the proper sanitation and other uses of the cities and towns
comprising the System; x x x
 
(3) The LWUA under PD 198 has the power of supervision and control over local
water districts. It can prescribe the minimum standards and regulations for the
operations of these districts and shall monitor and evaluate local water
standards. The LWUA can direct these districts to construct, operate, and furnish
facilities and services for the collection, treatment, and disposal of sewerage,
waste, and storm water. Additionally, under RA 9275, the LWUA, as attached
agency of the DPWH, is tasked with providing sewerage and sanitation facilities,
inclusive of the setting up of efficient and safe collection, treatment, and sewage
disposal system in the different parts of the country. [19] In relation to the instant
petition, the LWUA is mandated to provide sewerage and sanitation facilities in
Laguna, Cavite, Bulacan, Pampanga, and Bataan to prevent pollution in
the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the Administrative Code of
1987 (EO 292),[20] is designated as the agency tasked to promulgate and enforce
all laws and issuances respecting the conservation and proper utilization of
agricultural and fishery resources. Furthermore, the DA, under the Philippine
Fisheries Code of 1998 (RA 8550), is, in coordination with local government units
(LGUs) and other concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and aquatic resources in
Philippine waters are judiciously utilized and managed on a sustainable basis.
[21]
 Likewise under RA 9275, the DA is charged with coordinating with the PCG
and DENR for the enforcement of water quality standards in marine waters.
[22]
 More specifically, its Bureau of Fisheries and Aquatic Resources(BFAR) under
Sec. 22(c) of RA 9275 shall primarily be responsible for the prevention and
control of water pollution for the development, management, and conservation
of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of the national
government, is tasked under EO 292[23] to provide integrated planning, design,
and construction services for, among others, flood control and water resource
258
development systems in accordance with national development objectives and
approved government plans and specifications.
 In Metro Manila, however, the MMDA is authorized by Sec. 3(d), RA 7924 to
perform metro-wide services relating to flood control and sewerage management
which include the formulation and implementation of policies, standards,
programs and projects for an integrated flood control, drainage and sewerage
system.
On July 9, 2002, a Memorandum of Agreement was entered into between the
DPWH and MMDA, whereby MMDA was made the agency primarily responsible
for flood control in Metro Manila. For the rest of the country, DPWH shall remain
as the implementing agency for flood control services. The mandate of the
MMDA and DPWH on flood control and drainage services shall include the
removal of structures, constructions, and encroachments built along rivers,
waterways, and esteros (drainages) in violation of RA 7279, PD 1067, and other
pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the Revised Coast Guard
Law of 1974, and Sec. 6 of PD 979,[24] or the Marine Pollution Decree of 1976,
shall have the primary responsibility of enforcing laws, rules, and regulations
governing marine pollution within the territorial waters of the Philippines. It shall
promulgate its own rules and regulations in accordance with the national rules
and policies set by the National Pollution Control Commission upon consultation
with the latter for the effective implementation and enforcement of PD 979. It
shall, under Sec. 4 of the law, apprehend violators who:
a. discharge, dump x x x harmful substances from or out of any ship, vessel,
barge, or any other floating craft, or other man-made structures at sea, by any
method, means or manner, into or upon the territorial and inland navigable
waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or procure to be thrown,
discharged, or deposited either from or out of any ship, barge, or other floating
craft or vessel of any kind, or from the shore, wharf, manufacturing
establishment, or mill of any kind, any refuse matter of any kind or description
whatever other than that flowing from streets and sewers and passing therefrom
in a liquid state into tributary of any navigable water from which the same shall
float or be washed into such navigable water; and
 
c. deposit x x x material of any kind in any place on the bank of any navigable
water or on the bank of any tributary of any navigable water, where the same
shall be liable to be washed into such navigable water, either by ordinary or high
tides, or by storms or floods, or otherwise, whereby navigation shall or may be
impeded or obstructed or increase the level of pollution of such water.
(7) When RA 6975 or the Department of the Interior and Local Government
(DILG) Act of 1990 was signed into law on December 13, 1990, the PNP Maritime
Group was tasked to perform all police functions over the Philippine territorial
waters and rivers. Under Sec. 86, RA 6975, the police functions of the PCG shall
be taken over by the PNP when the latter acquires the capability to perform such
functions. Since the PNP Maritime Group has not yet attained the capability to
assume and perform the police functions of PCG over marine pollution, the PCG
and PNP Maritime Group shall coordinate with regard to the enforcement of laws,
rules, and regulations governing marine pollution within the territorial waters of
the Philippines. This was made clear in Sec. 124, RA 8550 or the Philippine
Fisheries Code of 1998, in which both the PCG and PNP Maritime Group were
authorized to enforce said law and other fishery laws, rules, and regulations. [25]
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated to establish,
develop, regulate, manage and operate a rationalized national port system in
support of trade and national development.[26] Moreover, Sec. 6-c of EO 513
states that the PPA has police authority within the ports administered by it as
may be necessary to carry out its powers and functions and attain its purposes
and objectives, without prejudice to the exercise of the functions of the Bureau
of Customs and other law enforcement bodies within the area. Such police
authority shall include the following:
xxx
b) To regulate the entry to, exit from, and movement within the port, of persons
and vehicles, as well as movement within the port of watercraft. [27]
Lastly, as a member of the International Marine Organization and a signatory to
the International Convention for the Prevention of Pollution from Ships, as
amended by MARPOL 73/78,[28] the Philippines, through the PPA, must ensure
the provision of adequate reception facilities at ports and terminals for the
reception of sewage from the ships docking in Philippine ports. Thus, the PPA is
tasked to adopt such measures as are necessary to prevent the discharge and
dumping of solid and liquid wastes and other ship-generated wastes into
the Manila Bay waters from vessels docked at ports and apprehend the violators.
When the vessels are not docked at ports but within Philippine territorial waters,
it is the PCG and PNP Maritime Group that have jurisdiction over said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up and maintain
adequate sanitary landfill and solid waste and liquid disposal system as well as
other alternative garbage disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of RA 9003, which would
necessary include its penal provisions, within its area of jurisdiction. [29]
Among the prohibited acts under Sec. 48, Chapter VI of RA 9003 that are
frequently violated are dumping of waste matters in public places, such as roads,
canals or esteros, open burning of solid waste, squatting in open dumps and
259
landfills, open dumping, burying of biodegradable or non- biodegradable
materials in flood-prone areas, establishment or operation of open dumps as
enjoined in RA 9003, and operation of waste management facilities without an
environmental compliance certificate.
Under Sec. 28 of the Urban Development and Housing Act of 1992 (RA 7279),
eviction or demolition may be allowed when persons or entities occupy danger
areas such asesteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads, parks and
playgrounds. The MMDA, as lead agency, in coordination with the DPWH, LGUs,
and concerned agencies, can dismantle and remove all structures, constructions,
and other encroachments built in breach of RA 7279 and other pertinent laws
along the rivers, waterways, and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga, Cavite, and Laguna that
discharge wastewater directly or eventually into the Manila Bay, the DILG shall
direct the concerned LGUs to implement the demolition and removal of such
structures, constructions, and other encroachments built in violation of RA 7279
and other applicable laws in coordination with the DPWH and concerned
agencies.
(10) The Department of Health (DOH), under Article 76 of PD 1067 (the Water
Code), is tasked to promulgate rules and regulations for the establishment of
waste disposal areas that affect the source of a water supply or a reservoir for
domestic or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned agencies, shall
formulate guidelines and standards for the collection, treatment, and disposal of
sewage and the establishment and operation of a centralized sewage treatment
system. In areas not considered as highly urbanized cities, septage or a mix
sewerage-septage management system shall be employed.
In accordance with Sec. 72[30] of PD 856, the Code of Sanitation of
the Philippines, and Sec. 5.1.1[31] of Chapter XVII of its implementing rules, the
DOH is also ordered to ensure the regulation and monitoring of the proper
disposal of wastes by private sludge companies through the strict enforcement of
the requirement to obtain an environmental sanitation clearance of sludge
collection treatment and disposal before these companies are issued their
environmental sanitation permit.
(11) The Department of Education (DepEd), under the Philippine Environment
Code (PD 1152), is mandated to integrate subjects on environmental education
in its school curricula at all levels.[32] Under Sec. 118 of RA 8550, the DepEd, in
collaboration with the DA, Commission on Higher Education, and Philippine
Information Agency, shall launch and pursue a nationwide educational campaign
to promote the development, management, conservation, and proper use of the
environment. Under the Ecological Solid Waste Management Act (RA 9003), on
the other hand, it is directed to strengthen the integration of environmental
concerns in school curricula at all levels, with an emphasis on waste
management principles.[33]
(12) The Department of Budget and Management (DBM) is tasked under Sec. 2,
Title XVII of the Administrative Code of 1987 to ensure the efficient and sound
utilization of government funds and revenues so as to effectively achieve the
countrys development objectives.[34]
One of the countrys development objectives is enshrined in RA 9275 or the
Philippine Clean Water Act of 2004. This law stresses that the State shall pursue
a policy of economic growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish, and marine waters.
It also provides that it is the policy of the government, among others, to
streamline processes and procedures in the prevention, control, and abatement
of pollution mechanisms for the protection of water resources; to promote
environmental strategies and use of appropriate economic instruments and of
control mechanisms for the protection of water resources; to formulate a holistic
national program of water quality management that recognizes that issues
related to this management cannot be separated from concerns about water
sources and ecological protection, water supply, public health, and quality of life;
and to provide a comprehensive management program for water pollution
focusing on pollution prevention.
Thus, the DBM shall then endeavor to provide an adequate budget to attain the
noble objectives of RA 9275 in line with the countrys development objectives.
All told, the aforementioned enabling laws and issuances are in themselves clear,
categorical, and complete as to what are the obligations and mandate of each
agency/petitioner under the law. We need not belabor the issue that their tasks
include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the Environment Code
encompass the cleanup of water pollution in general, not just specific pollution
incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of water has
deteriorated to a degree where its state will adversely affect its best usage, the
government agencies concerned shall take such measures as may be necessary
to upgrade the quality of such water to meet the prescribed water quality
standards.
260
Section 20. Clean-up Operations.It shall be the responsibility of the polluter to
contain, remove and clean-up water pollution incidents at his own expense. In
case of his failure to do so, the government agencies concerned shall undertake
containment, removal and clean-up operations and expenses incurred in said
operations shall be charged against the persons and/or entities responsible for
such pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16 on the
subject, Cleanup Operations, amended the counterpart provision (Sec. 20) of the
Environment Code (PD 1152). Sec. 17 of PD 1152 continues, however, to be
operational.
The amendatory Sec. 16 of RA 9275 reads:
SEC. 16. Cleanup Operations.Notwithstanding the provisions of Sections 15 and
26 hereof, any person who causes pollution in or pollutes water bodies in excess
of the applicable and prevailing standards shall be responsible to contain,
remove and clean up any pollution incident at his own expense to the extent that
the same water bodies have been rendered unfit for utilization and beneficial
use: Provided, That in the event emergency cleanup operations are necessary
and the polluter fails to immediately undertake the same, the [DENR] in
coordination with other government agencies concerned, shall undertake
containment, removal and cleanup operations. Expenses incurred in said
operations shall be reimbursed by the persons found to have caused such
pollution under proper administrative determination x x x. Reimbursements of
the cost incurred shall be made to the Water Quality Management Fund or to
such other funds where said disbursements were sourced.
As may be noted, the amendment to Sec. 20 of the Environment Code is more
apparent than real since the amendment, insofar as it is relevant to this case,
merely consists in the designation of the DENR as lead agency in the cleanup
operations.
Petitioners contend at every turn that Secs. 17 and 20 of the Environment Code
concern themselves only with the matter of cleaning up in specific pollution
incidents, as opposed to cleanup in general. They aver that the twin provisions
would have to be read alongside the succeeding Sec. 62(g) and (h), which
defines the terms cleanup operations and accidental spills, as follows:
g. Clean-up Operations [refer] to activities conducted in removing the pollutants
discharged or spilled in water to restore it to pre-spill condition.
h.                   Accidental Spills [refer] to spills of oil or other hazardous
substances in water that result from accidents such as collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD 1152 merely direct
the government agencies concerned to undertake containment, removal, and
cleaning operations of a specific polluted portion or portions of the body of water
concerned. They maintain that the application of said Sec. 20 is limited only to
water pollution incidents, which are situations that presuppose the occurrence of
specific, isolated pollution events requiring the corresponding containment,
removal, and cleaning operations. Pushing the point further, they argue that the
aforequoted Sec. 62(g) requires cleanup operations to restore the body of water
to pre-spill condition, which means that there must have been a specific incident
of either intentional or accidental spillage of oil or other hazardous substances,
as mentioned in Sec. 62(h).
As a counterpoint, respondents argue that petitioners erroneously read Sec.
62(g) as delimiting the application of Sec. 20 to the containment, removal, and
cleanup operations for accidental spills only. Contrary to petitioners posture,
respondents assert that Sec. 62(g), in fact, even expanded the coverage of Sec.
20. Respondents explain that without its Sec. 62(g), PD 1152 may have indeed
covered only pollution accumulating from the day-to-day operations of
businesses around the Manila Bay and other sources of pollution that slowly
accumulated in the bay. Respondents, however, emphasize that Sec. 62(g), far
from being a delimiting provision, in fact even enlarged the operational scope of
Sec. 20, by including accidental spills as among the water pollution incidents
contemplated in Sec. 17 in relation to Sec. 20 of PD 1152.
To respondents, petitioners parochial view on environmental issues, coupled with
their narrow reading of their respective mandated roles, has contributed to the
worsening water quality of the Manila Bay. Assuming, respondents assert, that
petitioners are correct in saying that the cleanup coverage of Sec. 20 of PD 1152
is constricted by the definition of the phrase cleanup operations embodied in
Sec. 62(g), Sec. 17 is not hobbled by such limiting definition. As pointed out, the
phrases cleanup operations and accidental spills do not appear in said Sec. 17,
not even in the chapter where said section is found.
Respondents are correct. For one thing, said Sec. 17 does not in any way state
that the government agencies concerned ought to confine themselves to the
containment, removal, and cleaning operations when a specific pollution incident
occurs. On the contrary, Sec. 17 requires them to act even in the absence of a
specific pollution incident, as long as water quality has deteriorated to a degree
where its state will adversely affect its best usage. This section, to stress,
commands concerned government agencies, when appropriate, to take such
measures as may be necessary to meet the prescribed water quality standards.
In fine, the underlying duty to upgrade the quality of water is not conditional on
the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as couched, indicates
that it is properly applicable to a specific situation in which the pollution is
caused by polluters who fail to clean up the mess they left behind. In such
instance, the concerned government agencies shall undertake the cleanup work
261
for the polluters account. Petitioners assertion, that they have to perform
cleanup operations in the Manila Bay only when there is a water pollution
incident and the erring polluters do not undertake the containment, removal, and
cleanup operations, is quite off mark. As earlier discussed, the complementary
Sec. 17 of the Environment Code comes into play and the specific duties of the
agencies to clean up come in even if there are no pollution incidents staring at
them. Petitioners, thus, cannot plausibly invoke and hide behind Sec. 20 of PD
1152 or Sec. 16 of RA 9275 on the pretext that their cleanup mandate depends
on the happening of a specific pollution incident. In this regard, what the CA said
with respect to the impasse over Secs. 17 and 20 of PD 1152 is at once valid as
it is practical. The appellate court wrote: PD 1152 aims to introduce a
comprehensive program of environmental protection and management. This is
better served by making Secs. 17 & 20 of general application rather than limiting
them to specific pollution incidents.[35]
Granting arguendo that petitioners position thus described vis--vis the
implementation of Sec. 20 is correct, they seem to have overlooked the fact that
the pollution of the Manila Bay is of such magnitude and scope that it is well-nigh
impossible to draw the line between a specific and a general pollution incident.
And such impossibility extends to pinpointing with reasonable certainty who the
polluters are. We note that Sec. 20 of PD 1152 mentions water pollution
incidents which may be caused by polluters in the waters of the Manila Bay itself
or by polluters in adjoining lands and in water bodies or waterways that empty
into the bay. Sec. 16 of RA 9275, on the other hand, specifically adverts to any
person who causes pollution in or pollutes water bodies, which may refer to an
individual or an establishment that pollutes the land mass near the Manila Bay or
the waterways, such that the contaminants eventually end up in the bay. In this
situation, the water pollution incidents are so numerous and involve nameless
and faceless polluters that they can validly be categorized as beyond the specific
pollution incident level.
Not to be ignored of course is the reality that the government agencies
concerned are so undermanned that it would be almost impossible to apprehend
the numerous polluters of the Manila Bay. It may perhaps not be amiss to say
that the apprehension, if any, of the Manila Bay polluters has been few and far
between. Hence, practically nobody has been required to contain, remove, or
clean up a given water pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations. Thus, Sec. 16 of RA
9275, previously Sec. 20 of PD 1152, covers for all intents and purposes a
general cleanup situation.
The cleanup and/or restoration of the Manila Bay is only an aspect and the initial
stage of the long-term solution. The preservation of the water quality of the bay
after the rehabilitation process is as important as the cleaning phase. It is
imperative then that the wastes and contaminants found in the rivers, inland
bays, and other bodies of water be stopped from reaching
the Manila Bay. Otherwise, any cleanup effort would just be a futile, cosmetic
exercise, for, in no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD 1152, RA 9275, and
other relevant laws. It thus behooves the Court to put the heads of the
petitioner-department-agencies and the bureaus and offices under them on
continuing notice about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the quality of its water
to the ideal level. Under what other judicial discipline describes as continuing
mandamus,[36] the Court may, under extraordinary circumstances, issue directives
with the end in view of ensuring that its decision would not be set to naught by
administrative inaction or indifference. In India, the doctrine of continuing
mandamus was used to enforce directives of the court to clean up the length of
the Ganges River from industrial and municipal pollution.[37]
The Court can take judicial notice of the presence of shanties and other
unauthorized structures which do not have septic tanks along the Pasig-Marikina-
San Juan Rivers, the National Capital Region (NCR) (Paraaque-Zapote, Las Pias)
Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycuayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and connecting waterways, river banks,
and esteros which discharge their waters, with all the accompanying filth, dirt,
and garbage, into the major rivers and eventually the Manila Bay. If there is one
factor responsible for the pollution of the major river systems and
the Manila Bay, these unauthorized structures would be on top of the list. And if
the issue of illegal or unauthorized structures is not seriously addressed with
sustained resolve, then practically all efforts to cleanse these important bodies of
water would be for naught. The DENR Secretary said as much.[38]
Giving urgent dimension to the necessity of removing these illegal structures is
Art. 51 of PD 1067 or the Water Code,[39] which prohibits the building of
structures within a given length along banks of rivers and other waterways. Art.
51 reads:
The banks of rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three (3)
meters in urban areas, twenty (20) meters in agricultural areas and forty (40)
meters in forest areas, along their margins, are subject to the easement of
public use in the interest of recreation, navigation, floatage, fishing
and salvage.No person shall be allowed to stay in this zone longer than
what is necessary for recreation, navigation, floatage, fishing or salvage or to
build structures of any kind. (Emphasis added.)
Judicial notice may likewise be taken of factories and other industrial
establishments standing along or near the banks of the Pasig River, other major
rivers, and connecting waterways. But while they may not be treated as
unauthorized constructions, some of these establishments undoubtedly
262
contribute to the pollution of the Pasig River and waterways. The DILG and the
concerned LGUs, have, accordingly, the duty to see to it that non-complying
industrial establishments set up, within a reasonable period, the necessary waste
water treatment facilities and infrastructure to prevent their industrial discharge,
including their sewage waters, from flowing into the Pasig River, other major
rivers, and connecting waterways. After such period, non-complying
establishments shall be shut down or asked to transfer their operations.
At this juncture, and if only to dramatize the urgency of the need for petitioners-
agencies to comply with their statutory tasks, we cite the Asian Development
Bank-commissioned study on the garbage problem in Metro Manila, the results of
which are embodied in the The Garbage Book. As there reported, the garbage
crisis in the metropolitan area is as alarming as it is shocking. Some highlights of
the report:
1. As early as 2003, three land-filled dumpsites in Metro Manila - the Payatas,
Catmon and Rodriquez dumpsites - generate an alarming quantity of lead and
leachate or liquid run-off. Leachate are toxic liquids that flow along the surface
and seep into the earth and poison the surface and groundwater that are used
for drinking, aquatic life, and the environment.
2. The high level of fecal coliform confirms the presence of a large amount of
human waste in the dump sites and surrounding areas, which is presumably
generated by households that lack alternatives to sanitation. To say
that Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous contaminants and
possibly strains of pathogens seeps untreated into ground water and runs into
the Marikina and Pasig Riversystems and Manila Bay.[40]
Given the above perspective, sufficient sanitary landfills should now more than
ever be established as prescribed by the Ecological Solid Waste Management Act
(RA 9003). Particular note should be taken of the blatant violations by some
LGUs and possibly the MMDA of Sec. 37, reproduced below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid Waste .No open
dumps shall be established and operated, nor any practice or disposal of solid
waste by any person, including LGUs which [constitute] the use of open dumps
for solid waste, be allowed after the effectivity of this Act: Provided, further
that no controlled dumps shall be allowed (5) years following the
effectivity of this Act. (Emphasis added.)
RA 9003 took effect on February 15, 2001 and the adverted grace period of five
(5) years which ended on February 21, 2006 has come and gone, but no single
sanitary landfill which strictly complies with the prescribed standards under RA
9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec. 48 of RA 9003,
like littering, dumping of waste matters in roads, canals, esteros,  and other
public places, operation of open dumps, open burning of solid waste, and the
like. Some sludge companies which do not have proper disposal facilities simply
discharge sludge into the Metro Manila sewerage system that ends up in
the Manila Bay. Equally unabated are violations of Sec. 27 of RA 9275, which
enjoins the pollution of water bodies, groundwater pollution, disposal of
infectious wastes from vessels, and unauthorized transport or dumping into sea
waters of sewage or solid waste and of Secs. 4 and 102 of RA 8550 which
proscribes the introduction by human or machine of substances to the aquatic
environment including dumping/disposal of waste and other marine litters,
discharge of petroleum or residual products of petroleum of carbonaceous
materials/substances [and other] radioactive, noxious or harmful liquid, gaseous
or solid substances, from any water, land or air transport or other human-made
structure.
In the light of the ongoing environmental degradation, the Court wishes to
emphasize the extreme necessity for all concerned executive departments and
agencies to immediately act and discharge their respective official duties and
obligations. Indeed, time is of the essence; hence, there is a need to set
timetables for the performance and completion of the tasks, some of them as
defined for them by law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource, playground, and as a
historical landmark cannot be over-emphasized. It is not yet too late in the day
to restore the Manila Bay to its former splendor and bring back the plants and
sea life that once thrived in its blue waters. But the tasks ahead, daunting as
they may be, could only be accomplished if those mandated, with the help and
cooperation of all civic-minded individuals, would put their minds to these tasks
and take responsibility. This means that the State, through petitioners, has to
take the lead in the preservation and protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is over. Petitioners must
transcend their limitations, real or imaginary, and buckle down to work before
the problem at hand becomes unmanageable. Thus, we must reiterate that
different government agencies and instrumentalities cannot shirk from their
mandates; they must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. We are disturbed by petitioners hiding behind two
untenable claims: (1) that there ought to be a specific pollution incident before
they are required to act; and (2) that the cleanup of the bay is a discretionary
duty.
RA 9003 is a sweeping piece of legislation enacted to radically transform and
improve waste management. It implements Sec. 16, Art. II of the 1987
Constitution, which explicitly provides that the State shall protect and advance
263
the right of the people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a
balanced and healthful ecology need not even be written in the Constitution for it
is assumed, like other civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental
importance with intergenerational implications.[41] Even assuming the absence of
a categorical legal provision specifically prodding petitioners to clean up the bay,
they and the men and women representing them cannot escape their obligation
to future generations of Filipinos to keep the waters of the Manila Bay clean and
clear as humanly as possible. Anything less would be a betrayal of the trust
reposed in them.
WHEREFORE, the petition is DENIED. The September 28, 2005 Decision of the
CA in CA-G.R. CV No. 76528 and SP No. 74944 and the September 13, 2002
Decision of the RTC in Civil Case No. 1851-99 are AFFIRMED but
with MODIFICATIONS in view of subsequent developments or supervening
events in the case. The fallo of the RTC Decision shall now read:
WHEREFORE, judgment is hereby rendered ordering the abovenamed defendant-
government agencies to clean up, rehabilitate, and preserve Manila Bay, and
restore and maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No. 34 [1990]) to make
them fit for swimming, skin-diving, and other forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the primary agency
responsible for the conservation, management, development, and proper use of
the countrys environment and natural resources, and Sec. 19 of RA 9275,
designating the DENR as the primary government agency responsible for its
enforcement and implementation, the DENR is directed to fully implement
its Operational Plan for the Manila Bay Coastal Strategy  for the rehabilitation,
restoration, and conservation of the Manila Bay at the earliest possible time. It is
ordered to call regular coordination meetings with concerned government
departments and agencies to ensure the successful implementation of the
aforesaid plan of action in accordance with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the Administrative Code of 1987
and Sec. 25 of the Local Government Code of 1991, [42] the DILG, in exercising
the Presidents power of general supervision and its duty to promulgate
guidelines in establishing waste management programs under Sec. 43 of the
Philippine Environment Code (PD 1152), shall direct all LGUs in Metro Manila,
Rizal, Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect all factories,
commercial establishments, and private homes along the banks of the major
river systems in their respective areas of jurisdiction, such as but not limited to
the Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers,
the Navotas-Malabon-Tullahan-Tenejeros Rivers, the Meycauayan-Marilao-
Obando (Bulacan) Rivers, the Talisay (Bataan) River, the Imus (Cavite) River, the
Laguna De Bay, and other minor rivers and waterways that eventually discharge
water into the Manila Bay; and the lands abutting the bay, to determine whether
they have wastewater treatment facilities or hygienic septic tanks as prescribed
by existing laws, ordinances, and rules and regulations. If none be found, these
LGUs shall be ordered to require non-complying establishments and homes to set
up said facilities or septic tanks within a reasonable time to prevent industrial
wastes, sewage water, and human wastes from flowing into these rivers,
waterways, esteros, and the Manila Bay, under pain of closure or imposition of
fines and other sanctions.
(3) As mandated by Sec. 8 of RA 9275,[43] the MWSS is directed to provide,
install, operate, and maintain the necessary adequate waste water treatment
facilities in Metro Manila, Rizal, and Cavite where needed at the earliest possible
time.
(4) Pursuant to RA 9275,[44] the LWUA, through the local water districts and in
coordination with the DENR, is ordered to provide, install, operate, and maintain
sewerage and sanitation facilities and the efficient and safe collection, treatment,
and disposal of sewage in the provinces of Laguna, Cavite, Bulacan, Pampanga,
and Bataan where needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,[45] the DA, through the BFAR, is ordered to
improve and restore the marine life of the Manila Bay. It is also directed to assist
the LGUs in Metro Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and Bataan
in developing, using recognized methods, the fisheries and aquatic resources in
the Manila Bay.
(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the PNP Maritime Group,
in accordance with Sec. 124 of RA 8550, in coordination with each other, shall
apprehend violators of PD 979, RA 8550, and other existing laws and regulations
designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 513[46] and the International Convention
for the Prevention of Pollution from Ships, the PPA is ordered to immediately
adopt such measures to prevent the discharge and dumping of solid and liquid
wastes and other ship-generated wastes into the Manila Bay waters from vessels
docked at ports and apprehend the violators 
(8) The MMDA, as the lead agency and implementor of programs and projects
for flood control projects and drainage services in Metro Manila, in coordination
with the DPWH, DILG, affected LGUs, PNP Maritime Group, Housing and Urban
Development Coordinating Council (HUDCC), and other agencies, shall dismantle
and remove allstructures, constructions, and other encroachments established or
built in violation of RA 7279, and other applicable laws along the Pasig-Marikina-
264
San Juan Rivers, the NCR (Paraaque-Zapote, Las Pias) Rivers, the Navotas-
Malabon-Tullahan-Tenejeros Rivers, and connecting waterways and esteros in
Metro Manila. The DPWH, as the principal implementor of programs and projects
for flood control services in the rest of the country more particularly in Bulacan,
Bataan, Pampanga, Cavite, and Laguna, in coordination with the DILG, affected
LGUs, PNP Maritime Group, HUDCC, and other concerned government agencies,
shall remove and demolish all structures, constructions, and other
encroachments built in breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay (Bataan) River, the
Imus (Cavite) River, the Laguna De Bay, and other rivers, connecting waterways,
and esteros that discharge wastewater into the Manila Bay.
In addition, the MMDA is ordered to establish, operate, and maintain a sanitary
landfill, as prescribed by RA 9003, within a period of one (1) year from finality of
this Decision.On matters within its territorial jurisdiction and in connection with
the discharge of its duties on the maintenance of sanitary landfills and like
undertakings, it is also ordered to cause the apprehension and filing of the
appropriate criminal cases against violators of the respective penal provisions of
RA 9003,[47] Sec. 27 of RA 9275 (the Clean Water Act), and other existing laws
on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec. 8 of RA 9275,
within one (1) year from finality of this Decision, determine if all licensed septic
and sludge companies have the proper facilities for the treatment and disposal of
fecal sludge and sewage coming from septic tanks. The DOH shall give the
companies, if found to be non-complying, a reasonable time within which to set
up the necessary facilities under pain of cancellation of its environmental
sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,[48] Sec. 118 of RA 8550, and Sec. 56 of RA
9003,[49] the DepEd shall integrate lessons on pollution prevention, waste
management, environmental protection, and like subjects in the school curricula
of all levels to inculcate in the minds and hearts of students and, through them,
their parents and friends, the importance of their duty toward achieving and
maintaining a balanced and healthful ecosystem in the Manila Bay and the entire
Philippine archipelago.
(11) The DBM shall consider incorporating an adequate budget in the General
Appropriations Act of 2010 and succeeding years to cover the expenses relating
to the cleanup, restoration, and preservation of the water quality of the Manila
Bay, in line with the countrys development objective to attain economic growth
in a manner consistent with the protection, preservation, and revival of our
marine waters.
(12) The heads of petitioners-agencies MMDA, DENR, DepEd, DOH, DA, DPWH,
DBM, PCG, PNP Maritime Group, DILG, and also of MWSS, LWUA, and PPA, in
line with the principle of continuing mandamus, shall, from finality of this
Decision, each submit to the Court a quarterly progressive report of the activities
undertaken in accordance with this Decision.
No costs.
SO ORDERED.
 PRESBITERO J. VELASCO, JR.
G.R. No. 120095. August 5, 1996.*
JMM PROMOTION AND MANAGEMENT, INC., and KARY
INTERNATIONAL, INC., petitioner, vs. HON. COURT OF APPEALS, HON.
MA. NIEVES CONFESOR, then Secretary of the Department of Labor and
Employment, HON. JOSE BRILLANTES, in his capacity as acting
Secretary of the Department of Labor and Employment and HON.
FELICISIMO JOSON, in his capacity as Administrator of the Philippine
Overseas Employment Administration, respondents.
Constitutional Law; Police Power; The latin maxim salus populi est suprema lex
embodies the character of the entire spectrum of public laws aimed at promoting
the general welfare of the people under the State’s police power. —The latin
maxim salus populi est suprema lex embodies the character of the entire
spectrum of public laws aimed at promoting the general welfare of the people
under the State’s police power. As an inherent attribute of sovereignty which
virtually “extends to all public needs,” this “least limitable” of governmental
powers grants a wide panoply of instruments through which the state, as parens
patriae gives effect to a host of its regulatory powers.
Same; Same; Police power concerns government enactments which precisely
interfere with personal liberty or property in order to promote the general
welfare or the common good.—Thus, police power concerns government
enactments which precisely interfere with personal liberty or property in order to
promote the general welfare or the common good. As the assailed Department
Order enjoys a presumed validity, it follows that the burden rests upon
petitioners to demonstrate that the said order, particularly, its ARB requirement,
does not enhance the public welfare or was exercised arbitrarily or unreasonably.
Same; Same; The Artist Record Book requirement and the questioned
Department Order related to its issuance were issued by the Secretary of Labor
pursuant to a valid exercise of the police power. —A thorough review of the facts
and circumstances leading to the issuance of the assailed orders compels us to
rule that the Artist Record Book requirement and the questioned Department
Order related to its issuance were issued by the Secretary of Labor pursuant to a
valid exercise of the police power.
Same; Same; The welfare of Filipino performing artists, particularly the women
was paramount in the issuance of Department Order No. 3. —Clearly, the welfare
265
of Filipino performing artists, particularly the women was paramount in the
issuance of Department Order No. 3. Short of a total and absolute ban against
the deployment of performing artists to “high-risk” destinations, a measure which
would only drive recruitment further underground, the new scheme at the very
least rationalizes the method of screening performing artists by requiring
reasonable educational and artistic skills from them and limits deployment to
only those individuals adequately prepared for the unpredictable demands of
employment as artists abroad. It cannot be gainsaid that this scheme at least
lessens the room for exploitation by unscrupulous individuals and agencies.
Same; Same; Apart from the State’s police power, the Constitution itself
mandates government to extend the fullest protection to our overseas workers. —
In any event, apart from the State’s police power, the Constitution itself
mandates government to extend the fullest protection to our overseas workers.
The basic constitutional statement on labor, embodied in Section 18 of Article II
of the Constitution provides: Sec. 18. The State affirms labor as a primary social
economic force. It shall protect the rights of workers and promote their welfare.
More emphatically, the social justice provision on labor of the 1987 Constitution
in its first paragraph states: The State shall afford full protection to labor, local
and overseas, organized and unorganized and promote full employment and
equality of employment opportunities for all.
Same; Same; Protection to labor does not indicate promotion of employment
alone.—Obviously, protection to labor does not indicate promotion of
employment alone. Under the welfare and social justice provisions of the
Constitution, the promotion of full employment, while desirable, cannot take a
backseat to the government’s constitutional duty to provide mechanisms for the
protection of our workforce, local or overseas.
Same; Same; A profession, trade or calling is a property right within the meaning
of our constitutional guarantees. —A profession, trade or calling is a property
right within the meaning of our constitutional guarantees. One cannot be
deprived of the right to work and the right to make a living because these rights
are property rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong.
Same; Same; No right is absolute, and the proper regulation of a profession,
calling, business or trade has always been upheld as a legitimate subject of a
valid exercise of the police power by the state. — Nevertheless, no right is
absolute, and the proper regulation of a profession, calling, business or trade has
always been upheld as a legitimate subject of a valid exercise of the police power
by the state particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the public
health and welfare and public morals. According to the maxim, sic utere tuo ut
alienum non laedas, it must of course be within the legitimate range of legislative
action to define the mode and manner in which every one may so use his own
property so as not to pose injury to himself or others.
Same; Same; So long as professionals and other workers meet reasonable
regulatory standards no such deprivation exists. —Locally, the Professional
Regulation Commission has begun to require previously licensed doctors and
other professionals to furnish documentary proof that they had either re-trained
or had undertaken continuing education courses as a requirement for renewal of
their licenses. It is not claimed that these requirements pose an unwarranted
deprivation of a property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory standards no such
deprivation exists.
Same; Same; The equal protection clause of the Constitution does not forbid
classification for so long as such classification is based on real and substantial
differences having a reasonable relation to the subject of the particular
legislation.—The equal protection clause is directed principally against undue
favor and individual or class privilege. It is not intended to prohibit legislation
which is limited to the object to which it is directed or by the territory in which it
is to operate. It does not require absolute equality, but merely that all persons
be treated alike under like conditions both as to privileges conferred and
liabilities imposed. We have held, time and again, that the equal protection
clause of the Constitution does not forbid classification for so long as such
classification is based on real and substantial differences having a reasonable
relation to the subject of the particular legislation. If classification is germane to
the purpose of the law, concerns all members of the class, and applies equally to
present and future conditions, the classification does not violate the equal
protection guarantee.
KAPUNAN, J.:p
The limits of government regulation under the State's police power are
once again at the vortex of the instant controversy. Assailed is the
government's power to control deployment of female entertainers to
Japan by requiring an Artist Record Book (ARB) as a precondition to the
processing by the POEA of any contract for overseas employment. By
contending that the right to overseas employment is a property right
within the meaning of the Constitution, petitioners vigorously aver that
deprivation thereof allegedly through the onerous requirement of an
ARB violates the due process clause and constitutes an invalid exercise
of the police power.
The factual antecedents are undisputed.
Following the much-publicized death of Maricris Sioson in 1991, former
President Corazon C. Aquino ordered a total ban against the
deployment of performing artists to Japan and other foreign
destinations. The ban was, however, rescinded after leaders of the
overseas employment industry promised to extend full support for a
program aimed at removing kinks in the system of deployment. In its
place, the government, through the Secretary of Labor and
Employment, subsequently issued Department Order No. 28, creating
266
the Entertainment Industry Advisory Council (EIAC), which was tasked
with issuing guidelines on the training, testing certification and
deployment of performing artists abroad.
Pursuant to the EIAC's recommendations,1 the Secretary of Labor, on
January 6, 1994, issued Department Order No. 3 establishing various
procedures and requirements for screening performing artists under a
new system of training, testing, certification and deployment of the
former. Performing artists successfully hurdling the test, training and
certification requirement were to be issued an Artist's Record Book
(ARB), a necessary prerequisite to processing of any contract of
employment by the POEA. Upon request of the industry,
implementation of the process, originally scheduled for April 1, 1994,
was moved to October 1, 1994.
Thereafter, the Department of Labor, following the EIAC's
recommendation, issued a series of orders fine-tuning and
implementing the new system. Prominent among these orders were the
following issuances:
1. Department Order No. 3-A, providing for additional
guidelines on the training, testing, certification and deployment
of performing artists.
2. Department Order No. 3-B, pertaining to the Artist Record
Book (ARB) requirement, which could be processed only after
the artist could show proof of academic and skills training and
has passed the required tests.
3. Department Order No. 3-E, providing the minimum salary a
performing artist ought to received (not less than US$600.00
for those bound for Japan) and the authorized deductions
therefrom.
4. Department Order No. 3-F, providing for the guidelines on
the issuance and use of the ARB by returning performing
artists who, unlike new artists, shall only undergo a Special
Orientation Program (shorter than the basic program) although
they must pass the academic test.
In Civil Case No. 95-72750, the Federation of Entertainment Talent
Managers of the Philippines (FETMOP), on January 27, 1995 filed a
class suit assailing these department orders, principally contending that
said orders 1) violated the constitutional right to travel; 2) abridged
existing contracts for employment; and 3) deprived individual artists of
their licenses without due process of law. FETMOP, likewise, averred
that the issuance of the Artist Record Book (ARB) was discriminatory
and illegal and "in gross violation of the constitutional right... to life
liberty and property." Said Federation consequently prayed for the
issuance of a writ of preliminary injunction against the aforestated
orders.
On February 2, 1992, JMM Promotion and Management, Inc. Kary
International, Inc., herein petitioners, filed a Motion for Intervention in
said civil case, which was granted by the trial court in an Order dated
15 February, 1995.
However, on February 21, 1995, the trial court issued an Order denying
petitioners' prayed for a writ of preliminary injunction and dismissed the
complaint.
On appeal from the trial court's Order, respondent court, in CA G.R. SP
No. 36713 dismissed the same. Tracing the circumstances which led to
the issuance of the ARB requirement and the assailed Department
Order, respondent court concluded that the issuance constituted a valid
exercise by the state of the police power.
We agree.
The latin maxim salus populi est surprema lex embodies the character
of the entire spectrum of public laws aimed at promoting the general
welfare of the people under the State's police power. As an inherent
attribute of sovereignty which virtually "extends to all public
needs,"2 this "least limitable"3 of governmental powers grants a wide
panoply of instruments through which the state, as parens patriae gives
effect to a host of its regulatory powers.
Describing the nature and scope of the police power, Justice Malcolm, in
the early case of Rubi v. Provincial Board of Mindoro4 wrote:
"The police power of the State," one court has said... is a
power coextensive with self-protection, and is not inaptly
termed "the law of overruling necessity." It may be said to be
that inherent and plenary power in the state which enables it
to prohibit all things hurtful to the comfort, safety and welfare
of society." Carried onward by the current of legislature, the
judiciary rarely attempts to dam the onrushing power of
legislative discretion, provided the purposes of the law do not
go beyond the great principles that mean security for the
267
 public welfare or do not arbitrarily interfere with the right of
the individual.5
Thus, police power concerns government enactments which precisely
interfere with personal liberty or property in order to promote the
general welfare or the common good. As the assailed Department Order
enjoys a presumed validity, it follows that the burden rests upon
petitioners to demonstrate that the said order, particularly, its ARB
requirement, does not enhance the public welfare or was exercised
arbitrarily or unreasonably.
A thorough review of the facts and circumstances leading to the
issuance of the assailed orders compels us to rule that the Artist Record
Book requirement and the questioned Department Order related to its
issuance were issued by the Secretary of Labor pursuant to a valid
exercise of the police power.
In 1984, the Philippines emerged as the largest labor sending country in
Asia dwarfing the labor export of countries with mammoth populations
such as India and China. According to the National Statistics Office,
this diaspora was augmented annually by over 450,000 documented
and clandestine or illegal (undocumented) workers who left the country
for various destinations abroad, lured by higher salaries, better work
opportunities and sometimes better living conditions.
Of the hundreds of thousands of workers who left the country for
greener pastures in the last few years, women composed slightly close
to half of those deployed, constituting 47% between 1987-1991,
exceeding this proportion (58%) by the end of 1991, 6 the year former
President Aquino instituted the ban on deployment of performing artists
to Japan and other countries as a result of the gruesome death of
Filipino entertainer Maricris Sioson.
It was during the same period that this Court took judicial notice not
only of the trend, but also of the fact that most of our women, a large
number employed as domestic helpers and entertainers, worked under
exploitative conditions "marked by physical and personal abuse." 7 Even
then, we noted that "[t]he sordid tales of maltreatment suffered by
migrant Filipina workers, even rape and various forms of torture,
confirmed by testimonies of returning workers" compelled "urgent
government action."8
Pursuant to the alarming number of reports that a significant number of
Filipina performing artists ended up as prostitutes abroad (many of
whom were beaten, drugged and forced into prostitution), and following
the deaths of number of these women, the government began
instituting measures aimed at deploying only those individuals who met
set standards which would qualify them as legitimate performing artists.
In spite of these measures, however, a number of our countrymen have
nonetheless fallen victim to unscrupulous recruiters, ending up as virtual
slaves controlled by foreign crime syndicates and forced into jobs other
than those indicated in their employment contracts. Worse, some of our
women have been forced into prostitution.
Thus, after a number of inadequate and failed accreditation schemes,
the Secretary of Labor issued on August 16, 1993, D.O. No. 28,
establishing the Entertainment Industry Advisory Council (EIAC), the
policy advisory body of DOLE on entertainment industry matters. 9 Acting
on the recommendations of the said body, the Secretary of Labor, on
January 6, 1994, issued the assailed orders. These orders embodied
EIAC's Resolution No. 1, which called for guidelines on screening,
testing and accrediting performing overseas Filipino artists. Significantly,
as the respondent court noted, petitioners were duly represented in the
EIAC,10which gave the recommendations on which the ARB and other
requirements were based.
Clearly, the welfare of Filipino performing artists, particularly the women
was paramount in the issuance of Department Order No. 3. Short of a
total and absolute ban against the deployment of performing artists to
"high risk" destinations, a measure which would only drive recruitment
further underground, the new scheme at the very least rationalizes the
method of screening performing artists by requiring reasonable
educational and artistic skills from them and limits deployment to only
those individuals adequately prepared for the unpredictable demands of
employment as artists abroad. It cannot be gainsaid that this scheme at
least lessens the room for exploitation by unscrupulous individuals and
agencies.
Moreover, here or abroad, selection of performing artists is usually
accomplished by auditions, where those deemed unfit are usually
weeded out through a process which is inherently subjective and
vulnerable to bias and differences in taste. The ARB requirement goes
one step further, however, attempting to minimize the subjectivity of
the process by defining the minimum skills required from entertainers
and performing artists. As the Solicitor General observed, this should be
easily met by experienced artists possessing merely basic skills. The test
are aimed at segregating real artists or performers from those passing
themselves off as such, eager to accept any available job and therefore
exposing themselves to possible exploitation.
As to the other provisions of Department Order No. 3 questioned by
petitioners, we see nothing wrong with the requirements for document
268
and booking confirmation (D.O. 3-C), a minimum salary scale (D.O. 3-
E), or the requirement for registration of returning performers. The
requirement for a venue certificate or other documents evidencing the
place and nature or work allows the government closer monitoring of
foreign employers and helps keep our entertainers away from
prostitution fronts and other worksites associated with unsavory,
immoral, illegal or exploitative practices. Parenthetically, none of these
issuances appear to us, by any stretch of the imagination, even
remotely unreasonable or arbitrary. They address a felt need of
according greater protection for an oft-exploited segment of our OCW's.
They respond to the industry's demand for clearer and more practicable
rules and guidelines. Many of these provisions were fleshed out
following recommendations by, and after consultations with, the
affected sectors and non-government organizations. On the whole, they
are aimed at enhancing the safety and security of entertainers and
artists bound for Japan and other destinations, without stifling the
industry's concerns for expansion and growth.
In any event, apart from the State's police power, the Constitution itself
mandates government to extend the fullest protection to our overseas
workers. The basic constitutional statement on labor, embodied in
Section 18 of Article II of the Constitution provides:
Sec. 18. The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their
welfare.
More emphatically, the social justice provisions on labor of the 1987
Constitution in its first paragraph states:
The State shall afford full protection to labor, local and
overseas, organized and unorganized and promote full
employment and equality of employment opportunities for all.
Obviously, protection to labor does not indicate promotion of
employment alone. Under the welfare and social justice provisions of
the Constitution, the promotion of full employment, while desirable,
cannot take a backseat to the government's constitutional duty to
provide mechanisms for the protection of our workforce, local or
overseas. As this Court explained in Philippine Association of Service
Exporters (PASEI) v. Drilon,11 in reference to the recurring problems
faced by our overseas workers:
What concerns the Constitution more paramountly is that such
an employment be above all, decent, just, and humane. It is
bad enough that the country has to send its sons and
daughters to strange lands because it cannot satisfy their
employment needs at home. Under these circumstances, the
Government is duty-adequate protection, personally and
economically, while away from home.
We now go to petitioners' assertion that the police power cannot,
nevertheless, abridge the right of our performing workers to return to
work abroad after having earlier qualified under the old process,
because, having previously been accredited, their accreditation became
a "property right," protected by the due process clause. We find this
contention untenable.
A profession, trade of calling is a property right within the meaning of
our constitutional guarantees. One cannot be deprived of the right to
work and right to make a living because these rights are property
rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong.12
Nevertheless, no right is absolute, and the proper regulation of a
profession, calling, business or trade has always been upheld as a
legitimate subject of a valid exercise of the police power by the state
particularly when their conduct affects either the execution of legitimate
governmental functions, the preservation of the State, the public health
and welfare and public morals. According to the maxim, sic utere tuo ut
alienum non laedas, it must of course be within the legitimate range of
legislative action to define the mode and manner in which every one
may so use of his own property so as not to pose injury to himself or
others.13
In any case, where the liberty curtailed affects at most the rights of
property, the permissible scope of regulatory measures is certainly
much
wider.14 To pretend that licensing or accreditation requirements violates
the due process clause is to ignore the settled practice, under the
mantle of the police power, of regulating entry to the practice of various
trades or professions. Professionals leaving for abroad are required to
pass rigid written and practical exams before they are deemed fit to
practice their trade. Seamen are required to take tests determining their
seamanship. Locally, the Professional Regulation Commission has began
to require previously licensed doctors and other professionals to furnish
documentary proof that they has either re-trained or had undertaken
continuing education courses as a requirement for renewal of their
licenses. It is not claimed that these requirements pose an unwarranted
deprivation of a property right under the due process clause. So long as
professionals and other workers meet reasonable regulatory standards
no such deprivation exists.
269
 Finally, it is a futile gesture on the part of petitioners to invoke the non-
impairment clause of the Constitution to support their argument that
the government cannot enact the assailed regulatory measures because
they abridge the freedom to contract. In Philippine Association of
Service Exporters, Inc. vs. Drilon, we held that "[t]he non-impairment
clause of the Constitution... must yield to the loftier purposes targeted
by the government."15 Equally important, into every contract is read
provisions of existing law, and always, a reservation of the police power
for so long as the agreement deals with a subject impressed with the
public welfare.

EN BANC
A last point. Petitioners suggest that the singling out of entertainers and
performing artists under the assailed department orders constitutes REPRESENTATIVES GERARDO S. G.R. No. 143855
class legislation which violates the equal protection clause of the
Constitution. We do not agree. ESPINA, ORLANDO FUA, JR., PROSPERO AMATONG, ROBERT ACE S.
BARBERS, RAUL M. GONZALES, PROSPERO PICHAY, JUAN MIGUEL
The equal protection clause is directed principally against undue favor ZUBIRI and FRANKLIN BAUTISTA,
and individual or class privilege. It is not intended to prohibit legislation
which is limited to the object to which it is directed or by the territory in Petitioners, Present:
which it is to operate. It does not require absolute equality, but merely
CORONA, C.J.,
that all persons be treated alike under like conditions both as to
privileges conferred and liabilities imposed.16 We have held, time and CARPIO,
again, that the equal protection clause of the Constitution does not
forbid classification for so long as such classification is based on real CARPIO MORALES,
and substantial differences having a reasonable relation to the subject
of the particular legislation.17 If classification is germane to the purpose VELASCO, JR.,*
of the law, concerns all members of the class, and applies equally to
present and future conditions, the classification does not violate the NACHURA,*
equal protection guarantee.
LEONARDO-DE CASTRO,*

In the case at bar, the challenged Department Order clearly applies to - versus - BRION,*
all performing artists and entertainers destined for jobs abroad. These
orders, we stressed hereinfore, further the Constitutional mandate PERALTA,
requiring government to protect our workforce, particularly those who
may be prone to abuse and exploitation as they are beyond the physical BERSAMIN,
reach of government regulatory agencies. The tragic incidents must DEL CASTILLO,
somehow stop, but short of absolutely curtailing the right of these
performers and entertainers to work abroad, the assailed measures ABAD,
enable our government to assume a measure of control.
VILLARAMA, JR.,
WHEREFORE, finding no reversible error in the decision sought to be
PEREZ,
reviewed, petition is hereby DENIED.
MENDOZA,* and
SO ORDERED.
SERENO,** JJ.
Padilla, Bellosillo, Vitug and Hermosisima, Jr., JJ., concur.
270
HON. RONALDO ZAMORA, JR. (Executive Secretary), HON. MAR ROXAS does not impose a policy of Filipino monopoly of the economic environment. The
(Secretary of Trade and Industry), HON. FELIPE MEDALLA (Secretary of objective is simply to prohibit foreign powers or interests from maneuvering our
National Economic and Development Authority), GOV. RAFAEL economic policies and ensure that Filipinos are given preference in all areas of
BUENAVENTURA (Bangko Sentral ng Pilipinas) and HON. LILIA development.
BAUTISTA (Chairman, Securities and Exchange Commission), Same; While the Constitution mandates a bias in favor of Filipino goods,
services, labor and enterprises, it also recognizes the need for business
Respondents. Promulgated: exchange with the rest of the world on the bases of equality and reciprocity and
limits protection of Filipino enterprises only against foreign competition and trade
September 21, 2010 practices that are unfair.—Indeed, the 1987 Constitution takes into account the
realities of the outside world as it requires the pursuit of a trade policy that
x --------------------------------------------------------------------------------------- x serves the general welfare and utilizes all forms and arrangements of exchange
on the basis of equality and reciprocity; and speaks of industries which are
Judicial Review; Locus Standi; Words and Phrases; Legal standing or
competitive in both domestic and foreign markets as well as of the protection of
locus standi refers to the right of a party to come to a court of justice and make
Filipino enterprises against unfair foreign competition and trade practices. Thus,
such a challenge—more particularly, it refers to his personal and substantial
while the Constitution mandates a bias in favor of Filipino goods, services, labor
interest in that he has suffered or will suffer direct injury as a result of the
and enterprises, it also recognizes the need for business exchange with the rest
passage of that law.— The long settled rule is that he who challenges the validity
of the world on the bases of equality and reciprocity and limits protection of
of a law must have a standing to do so. Legal standing or locus standi refers to
Filipino enterprises only against foreign competition and trade practices that are
the right of a party to come to a court of justice and make such a challenge.
unfair.
More particularly, standing refers to his personal and substantial interest in that
he has suffered or will suffer direct injury as a result of the passage of that law.
Same; Trade and Industry; Police Power; Section 10, Article XII of the
1987 Constitution gives Congress the discretion to reserve to Filipinos certain
To put it another way, he must show that he has been or is about to be denied
some right or privilege to which he is lawfully entitled or that he is about to be
areas of investments upon the recommendation of the National Economic and
Development Authority (NEDA) and when the national interest requires. —Section
subjected to some burdens or penalties by reason of the law he complains of.
10, Article XII of the 1987 Constitution gives Congress the discretion to reserve
Here, there is no clear showing that the implementation of the Retail Trade
to Filipinos certain areas of investments upon the recommendation of the NEDA
Liberalization Act prejudices petitioners or inflicts damages on them, either as
and when the national interest requires. Thus, Congress can determine what
taxpayers or as legislators. Still the Court will resolve the question they raise
policy to pass and when to pass it depending on the economic exigencies. It can
since the rule on standing can be relaxed for nontraditional plaintiffs like ordinary
enact laws allowing the entry of foreigners into certain industries not reserved by
citizens, taxpayers, and legislators when as in this case the public interest so
the Constitution to Filipino citizens. In this case, Congress has decided to open
requires or the matter is of transcendental importance, of overarching
certain areas of the retail trade business to foreign investments instead of
significance to society, or of paramount public interest.
reserving them exclusively to Filipino citizens. The NEDA has not opposed such
National Economy and Patrimony; While Section 19, Article II of the 1987
policy.
Constitution requires the development of a self-reliant and independent national
economy effectively controlled by Filipino entrepreneurs, it does not impose a
policy of Filipino monopoly of the economic environment. —As the Court Same; Same; Retail Trade Liberalization Act (R.A. 8762); Police Power;
The control and regulation of trade in the interest of the public welfare is of
explained in Tañada v. Angara, 272 SCRA 18 (1997), the provisions of Article II
of the 1987 Constitution, the declarations of principles and state policies, are not
course an exercise of the police power of the State; To the extent that Republic
Act (R.A.) No. 8762, the Retail Trade Liberalization Act, lessens the restraint on
self-executing. Legislative failure to pursue such policies cannot give rise to a
cause of action in the courts. The Court further explained in Tañada that Article
the foreigners’ right to property or to engage in an ordinarily lawful business, it
cannot be said that the law amounts to a denial of the Filipinos’ right to property
XII of the 1987 Constitution lays down the ideals of economic nationalism: (1) by
expressing preference in favor of qualified Filipinos in the grant of rights,
and to due process of law. —The control and regulation of trade in the interest of
the public welfare is of course an exercise of the police power of the State. A
privileges and concessions covering the national economy and patrimony and in
person’s right to property, whether he is a Filipino citizen or foreign national,
the use of Filipino labor, domestic materials and locally-produced goods; (2) by
cannot be taken from him without due process of law. In 1954, Congress
mandating the State to adopt measures that help make them competitive; and
enacted the Retail Trade Nationalization Act or R.A. 1180 that restricts the retail
(3) by requiring the State to develop a self-reliant and independent national
business to Filipino citizens. In denying the petition assailing the validity of such
economy effectively controlled by Filipinos. In other words, while Section 19,
Act for violation of the foreigner’s right to substantive due process of law, the
Article II of the 1987 Constitution requires the development of a self-reliant and
Supreme Court held that the law constituted a valid exercise of police power.
independent national economy effectively controlled by Filipino entrepreneurs, it
271
The State had an interest in preventing alien control of the retail trade and R.A. 100% foreign equity
1180 was reasonably related to that purpose. That law is not arbitrary. Here, to shall be allowed.
the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens the
restraint on the foreigners’ right to property or to engage in an ordinarily lawful Category C US$7,500,000.00 or more May be wholly owned by
business, it cannot be said that the law amounts to a denial of the Filipinos’ right foreigners. Foreign
to property and to due process of law. Filipinos continue to have the right to investments for
engage in the kinds of retail business to which the law in question has permitted establishing a store in
the entry of foreign investors. Categories B and C shall
Same; Same; Police Power; It is not within the province of the Court to not be less than the
inquire into the wisdom of Republic Act (R.A.) No. 8762 save when it blatantly equivalent in Philippine
violates the Constitution.—It is not within the province of the Court to inquire Pesos of US$830,000.00.
into the wisdom of R.A. 8762 save when it blatantly violates the Constitution. But
as the Court has said, there is no showing that the law has contravened any Category D US$250,000.00 per store May be wholly owned by
constitutional mandate. The Court is not convinced that the implementation of of foreign enterprises foreigners.
R.A. 8762 would eventually lead to alien control of the retail trade business. specializing in high-end or
Petitioners have not mustered any concrete and strong argument to support its luxury products
thesis. The law itself has provided strict safeguards on foreign participation in
that business.

DECISION R.A. 8762 also allows natural-born Filipino citizens, who had lost their citizenship
and now reside in the Philippines, to engage in the retail trade business with the
ABAD, J.: same rights as Filipino citizens.
This case calls upon the Court to exercise its power of judicial review and On October 11, 2000 petitioners Magtanggol T. Gunigundo I, Michael T.
determine the constitutionality of the Retail Trade Liberalization Act of 2000, Defensor, Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero
which has been assailed as in breach of the constitutional mandate for the Amatong, Sergio Apostol,Robert Ace S. Barbers, Enrique Garcia, Jr., Raul M.
development of a self-reliant and independent national economy effectively Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo Montemayor, Ma. Elena
controlled by Filipinos. Palma-Gil, Prospero Pichay, Juan Miguel Zubiri and Franklin Bautista, all
The Facts and the Case members of the House of Representatives, filed the present petition, assailing
the constitutionality of R.A. 8762 on the following grounds:
On March 7, 2000 President Joseph E. Estrada signed into law Republic Act
(R.A.) 8762, also known as the Retail Trade Liberalization Act of 2000. It First, the law runs afoul of Sections 9, 19, and 20 of Article II of the Constitution
expressly repealed R.A. 1180, which absolutely prohibited foreign nationals from which enjoins the State to place the national economy under the control of
engaging in the retail trade business. R.A. 8762 now allows them to do so under Filipinos to achieve equal distribution of opportunities, promote industrialization
four categories: and full employment, and protect Filipino enterprise against unfair competition
and trade policies.
Category A Less than Exclusively for Filipino
Second, the implementation of R.A. 8762 would lead to alien control of the retail
citizens and corporations
US$2,500,000.00 trade, which taken together with alien dominance of other areas of business,
wholly owned by Filipino
would result in the loss of effective Filipino control of the economy.
citizens.
Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers
Category B US$2,500,000.00 up but For the first two years of
and sari-sari store vendors, destroy self-employment, and bring about more
less than R.A. 8762s effectivity,
unemployment.
US$7,500,000.00 foreign ownership is
allowed up to 60%. After
the two-year period,

272
Fourth, the World Bank-International Monetary Fund had improperly imposed the
passage of R.A. 8762 on the government as a condition for the release of certain
loans.
Fifth, there is a clear and present danger that the law would promote monopolies
or combinations in restraint of trade.
Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry
Secretary Mar Roxas, National Economic and Development Authority (NEDA)
Secretary Felipe Medalla, Bangko Sentral ng Pilipinas Gov. Rafael Buenaventura,
and Securities and Exchange Commission Chairman Lilia Bautista countered that:
First, petitioners have no legal standing to file the petition. They cannot invoke
the fact that they are taxpayers since R.A. 8762 does not involve the
disbursement of public funds. Nor can they invoke the fact that they are
members of Congress since they made no claim that the law infringes on their
right as legislators.
Second, the petition does not involve any justiciable controversy. Petitioners of
course claim that, as members of Congress, they represent the small retail
vendors in their respective districts but the petition does not allege that the
subject law violates the rights of those vendors.
Third, petitioners have failed to overcome the presumption of constitutionality of
R.A. 8762. Indeed, they could not specify how the new law violates the
constitutional provisions they cite. Sections 9, 19, and 20 of Article II of the
Constitution are not self-executing provisions that are judicially demandable.
Fourth, the Constitution mandates the regulation but not the prohibition of
foreign investments. It directs Congress to reserve to Filipino citizens certain
areas of investments upon the recommendation of the NEDA and when the
national interest so dictates. But the Constitution leaves to the discretion of the
Congress whether or not to make such reservation. It does not prohibit Congress
from enacting laws allowing the entry of foreigners into certain industries not
reserved by the Constitution to Filipino citizens.
The Issues Presented
Simplified, the case presents two issues:
1. Whether or not petitioner lawmakers have the legal standing to challenge the
constitutionality of R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
The Courts Ruling
One. The long settled rule is that he who challenges the validity of a law must
have a standing to do so.[1] Legal standing or locus standi refers to the right of a
party to come to a court of justice and make such a challenge. More particularly,
standing refers to his personal and substantial interest in that he has suffered or
will suffer direct injury as a result of the passage of that law. [2] To put it another
way, he must show that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to
some burdens or penalties by reason of the law he complains of.[3]
Here, there is no clear showing that the implementation of the Retail Trade
Liberalization Act prejudices petitioners or inflicts damages on them, either as
taxpayers[4] or as legislators.[5] Still the Court will resolve the question they raise
since the rule on standing can be relaxed for nontraditional plaintiffs like ordinary
citizens, taxpayers, and legislators when as in this case the public interest so
requires or the matter is of transcendental importance, of overarching
significance to society, or of paramount public interest. [6]
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the 1987
Constitution for the State to develop a self-reliant and independent national
economy effectively controlled by Filipinos. They invoke the provisions of the
Declaration of Principles and State Policies under Article II of the 1987
Constitution, which read as follows:
Section 9. The State shall promote a just and dynamic social order that
will ensure the prosperity and independence of the nation and free the
people from poverty through policies that provide adequate social
services, promote full employment, a rising standard of living, and an
improved quality of life for all.
xxxx
Section 19. The State shall develop a self-reliant and independent
national economy effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private
sector, encourages private enterprise, and provides incentives to
needed investments.
Petitioners also invoke the provisions of the National Economy and Patrimony
under Article XII of the 1987 Constitution, which reads:
Section 10. The Congress shall, upon recommendation of the economic
and planning agency, when the national interest dictates, reserve to
citizens of the Philippines or to corporations or associations at least
sixty per centum of whose capital is owned by such citizens, or such
273
higher percentage as Congress may prescribe, certain areas of
investments. The Congress shall enact measures that will encourage
the formation and operation of enterprises whose capital is wholly
owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified
Filipinos.
 
The State shall regulate and exercise authority over foreign
investments within its national jurisdiction and in accordance with its
national goals and priorities.
xxxx
Section 12. The State shall promote the preferential use of Filipino
labor, domestic materials and locally produced goods, and adopt
measures that help make them competitive.
Section 13. The State shall pursue a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange
on the basis of equality and reciprocity.
But, as the Court explained in Taada v. Angara,[7] the provisions of Article II of
the 1987 Constitution, the declarations of principles and state policies, are not
self-executing.Legislative failure to pursue such policies cannot give rise to a
cause of action in the courts.
The Court further explained in Taada that Article XII of the 1987 Constitution
lays down the ideals of economic nationalism: (1) by expressing preference in
favor of qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony and in the use of Filipino labor,
domestic materials and locally-produced goods; (2) by mandating the State to
adopt measures that help make them competitive; and (3) by requiring the State
to develop a self-reliant and independent national economy effectively controlled
by Filipinos.[8]
In other words, while Section 19, Article II of the 1987 Constitution requires the
development of a self-reliant and independent national economy effectively
controlled by Filipino entrepreneurs, it does not impose a policy of Filipino
monopoly of the economic environment. The objective is simply to prohibit
foreign powers or interests from maneuvering our economic policies and ensure
that Filipinos are given preference in all areas of development.
Indeed, the 1987 Constitution takes into account the realities of the outside
world as it requires the pursuit of a trade policy that serves the general welfare
and utilizes all forms and arrangements of exchange on the basis of equality and
reciprocity; and speaks of industries which are competitive in both domestic and
foreign markets as well as of the protection of Filipino enterprises against unfair
foreign competition and trade practices. Thus, while the Constitution mandates a
bias in favor of Filipino goods, services, labor and enterprises, it also recognizes
the need for business exchange with the rest of the world on the bases of
equality and reciprocity and limits protection of Filipino enterprises only against
foreign competition and trade practices that are unfair.[9]
In other words, the 1987 Constitution does not rule out the entry of foreign
investments, goods, and services. While it does not encourage their unlimited
entry into the country, it does not prohibit them either. In fact, it allows an
exchange on the basis of equality and reciprocity, frowning only on foreign
competition that is unfair.[10] The key, as in all economies in the world, is to strike
a balance between protecting local businesses and allowing the entry of foreign
investments and services.
More importantly, Section 10, Article XII of the 1987 Constitution gives Congress
the discretion to reserve to Filipinos certain areas of investments upon the
recommendation of the NEDA and when the national interest requires. Thus,
Congress can determine what policy to pass and when to pass it depending on
the economic exigencies. It can enact laws allowing the entry of foreigners into
certain industries not reserved by the Constitution to Filipino citizens. In this
case, Congress has decided to open certain areas of the retail trade business to
foreign investments instead of reserving them exclusively to Filipino citizens. The
NEDA has not opposed such policy.
The control and regulation of trade in the interest of the public welfare is of
course an exercise of the police power of the State. A persons right to property,
whether he is a Filipino citizen or foreign national, cannot be taken from him
without due process of law. In 1954, Congress enacted the Retail Trade
Nationalization Act or R.A. 1180 that restricts the retail business to Filipino
citizens. In denying the petition assailing the validity of such Act for violation of
the foreigners right to substantive due process of law, the Supreme Court held
that the law constituted a valid exercise of police power. [11] The State had an
interest in preventing alien control of the retail trade and R.A. 1180 was
reasonably related to that purpose. That law is not arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act, lessens
the restraint on the foreigners right to property or to engage in an ordinarily
lawful business, it cannot be said that the law amounts to a denial of the
Filipinos right to property and to due process of law. Filipinos continue to have
the right to engage in the kinds of retail business to which the law in question
has permitted the entry of foreign investors.
274
Certainly, it is not within the province of the Court to inquire into the wisdom of
R.A. 8762 save when it blatantly violates the Constitution. But as the Court has
said, there is no showing that the law has contravened any constitutional
mandate. The Court is not convinced that the implementation of R.A. 8762 would
eventually lead to alien control of the retail trade business. Petitioners have not
mustered any concrete and strong argument to support its thesis. The law itself
has provided strict safeguards on foreign participation in that business. Thus

First, aliens can only engage in retail trade business subject to the categories
above-enumerated; Second, only nationals from, or juridical entities formed or Republic of the Philippines
incorporated in countries which allow the entry of Filipino retailers shall be SUPREME COURT
allowed to engage in retail trade business; and Third, qualified foreign retailers Manila
shall not be allowed to engage in certain retailing activities outside their
EN BANC
accredited stores through the use of mobile or rolling stores or carts, the use of
sales representatives, door-to-door selling, restaurants and sari-sari stores and G.R. No. 91649             May 14, 1991
such other similar retailing activities.
ATTORNEYS HUMBERTO BASCO, EDILBERTO BALCE, SOCRATES
In sum, petitioners have not shown how the retail trade liberalization has MARANAN AND LORENZO SANCHEZ,petitioners, 
prejudiced and can prejudice the local small and medium enterprises since its vs.
implementation about a decade ago. PHILIPPINE AMUSEMENTS AND GAMING CORPORATION
(PAGCOR), respondent.
WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.
H.B. Basco & Associates for petitioners.
SO ORDERED.
Valmonte Law Offices collaborating counsel for petitioners.
  Aguirre, Laborte and Capule for respondent PAGCOR.

ROBERTO A. ABAD Constitutional Law; Taxation; Municipal Corporations; Municipal corporations

have no inherent power to tax; their power to tax must always yield to a
Associate Justice legislative act.—The City of Manila, being a mere Municipal corporation has no
inherent right to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo
v. Villanueva, 105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643).
Thus, “the Charter or statute must plainly show an intent to confer that power or
the municipality cannot assume it” (Medina v. City of Baguio, 12 SCRA 62). Its
“power to tax” therefore must always yield to a legislative act which is superior
having been passed upon by the state itself which has the “inherent power to
tax” (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).
Same; Same; Same; Same; Congress has the power of control over local
governments; if Congress can grant a municipal corporation the power to tax
certain matters, it can also provide for exemptions or even take back the power.
—The Charter of the City of Manila is subject to control by Congress. It should be
stressed that “municipal corporations are mere creatures of Congress” (Unson v.
Lacson, G.R. No. 7909, January 18, 1957) which has the power to “create and
abolish municipal corporations” due to its “general legislative powers” (Asuncion
v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore,
has the power of control over local governments (Hebron v. Reyes, G.R. No.
9124, July 2, 1950). And if Congress can grant the City of Manila the power to
275
tax certain matters, it can also provide for exemptions or even take back the
power.
Same; Same; Same; License Fees; The power of local governments to regulate
gambling thru the grant of franchises, licenses or permits was withdrawn by PD
771, it is now vested exclusively on the National Government. —The City of
Manila’s power to impose license fees on gambling, has long been revoked. As
early as 1975, the power of local governments to regulate gambling thru the
grant of “franchise, licenses or permits” was withdrawn by P.D. No. 771 and was
vested exclusively on the National Government. xxx xxx Therefore, only the
National Government has the power to issue “licenses or permits” for the
operation of gambling. Necessarily, the power to demand or collect license fees
which is a consequence of the issuance of “licenses or permits” is no longer
vested in the City of Manila.
Same; Same; Same; Same; Local governments have no power to tax
instrumentalities of the National Government; PAGCOR, being an instrumentality
of the Government, is therefore exempt from local taxes. —Local governments
have no power to tax instrumentalities of the National Government. PAGCOR is a
government owned or controlled corporation with an original charter, PD 1869.
All of its shares of stocks are owned by the National Government. xxx xxx
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter
role is governmental, which places it in the category of an agency or
instrumentality of the Government. Being an instrumentality of the Government,
PAGCOR should be and actually is exempt from local taxes. Otherwise, its
operation might be burdened, impeded or subjected to control by a mere Local
government. “The states have no power by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of constitutional laws
enacted by Congress to carry into execution the powers vested in the federal
government.” (MC Culloch v. Maryland, 4 Wheat 316, 4 L Ed. 579) This doctrine
emanates from the “supremacy” of the National Government over local
governments. “Justice Holmes, speaking for the Supreme Court, made reference
to the entire absence of power on the part of the States to touch, in that way
(taxation) at least, the instrumentalities of the United States (Johnson v.
Maryland, 254 US 51) and it can be agreed that no state or political subdivision
can regulate a federal instrumentality in such a way as to prevent it from
consummating its federal responsibilities, or even to seriously burden it in the
accomplishment of them.” (Antieau, Modern Constitutional Law, Vol. 2, p. 140,
italics supplied). Otherwise, mere creatures of the State can defeat National
policies thru extermination of what local authorities may perceive to be
undesirable activities or enterprise using the power to tax as “a tool for
regulation” (U.S. v. Sanchez, 340 US 42). The power to tax which was called by
Justice Marshall as the “power to destroy” (Mc Culloch v. Maryland, supra)
cannot be allowed to defeat an instrumentality or creation of the very entity
which has the inherent power to wield it.
Same; Same; Same; Same; The power of local government to impose taxes and
fees is always subject to limitations which Congress may provide by law. —The
power of local government to “impose taxes and fees” is always subject to
“limitations” which Congress may provide by law. Since PD 1869 remains an
“operative” law until “amended, repealed or revoked” (Sec. 3, Art. XVIII, 1987
Constitution), its “exemption clause” remains as an exception to the exercise of
the power of local governments to impose taxes and fees. It cannot therefore be
violative but rather is consistent with the principle of local autonomy.
Same; Same; Same; Local Autonomy; The principle of local autonomy does not
make local governments sovereign within the state, it simply means
decentralization.—Besides, the principle of local autonomy under the 1987
Constitution simply means “decentralization” (III Records of the 1987
Constitutional Commission, pp. 435-436, as cited in Bernas, the Constitution of
the Republic of the Philippines, Vol. II, First Ed., 1988, p. 374). It does not make
local governments sovereign within the state or an “imperium in imperio.” Local
Government has been described as a political subdivision of a nation or state
which is constituted by law and has substantial control of local affairs. In a
unitary system of government, such as the government under the Philippine
Constitution, local governments can only be an intra sovereign subdivision of one
sovereign nation, it cannot be an imperium in imperio. Local government in such
a system can only mean a measure of decentralization of the function of
government. (italics supplied)
Same; Equal Protection Clause; The “equal protection” clause does not preclude
classification of individuals who may be accorded different treatment under the
law as long as the classification is not unreasonable or arbitrary. —Petitioners
next contend that P.D. 1869 violates the equal protection clause of the
Constitution, because “it legalized PAGCOR—conducted gambling, while most
gambling are outlawed together with prostitution, drug trafficking and other
vices” (p. 82, Rollo). We, likewise, find no valid ground to sustain this contention.
The petitioners’ posture ignores the well-accepted meaning of the clause “equal
protection of the laws.” The clause does not preclude classification of individuals
who may be accorded different treatment under the law as long as the
classification is not unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil.
1155). A law does not have to operate in equal force on all persons or things to
be conformable to Article III, Section 1 of the Constitution (DECS v. San Diego,
G.R. No. 89572, December 21, 1989). The “equal protection clause” does not
prohibit the Legislature from establishing classes of individuals or objects upon
which different rules shall operate (Laurel v. Misa, 43 O.G. 2847). The
Constitution does not require situations which are different in fact or opinion to
be treated in law as though they were the same (Gomez v. Palomar, 25 SCRA
827). Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is
violative of the equal protection is not clearly explained in the petition. The mere
fact that some gambling activities like cockfighting (P.D. 449) horse racing (R.A.
306 as amended by RA 983), sweepstakes, lotteries and races (RA 1169 as
amended by B.P. 42) are legalized under certain conditions, while others are
prohibited, does not render the applicable laws, P.D. 1869 for one,
unconstitutional. “If the law presumably hits the evil where it is most felt, it is
not to be overthrown because there are other instances to which it might have
been applied.” (Gomez v. Palomar, 25 SCRA 827) “The equal protection clause of
the 14 th Amendment does not mean that all occupations called by the same
276
name must be treated the same way; the state may do what it can to prevent
which is deemed as evil and stop short of those cases in which harm to the few
concerned is not less than the harm to the public that would insure if the rule
laid down were made mathematically exact.” (Dominican Hotel v. Arizana, 249
U.S. 2651).
Same; Statutes; Every law has in its favor the presumption of constitutionality,
for a law to be nullified, it must be shown that there is a clear and unequivocal
breach of the Constitution. —Every law has in its favor the presumption of
constitutionality (Yu Cong Eng v. Trinidad, 47 Phil. 387; Salas v. Jarencio, 48
SCRA 734; Peralta v. Comelec, 82 SCRA 30; Abbas v. Comelec, 179 SCRA 287).
Therefore, for PD 1869 to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution, not merely a doubtful and equivocal one.
In other words, the grounds for nullity must be clear and beyond reasonable
doubt. (Peralta v. Comelec, supra) Those who petition this Court to declare a
law, or parts thereof, unconstitutional must clearly establish the basis for such a
declaration. Otherwise, their petition must fail. Based on the grounds raised by
petitioners to challenge the constitutionality of P.D. 1869, the Court finds that
petitioners have failed to overcome the presumption. The dismissal of this
petition is therefore, inevitable. But as to whether P.D. 1869 remains a wise
legislation considering the issues of “morality, monopoly, trend to free enterprise,
privatization as well as the state principles on social justice, role of youth and
educational values” being raised, is up for Congress to determine.
PARAS, J.:
A TV ad proudly announces:
"The new PAGCOR — responding through responsible gaming."
But the petitioners think otherwise, that is why, they filed the instant petition
seeking to annul the Philippine Amusement and Gaming Corporation (PAGCOR)
Charter — PD 1869, because it is allegedly contrary to morals, public policy and
order, and because —
A. It constitutes a waiver of a right prejudicial to a third person with a right
recognized by law. It waived the Manila City government's right to impose taxes
and license fees, which is recognized by law;
B. For the same reason stated in the immediately preceding paragraph, the law
has intruded into the local government's right to impose local taxes and license
fees. This, in contravention of the constitutionally enshrined principle of local
autonomy;
C. It violates the equal protection clause of the constitution in that it legalizes
PAGCOR — conducted gambling, while most other forms of gambling are
outlawed, together with prostitution, drug trafficking and other vices;
D. It violates the avowed trend of the Cory government away from monopolistic
and crony economy, and toward free enterprise and privatization. (p. 2,
Amended Petition; p. 7, Rollo)
In their Second Amended Petition, petitioners also claim that PD 1869 is contrary
to the declared national policy of the "new restored democracy" and the people's
will as expressed in the 1987 Constitution. The decree is said to have a
"gambling objective" and therefore is contrary to Sections 11, 12 and 13 of
Article II, Sec. 1 of Article VIII and Section 3 (2) of Article XIV, of the present
Constitution (p. 3, Second Amended Petition; p. 21, Rollo).
The procedural issue is whether petitioners, as taxpayers and practicing lawyers
(petitioner Basco being also the Chairman of the Committee on Laws of the City
Council of Manila), can question and seek the annulment of PD 1869 on the
alleged grounds mentioned above.
The Philippine Amusements and Gaming Corporation (PAGCOR) was created by
virtue of P.D. 1067-A dated January 1, 1977 and was granted a franchise under
P.D. 1067-B also dated January 1, 1977 "to establish, operate and maintain
gambling casinos on land or water within the territorial jurisdiction of the
Philippines." Its operation was originally conducted in the well known floating
casino "Philippine Tourist." The operation was considered a success for it proved
to be a potential source of revenue to fund infrastructure and socio-economic
projects, thus, P.D. 1399 was passed on June 2, 1978 for PAGCOR to fully attain
this objective.
Subsequently, on July 11, 1983, PAGCOR was created under P.D. 1869 to enable
the Government to regulate and centralize all games of chance authorized by
existing franchise or permitted by law, under the following declared policy —
Sec. 1. Declaration of Policy. — It is hereby declared to be the policy of the State
to centralize and integrate all games of chance not heretofore authorized by
existing franchises or permitted by law in order to attain the following objectives:
(a) To centralize and integrate the right and authority to operate and conduct
games of chance into one corporate entity to be controlled, administered and
supervised by the Government.
(b) To establish and operate clubs and casinos, for amusement and recreation,
including sports gaming pools, (basketball, football, lotteries, etc.) and such
other forms of amusement and recreation including games of chance, which may
be allowed by law within the territorial jurisdiction of the Philippines and which
will: (1) generate sources of additional revenue to fund infrastructure and socio-
civic projects, such as flood control programs, beautification, sewerage and
sewage projects, Tulungan ng Bayan Centers, Nutritional Programs, Population
Control and such other essential public services; (2) create recreation and
integrated facilities which will expand and improve the country's existing tourist
277
attractions; and (3) minimize, if not totally eradicate, all the evils, malpractices
and corruptions that are normally prevalent on the conduct and operation of
gambling clubs and casinos without direct government involvement. (Section 1,
P.D. 1869)
To attain these objectives PAGCOR is given territorial jurisdiction all over the
Philippines. Under its Charter's repealing clause, all laws, decrees, executive
orders, rules and regulations, inconsistent therewith, are accordingly repealed,
amended or modified.
It is reported that PAGCOR is the third largest source of government revenue,
next to the Bureau of Internal Revenue and the Bureau of Customs. In 1989
alone, PAGCOR earned P3.43 Billion, and directly remitted to the National
Government a total of P2.5 Billion in form of franchise tax, government's income
share, the President's Social Fund and Host Cities' share. In addition, PAGCOR
sponsored other socio-cultural and charitable projects on its own or in
cooperation with various governmental agencies, and other private associations
and organizations. In its 3 1/2 years of operation under the present
administration, PAGCOR remitted to the government a total of P6.2 Billion. As of
December 31, 1989, PAGCOR was employing 4,494 employees in its nine (9)
casinos nationwide, directly supporting the livelihood of Four Thousand Four
Hundred Ninety-Four (4,494) families.
But the petitioners, are questioning the validity of P.D. No. 1869. They allege
that the same is "null and void" for being "contrary to morals, public policy and
public order," monopolistic and tends toward "crony economy", and is violative of
the equal protection clause and local autonomy as well as for running counter to
the state policies enunciated in Sections 11 (Personal Dignity and Human
Rights), 12 (Family) and 13 (Role of Youth) of Article II, Section 1 (Social
Justice) of Article XIII and Section 2 (Educational Values) of Article XIV of the
1987 Constitution.
This challenge to P.D. No. 1869 deserves a searching and thorough scrutiny and
the most deliberate consideration by the Court, involving as it does the exercise
of what has been described as "the highest and most delicate function which
belongs to the judicial department of the government." (State v. Manuel, 20 N.C.
144; Lozano v. Martinez, 146 SCRA 323).
As We enter upon the task of passing on the validity of an act of a co-equal and
coordinate branch of the government We need not be reminded of the time-
honored principle, deeply ingrained in our jurisprudence, that a statute is
presumed to be valid. Every presumption must be indulged in favor of its
constitutionality. This is not to say that We approach Our task with diffidence or
timidity. Where it is clear that the legislature or the executive for that matter,
has over-stepped the limits of its authority under the constitution, We should not
hesitate to wield the axe and let it fall heavily, as fall it must, on the offending
statute (Lozano v. Martinez, supra).
In Victoriano v. Elizalde Rope Workers' Union, et al , 59 SCRA 54, the Court thru
Mr. Justice Zaldivar underscored the —
. . . thoroughly established principle which must be followed in all cases where
questions of constitutionality as obtain in the instant cases are involved. All
presumptions are indulged in favor of constitutionality; one who attacks a statute
alleging unconstitutionality must prove its invalidity beyond a reasonable doubt;
that a law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be upheld
and the challenger must negate all possible basis; that the courts are not
concerned with the wisdom, justice, policy or expediency of a statute and that a
liberal interpretation of the constitution in favor of the constitutionality of
legislation should be adopted. (Danner v. Hass, 194 N.W. 2nd534, 539; Spurbeck
v. Statton, 106 N.W. 2nd 660, 663; 59 SCRA 66; see also e.g. Salas v. Jarencio,
46 SCRA 734, 739 [1970]; Peralta v. Commission on Elections, 82 SCRA 30, 55
[1978]; and Heirs of Ordona v. Reyes, 125 SCRA 220, 241-242 [1983] cited in
Citizens Alliance for Consumer Protection v. Energy Regulatory Board, 162 SCRA
521, 540)
Of course, there is first, the procedural issue. The respondents are questioning
the legal personality of petitioners to file the instant petition.
Considering however the importance to the public of the case at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to determine
whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws and that they have not abused the
discretion given to them, the Court has brushed aside technicalities of procedure
and has taken cognizance of this petition. (Kapatiran ng mga Naglilingkod sa
Pamahalaan ng Pilipinas Inc. v. Tan, 163 SCRA 371)
With particular regard to the requirement of proper party as applied in the cases
before us, We hold that the same is satisfied by the petitioners and intervenors
because each of them has sustained or is in danger of sustaining an immediate
injury as a result of the acts or measures complained of. And even if, strictly
speaking they are not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so remove the impediment
to its addressing and resolving the serious constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders issued by
President Quirino although they were involving only an indirect and general
interest shared in common with the public. The Court dismissed the objection
that they were not proper parties and ruled that "the transcendental importance
to the public of these cases demands that they be settled promptly and
278
definitely, brushing aside, if we must technicalities of procedure." We have since
then applied the exception in many other cases. (Association of Small
Landowners in the Philippines, Inc. v. Sec. of Agrarian Reform, 175 SCRA 343).
Having disposed of the procedural issue, We will now discuss the substantive
issues raised.
Gambling in all its forms, unless allowed by law, is generally prohibited. But the
prohibition of gambling does not mean that the Government cannot regulate it in
the exercise of its police power.
The concept of police power is well-established in this jurisdiction. It has been
defined as the "state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare." (Edu v.
Ericta, 35 SCRA 481, 487) As defined, it consists of (1) an imposition or restraint
upon liberty or property, (2) in order to foster the common good. It is not
capable of an exact definition but has been, purposely, veiled in general terms to
underscore its all-comprehensive embrace. (Philippine Association of Service
Exporters, Inc. v. Drilon, 163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate
the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuming the greatest
benefits. (Edu v. Ericta, supra)
It finds no specific Constitutional grant for the plain reason that it does not owe
its origin to the charter. Along with the taxing power and eminent domain, it is
inborn in the very fact of statehood and sovereignty. It is a fundamental
attribute of government that has enabled it to perform the most vital functions of
governance. Marshall, to whom the expression has been credited, refers to it
succinctly as the plenary power of the state "to govern its citizens". (Tribe,
American Constitutional Law, 323, 1978). The police power of the State is a
power co-extensive with self-protection and is most aptly termed the "law of
overwhelming necessity." (Rubi v. Provincial Board of Mindoro, 39 Phil. 660, 708)
It is "the most essential, insistent, and illimitable of powers." (Smith Bell & Co. v.
National, 40 Phil. 136) It is a dynamic force that enables the state to meet the
agencies of the winds of change.
What was the reason behind the enactment of P.D. 1869?
P.D. 1869 was enacted pursuant to the policy of the government to "regulate
and centralize thru an appropriate institution all games of chance authorized by
existing franchise or permitted by law" (1st whereas clause, PD 1869). As was
subsequently proved, regulating and centralizing gambling operations in one
corporate entity — the PAGCOR, was beneficial not just to the Government but
to society in general. It is a reliable source of much needed revenue for the cash
strapped Government. It provided funds for social impact projects and subjected
gambling to "close scrutiny, regulation, supervision and control of the
Government" (4th Whereas Clause, PD 1869). With the creation of PAGCOR and
the direct intervention of the Government, the evil practices and corruptions that
go with gambling will be minimized if not totally eradicated. Public welfare, then,
lies at the bottom of the enactment of PD 1896.
Petitioners contend that P.D. 1869 constitutes a waiver of the right of the City of
Manila to impose taxes and legal fees; that the exemption clause in P.D. 1869 is
violative of the principle of local autonomy. They must be referring to Section 13
par. (2) of P.D. 1869 which exempts PAGCOR, as the franchise holder from
paying any "tax of any kind or form, income or otherwise, as well as fees,
charges or levies of whatever nature, whether National or Local."
(2) Income and other taxes. — a) Franchise Holder: No tax of any kind or form,
income or otherwise as well as fees, charges or levies of whatever nature,
whether National or Local, shall be assessed and collected under this franchise
from the Corporation; nor shall any form or tax or charge attach in any way to
the earnings of the Corporation, except a franchise tax of five (5%) percent of
the gross revenues or earnings derived by the Corporation from its operations
under this franchise. Such tax shall be due and payable quarterly to the National
Government and shall be in lieu of all kinds of taxes, levies, fees or assessments
of any kind, nature or description, levied, established or collected by any
municipal, provincial or national government authority (Section 13 [2]).
Their contention stated hereinabove is without merit for the following reasons:
(a) The City of Manila, being a mere Municipal corporation has no inherent right
to impose taxes (Icard v. City of Baguio, 83 Phil. 870; City of Iloilo v. Villanueva,
105 Phil. 337; Santos v. Municipality of Caloocan, 7 SCRA 643). Thus, "the
Charter or statute must plainly show an intent to confer that power or the
municipality cannot assume it" (Medina v. City of Baguio, 12 SCRA 62). Its
"power to tax" therefore must always yield to a legislative act which is superior
having been passed upon by the state itself which has the "inherent power to
tax" (Bernas, the Revised [1973] Philippine Constitution, Vol. 1, 1983 ed. p.
445).
(b) The Charter of the City of Manila is subject to control by Congress. It should
be stressed that "municipal corporations are mere creatures of Congress" (Unson
v. Lacson, G.R. No. 7909, January 18, 1957) which has the power to "create and
abolish municipal corporations" due to its "general legislative powers" (Asuncion
v. Yriantes, 28 Phil. 67; Merdanillo v. Orandia, 5 SCRA 541). Congress, therefore,
has the power of control over Local governments (Hebron v. Reyes, G.R. No.
9124, July 2, 1950). And if Congress can grant the City of Manila the power to
tax certain matters, it can also provide for exemptions or even take back the
power.
279
(c) The City of Manila's power to impose license fees on gambling, has long been
revoked. As early as 1975, the power of local governments to regulate gambling
thru the grant of "franchise, licenses or permits" was withdrawn by P.D. No. 771
and was vested exclusively on the National Government, thus:
Sec. 1. Any provision of law to the contrary notwithstanding, the authority of
chartered cities and other local governments to issue license, permit or other
form of franchise to operate, maintain and establish horse and dog race tracks,
jai-alai and other forms of gambling is hereby revoked.
Sec. 2. Hereafter, all permits or franchises to operate, maintain and establish,
horse and dog race tracks, jai-alai and other forms of gambling shall be issued
by the national government upon proper application and verification of the
qualification of the applicant . . .
Therefore, only the National Government has the power to issue "licenses or
permits" for the operation of gambling. Necessarily, the power to demand or
collect license fees which is a consequence of the issuance of "licenses or
permits" is no longer vested in the City of Manila.
(d) Local governments have no power to tax instrumentalities of the National
Government. PAGCOR is a government owned or controlled corporation with an
original charter, PD 1869. All of its shares of stocks are owned by the National
Government. In addition to its corporate powers (Sec. 3, Title II, PD 1869) it also
exercises regulatory powers thus:
Sec. 9. Regulatory Power. — The Corporation shall maintain a Registry of the
affiliated entities, and shall exercise all the powers, authority and the
responsibilities vested in the Securities and Exchange Commission over such
affiliating entities mentioned under the preceding section, including, but not
limited to amendments of Articles of Incorporation and By-Laws, changes in
corporate term, structure, capitalization and other matters concerning the
operation of the affiliated entities, the provisions of the Corporation Code of the
Philippines to the contrary notwithstanding, except only with respect to original
incorporation.
PAGCOR has a dual role, to operate and to regulate gambling casinos. The latter
role is governmental, which places it in the category of an agency or
instrumentality of the Government. Being an instrumentality of the Government,
PAGCOR should be and actually is exempt from local taxes. Otherwise, its
operation might be burdened, impeded or subjected to control by a mere Local
government.
The states have no power by taxation or otherwise, to retard, impede, burden or
in any manner control the operation of constitutional laws enacted by Congress
to carry into execution the powers vested in the federal government. (MC Culloch
v. Marland, 4 Wheat 316, 4 L Ed. 579)
This doctrine emanates from the "supremacy" of the National Government over
local governments.
Justice Holmes, speaking for the Supreme Court, made reference to the entire
absence of power on the part of the States to touch, in that way (taxation) at
least, the instrumentalities of the United States (Johnson v. Maryland, 254 US
51) and it can be agreed that no state or political subdivision can regulate a
federal instrumentality in such a way as to prevent it from consummating its
federal responsibilities, or even to seriously burden it in the accomplishment of
them. (Antieau, Modern Constitutional Law, Vol. 2, p. 140, emphasis supplied)
Otherwise, mere creatures of the State can defeat National policies thru
extermination of what local authorities may perceive to be undesirable activities
or enterprise using the power to tax as "a tool for regulation" (U.S. v. Sanchez,
340 US 42).
The power to tax which was called by Justice Marshall as the "power to destroy"
(Mc Culloch v. Maryland, supra) cannot be allowed to defeat an instrumentality
or creation of the very entity which has the inherent power to wield it.
(e) Petitioners also argue that the Local Autonomy Clause of the Constitution will
be violated by P.D. 1869. This is a pointless argument. Article X of the 1987
Constitution (on Local Autonomy) provides:
Sec. 5. Each local government unit shall have the power to create its own source
of revenue and to levy taxes, fees, and other charges subject to such guidelines
and limitation as the congress may provide, consistent with the basic policy on
local autonomy. Such taxes, fees and charges shall accrue exclusively to the local
government. (emphasis supplied)
The power of local government to "impose taxes and fees" is always subject to
"limitations" which Congress may provide by law. Since PD 1869 remains an
"operative" law until "amended, repealed or revoked" (Sec. 3, Art. XVIII, 1987
Constitution), its "exemption clause" remains as an exception to the exercise of
the power of local governments to impose taxes and fees. It cannot therefore be
violative but rather is consistent with the principle of local autonomy.
Besides, the principle of local autonomy under the 1987 Constitution simply
means "decentralization" (III Records of the 1987 Constitutional Commission, pp.
435-436, as cited in Bernas, The Constitution of the Republic of the Philippines,
Vol. II, First Ed., 1988, p. 374). It does not make local governments sovereign
within the state or an "imperium in imperio."
Local Government has been described as a political subdivision of a nation or
state which is constituted by law and has substantial control of local affairs. In a
unitary system of government, such as the government under the Philippine
Constitution, local governments can only be an intra sovereign subdivision of one
280
sovereign nation, it cannot be an imperium in imperio. Local government in such
a system can only mean a measure of decentralization of the function of
government. (emphasis supplied)
As to what state powers should be "decentralized" and what may be delegated
to local government units remains a matter of policy, which concerns wisdom. It
is therefore a political question. (Citizens Alliance for Consumer Protection v.
Energy Regulatory Board, 162 SCRA 539).
What is settled is that the matter of regulating, taxing or otherwise dealing with
gambling is a State concern and hence, it is the sole prerogative of the State to
retain it or delegate it to local governments.
As gambling is usually an offense against the State, legislative grant or express
charter power is generally necessary to empower the local corporation to deal
with the subject. . . . In the absence of express grant of power to
enact, ordinance provisions on this subject which are inconsistent with the state
laws are void. (Ligan v. Gadsden, Ala App. 107 So. 733 Ex-Parte Solomon, 9,
Cals. 440, 27 PAC 757 following in re Ah You, 88 Cal. 99, 25 PAC 974, 22 Am St.
Rep. 280, 11 LRA 480, as cited in Mc Quinllan Vol. 3 Ibid, p. 548, emphasis
supplied)
Petitioners next contend that P.D. 1869 violates the equal protection clause of
the Constitution, because "it legalized PAGCOR — conducted gambling, while
most gambling are outlawed together with prostitution, drug trafficking and
other vices" (p. 82, Rollo).
We, likewise, find no valid ground to sustain this contention. The petitioners'
posture ignores the well-accepted meaning of the clause "equal protection of the
laws." The clause does not preclude classification of individuals who may be
accorded different treatment under the law as long as the classification is not
unreasonable or arbitrary (Itchong v. Hernandez, 101 Phil. 1155). A law does not
have to operate in equal force on all persons or things to be conformable to
Article III, Section 1 of the Constitution (DECS v. San Diego, G.R. No. 89572,
December 21, 1989).
The "equal protection clause" does not prohibit the Legislature from establishing
classes of individuals or objects upon which different rules shall operate (Laurel
v. Misa, 43 O.G. 2847). The Constitution does not require situations which are
different in fact or opinion to be treated in law as though they were the same
(Gomez v. Palomar, 25 SCRA 827).
Just how P.D. 1869 in legalizing gambling conducted by PAGCOR is violative of
the equal protection is not clearly explained in the petition. The mere fact that
some gambling activities like cockfighting (P.D 449) horse racing (R.A. 306 as
amended by RA 983), sweepstakes, lotteries and races (RA 1169 as amended by
B.P. 42) are legalized under certain conditions, while others are prohibited, does
not render the applicable laws, P.D. 1869 for one, unconstitutional.
If the law presumably hits the evil where it is most felt, it is not to be overthrown
because there are other instances to which it might have been applied. (Gomez
v. Palomar, 25 SCRA 827)
The equal protection clause of the 14th Amendment does not mean that all
occupations called by the same name must be treated the same way; the state
may do what it can to prevent which is deemed as evil and stop short of those
cases in which harm to the few concerned is not less than the harm to the public
that would insure if the rule laid down were made mathematically exact.
(Dominican Hotel v. Arizona, 249 US 2651).
Anent petitioners' claim that PD 1869 is contrary to the "avowed trend of the
Cory Government away from monopolies and crony economy and toward free
enterprise and privatization" suffice it to state that this is not a ground for this
Court to nullify P.D. 1869. If, indeed, PD 1869 runs counter to the government's
policies then it is for the Executive Department to recommend to Congress its
repeal or amendment.
The judiciary does not settle policy issues. The Court can only declare what the
law is and not what the law should be.1âwphi1 Under our system of
government, policy issues are within the domain of the political branches of
government and of the people themselves as the repository of all state power.
(Valmonte v. Belmonte, Jr., 170 SCRA 256).
On the issue of "monopoly," however, the Constitution provides that:
Sec. 19. The State shall regulate or prohibit monopolies when public interest so
requires. No combinations in restraint of trade or unfair competition shall be
allowed. (Art. XII, National Economy and Patrimony)
It should be noted that, as the provision is worded, monopolies are not
necessarily prohibited by the Constitution. The state must still decide whether
public interest demands that monopolies be regulated or prohibited. Again, this is
a matter of policy for the Legislature to decide.
On petitioners' allegation that P.D. 1869 violates Sections 11 (Personality Dignity)
12 (Family) and 13 (Role of Youth) of Article II; Section 13 (Social Justice) of
Article XIII and Section 2 (Educational Values) of Article XIV of the 1987
Constitution, suffice it to state also that these are merely statements of principles
and, policies. As such, they are basically not self-executing, meaning a law
should be passed by Congress to clearly define and effectuate such principles.
In general, therefore, the 1935 provisions were not intended to be self-executing
principles ready for enforcement through the courts. They were rather directives
281
addressed to the executive and the legislature. If the executive and the
legislature failed to heed the directives of the articles the available remedy was
not judicial or political. The electorate could express their displeasure with the
failure of the executive and the legislature through the language of the ballot.
(Bernas, Vol. II, p. 2)
Every law has in its favor the presumption of constitutionality (Yu Cong Eng v.
Trinidad, 47 Phil. 387; Salas v. Jarencio, 48 SCRA 734; Peralta v. Comelec, 82
SCRA 30; Abbas v. Comelec, 179 SCRA 287). Therefore, for PD 1869 to be
nullified, it must be shown that there is a clear and unequivocal breach of the
Constitution, not merely a doubtful and equivocal one. In other words, the
grounds for nullity must be clear and beyond reasonable doubt. (Peralta v.
Comelec, supra) Those who petition this Court to declare a law, or parts thereof,
unconstitutional must clearly establish the basis for such a declaration.
Otherwise, their petition must fail. Based on the grounds raised by petitioners to
challenge the constitutionality of P.D. 1869, the Court finds that petitioners have
failed to overcome the presumption. The dismissal of this petition is therefore,
inevitable. But as to whether P.D. 1869 remains a wise legislation considering the
issues of "morality, monopoly, trend to free enterprise, privatization as well as
the state principles on social justice, role of youth and educational values" being
raised, is up for Congress to determine.
As this Court held in Citizens' Alliance for Consumer Protection v. Energy
Regulatory Board, 162 SCRA 521 —
Presidential Decree No. 1956, as amended by Executive Order No. 137 has, in
any case, in its favor the presumption of validity and constitutionality which
petitioners Valmonte and the KMU have not overturned. Petitioners have not
undertaken to identify the provisions in the Constitution which they claim to have
been violated by that statute. This Court, however, is not compelled to speculate
and to imagine how the assailed legislation may possibly offend some provision
of the Constitution. The Court notes, further, in this respect that petitioners have
in the main put in question the wisdom, justice and expediency of the
establishment of the OPSF, issues which are not properly addressed to this Court
and which this Court may not constitutionally pass upon. Those issues should be
addressed rather to the political departments of government: the President and
the Congress.
Parenthetically, We wish to state that gambling is generally immoral, and this is
precisely so when the gambling resorted to is excessive. This excessiveness
necessarily depends not only on the financial resources of the gambler and his
family but also on his mental, social, and spiritual outlook on life. However, the
mere fact that some persons may have lost their material fortunes, mental
control, physical health, or even their lives does not necessarily mean that the
same are directly attributable to gambling. Gambling may have been the
antecedent, but certainly not necessarily the cause. For the same consequences
could have been preceded by an overdose of food, drink, exercise, work, and
even sex.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.
Separate Opinions
PADILLA, J., concurring:
I concur in the result of the learned decision penned by my brother Mr. Justice
Paras. This means that I agree with the decision insofar as it holds that the
prohibition, control, and regulation of the entire activity known as gambling
properly pertain to "state policy." It is, therefore, the political departments of
government, namely, the legislative and the executive that should decide on
what government should do in the entire area of gambling, and assume full
responsibility to the people for such policy.
The courts, as the decision states, cannot inquire into the wisdom, morality or
expediency of policies adopted by the political departments of government in
areas which fall within their authority, except only when such policies pose a
clear and present danger to the life, liberty or property of the individual. This
case does not involve such a factual situation.
However, I hasten to make of record that I do not subscribe to gambling in any
form. It demeans the human personality, destroys self-confidence and
eviscerates one's self-respect, which in the long run will corrode whatever is left
of the Filipino moral character. Gambling has wrecked and will continue to wreck
families and homes; it is an antithesis to individual reliance and reliability as well
as personal industry which are the touchstones of real economic progress and
national development.
Gambling is reprehensible whether maintained by government or privatized. The
revenues realized by the government out of "legalized" gambling will, in the long
run, be more than offset and negated by the irreparable damage to the people's
moral values.
Also, the moral standing of the government in its repeated avowals against
"illegal gambling" is fatally flawed and becomes untenable when it itself engages
in the very activity it seeks to eradicate.
One can go through the Court's decision today and mentally replace the activity
referred to therein as gambling, which is legal only because it is authorized by
law and run by the government, with the activity known as prostitution. Would
282
prostitution be any less reprehensible were it to be authorized by law,
franchised, and "regulated" by the government, in return for the substantial
revenues it would yield the government to carry out its laudable projects, such
as infrastructure and social amelioration? The question, I believe, answers itself.
I submit that the sooner the legislative department outlaws all forms of
gambling, as a fundamental state policy, and the sooner the executive
implements such policy, the better it will be for the nation.

Melencio-Herrera, J., concur.

SECOND DIVISION

G.R. No. 129093            August 30, 2001

HON. JOSE D. LINA, JR., SANGGUNIANG PANLALAWIGAN OF LAGUNA,

and HON. CALIXTO CATAQUIZ,petitioners, 
vs.
HON. FRANCISCO DIZON PAÑO and TONY CALVENTO, respondents.

Municipal Corporations; Local Government Units; Ordinances; Gambling; An

ordinance which merely states the “objection” of the council to lotto is but a
mere policy statement on the part of the local council which is not self-
executing, and could not serve as a valid ground to prohibit the operation of the
lotto system in the province .—The entire controversy stemmed from the refusal
of Mayor Cataquiz to issue a mayor’s permit for the operation of a lotto outlet in
favor of private respondent. According to the mayor, he based his decision on an
existing ordinance prohibiting the operation of lotto in the province of Laguna.
The ordinance, however, merely states the “objection” of the council to the said
game. It is but a mere policy statement on the part of the local council, which is
not selfexecuting. Nor could it serve as a valid ground to prohibit the operation
of the lotto system in the province of Laguna.
Same; Same; Same; Same; While a policy statement expressing the local
government’s objection to the lotto is valid, as it is part of the local government’s
autonomy to air its views which may be contrary to that of the national
government’s, this freedom to exercise contrary views does not mean that local
governments may actually enact ordinances that go against laws duly enacted by
Congress.—As a policy statement expressing the local government’s objection to
the lotto, such resolution is valid. This is part of the local government’s
autonomy to air its views which may be contrary to that of the national
government’s. However, this freedom to exercise contrary views does not mean
that local governments may actually enact ordinances that go against laws duly
enacted by Congress. Given this premise, the assailed resolution in this case
could not and should not be interpreted as a measure or ordinance prohibiting
the operation of lotto.
Same; Same; Same; Same; What the national legislature allows by law, such as
lotto, a provincial board may not disallow by ordinance or resolution .—The game
of lotto is a game of chance duly authorized by the national government through
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an Act of Congress. Republic Act 1169, as amended by Batas Pambansa Blg. 42,
is the law which grants a franchise to the PCSO and allows it to operate the
lotteries, x x x This statute remains valid today. While lotto is clearly a game of
chance, the national government deems it wise and proper to permit it. Hence,
the Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue
a resolution or an ordinance that would seek to prohibit permits. Stated
otherwise, what the national legislature expressly allows by law, such as lotto, a
provincial board may not disallow by ordinance or resolution.
Same; Same; Same; In our system of government, the power of local
government units to legislate and enact ordinances and resolutions is merely a
delegated power coming from Congress .—In our system of government, the
power of local government units to legislate and enact ordinances and
resolutions is merely a delegated power coming from Congress. As held in Tatel
vs. Virac, ordinances should not contravene an existing statute enacted by
Congress. The reasons for this is obvious, as elucidated in Magtajas v. Pryce
Properties Corp. Municipal governments are only agents of the national
government. Local councils exercise only delegated legislative powers conferred
upon them by Congress as the national lawmaking body. The delegate cannot be
superior to the principal or exercise powers higher than those of the latter. It is a
heresy to suggest that the local government units can undo the acts of Congress,
from which they have derived their power in the first place, and negate by mere
ordinance the mandate of the statute. Municipal corporations owe their origin to,
and derive their powers and rights wholly from the legislature. It breathes into
them the breath of life, without which they cannot exist. As it creates, so it may
destroy. As it may destroy, it may abridge and control. Unless there is some
constitutional limitation on the right, the legislature might, by a single act, and if
we can suppose it capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the state, and the corporation could
not prevent it. We know of no limitation on the right so far as the corporation
themselves are concerned. They are, so to phrase it, the mere tenants at will of
the legislature (citing Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa 455).
Same; Same; Same; Ours is a unitary form of government, not a federal state .—
Ours is still a unitary form of government, not a federal state. Being so, any form
of autonomy granted to local governments will necessarily be limited and
confined within the extent allowed by the central authority. Besides, the principle
of local autonomy under the 1987 Constitution simply means “decentralization”.
It does not make local governments sovereign within the state or an “imperium
in imperio.”
Same; Same; Same; Gambling; Sections 2 (c) and 27 of the Local Government
Code (Republic Act 7160) apply only to national programs and/or projects which
are to be implemented in a particular local community—lotto is neither a
program nor a project of the national government, but of a charitable institution,
the PCSO, and it is far fetched to say that lotto falls within the contemplation of
aforesaid legal provisions.—From a careful reading of said provisions, we find
that these apply only to national programs and/or projects which are to be
implemented in a particular local community. Lotto is neither a program nor a
project of the national government, but of a charitable institution, the PCSO.
Though sanctioned by the national government, it is far fetched to say that lotto
falls within the contemplation of Sections 2 (c) and 27 of the Local Government
Code.
QUISUMBING, J.:
For our resolution is a petition for review on certiorari seeking the reversal of the
decision 1 dated February 10, 1997 of the Regional Trial Court of San Pedro,
Laguna, Branch 93, enjoining petitioners from implementing or
enforcing Kapasiyahan Bilang 508, Taon 1995, of the Sangguniang
Panlalawigan of Laguna and its subsequent Order 2 dated April 21, 1997 denying
petitioners' motion for reconsideration.
On December 29, 1995, respondent Tony Calvento was appointed agent by the
Philippine Charity Sweepstakes Office (PCSO) to install Terminal OM 20 for the
operation of lotto. He asked Mayor Calixto Cataquiz, Mayor of San Pedro,
Laguna, for a mayor's permit to open the lotto outlet. This was denied by Mayor
Cataquiz in a letter dated February 19, 1996. The ground for said denial was an
ordinance passed by the Sangguniang Panlalawigan of Laguna
entitled Kapasiyahan Blg. 508, T. 1995 which was issued on September 18,
1995. The ordinance reads:
ISANG KAPASIYAHAN TINUTUTULAN ANG MGA "ILLEGAL GAMBLING" LALO NA
ANG LOTTO SA LALAWIGAN NG LAGUNA
SAPAGKA'T, ang sugal dito sa lalawigan ng Laguna ay talamak na;
SAPAGKA'T, ang sugal ay nagdudulot ng masasamang impluwensiya lalo't higit
sa mga kabataan;
KUNG KAYA'T DAHIL DITO, at sa mungkahi nina Kgg. Kgd. Juan M. Unico at
Kgg. Kgd. Gat-Ala A. Alatiit, pinangalawahan ni Kgg. Kgd. Meliton C. Larano at
buong pagkakaisang sinangayunan ng lahat ng dumalo sa pulong;
IPINASIYA, na tutulan gaya ng dito ay mahigpit na TINUTUTULAN ang ano mang
uri ng sugal dito sa lalawigan ng Laguna lalo't higit ang Lotto;
IPINASIYA PA RIN na hilingin tulad ng dito ay hinihiling sa Panlalawigang pinuno
ng Philippine National Police (PNP) Col. [illegible] na mahigpit na pag-ibayuhin
ang pagsugpo sa lahat ng uri ng illegal na sugal sa buong lalawigan ng Laguna
lalo na ang "Jueteng".3
As a result of this resolution of denial, respondent Calvento filed a complaint for
declaratory relief with prayer for preliminary injunction and temporary restraining
order. In the said complaint, respondent Calvento asked the Regional Trial Court
of San Pedro Laguna, Branch 93, for the following reliefs: (1) a preliminary
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injunction or temporary restraining order, ordering the defendants to refrain
from implementing or enforcing Kapasiyahan Blg. 508, T. 1995; (2) an order
requiring Hon. Municipal Mayor Calixto R Cataquiz to issue a business permit for
the operation of a lotto outlet; and (3) an order annulling or declaring as
invalid Kapasiyahan Blg. 508, T. 1995.
On February 10, 1997, the respondent judge, Francisco Dizon Paño, promulgated
his decision enjoining the petitioners from implementing or enforcing resolution
or Kapasiyahan Blg. 508, T. 1995. The dispositive portion of said decision reads:
WHEREFORE, premises considered, defendants, their agents and representatives
are hereby enjoined from implementing or enforcing resolution or kapasiyahan
blg. 508, T. 1995 of the Sangguniang Panlalawigan ng Laguna prohibiting the
operation of the lotto in the province of Laguna.
SO ORDERED.4
Petitioners filed a motion for reconsideration which was subsequently denied in
an Order dated April 21, 1997, which reads:
Acting on the Motion for Reconsideration filed by defendants Jose D. Lina, Jr.
and the Sangguniang Panlalawigan of Laguna, thru counsel, with the opposition
filed by plaintiff's counsel and the comment thereto filed by counsel for the
defendants which were duly noted, the Court hereby denies the motion for lack
of merit.
SO ORDERED.5
On May 23, 1997, petitioners filed this petition alleging that the following errors
were committed by the respondent trial court:
I Congress has allowed the PCSO to operate lotteries which PCSO seeks to
THE TRIAL COURT ERRED IN ENJOINING THE PETITIONERS FROM
IMPLEMENTING KAPASIYAHAN BLG. 508, T. 1995 OF THE SANGGUNIANG
PANLALAWIGAN OF LAGUNA PROHIBITING THE OPERATION OF THE LOTTO IN
THE PROVINCE OF LAGUNA.
II
THE TRIAL COURT FAILED TO APPRECIATE THE ARGUMENT POSITED BY THE
PETITIONERS THAT BEFORE ANY GOVERNMENT PROJECT OR PROGRAM MAY
BE IMPLEMENTED BY THE NATIONAL AGENCIES OR OFFICES, PRIOR
CONSULTATION AND APPROVAL BY THE LOCAL GOVERNMENT UNITS
CONCERNED AND OTHER CONCERNED SECTORS IS REQUIRED.
Petitioners contend that the assailed resolution is a valid policy declaration of the
Provincial Government of Laguna of its vehement objection to the operation of
lotto and all forms of gambling. It is likewise a valid exercise of the provincial
government's police power under the General Welfare Clause of Republic Act
7160, otherwise known as the Local Government Code of 1991.6 They also
maintain that respondent's lotto operation is illegal because no prior
consultations and approval by the local government were sought before it was
implemented contrary to the express provisions of Sections 2 (c) and 27 of R.A.
7160.7
For his part, respondent Calvento argues that the questioned resolution is, in
effect, a curtailment of the power of the state since in this case the national
legislature itself had already declared lotto as legal and permitted its operations
around the country.8 As for the allegation that no prior consultations and
approval were sought from the sangguniang panlalawigan of Laguna, respondent
Calvento contends this is not mandatory since such a requirement is merely
stated as a declaration of policy and not a self-executing provision of the Local
Government Code of 1991.9 He also states that his operation of the lotto system
is legal because of the authority given to him by the PCSO, which in turn had
been granted a franchise to operate the lotto by Congress. 10
The Office of the Solicitor General (OSG), for the State, contends that the
Provincial Government of Laguna has no power to prohibit a form of gambling
which has been authorized by the national government.11 He argues that this is
based on the principle that ordinances should not contravene statutes as
municipal governments are merely agents of the national government. The local
councils exercise only delegated legislative powers which have been conferred on
them by Congress. This being the case, these councils, as delegates, cannot be
superior to the principal or exercise powers higher than those of the latter. The
OSG also adds that the question of whether gambling should be permitted is for
Congress to determine, taking into account national and local interests. Since
conduct in Laguna, pursuant to its legislative grant of authority, the
province's Sangguniang Panlalawigan cannot nullify the exercise of said authority
by preventing something already allowed by Congress.
The issues to be resolved now are the following: (1) whether Kapasiyahan Blg.
508, T. 1995 of the Sangguniang Panlalawigan of Laguna and the denial of a
mayor's permit based thereon are valid; and (2) whether prior consultations and
approval by the concerned Sanggunian are needed before a lotto system can be
operated in a given local government unit.
The entire controversy stemmed from the refusal of Mayor Cataquiz to issue a
mayor's permit for the operation of a lotto outlet in favor of private respondent.
According to the mayor, he based his decision on an existing ordinance
prohibiting the operation of lotto in the province of Laguna. The ordinance,
however, merely states the "objection" of the council to the said game. It is but
a mere policy statement on the part of the local council, which is not self-
285
executing. Nor could it serve as a valid ground to prohibit the operation of the
lotto system in the province of Laguna. Even petitioners admit as much when
they stated in their petition that:
5.7. The terms of the Resolution and the validity thereof are express and clear.
The Resolution is a policy declaration of the Provincial Government of Laguna of
its vehement opposition and/or objection to the operation of and/or all forms of
gambling including the Lotto operation in the Province of Laguna. 12
As a policy statement expressing the local government's objection to the lotto,
such resolution is valid. This is part of the local government's autonomy to air its
views which may be contrary to that of the national government's. However, this
freedom to exercise contrary views does not mean that local governments may
actually enact ordinances that go against laws duly enacted by Congress. Given
this premise, the assailed resolution in this case could not and should not be
interpreted as a measure or ordinance prohibiting the operation of lotto.
The game of lotto is a game of chance duly authorized by the national
government through an Act of Congress. Republic Act 1169, as amended
by Batas Pambansa Blg. 42, is the law which grants a franchise to the PCSO and
allows it to operate the lotteries. The pertinent provision reads:
SECTION 1. The Philippine Charity Sweepstakes Office. — The Philippine Charity
Sweepstakes Office, hereinafter designated the Office, shall be the principal
government agency for raising and providing for funds for health programs,
medical assistance and services and charities of national character, and as such
shall have the general powers conferred in section thirteen of Act Numbered One
thousand four hundred fifty-nine, as amended, and shall have the authority:
A. To hold and conduct charity sweepstakes races, lotteries, and other similar
activities, in such frequency and manner, as shall be determined, and subject to
such rules and regulations as shall be promulgated by the Board of Directors.
This statute remains valid today. While lotto is clearly a game of chance, the
national government deems it wise and proper to permit it. Hence,
the Sangguniang Panlalawigan of Laguna, a local government unit, cannot issue
a resolution or an ordinance that would seek to prohibit permits. Stated
otherwise, what the national legislature expressly allows by law, such as lotto, a
provincial board may not disallow by ordinance or resolution.
In our system of government, the power of local government units to legislate
and enact ordinances and resolutions is merely a delegated power coming from
Congress. As held in Tatel vs. Virac,13 ordinances should not contravene an
existing statute enacted by Congress. The reasons for this is obvious, as
elucidated in Magtajas v. Pryce Properties Corp.14
Municipal governments are only agents of the national government. Local
councils exercise only delegated legislative powers conferred upon them by
Congress as the national lawmaking body. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter. It is a heresy to
suggest that the local government units can undo the acts of Congress, from
which they have derived their power in the first place, and negate by mere
ordinance the mandate of the statute.
Municipal corporations owe their origin to, and derive their powers and rights
wholly from the legislature. It breathes into them the breath of life, without
which they cannot exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional limitation on the
right, the legislature might, by a single act, and if we can suppose it capable of
so great a folly and so great a wrong, sweep from existence all of the municipal
corporations in the state, and the corporation could not prevent it. We know of
no limitation on the right so far as the corporation themselves are concerned.
They are, so to phrase it, the mere tenants at will of the legislature (citing
Clinton vs. Ceder Rapids, etc. Railroad Co., 24 Iowa 455).
Nothing in the present constitutional provision enhancing local autonomy dictates
a different conclusion.
The basic relationship between the national legislature and the local government
units has not been enfeebled by the new provisions in the Constitution
strengthening the policy of local autonomy. Without meaning to detract from
that policy, we here confirm that Congress retains control of the local
government units although in significantly reduced degree now than under our
previous Constitutions. The power to create still includes the power to destroy.
The power to grant still includes the power to withhold or recall. True, there are
certain notable innovations in the Constitution, like the direct conferment on the
local government units of the power to tax (citing Art. X, Sec. 5, Constitution),
which cannot now be withdrawn by mere statute. By and large, however, the
national legislature is still the principal of the local government units, which
cannot defy its will or modify or violate it.15
Ours is still a unitary form of government, not a federal state. Being so, any form
of autonomy granted to local governments will necessarily be limited and
confined within the extent allowed by the central authority. Besides, the principle
of local autonomy under the 1987 Constitution simply means "decentralization".
It does not make local governments sovereign within the state or an " imperium
in imperio".16
To conclude our resolution of the first issue, respondent mayor of San Pedro,
cannot avail of Kapasiyahan Bilang 508, Taon 1995, of the Provincial Board of
Laguna as justification to prohibit lotto in his municipality. For said resolution is
nothing but an expression of the local legislative unit concerned. The Board's
286
enactment, like spring water, could not rise above its source of power, the
national legislature.
As for the second issue, we hold that petitioners erred in declaring that Sections
2 (c) and 27 of Republic Act 7160, otherwise known as the Local Government
Code of 1991, apply mandatorily in the setting up of lotto outlets around the
country. These provisions state:
SECTION 2. Declaration of Policy. — . . .
(c) It is likewise the policy of the State 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.
SECTION 27. Prior Consultations Required. — No project or program shall be
implemented by government authorities unless the consultations mentioned in
Section 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.
From a careful reading of said provisions, we find that these apply only to
national programs and/or projects which are to be implemented in a particular
local community. Lotto is neither a program nor a project of the national
government, but of a charitable institution, the PCSO. Though sanctioned by the
national government, it is far fetched to say that lotto falls within the
contemplation of Sections 2 (c) and 27 of the Local Government Code.
Section 27 of the Code should be read in conjunction with Section 26
thereof.17 Section 26 reads:
Thus, the projects and programs mentioned in Section 27 should be interpreted
to mean projects and programs whose effects are among those enumerated in
Section 26 and 27, to wit, those that: (1) may cause pollution; (2) may bring
about climatic change; (3) may cause the depletion of non-renewable resources;
(4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate
certain animal or plant species from the face of the planet; and (6) other
projects or programs that may call for the eviction of a particular group of people
residing in the locality where these will be implemented. Obviously, none of
these effects will be produced by the introduction of lotto in the province of
Laguna.
Moreover, the argument regarding lack of consultation raised by petitioners is
clearly an afterthought on their part. There is no indication in the letter of Mayor
Cataquiz that this was one of the reasons for his refusal to issue a permit. That
refusal was predicated solely but erroneously on the provisions of Kapasiyahan
Blg. 508, Taon 1995, of the Sangguniang Panlalawigan of Laguna.
In sum, we find no reversible error in the RTC decision enjoining Mayor Cataquiz
from enforcing or implementing the Kapasiyahan Blg. 508, T. 1995, of
the Sangguniang Panlalawigan of Laguna. That resolution expresses merely a
policy statement of the Laguna provincial board. It possesses no binding legal
force nor requires any act of implementation. It provides no sufficient legal basis
for respondent mayor's refusal to issue the permit sought by private respondent
in connection with a legitimate business activity authorized by a law passed by
Congress.
WHEREFORE, the petition is DENIED for lack of merit. The Order of the Regional
Trial Court of San Pedro, Laguna enjoining the petitioners from implementing or
enforcing Resolution or Kapasiyahan Blg. 508, T. 1995, of the Provincial Board of
Laguna is hereby AFFIRMED. No costs.
SO ORDERED.

SECTION 26. Duty of National Government Agencies in the Maintenance of Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur.
Ecological Balance. - It shall be the duty of every national agency or
government-owned or controlled corporation authorizing or involved in the
planning and implementation of any project or program that may cause
pollution, climatic change, depletion of non-renewable resources, loss of crop
land, range-land, or forest cover, and extinction of animal or plant species, to
consult with the local government units, nongovernmental organizations, and
other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of
environmental or ecological balance, and the measures that will be undertaken
to prevent or minimize the adverse effects thereof.

287
 Republic of the Philippines
Supreme Court
Manila
FIRST DIVISION

HAZEL MA. C. ANTOLIN,   G.R. No. 165036

Petitioner,    

     

- versus -    

     

ABELARDO T. DOMONDON,    

JOSE A. GANGAN, and    

VIOLETA J. JOSEF,    

Respondents.    

x-----------------------    
- - - -x

     

HAZEL MA. C. ANTOLIN   G.R. No. 175705

Petitioner,    

     

    Present:

     

    CORONA, C. J., Chairperson,

- versus -   VELASCO, JR.,

288

    LEONARDO-DE CASTRO,
    DEL CASTILLO, and
    PEREZ, JJ.
     
ANTONIETA FORTUNA-IBE,   Promulgated:
Respondent.   July 5, 2010
x----------------------------------------------------
---------------x
Professional Regulation Commission; Administrative Law; Exhaustion of
Administrative Remedies; Mandamus; Any claim for re-correction or revision of a
party’s board examination cannot be compelled by mandamus—the function of
reviewing and re-assessing an examinee’s answers to the examination questions
is a discretionary function of the Board, not a ministerial and mandatory one,
hence, not within the scope of the writ of mandamus. —At the very outset let us
be clear of our ruling. Any claim for re-correction or revision of her 1997
examination cannot be compelled by mandamus. This much was made evident
by our ruling in Agustin-Ramos v. Sandoval, where we stated: After deliberating
on the petition in relation to the other pleadings filed in the proceedings at bar,
the Court resolved to DENY said petition for lack of merit. The petition at bar
prays for the setting aside of the Order of respondent Judge dismissing
petitioners’ mandamus action to compel the other respondents (Medical Board of
Examiners and the Professional Regulation Commission) “to reconsider, recorrect
and/or rectify the board ratings of the petitioners from their present failing
grades to higher or passing marks.” The function of reviewing and re-assessing
the petitioners’ answers to the examination questions, in the light of the facts
and arguments presented by them x x x is a discretionary function of the Medical
Board, not a ministerial and mandatory one, hence, not within the scope of the
writ of mandamus. The obvious remedy of the petitioners from the adverse
judgment by the Medical Board of Examiners was an appeal to the Professional
Regulation Commission itself, and thence to the Court of Appeals; and since they
did not apply for relief to the Commission prior to their institution of the special
civil action of mandamus in the Regional Trial Court, the omission was fatal to
the action under the familiar doctrine requiring exhaustion of administrative
remedies. Apart from the obvious undesirability of a procedure which would
allow Courts to substitute their judgment for that of Government boards in the
determination of successful examinees in any administered examination—an area
in which courts have no expertise—and the circumstance that the law declares
the Court of Appeals to be the appropriate review Court, the Regional Trial Court
was quite correct in refusing to take cognizance of an action seeking reversal of
the quasi-judicial action taken by the Medical Board of Examiners.
Same; Same; Same; Same; The remedy of a party from the refusal of the
Board of Accountancy to release the Examination Papers should have been
through an appeal to the Professional Regulation Commission .—Like the
claimants in Agustin, the remedy of petitioner from the refusal of the Board to
release the Examination Papers should have been through an appeal to the PRC.
Undoubtedly, petitioner had an adequate remedy from the Board’s refusal to
provide her with copies of the Examination Papers. Under Section 5(a) of
Presidential Decree No. 223, the PRC has the power to promulgate rules and
regulations to implement policies for the regulation of the accounting profession.
In fact, it is one such regulation (PRC Resolution No. 338) that is at issue in this
case. In addition, under Section 5(c), the PRC has the power to review,
coordinate, integrate and approve the policies, resolutions, rules and regulations,
orders or decisions promulgated by the various Boards with respect to the
profession or occupation under their jurisdictions including the results of their
licensure examinations but their decisions on administrative cases shall be final
and executory unless appealed to the Commission within thirty (30) days from
the date of promulgation thereof.
Same; Same; Same; The Professional Regulation Commission’s (PRC’s)
quasi-legislative and enforcement powers, encompassing its authority to review
and approve “policies, resolutions, rules and regulations, orders, or decisions”
cover more than administrative investigations conducted pursuant to its quasi-
judicial powers.—Petitioner posits that no remedy was available because the
PRC’s power to “review” and “approve” in Section 5(c) only refers to appeals in
decisions concerning administrative investigations and not to instances where
documents are being requested. Not only is this posi tion myopic and self-
serving, it is bereft of either statutory or jurisprudential basis. The PRC’s quasi-
legislative and enforcement powers, encompassing its authority to review and
approve “policies, resolutions, rules and regulations, orders, or decisions” cover
more than administrative investigations conducted pursuant to its quasi-judicial
powers. More significantly, since the PRC itself issued the resolution questioned
by the petitioner here, it was in the best position to resolve questions addressed
to its area of expertise. Indeed, petitioner could have saved herself a great deal
of time and effort had she given the PRC the opportunity to rectify any
purported errors committed by the Board.
Same; Same; Same; One of the reasons for exhaustion of administrative
remedies is our well-entrenched doctrine on separation of powers, which enjoins
upon the Judiciary a becoming policy of non-interference with matters falling
primarily (albeit not exclusively) within the competence of other departments;
Issues of law—such as whether an examinee has a constitutional right to
demand access to the Examination Papers—cannot be resolved with finality by
the administrative officer.—One of the reasons for exhaustion of administrative
remedies is our well-entrenched doctrine on separation of powers, which enjoins
upon the Judiciary a becoming policy of non-interference with matters falling
primarily (albeit not exclusively) within the competence of other departments.
Courts, for reasons of law, comity and convenience, should not entertain suits
unless the available administrative remedies have first been resorted to and the
proper authorities have been given an appropriate opportunity to act and correct
289
their alleged errors, if any, committed in the administrative forum. However, the
principle of exhaustion of administrative remedies is subject to exceptions,
among which is when only a question of law is involved. This is because issues of
law—such as whether petitioner has a constitutional right to demand access to
the Examination Papers—cannot be resolved with finality by the administrative
officer.
Same; Moot and Academic Issues; An issue becomes moot and academic
when it ceases to present a justiciable controversy, so that a declaration on the
issue would be of no practical use or value; A person’s belated passing of the
Certified Public Accountant (CPA) Board Exams does not automatically mean that
her interest in the Examination Papers has become mere superfluity. —We now
turn to the question of whether the petition has become moot in view of
petitioner’s having passed the 1998 CPA examination. An issue becomes moot
and academic when it ceases to present a justiciable controversy, so that a
declaration on the issue would be of no practical use or value. In this
jurisdiction, any citizen may challenge any attempt to obstruct the exercise of his
or her right to information and may seek its enforcement by mandamus. And
since every citizen possesses the inherent right to be informed by the mere fact
of citizenship, we find that petitioner’s belated passing of the CPA Board Exams
does not automatically mean that her interest in the Examination Papers has
become mere superfluity. Undoubtedly, the constitutional question presented, in
view of the likelihood that the issues in this case will be repeated, warrants
review.
Same; Right to Information; In determining whether a particular
information is of public concern there is no rigid test which can be applied
—“public concern” like “public interest” is a term that eludes exact definition, as
both terms embrace a broad spectrum of subjects which the public may want to
know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. —Like all the
constitutional guarantees, the right to information is not absolute. The people’s
right to information is limited to “matters of public concern,” and is further
“subject to such limitations as may be provided by law.” Similarly, the State’s
policy of full disclosure is limited to “transactions involving public interest,” and is
“subject to reasonable conditions prescribed by law.” The Court has always
grappled with the meanings of the terms “public interest” and “public concern.”
As observed in Legaspi v. Civil Service Commission, 150 SCRA 530 (1987): In
determining whether x x x a particular information is of public concern there is
no rigid test which can be applied. “Public concern” like “public interest” is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public. We have also recognized the need to preserve a measure of
confidentiality on some matters, such as national security, trade secrets and
banking transactions, criminal matters, and other confidential matters.
Same; Same; National board examinations such as the Certified Public
Accountant (CPA) Board Exams are matters of public concern; There may be
valid reasons to limit access to the Examination Papers in order to properly
administer the exam—more than the mere convenience of the examiner, it may
well be that there exist inherent difficulties in the preparation, generation,
encoding, administration, and checking of these multiple choice exams that
require that the questions and answers remain confidential for a limited duration.
—We are prepared to concede that national board examinations such as the CPA
Board Exams are matters of public concern. The populace in general, and the
examinees in particular, would understandably be interested in the fair and
competent administration of these exams in order to ensure that only those
qualified are admitted into the accounting profession. And as with all matters
pedagogical, these examinations could be not merely quantitative means of
assessment, but also means to further improve the teaching and learning of the
art and science of accounting. On the other hand, we do realize that there may
be valid reasons to limit access to the Examination Papers in order to properly
administer the exam. More than the mere convenience of the examiner, it may
well be that there exist inherent difficulties in the preparation, generation,
encoding, administration, and checking of these multiple choice exams that
require that the questions and answers remain confidential for a limited duration.
However, the PRC is not a party to these proceedings. They have not been given
an opportunity to explain the reasons behind their regulations or articulate the
justification for keeping the Examination Documents confidential. In view of the
far-reaching implications of this case, which may impact on every board
examination administered by the PRC, and in order that all relevant issues may
be ventilated, we deem it best to remand these cases to the RTC for further
proceedings.
DECISION
DEL CASTILLO, J.:
Examinations have a two-fold purpose. First, they are summative; examinations
are intended to assess and record what and how much the students have
learned. Second, and perhaps more importantly, they are formative;
examinations are intended to be part and parcel of the learning process. In a
perfect system, they are tools for learning. In view of the pedagogical aspect of
national examinations, the need for all parties to fully ventilate their respective
positions, and the view that government transactions can only be improved by
public scrutiny, we remand these cases to the trial court for further proceedings.
Factual Antecedents
Petitioner took the accountancy licensure examinations (the Certified Public
Accountant [CPA] Board Exams) conducted by the Board of Accountancy (the
Board) in October 1997.[1]The examination results were released on October 29,
1997; out of 6,481 examinees, only 1,171 passed. Unfortunately, petitioner did
290
not make it. When the results were released, she received failing grades in four Second, Acting Chairman Domondon clarified that the Board was precluded from
out of the seven subjects.[2] releasing the Examination Papers (other than petitioners answer sheet) by
Section 20, Article IV of PRC Resolution No. 338, series of 1994, which provides:
Subject Petitioners Grade
Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts The hereunder acts
Theory of Accounts 65 % shall constitute prejudicial, illegal, grossly immoral, dishonorable, or
unprofessional conduct:
Business Law 66 %
A. Providing, getting, receiving, holding, using or reproducing questions
Management Services 69 %
xxxx
Auditing Theory 82 %
3. that have been given in the examination except if the test bank for the subject
Auditing Problems 70 % has on deposit at least two thousand (2,000) questions. [7]
Practical Accounting I 68 % After a further exchange of correspondence,[8] the Board informed petitioner that
an investigation was conducted into her exam and there was no mechanical error
Practical Accounting II 77 %
found in the grading of her test papers.[9]

Proceedings before the Regional Trial Court

Convinced that she deserved to pass the examinations, she wrote to respondent
Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus with
Abelardo T. Domondon (Domondon), Acting Chairman of the Board of
Damages against the Board of Accountancy and its members [10] before the
Accountancy, and requested that her answer sheets be re-corrected.
[3] Regional Trial Court (RTC) of Manila. The case was raffled to Branch 33, and
 On November 3, 1997, petitioner was shown her answer sheets, but these
docketed as Civil Case No. 98-86881. The Petition included a prayer for the
consisted merely of shaded marks, so she was unable to determine why she
issuance of a preliminary mandatory injunction ordering the Board of
failed the exam.[4] Thus, on November 10, 1997, she again wrote to the Board to
Accountancy and its members (the respondents) to furnish petitioner with copies
request for copies of (a) the questionnaire in each of the seven subjects (b) her
of the Examination Papers. Petitioner also prayed that final judgment be issued
answer sheets; (c) the answer keys to the questionnaires, and (d) an explanation
ordering respondents to furnish petitioner with all documents and other materials
of the grading system used in each subject (collectively, the Examination
as would enable her to determine whether respondents fairly administered the
Papers).[5]
examinations and correctly graded petitioners performance therein, and, if
Acting Chairman Domondon denied petitioners request on two grounds: first, warranted, to issue to her a certificate of registration as a CPA.[11]
that Section 36, Article III of the Rules and Regulations Governing the Regulation
On February 5, 1998, respondents filed their Opposition to the Application for a
and Practice of Professionals, as amended by Professional Regulation
Writ of Preliminary Mandatory Injunction, and argued, inter alia,  that petitioner
Commission (PRC) Resolution No. 332, series of 1994, only permitted access to
was not entitled to the relief sought, that the respondents did not have the duty
the petitioners answer sheet (which she had been shown previously), and that
to furnish petitioner with copies of the Examination Papers, and that petitioner
reconsideration of her examination result was only proper under the grounds
had other plain, speedy, adequate remedy in the ordinary course of law, namely,
stated therein:
recourse to the PRC.[12] Respondents also filed their Answer with Compulsory
  Counterclaim in the main case, which asked that the Petition for Mandamus with
Damages be dismissed for lack of merit on the following grounds: (1) petitioner
Sec. 36 An examinee shall be allowed to have access or to go over his/her test failed to exhaust administrative remedies; (2) the petition stated no cause of
papers or answer sheets on a date not later than thirty (30) days from the action because there was no ministerial duty to release the information
official release of the results of the examination. Within ten (10) days from such demanded; and (3) the constitutional right to information on matters of public
date, he/she may file his/her request for reconsideration of ratings. concern is subject to limitations provided by law, including Section 20, Article IV,
Reconsideration of rating shall be effected only on grounds of mechanical error of PRC Resolution No. 338, series of 1994. [13]
in the grading of his/her testpapers or answer sheets, or malfeasance. [6]

291
On March 3, 1998, petitioner filed an Amended Petition (which was admitted by
the RTC), where she included the following allegation in the body of her petition:
The allegations in this amended petition are meant only to plead a cause of
action for access to the documents requested, not for re-correction which
petitioner shall assert in the proper forum depending on, among others, whether
she finds sufficient error in the documents to warrant such or any other relief.
None of the allegations in this amended petition, including those in the following
paragraphs, is made to assert a cause of action for re-correction.[14]
If only to underscore the fact that she was not asking for a re-checking of her
exam, the following prayer for relief was deleted from the Amended Petition:
and, if warranted, to issue to her a certificate of registration as a CPA.
On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss
Application for Writ of Preliminary Mandatory Injunction, on the ground that
petitioner had taken and passed the May 1998 CPA Licensure Examination and
had taken her oath as a CPA.[15] Petitioner filed her Opposition on July 8, 1998.
[16]
 Subsequently, on October 29, 1998, respondents filed their Answer with
Counterclaim to the amended petition. They reiterated their original allegations
and further alleged that there was no cause of action because at the time the
Amended Petition was admitted, they had ceased to be members of the Board of
Accountancy and they were not in possession of the documents sought by the
petitioner.[17]
Ruling of the Regional Trial Court
In an Order dated October 16, 1998, the trial court granted respondents Motion
to Dismiss Petitioners Application for a Writ of Preliminary Mandatory Injunction
(not the main case), ruling that the matter had become moot since petitioner
passed the May CPA Licensure 1998 Examination and had already taken her oath
as a CPA.[18]
Undaunted, petitioner sought and obtained leave to file a Second  Amended
Petition for Mandamus with Damages[19] where she finally impleaded the PRC as
respondent and included the following plea in her prayer:
WHEREFORE, petitioner respectfully prays that:
xxxx
2. Judgment be issued
(a) commanding respondents to give petitioner all documents and other
materials as would enable her to determine whether respondents fairly
administered the same examinations and correctly graded petitioners
performance therein and, if warranted, to make the appropriate revisions
on the results of her examination. (Emphasis ours)
 
On June 21, 2002, the trial court dismissed the petition on the ground that the
petition had already become moot, since petitioner managed to pass the 1998
CPA Board examinations.[20] Petitioner sought reconsideration[21] which was
granted by the trial court in its Omnibus Order[22] dated November 11, 2002. The
Omnibus Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court is inclined to
reconsider its Order dismissing the petition. The Court agrees with the petitioner
that the passing of the petitioner in the subsequent CPA examination did not
render the petition moot and academic because the relief and if warranted, to
issue to her a certificate of registration as Certified Public Accountant was
deleted from the original petition. As regard the issue of whether the petitioner
has the constitutional right to have access to the questioned documents, the
Court would want first the parties to adduce evidence before it can resolve the
issue so that it can make a complete determination of the rights of the parties.
The Court would also want the Professional Regulation Commission to give its
side of the case the moment it is impleaded as a respondent in the Second
Amended Petition for Mandamus filed by the petitioner which this Court is
inclined to grant.
As to the Motion for Conservatory Measures filed by the petitioner, the Court
denies the same. It is clear that the PRC has in custody the documents being
requested by the petitioner. It has also an adequate facility to preserve and
safeguard the documents. To be sure that the questioned documents are
preserved and safeguarded, the Court will order the PRC to preserve and
safeguard the documents and make them available anytime the Court or
petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered and
set aside. The Professional Regulation Commission is ordered to preserve and
safeguard the following documents:
a)                      Questionnaire in each of the seven subjects comprising the
Accountancy Examination of October, 1997;
b)                     Petitioners Answer Sheets; and
c)                      Answer keys to the questionnaires.
 
SO ORDERED.[23]
292
Respondents filed a motion for reconsideration which was denied.[24]
Proceedings before the Court of Appeals
The RTC Decisions led to the filing of three separate petitions
for certiorari before the Court of Appeals (CA):
(a)                               CA-GR SP No. 76498, a petition filed by respondents
Domondon, Gangan, and Josef on April 11, 2003;
(b)                             CA-GR SP No. 76546, a petition filed by respondent Ibe
on April 30, 2003; and
(c)                              CA-GR SP No. 76545, a petition filed by the Board of
Accountancy and PRC.
It is the first two proceedings that are pending before us. In both cases, the CA
set aside the RTC Decisions and ordered the dismissal of Civil Case No. 98-8681.
Ruling of the Court of Appeals
In its December 11, 2006 Decision[25] in CA-GR SP No. 76546, the CA ruled that
the petition has become moot in view of petitioners eventual passing of the 1998
CPA Board Exam. In CA-GR SP No. 76498, the CA found, in a Decision dated
February 16, 2004,[26] that (i) Section 20, Article IV of PRC Resolution No. 338
constituted a valid limitation on petitioners right to information and access to
government documents; (ii) the Examination Documents were not of public
concern, because petitioner merely sought review of her failing marks; (iii) it was
not the ministerial or mandatory function of the respondents to review and
reassess the answers to examination questions of a failing examinee; (iv) the
case has become moot, since petitioner already passed the May 1998 CPA Board
Examinations and took her oath as a CPA; and (v) petitioner failed to exhaust
administrative remedies, because, having failed to secure the desired outcome
from the respondents, she did not elevate the matter to the PRC before seeking
judicial intervention.[27]
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by the
petitioner and docketed as G.R. Nos. 165036 and 175705, respectively. The
cases were then consolidated, in view of the similarity of the factual antecedents
and issues, and to avoid the possibility of conflicting decisions by different
divisions of this Court.[28] 
Issues
Before us, petitioner argues that she has a right to obtain copies of the
examination papers so she can determine for herself why and how she failed and
to ensure that the Board properly performed its duties. She argues that the
Constitution[29] as well as the Code of Conduct and Ethical Standards for Public
Officials and Employees[30] support her right to demand access to the
Examination Papers. Furthermore, she claims that there was no need to exhaust
administrative remedies, since no recourse to the PRC was available, and only a
pure question of law is involved in this case. Finally, she claims that her demand
for access to documents was not rendered moot by her passing of the 1998 CPA
Board Exams.
Our Ruling
Propriety of Writ of Mandamus
At the very outset let us be clear of our ruling. Any claim for re-correction or
revision of her 1997 examination cannot be compelled by mandamus. This much
was made evident by our ruling in Agustin-Ramos v. Sandoval,[31] where we
stated:
After deliberating on the petition in relation to the other pleadings filed in the
proceedings at bar, the Court resolved to DENY said petition for lack of merit.
The petition at bar prays for the setting aside of the Order of respondent Judge
dismissing petitioners mandamus action to compel the other respondents
(Medical Board of Examiners and the Professional Regulation Commission) to
reconsider, recorrect and/or rectify the board ratings of the petitioners from their
present failing grades to higher or passing marks. The function of reviewing
and re-assessing the petitioners answers to the examination questions,
in the light of the facts and arguments presented by them x x x is a
discretionary function of the Medical Board, not a ministerial and
mandatory one, hence, not within the scope of the writ of
mandamus. The obvious remedy of the petitioners from the adverse judgment
by the Medical Board of Examiners was an appeal to the Professional Regulation
Commission itself, and thence to the Court of Appeals; and since they did not
apply for relief to the Commission prior to their institution of the special civil
action of mandamus in the Regional Trial Court, the omission was fatal to the
action under the familiar doctrine requiring exhaustion of administrative
remedies. Apart from the obvious undesirability of a procedure which would
allow Courts to substitute their judgment for that of Government boards in the
determination of successful examinees in any administered examination an area
in which courts have no expertise and the circumstance that the law declares the
Court of Appeals to be the appropriate review Court, the Regional Trial Court
was quite correct in refusing to take cognizance of an action seeking reversal of
the quasi-judicial action taken by the Medical Board of Examiners. [32] (Emphasis
ours)
For a writ of mandamus to issue, the applicant must have a well-defined, clear,
and certain legal right to the thing demanded. The corresponding duty of the
respondent to perform the required act must be equally clear. [33] No such clarity
exists here; neither does petitioners right to demand a revision of her
293
examination results. And despite petitioners assertions that she has not made
any demand for re-correction, the most cursory perusal of her Second Amended
Petition and her prayer that the respondents make the appropriate revisions on
the results of her examination belies this claim.
Like the claimants in Agustin,  the remedy of petitioner from the refusal of the
Board to release the Examination Papers should have been through an appeal to
the PRC. Undoubtedly, petitioner had an adequate remedy from the Boards
refusal to provide her with copies of the Examination Papers. Under Section 5(a)
of Presidential Decree No. 223,[34] the PRC has the power to promulgate rules
and regulations to implement policies for the regulation of the accounting
profession.[35] In fact, it is one such regulation (PRC Resolution No. 338) that is
at issue in this case. In addition, under Section 5(c), the PRC has the power
toreview, coordinate, integrate and approve the policies, resolutions,
rules and regulations, orders or decisions promulgated by the various
Boards with respect to the profession or occupation under their jurisdictions
including the results of their licensure examinations but their decisions on
administrative cases shall be final and executory unless appealed to the
Commission within thirty (30) days from the date of promulgation thereof.
Petitioner posits that no remedy was available because the PRCs power to review
and approve in Section 5(c) only refers to appeals in decisions concerning
administrative investigations[36]and not to instances where documents are being
requested. Not only is this position myopic and self-serving, it is bereft of either
statutory or jurisprudential basis. The PRCs quasi-legislative and enforcement
powers, encompassing its authority to review and approve policies, resolutions,
rules and regulations, orders, or decisions cover more than administrative
investigations conducted pursuant to its quasi-judicial powers. [37] More
significantly, since the PRC itself issued the resolution questioned by the
petitioner here, it was in the best position to resolve questions addressed to its
area of expertise. Indeed, petitioner could have saved herself a great deal of
time and effort had she given the PRC the opportunity to rectify any purported
errors committed by the Board.
One of the reasons for exhaustion of administrative remedies is our well-
entrenched doctrine on separation of powers, which enjoins upon the Judiciary a
becoming policy of non-interference with matters falling primarily (albeit not
exclusively) within the competence of other departments. [38] Courts, for reasons
of law, comity and convenience, should not entertain suits unless the available
administrative remedies have first been resorted to and the proper authorities
have been given an appropriate opportunity to act and correct their alleged
errors, if any, committed in the administrative forum. [39]
However, the principle of exhaustion of administrative remedies is subject to
exceptions, among which is when only a question of law is involved. [40] This is
because issues of law such as whether petitioner has a constitutional right to
demand access to the Examination Papers - cannot be resolved with finality by
the administrative officer.[41]
Issues of Mootness
We now turn to the question of whether the petition has become moot in view of
petitioners having passed the 1998 CPA examination. An issue becomes moot
and academic when it ceases to present a justiciable controversy, so that a
declaration on the issue would be of no practical use or value. [42]
In this jurisdiction, any citizen may challenge any attempt to obstruct the
exercise of his or her right to information and may seek its enforcement by
mandamus.[43] And since every citizen possesses the inherent right to be
informed by the mere fact of citizenship, [44] we find that petitioners belated
passing of the CPA Board Exams does not automatically mean that her interest in
the Examination Papers has become mere superfluity. Undoubtedly, the
constitutional question presented, in view of the likelihood that the issues in this
case will be repeated, warrants review.[45]
The crux of this case is whether petitioner may compel access to the
Examination Documents through mandamus. As always, our inquiry must begin
with the Constitution. Section 7, Article III provides:
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 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.
Together with the guarantee of the right to information, Section 28, Article II
promotes full disclosure and transparency in government, viz:
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.
Like all the constitutional guarantees, the right to information is not absolute.
The people's right to information is limited to "matters of public concern," and is
further "subject to such limitations as may be provided by law." Similarly, the
State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law". The Court
has always grappled with the meanings of the terms "public interest" and "public
concern." As observed in Legaspi v. Civil Service Commission:[46]
In determining whether x x x a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
294
which the public may want to know, either because these directly affect their
lives, or simply because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a case by case
basis whether the matter at issue is of interest or importance, as it relates to or
affects the public.

We have also recognized the need to preserve a measure of confidentiality on

some matters, such as national security, trade secrets and banking transactions,
criminal matters, and other confidential matters. [47]

We are prepared to concede that national board examinations such as the CPA
Board Exams are matters of public concern. The populace in general, and the
examinees in particular, would understandably be interested in the fair and
competent administration of these exams in order to ensure that only those
qualified are admitted into the accounting profession. And as with all matters
pedagogical, these examinations could be not merely quantitative means of
assessment, but also means to further improve the teaching and learning of the
art and science of accounting.

On the other hand, we do realize that there may be valid reasons to limit access
to the Examination Papers in order to properly administer the exam. More than
the mere convenience of the examiner, it may well be that there exist inherent
difficulties in the preparation, generation, encoding, administration, and checking
of these multiple choice exams that require that the questions and answers
remain confidential for a limited duration. However, the PRC is not a party to
these proceedings. They have not been given an opportunity to explain the
reasons behind their regulations or articulate the justification for keeping the
Examination Documents confidential. In view of the far-reaching implications of
this case, which may impact on every board examination administered by the
PRC, and in order that all relevant issues may be ventilated, we deem it best to
remand these cases to the RTC for further proceedings.

IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December

11, 2006 and February 16, 2004 Decisions of the Court of Appeals in CA-GR SP
No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET
ASIDE. The November 11, 2002 and January 30, 2003 Orders of the Regional
Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are AFFIRMED. The
case is remanded to the Regional Trial Court for further proceedings.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

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