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G.R. No.

182498 December 3, 2009


GEN. AVELINO I. RAZON, JR., Chie, !hi"i##i$e N%&io$%" !o"ice '!N!() !o"ice Chie *+#eri$&e$,e$& RA-L
CA*.A/EDA, Chie, Crimi$%" I$0e1&i2%&io$ %$, De&ec&io$ Gro+# 'CIDG() !o"ice *e$ior *+#eri$&e$,e$&
LEONARDO A. E*!INA, Chie, !o"ice A$&i3Crime %$, Emer2e$c4 Re1#o$1e '!ACER() %$, GEN. JOEL R.
GOL.IAO, Re2io$%" Direc&or o AR55, !N!, Petitioners,
vs.
5AR6 JEAN 7. .AGI.I*, herei$ re#re1e$&e, b4 A..6. 8ELI!E !. ARCILLA, JR., A&&or$e43i$38%c&,
Respondent.
We review in this petition for review on certiorari the decision dated March 7, 2008 of the Court of Appeals (CA in
C.A!".R. AMPAR# $o. 0000%. &his CA decision confir'ed the enforced disappearance of (n)ineer Morced $.
&a)itis (&a)itis and )ranted the Writ of A'paro at the petition of his wife, Mar* +ean ,. &a)itis (respondent. &he
dispositive portion of the CA decision reads-
W.(R(/#R(, pre'ises considered, petition is here0* "RA$&(1. &he Court here0* /2$13 that this is an
4enforced disappearance4 within the 'eanin) of the 5nited $ations instru'ents, as used in the A'paro Rules.
&he privile)es of the writ of a'paro are here0* e6tended to (n)r. Morced &a)itis.
Conse7uentl*- (8 respondent "($. (1"AR1# M. 1#R#MA9, Chief, Cri'inal 2nvesti)ation and 1etention
"roup (C21" who should order C#9. +#3( :#9PA$( PA$&(, C21"!% Chief, ;a'0oan)a Cit*, to aid hi'< (2
respondent "($. A:(92$# 2. RA;#$, Chief, P$P, who should order his 'en, na'el*- (a respondent "($.
+#(9 "#9&2A#, Re)ional 1irector of ARMM P$P, (0 C#9. A.2R#$ A+2R2M, 0oth head of &A3= /#RC(
&A"2&23, and (c respondent 3R. 35P(R2$&($1($& 9(#$AR1# A. (3P2$A, Chief, Police Anti!Cri'e and
('er)enc* Response, to aid hi' as their superior! are here0* 12R(C&(1 to e6ert e6traordinar* dili)ence and
efforts, not onl* to protect the life, li0ert* and securit* of (n)r. Morced &a)itis, 0ut also to e6tend the privile)es of
the writ of a'paro to (n)r. Morced &a)itis and his fa'il*, and to su0'it a 'onthl* report of their actions to this
Court, as a wa* of P(R2#12C R(:2(W to ena0le this Court to 'onitor the action of respondents.
&his a'paro case is here0* 123M233(1 as to respondent 9&. "($. A9(>A$1(R ?A$#, Co''andin) "eneral,
Philippine Ar'*, and as to respondent "($. R5,($ RA/A(9, Chief Anti!&error &as@ /orce Co'et, ;a'0oan)a
Cit*, 0oth 0ein) with the 'ilitar*, which is a separate and distinct or)aniAation fro' the police and the C21", in
ter's of operations, chain of co''and and 0ud)et.
&his 1ecision reflects the nature of the Writ of A'paro B a protective re'ed* a)ainst violations or threats of
violation a)ainst the ri)hts to life, li0ert* and securit*. 2t e'0odies, as a re'ed*, the courtCs directive to police
a)encies to underta@e specified courses of action to address the disappearance of an individual, in this case,
(n)r. Morced $. &a)itis. 2t does not deter'ine )uilt nor pinpoint cri'inal culpa0ilit* for the disappearance< rather,
it deter'ines responsi0ilit*, or at least accounta0ilit*, for the enforced disappearance for purposes of i'posin)
the appropriate re'edies to address the disappearance. Responsi0ilit* refers to the e6tent the actors have 0een
esta0lished 0* su0stantial evidence to have participated in whatever wa*, 0* action or o'ission, in an enforced
disappearance, as a 'easure of the re'edies this Court shall craft, a'on) the', the directive to file the
appropriate cri'inal and civil cases a)ainst the responsi0le parties in the proper courts. Accounta0ilit*, on the
other hand, refers to the 'easure of re'edies that should 0e addressed to those who e6hi0ited involve'ent in
the enforced disappearance without 0rin)in) the level of their co'plicit* to the level of responsi0ilit* defined
a0ove< or who are i'puted with @nowled)e relatin) to the enforced disappearance and who carr* the 0urden of
disclosure< or those who carr*, 0ut have failed to dischar)e, the 0urden of e6traordinar* dili)ence in the
investi)ation of the enforced disappearance. 2n all these cases, the issuance of the Writ of A'paro is Dustified 0*
our pri'ar* )oal of addressin) the disappearance, so that the life of the victi' is preserved and his li0ert* and
securit* are restored.
We hi)hli)ht this nature of a Writ of A'paro case at the outset to stress that the uni7ue situations that call for the
issuance of the writ, as well as the considerations and 'easures necessar* to address these situations, 'a* not
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at all 0e the sa'e as the standard 'easures and procedures in ordinar* court actions and proceedin)s. 2n this
sense, the Rule on the Writ of A'paro (A'paro Rule issued 0* this Court is uni7ue. &he A'paro Rule should 0e
read, too, as a wor@ in pro)ress, as its directions and finer points re'ain to evolve throu)h ti'e and Durisprudence
and throu)h the su0stantive laws that Con)ress 'a* pro'ul)ate.
&.( /AC&5A9 A$&(C(1($&3
&he 0ac@)round facts, 0ased on the petition and the records of the case, are su''ariAed 0elow.
&he esta0lished facts show that &a)itis, a consultant for the World ,an@ and the 3enior .onorar* Counselor for
the 2sla'ic 1evelop'ent ,an@ (21, 3cholarship Pro)ra''e, was last seen in +olo, 3ulu. &o)ether with Arsi'in
=unnon) (=unnon), an 21, scholar, &a)itis arrived in +olo 0* 0oat in the earl* 'ornin) of #cto0er E8, 2007 fro'
a se'inar in ;a'0oan)a Cit*. &he* i''ediatel* chec@ed!in at A3? Pension .ouse. &a)itis as@ed =unnon) to
0u* hi' a 0oat tic@et for his return trip the followin) da* to ;a'0oan)a. When =unnon) returned fro' this errand,
&a)itis was no lon)er around. &he receptionist related that &a)itis went out to 0u* food at around 82-E0 in the
afternoon and even left his roo' @e* with the des@. =unnon) loo@ed for &a)itis and even sent a te6t 'essa)e to
the latterCs Manila!0ased secretar* who did not @now of &a)itisC wherea0outs and activities either< she advised
=unnon) to si'pl* wait.
#n $ove'0er F, 2007, =unnon) and Muha''ad A0dulnaAeir $. Matli, a 5P professor of Musli' studies and
&a)itisC fellow student counselor at the 21,, reported &a)itisC disappearance to the +olo Police 3tation. #n
$ove'0er 7, 2007, =unnon) e6ecuted a sworn affidavit attestin) to what he @new of the circu'stances
surroundin) &a)itisC disappearance.
More than a 'onth later (on 1ece'0er 28, 2007, the respondent filed a Petition for the Writ of A'paro (petition
with the CA throu)h her Attorne*!in!/act, Att*. /elipe P. Arcilla. &he petition was directed a)ainst 9t. "en.
Ale6ander ?ano, Co''andin) "eneral, Philippine Ar'*< "en. Avelino 2. RaAon, Chief, Philippine $ational Police
(P$P< "en. (d)ardo M. 1oro'al, Chief, Cri'inal 2nvesti)ation and 1etention "roup (C21"< 3r. 3upt. 9eonardo
A. (spina, Chief, Police Anti!Cri'e and ('er)enc* Response< "en. +oel "oltiao, Re)ional 1irector, ARMM!
P$P< and "en. Ru0en Rafael, Chief, Anti!&error &as@ /orce Co'et Gcollectivel* referred to as petitionersH. After
recitin) &a)itisC personal circu'stances and the facts outlined a0ove, the petition went on to state-
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7. 3oon after the student left the roo', (n)r. &a)itis went out of the pension house to ta@e his earl* lunch 0ut
while out on the street, a couple of 0url* 'en 0elieved to 0e police intelli)ence operatives, forci0l* too@ hi' and
0oarded the latter on a 'otor vehicle then sped awa* without the @nowled)e of his student, Arsi'in =unnon)<
8. As instructed, in the late afternoon of the sa'e da*, =unnon) returned to the pension house, and was
surprised to find out that su0Dect (n)r. &a)itis cannot GsicH 0e contacted 0* phone and was not also around and
his roo' was closed and loc@ed<
%. =unnon) re7uested for the @e* fro' the des@ of the pension house who GsicH assisted hi' to open the roo' of
(n)r. &a)itis, where the* discovered that the personal 0elon)in)s of (n)r. &a)itis, includin) cell phones,
docu'ents and other personal 0elon)in)s were all intact inside the roo'<
80. When =unnon) could not locate (n)r. &a)itis, the for'er sou)ht the help of another 21, scholar and reported
the 'atter to the local police a)enc*<
88. Arsi'in =unnon) includin) his friends and co'panions in +olo, e6erted efforts in tr*in) to locate the
wherea0outs of (n)r. &a)itis and when he reported the 'atter to the police authorities in +olo, he was
i''ediatel* )iven a read* answer that (n)r. &a)itis could have 0een a0ducted 0* the A0u 3a**af )roup and
other )roups @nown to 0e fi)htin) a)ainst the )overn'ent<
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82. ,ein) scared with GsicH these su))estions and insinuations of the police officers, =unnon) reported the 'atter
to the Grespondent, wife of (n)r. &a)itisH 0* phone and other responsi0le officers and coordinators of the 21,
3cholarship Pro)ra''e in the Philippines, who alerted the office of the "overnor of ARMM who was then
preparin) to attend the #2C 'eetin) in +eddah, 3audi Ara0ia<
8E. GRespondentH, on the other hand, approached so'e of her co!e'plo*ees with the 9and ,an@ in 1i)os 0ranch,
1i)os Cit*, 1avao del 3ur who li@ewise sou)ht help fro' so'e of their friends in the 'ilitar* who could help the'
findIlocate the wherea0outs of her hus0and<
8F. All of these efforts of the GrespondentH did not produce an* positive results e6cept the infor'ation fro'
persons in the 'ilitar* who do not want to 0e identified that (n)r. &a)itis is in the hands of the unifor'ed 'en<
8J. Accordin) to relia0le infor'ation received 0* the GrespondentH, su0Dect (n)r. &a)itis is in the custod* of police
intelli)ence operatives, specificall* with the C21", P$P ;a'0oan)a Cit*, 0ein) held a)ainst his will in an earnest
atte'pt of the police to involve and connect (n)r. &a)itis with the different terrorist )roups<
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87. GRespondentH filed her co'plaint with the P$P Police 3tation in the ARMM in Coto0ato and in +olo, as
su))ested 0* her friends, see@in) their help to find her hus0and, 0ut GrespondentCsH re7uest and pleadin)s failed
to produce an* positive results<
88. 2nstead of helpin) the GrespondentH, she GsicH was told of an intri)uin) tale 0* the police that her hus0and,
su0Dect of the petition, was not 'issin) 0ut was with another wo'an havin) )ood ti'e so'ewhere, which is a
clear indication of the GpetitionersCH refusal to help and provide police assistance in locatin) her 'issin) hus0and<
8%. &he continued failure and refusal of the GpetitionersH to release andIor turn!over su0Dect (n)r. &a)itis to his
fa'il* or even to provide truthful infor'ation to Gthe respondentH of the su0DectCs wherea0outs, andIor allow Gthe
respondentH to visit her hus0and (n)r. Morced &a)itis, caused so 'uch sleepless ni)hts and serious an6ieties<
20. 9atel*, Gthe respondentH was a)ain advised 0* one of the GpetitionersH to )o to the ARMM Police .ead7uarters
a)ain in Coto0ato Cit* and also to the different Police .ead7uarters includin) GthoseH in 1avao Cit*, in
;a'0oan)a Cit*, in +olo, and in Ca'p Cra'e, KueAon Cit*, and all these places have 0een visited 0* the
GrespondentH in search for her hus0and, which entailed e6penses for her trips to these places there0* resortin)
her to 0orrowin)s and 0e))in)s GsicH for financial help fro' friends and relatives onl* to tr* co'pl*in) GsicH to the
different su))estions of these police officers, despite of which, her efforts produced no positive results up to the
present ti'e<
28. 2n fact at ti'es, so'e police officers, who Gs*'pathiAed withH the sufferin)s under)one 0* the GrespondentH,
infor'ed her that the* are not the proper persons that she should approach, 0ut assured her not to worr*
0ecause her hus0and is GsicH in )ood hands<
22. &he une6plained uncooperative 0ehavior of the GpetitionersH to the GrespondentCsH re7uest for help and failure
and refusal of the GpetitionersH to e6tend the needed help, support and assistance in locatin) the wherea0outs of
(n)r. &a)itis who had 0een declared 'issin) since #cto0er E0, 2007 which is al'ost two (2 'onths now, clearl*
indicates that the GpetitionersH are actuall* in ph*sical possession and custod* of GrespondentCsH hus0and, (n)r.
&a)itis<
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2J. G&he respondentH has e6hausted all ad'inistrative avenues and re'edies 0ut to no avail, and under the
circu'stances, Gthe respondentH has no other plain, speed* and ade7uate re'ed* to protect and )et the release
of su0Dect (n)r. Morced &a)itis fro' the ille)al clutches of the GpetitionersH, their intelli)ence operatives and the
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li@e which are in total violation of the su0DectCs hu'an and constitutional ri)hts, e6cept the issuance of a WR2& #/
AMPAR#. G('phasis suppliedH
#n the sa'e da* the petition was filed, the CA i''ediatel* issued the Writ of A'paro, set the case for hearin)
on +anuar* 7, 2008, and directed the petitioners to file their verified return within sevent*!two (72 hours fro'
service of the writ.
2n their verified Return filed durin) the hearin) of +anuar* 27, 2008, the petitioners denied an* involve'ent in or
@nowled)e of &a)itisC alle)ed a0duction. &he* ar)ued that the alle)ations of the petition were inco'plete and did
not constitute a cause of action a)ainst the'< were 0aseless, or at 0est speculative< and were 'erel* 0ased on
hearsa* evidence.
&he affidavit of P$P Chief "en. Avelino 2. RaAon, attached to the Return, stated that- he did not have an*
personal @nowled)e of, or an* participation in, the alle)ed disappearance< that he had 0een desi)nated 0*
President "loria Macapa)al Arro*o as the head of a special 0od* called &A3= /#RC( 532", to address
concerns a0out e6trale)al @illin)s and enforced disappearances< the &as@ /orce, inter alia, coordinated with the
investi)ators and local police, held case conferences, rendered le)al advice in connection to these cases< and
)ave the followin) su''ar*-
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F.
a #n $ove'0er J, 2007, the Re)ional 1irector, Police Re)ional #ffice ARMM su0'itted a report on the alle)ed
disappearance of one (n)r. Morced &a)itis. Accordin) to the said report, the victi' chec@ed!in at A3? Pension
.ouse on #cto0er E0, 2007 at a0out L-00 in the 'ornin) and then roa'ed around +olo, 3ulu with an unidentified
co'panion. 2t was onl* after a few da*s when the said victi' did not return that the 'atter was reported to +olo
MP3. Afterwards, ele'ents of 3ulu PP# conducted a thorou)h investi)ation to trace and locate the wherea0outs
of the said 'issin) person, 0ut to no avail. &he said PP# is still conductin) investi)ation that will lead to the
i''ediate findin)s of the wherea0outs of the person.
0 9i@ewise, the Re)ional Chief, %RC215 su0'itted a Pro)ress Report to the 1irector, C21". &he said report
stated a'on) others that- su0Dect person attended an (ducation 1evelop'ent 3e'inar set on #cto0er 28, 2007
conducted at Ateneo de ;a'0oan)a, ;a'0oan)a Cit* to)ether with a Prof. Matli. #n #cto0er E0, 2007, at
around J-00 oCcloc@ in the 'ornin), (n)r. &a)itis reportedl* arrived at +olo 3ulu wharf a0oard MI: ,ount* Cruise,
he was then 0illeted at A3? Pension .ouse. At a0out L-8J oCcloc@ in the 'ornin) of the sa'e date, he instructed
his student to purchase a fast craft tic@et 0ound for ;a'0oan)a Cit* and will depart fro' +olo, 3ulu on #cto0er
E8, 2007. &hat on or a0out 80-00 oCcloc@ in the 'ornin), (n)r. &a)itis left the pre'ises of A3? Pension .ouse as
stated 0* the cashier of the said pension house. 9ater in the afternoon, the student instructed to purchase the
tic@et arrived at the pension house and waited for (n)r. &a)itis, 0ut the latter did not return. #n its part, the
ele'ents of %RC215 is now conductin) a continuous case 0uild up and infor'ation )atherin) to locate the
wherea0outs of (n)r. &a)itis.
c &hat the 1irector, C21" directed the conduct of the search in all divisions of the C21" to find (n)r. &a)itis who
was alle)edl* a0ducted or ille)all* detained 0* covert C21"!P$P 2ntelli)ence #peratives since #cto0er E0, 2007,
0ut after dili)ent and thorou)h search, records show that no such person is 0ein) detained in C21" or an* of its
depart'ent or divisions.
J. #n this particular case, the Philippine $ational Police e6hausted all possi0le efforts, steps and actions availa0le
under the circu'stances and continuousl* search and investi)ate GsicH the instant case. &his i''ense 'andate,
however, necessitates the indispensa0le role of the citiAenr*, as the P$P cannot stand alone without the
cooperation of the victi's and witnesses to identif* the perpetrators to 0rin) the' 0efore the 0ar of Dustice and
secure their conviction in court.
F
&he petitioner P$P!C21" Chief, "en. (d)ardo M. 1oro'al, su0'itted as well his affidavit, also attached to the
Return of the Writ, attestin) that upon receipt of the Writ of A'paro, he caused the followin)-
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&hat i''ediatel* upon receipt on 1ece'0er 2%, 2007 of the Resolution of the .onora0le 3pecial /ourth 1ivision
of the Court of Appeals, 2 i''ediatel* directed the 2nvesti)ation 1ivision of this "roup GC21"H to conduct ur)ent
investi)ation on the alle)ed enforced disappearance of (n)ineer Morced &a)itis.
&hat 0ased on record, (n)r. Morced $. &a)itis attended an (ducation 1evelop'ent 3e'inar on #cto0er 28,
2007 at Ateneo de ;a'0oan)a at ;a'0oan)a Cit* to)ether with Prof. A0dulnasser Matli. #n #cto0er E0, 2007,
at around si6 oCcloc@ in the 'ornin) he arrived at +olo, 3ulu. .e was assisted 0* his student identified as Arsi'in
=unnon) of the 2sla'ic 1evelop'ent ,an@ who was also one of the participants of the said se'inar. .e chec@ed
in at A3? pension house located GsicH =a@u*a)an, Pati@ul, 3ulu on #cto0er E0, 2007 with GsicH unidentified
co'panion. At around si6 oCcloc@ in the 'ornin) of even date, (n)r. &a)itis instructed his student to purchase a
fast craft tic@et for ;a'0oan)a Cit*. 2n the afternoon of the sa'e date, =unnon) arrived at the pension house
carr*in) the tic@et he purchased for (n)r. &a)itis, 0ut the latter was nowhere to 0e found an*'ore. =unnon)
i''ediatel* infor'ed Prof. A0dulnasser Matli who reported the incident to the police. &he C21" is not involved in
the disappearance of (n)r. Morced &a)itis to 'a@e out a case of an enforced disappearance which presupposes
a direct or indirect involve'ent of the )overn'ent.
&hat herein GpetitionerH searched all divisions and depart'ents for a person na'ed (n)r. Morced $. &a)itis, who
was alle)edl* a0ducted or ille)all* detained 0* covert C21"!P$P 2ntelli)ence #peratives since #cto0er E0, 2007
and after a dili)ent and thorou)h research records show that no such person is 0ein) detained in C21" or an* of
its depart'ent or divisions.
&hat nevertheless, in order to deter'ine the circu'stances surroundin) (n)r. Morced &a)itis GsicH alle)ed
enforced disappearance, the undersi)ned had underta@en i''ediate investi)ation and will pursue investi)ations
up to its full co'pletion in order to aid in the prosecution of the person or persons responsi0le therefore.
9i@ewise attached to the Return of the Writ was P$P!PAC(R Chief P3 3upt. 9eonardo A. (spinaCs affidavit which
alle)ed that-
8L
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&hat, 2 and our 'en and wo'en in PAC(R vehe'entl* den* an* participation in the alle)ed a0duction or ille)all*
GsicH detention of ($"R. M#RC(1 $. &A"2&3 on #cto0er E0, 2007. As a 'atter of fact, nowhere in the writ was
'entioned that the alle)ed a0duction was perpetrated 0* ele'ents of PAC(R nor was there an* indication that
the alle)ed a0duction or ille)al detention of ($"R. &A"2&23 was underta@en Dointl* 0* our 'en and 0* the
alle)ed covert C21"!P$P intelli)ence operatives alle)ed to have a0ducted or ille)all* detained ($"R. &A"2&23.
&hat 2 was shoc@ed when 2 learned that 2 was i'plicated in the alle)ed disappearance of ($"R. M#RC(1 in '*
capacit* as the chief PAC(R GsicH considerin) that our office, the Police Anti!Cri'e and ('er)enc* Response
(PAC(R, a special tas@ force created for the purpose of neutraliAin) or eradicatin) @idnap!for!ranso' )roups
which until now continue to 0e one of the 'enace of our societ* is a respondent in @idnappin) or ille)al detention
case. 3i'pl* put, our tas@ is to )o after @idnappers and char)e the' in court and to a0duct or ille)all* detain or
@idnap an*one is anathe'a to our 'ission.
&hat ri)ht after 2 learned of the receipt of the WR2& #/ AMPAR#, 2 directed the Chief of PAC(R Mindanao
#riental (PAC(R!M#R to conduct pro!active 'easures to investi)ate, locateIsearch the su0Dect, identif* and
apprehend the persons responsi0le, to recover and preserve evidence related to the disappearance of ($"R.
M#RC(1 &A"2&23, which 'a* aid in the prosecution of the person or persons responsi0le, to identif* witnesses
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and o0tain state'ents fro' the' concernin) the disappearance and to deter'ine the cause, 'anner, location
and ti'e of disappearance as well as an* pattern or practice that 'a* have 0rou)ht a0out the disappearance.
&hat 2 further directed the chief of PAC(R!M#R, Police 3uperintendent +#3( AR$A91# ,R2#$(3 +R., to
su0'it a written report re)ardin) the disappearance of ($"R. M#RC(1.
&hat in co'pliance with '* directive, the chief of PAC(R!M#R sent throu)h fa6 his written report.
&hat the investi)ation and 'easures 0ein) underta@en to locateIsearch the su0Dect in coordination with Police
Re)ional #ffice, Autono'ous Re)ion of Musli' Mindanao (PR#!ARMM and +olo Police Provincial #ffice (PP#
and other A/P and P$P unitsIa)encies in the area are on)oin) with the instruction not to leave an* stone
unturned so to spea@ in the investi)ation until the perpetrators in the instant case are 0rou)ht to the 0ar of Dustice.
&hat 2 have e6ercised (>&RA#R12$AR? 1292"($C( in dealin) with the WR2& #/ AMPAR# Dust issued.
/inall*, the P$P PR# ARMM Re)ional 1irector PC 3upt. +oel R. "oltiao ("en. "oltiao, also su0'itted his
affidavit detailin) the actions that he had ta@en upon receipt of the report on &a)itisC disappearance, viA-
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E /or the record-
8. 2 a' the Re)ional 1irector of Police Re)ional #ffice ARMM now and durin) the ti'e of the incident<
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F. 2t is '* dut* to loo@ into and ta@e appropriate 'easures on an* cases of reported enforced disappearances
and when the* are 0ein) alluded to '* office<
J. #n $ove'0er J, 2007, the Provincial 1irector of 3ulu Police Provincial #ffice reported to 'e throu)h Radio
Messa)e Cite $o. 3P$PE!880J!07!2007 that on $ove'0er F, 2007 at around E-E0 p.'., a certain A0dulnasser
Matli, an e'plo*ee of 2sla'ic 1evelop'ent ,an@, appeared 0efore the #ffice of the Chief of Police, +olo Police
3tation, and reported the disappearance of (n)r. Morced &a)itis, scholarship coordinator of 2sla'ic 1evelop'ent
,an@, Manila<
L. &here was no report that (n)r. &a)i0is was last seen in the co'pan* of or ta@en 0* an* 'e'0er of the
Philippine $ational Police 0ut rather he Dust disappeared fro' A3? Pension .ouse situated at =a@u*a)an :illa)e,
:illa)e, Pati@ul, 3ulu, on #cto0er E0, 2007, without an* trace of forci0le a0duction or arrest<
7. &he last @nown instance of co''unication with hi' was when Arsi'in =unnon), a student scholar, was
re7uested 0* hi' to purchase a vessel tic@et at the #ffice of WeeAa' (6press, however, when the student
returned 0ac@ to A3? Pension .ouse, he no lon)er found (n)r. &a)itis there and when he i''ediatel* in7uired
at the infor'ation counter re)ardin) his wherea0outs GsicH, the person in char)e in the counter infor'ed hi' that
(n)r. &a)itis had left the pre'ises on #cto0er E0, 2007 around 8 oCcloc@ p.'. and never returned 0ac@ to his
roo'<
8. 2''ediatel* after learnin) the incident, 2 called and directed the Provincial 1irector of 3ulu Police Provincial
#ffice and other units throu)h phone call and te6t 'essa)es to conduct investi)ation GsicH to deter'ine the
wherea0outs of the a))rieved part* and the person or persons responsi0le for the threat, act or o'ission, to
recover and preserve evidence related to the disappearance of (n)r. &a)itis, to identif* witnesses and o0tain
state'ents fro' the' concernin) his disappearance, to deter'ine the cause and 'anner of his disappearance,
L
to identif* and apprehend the person or persons involved in the disappearance so that the* shall 0e 0rou)ht
0efore a co'petent court<
%. &hereafter, throu)h '* Chief of the Re)ional 2nvesti)ation and 1etection Mana)e'ent 1ivision, 2 have caused
the followin) directives-
a Radio Messa)e Cite $o. R21M1!8822!07!EJ8 dated $ove'0er 22, 2007 directin) P1 3ulu PP# to conduct
Doint investi)ation with C21" and C215 ARMM on the 'atter<
0 Radio Messa)e Cite $o. R21M1!8828!07!EL8 dated $ove'0er 28, 2007 directin) P1 3ulu PP# to e6pedite
co'pliance to '* previous directive<
c Me'orandu' dated 1ece'0er 8F, 2007 addressed to P1 3ulu PP# reiteratin) our series of directives for
investi)ation and directin) hi' to underta@e e6haustive coordination efforts with the owner of A3? Pension .ouse
and student scholars of 21, in order to secure corro0orative state'ents re)ardin) the disappearance and
wherea0outs of said personalit*<
d Me'orandu' dated 1ece'0er 2F, 2007 addressed to P1 3ulu PP# directin) hi' to 'a6i'iAe efforts to
esta0lish clues on the wherea0outs of (n)r. &a)itis 0* see@in) the cooperation of Prof. A0dulnasser Matli and
Arsi'in =unnon) andIor whenever necessar*, for the' to voluntaril* su0'it for pol*)raph e6a'ination with the
$,2 so as to e6pun)e all clouds of dou0t that the* 'a* so'ehow have @nowled)e or idea to his disappearance<
e Me'orandu' dated 1ece'0er 27, 2007 addressed to the Re)ional Chief, Cri'inal 2nvesti)ation and 1etection
"roup, Police Re)ional #ffice %, ;a'0oan)a Cit*, re7uestin) assistance to investi)ate the cause and un@nown
disappearance of (n)r. &a)itis considerin) that it is within their area of operational Durisdiction<
f Me'orandu' fro' Chief, 2ntelli)ence 1ivision, PR# ARMM dated 1ece'0er E0, 2007 addressed to P1 3ulu
PP# re7uirin) the' to su0'it co'plete investi)ation report re)ardin) the case of (n)r. &a)itis<
80. 2n co'pliance to our directives, P1 3ulu PP# has e6erted his GsicH efforts to conduct investi)ation GsicH on the
'atter to deter'ine the wherea0outs of (n)r. &a)itis and the circu'stances related to his disappearance and
su0'itted the followin)-
a Pro)ress Report dated $ove'0er L, 2007 throu)h Radio Messa)e Cite $o. 3P$PE!880L!80!2007<
0 Radio Messa)e Cite $o. 3P21M3!820J!F7!07 infor'in) this office that the* are still 'onitorin) the
wherea0outs of (n)r. &a)itis<
c 2nvesti)ation Report dated 1ece'0er E8, 2007 fro' the Chief of Police, +olo Police 3tation, 3ulu PP#<
88. &his incident was properl* reported to the P$P .i)her .ead7uarters as shown in the followin)-
a Me'orandu' dated $ove'0er L, 2007 addressed to the Chief, P$P infor'in) hi' of the facts of the
disappearance and the action 0ein) ta@en 0* our office<
0 Me'orandu' dated $ove'0er L, 2007 addressed to the 1irector, 1irectorate for 2nvesti)ation and 1etection
Mana)e'ent, $.K P$P<
c Me'orandu' dated 1ece'0er E0, 2007 addressed to the 1irector, 121M<
7
F 2n spite of our e6haustive efforts, the wherea0outs of (n)r. &a)itis cannot 0e deter'ined 0ut our office is
continuousl* intensif*in) the conduct of infor'ation )atherin), 'onitorin) and coordination for the i''ediate
solution of the case.
3ince the disappearance of &a)istis was practicall* ad'itted and ta@in) note of favora0le actions so far ta@en on
the disappearance, the CA directed "en. "oltiao B as the officer in co''and of the area of disappearance B to
for' &A3= /#RC( &A"2&23.
&as@ /orce &a)itis
#n +anuar* 88, 2008, "en. "oltiao desi)nated P3 3upt. Ahiron ADiri' (P3 3upt. ADiri' to head &A3= /#RC(
&A"2&23. &he CA su0se7uentl* set three hearin)s to 'onitor whether &A3= /#RC( &A"2&23 was e6ertin)
4e6traordinar* efforts4 in handlin) the disappearance of &a)itis. As planned, (8 the first hearin) would 0e to
'o0iliAe the C21", ;a'0oan)a Cit*< (2 the second hearin) would 0e to 'o0iliAe intelli)ence with A0u 3a**af
and ARMM< and (E the third hearin) would 0e to 'o0iliAe the Chief of Police of +olo, 3ulu and the Chief of Police
of ;a'0oan)a Cit* and other police operatives.
2n the hearin) on +anuar* 87, 2008, &A3= /#RC( &A"2&23 su0'itted to the CA an intelli)ence report fro' P39
5s'an 3. Pin)a*, the Chief of Police of the +olo Police 3tation, statin) a possi0le 'otive for &a)itisC
disappearance. &he intelli)ence report was apparentl* 0ased on the sworn affidavit dated +anuar* F, 2008 of
Muha''ad A0dulnaAeir $. Matli (Prof. Matli, Professor of 2sla'ic 3tudies at the 5niversit* of the Philippines and
an .onorar* 3tudent Counselor of the 21, 3cholarship Pro)ra' in the Philippines, who told the Provincial
"overnor of 3ulu that-
G,asedH on relia0le infor'ation fro' the #ffice of Musli' Affairs in Manila, &a)itis has reportedl* ta@en and
carried awa*M 'ore or less /ive Million Pesos (PJ,000,000.00 deposited and entrusted to his M GpersonalH 0an@
accounts 0* the Central #ffice of 21,, +eddah, =in)do' of 3audi Ara0ia, which GwasH intended for the M 21,
3cholarship /und.
2n the sa'e hearin), P3 3upt. ADiri' testified that since the C21" was alle)ed to 0e responsi0le, he personall*
went to the C21" office in ;a'0oan)a Cit* to conduct an ocular inspectionIinvesti)ation, particularl* of their
detention cells. P3 3upt. ADiri' stated that the C21", while helpin) &A3= /#RC( &A"2&23 investi)ate the
disappearance of &a)itis, persistentl* denied an* @nowled)e or co'plicit* in an* a0duction. .e further testified
that prior to the hearin), he had alread* 'o0iliAed and )iven specific instructions to their supportin) units to
perfor' their respective tas@s< that the* even tal@ed to, 0ut failed to )et an* lead fro' the respondent in +olo. 2n
his su0'itted investi)ation report dated +anuar* 8L, 2008, P3 3upt. ADiri' concluded-
%. "leaned fro' the undersi)ned inspection and o0servation at the .ead7uarters % RC215 and the docu'ents at
hand, it is '* own initial conclusion that the %RC215 and other P$P units in the area had no participation neither
GsicH so'ethin) to do with GsicH '*sterious disappearance of (n)r. Morced &a)itis last #cto0er E0, 2007. 3ince
dou0t has 0een raised re)ardin) the e'olu'ent on the 2sla'ic 1evelop'ent ,an@ 3cholar pro)ra' of 21, that
was reportedl* deposited in the personal account of (n)r. &a)itis 0* the 21, central office in +eddah, =in)do' of
3audi Ara0ia. 3econdl*, it could 'i)ht GsicH 0e done 0* resent'ent or sour )rape a'on) students who are
appl*in) for the scholar GsicH and were denied which was alle)edl* conductedIscreened 0* the su0Dect 0ein) the
coordinator of said pro)ra'.
20. 2t is also pre'ature to conclude 0ut it does or it 'a* and GsicH presu'ed that the 'otive 0ehind the
disappearance of the su0Dect 'i)ht 0e due to the funds he 'aliciousl* spent for his personal interest and wanted
to elude responsi0ilities fro' the institution where he 0elon) as well as to the 2sla'ic student scholars should the
state'ent of Prof. Matli 0e true or there 'i)ht 0e a professional Dealous* a'on) the'.
6 6 6 6
8
2t is reco''ended that the Writ of A'paro filed a)ainst the respondents 0e dropped and dis'issed considerin)
on GsicH the police and 'ilitar* actions in the area particularl* the C21" are e6ertin) their efforts and reli)iousl*
doin) their tas@ed GsicH in the conduct of its intelli)ence 'onitorin) and investi)ation for the earl* resolution of this
instant case. ,ut rest assured, our office, in coordination with other law!enforce'ent a)encies in the area, are
continuousl* and reli)iousl* conductin) our investi)ation for the resolution of this case.
#n /e0ruar* F, 2008, the CA issued an A9ARM WAR$2$" that &as@ /orce &a)itis did not appear to 0e e6ertin)
e6traordinar* efforts in resolvin) &a)itisC disappearance on the followin) )rounds-
(8 &his Court /#5$1 that it was onl* as late as +anuar* 28, 2008, after the hearin), that "($. +#(9 "#9&2A#
and C#9. A.2R#$ A+2R2M had re7uested for clear photo)raphs when it should have 0een standard operatin)
procedure in @idnappin)s or disappearances that the first a)enda was for the police to secure clear pictures of the
'issin) person, (n)r. Morced &a)itis, for disse'ination to all parts of the countr* and to nei)h0orin) countries. 2t
had 0een three (E 'onths since "($. +#(9 "#9&2A# ad'itted havin) 0een infor'ed on $ove'0er J, 2007 of
the alle)ed a0duction of (n)r. Morced &a)itis 0* alle)ed 0ad ele'ents of the C21". 2t had 0een 'ore than one
(8 'onth since the Writ of A'paro had 0een issued on 1ece'0er 28, 2007. 2t had 0een three (E wee@s when
0attle for'ation was ordered throu)h &as@ /orce &a)itis, on +anuar* 87, 2008. 2t was onl* on +anuar* 28, 2008
when the &as@ /orce &a)itis re7uested for clear and recent photo)raphs of the 'issin) person, (n)r. Morced
&a)itis, despite the &as@ /orce &a)itisC clai' that the* alread* had an 4all points 0ulletin4, since $ove'0er J,
2007, on the 'issin) person, (n)r. Morced &a)itis. .ow could the police loo@ for so'eone who disappeared if no
clear photo)raph had 0een disse'inatedN
(2 /urther'ore, &as@ /orce &a)itisC C#9. A.2R#M A+2R2M infor'ed this Court that PI3upt =A32M was
desi)nated as Col. Ahiro' ADiri'Cs replace'ent in the latterCs official desi)nated post. ?et, PI3upt =A32MCs
su0poena was returned to this Court unserved. 3ince this Court was 'ade to understand that it was PI3upt
=A32M who was the petitionerCs unofficial source of the 'ilitar* intelli)ence infor'ation that (n)r. Morced &a)itis
was a0ducted 0* 0ad ele'ents of the C21" (par. 8J of the Petition, the close contact 0etween PI3upt =A32M
and Col. Ahiro' ADiri' of &A3= /#RC( &A"2&23 should have ensured the appearance of Col. =A32M in
response to this courtCs su0poena and C#9. =A32M could have confir'ed the 'ilitar* intelli)ence infor'ation that
0ad ele'ents of the C21" had a0ducted (n)r. Morced &a)itis.
&esti'onies for the Respondent
#n +anuar* 7, 2008, the respondent, Mar* +ean ,. &a)itis, testified on direct e6a'ination that she went to +olo
and ;a'0oan)a in her efforts to locate her hus0and. 3he said that a friend fro' ;a'0oan)a holdin) a hi)h
position in the 'ilitar* (who' she did not then identif* )ave her infor'ation that allowed her to 4specif*4 her
alle)ations, 4particularl* para)raph 8J of the petition.4 &his friend also told her that her hus0and 4GwasH in )ood
hands.4 &he respondent also testified that she sou)ht the assistance of her for'er 0oss in 1avao Cit*, 9and ,an@
,aDada ,ranch Mana)er Rud* 3alvador, who told her that 4P$P C21" is holdin) Gher hus0andH, (n)ineer Morced
&a)itis.4 &he respondent recounted that she went to Ca'p =atitipan in 1avao Cit* where she 'et Col. +ulasiri'
Ahadin =asi' (Col. =asi'I3r. 3upt =asi' who read to her and her friends (who were then with her a 4hi)hl*
confidential report4 that contained the 4alle)ed activities of (n)ineer &a)itis4 and infor'ed her that her hus0and
was a0ducted 0ecause 4he is under custodial investi)ation4 for 0ein) a liaison for 4+.2. or +e'aCah 2sla'iah.4
#n +anuar* 87, 2008, the respondent on cross!e6a'ination testified that she is &a)itisC second wife, and the*
have 0een 'arried for thirteen *ears< &a)itis was divorced fro' his first wife. 3he last co''unicated with her
hus0and on #cto0er 2%, 2007 at around 7-E8 p.'. throu)h te6t 'essa)in)< &a)itis was then on his wa* to +olo,
3ulu, fro' ;a'0oan)a Cit*.
&he respondent narrated that she learned of her hus0andCs disappearance on #cto0er E0, 2007 when her
stepdau)hter, ;a*nah &a)itis (;a*nah, infor'ed her that she had not heard fro' her father since the ti'e the*
arran)ed to 'eet in Manila on #cto0er E8, 2007. &he respondent e6plained that it too@ her a few da*s (or on
$ove'0er J, 2007 to personall* as@ =unnon) to report her hus0andCs disappearance to the +olo Police 3tation,
%
since she had the i'pression that her hus0and could not co''unicate with her 0ecause his cellular phoneCs
0atter* did not have enou)h power, and that he would call her when he had full*!char)ed his cellular phoneCs
0atter*.
&he respondent also identified the hi)h!ran@in) 'ilitar* friend, who )ave her the infor'ation found in para)raph
8J of her petition, as 9t. Col. Pedro 9. Ancanan, +r (Col. Ancanan. 3he 'et hi' in Ca'p =arin)al, ;a'0oan)a
throu)h her 0oss.
E7
3he also testified that she was with three other people, na'el*, Mrs. Mar*del Martin &al0in
and her two friends fro' Mati Cit*, 1avao #riental, when Col. =asi' read to the' the contents of the 4hi)hl*
confidential report4 at Ca'p =atitipan, 1avao Cit*. &he respondent further narrated that the report indicated that
her hus0and 'et with people 0elon)in) to a terrorist )roup and that he was under custodial investi)ation. 3he
then told Col. =asi' that her hus0and was a dia0etic ta@in) 'aintenance 'edication, and as@ed that the Colonel
rela* to the persons holdin) hi' the need to )ive hi' his 'edication.
#n /e0ruar* 88, 2008, &A3= /#RC( &A"2&23 su0'itted two narrative reports, si)ned 0* the respondent,
detailin) her efforts to locate her hus0and which led to her 'eetin)s with Col. Ancanan of the Philippine Ar'* and
Col. =asi' of the P$P. 2n her narrative report concernin) her 'eetin) with Col. Ancanan, the respondent
recounted, viA-
#n $ove'0er 88, 2007, we went to ;a'0oan)a Cit* with '* friend Mrs. Mar*del &al0in. #ur fli)ht fro' 1avao
Cit* is %-00 oCcloc@ in the 'ornin)< we arrived at ;a'0oan)a Airport at around 80-00 oCcloc@. We GwereH fetched
0* the two staffs of Col. Ancanan. We i''ediatel* proceed GsicH to West Mindanao Co''and (W(3&M2$C#M.
#n that sa'e da*, we had private conversation with Col. Ancanan. .e interviewed 'e and )ot infor'ation a0out
the personal 0ac@)round of (n)r. Morced $. &a)itis. After he )athered all infor'ation, he revealed to us the
contents of te6t 'essa)es the* )ot fro' the cellular phone of the su0Dect (n)r. &a)itis. #ne of the ver* i'portant
te6t 'essa)es of (n)r. &a)itis sent to his dau)hter ;a*nah &a)itis was that she was not allowed to answer an*
telephone calls in his condo'iniu' unit.
While we were there he did not tell us an* infor'ation of the wherea0outs of (n)r. &a)itis. After the said 'eetin)
with Col. Ancanan, he treated us as )uests to the cit*. .is two staffs acco'panied us to the 'all to purchase our
plane tic@et )oin) 0ac@ to 1avao Cit* on $ove'0er 82, 2007.
When we arrived in 1avao Cit* on $ove'0er 82, 2007 at %-00 in the 'ornin), Col. Ancanan and 2 were
discussin) so'e points throu)h phone calls. .e assured 'e that '* hus0and is alive and heCs last loo@ed GsicH in
&alipapao, +olo, 3ulu. ?et 2 did not 0elieve his )iven state'ents of the wherea0outs of '* hus0and, 0ecause 2
contacted so'e of '* friends who have access to the )roups of M29/, M$9/ and A3". 2 called up Col. Ancanan
several ti'es 0e))in) to tell 'e the e6act location of '* hus0and and who held hi' 0ut he refused.
While 2 was in +olo, 3ulu on $ove'0er E0, 2007, 2 called hi' up a)ain 0ecause the P$P, +olo did not )ive 'e
an* infor'ation of the wherea0outs of '* hus0and. Col. Ancanan told 'e that 43ana n)a*on ala' 'o na @un)
saan an) @inalala)*an n) asawa 'o.4 When 2 was in ;a'0oan)a, 2 was thin@in) of droppin) 0* the office of Col.
Ancanan, 0ut 2 was hesitant to pa* hi' a visit for the reason that the Chief of Police of +olo told 'e not to contact
an* A/P officials and he pro'ised 'e that he can solve the case of '* hus0and ((n)r. &a)itis within nine da*s.
2 appreciate the effort of Col. Ancanan on tr*in) to solve the case of '* hus0and (n)r. Morced &a)itis, *et failed
to do so.
&he respondent also narrated her encounter with Col. =asi', as follows-
#n $ove'0er 7, 2007, 2 went to 9and ,an@ of the Philippines, ,aDada ,ranch, 1avao Cit* to 'eet Mr. Rud*
3alvador. 2 told hi' that '* hus0and, (n)ineer Morced &a)itis was presu'ed to 0e a0ducted in +olo, 3ulu on
#cto0er E0, 2007. 2 as@ed hi' a favor to contact his connections in the 'ilitar* in +olo, 3ulu where the a0duction
80
of (n)r. &a)itis too@ place. Mr. 3alvador i''ediatel* called up Ca'p =atitipan located in 1avao Cit* loo@in) for
hi)h!ran@in) official who can help 'e )ather relia0le infor'ation 0ehind the a0duction of su0Dect (n)ineer &a)itis.
#n that sa'e da*, Mr. 3alvador and '* friend, Anna MendoAa, (6ecutive 3ecretar*, acco'panied 'e to Ca'p
=atitipan to 'eet Col. =asi'. Mr. 3alvador introduced 'e to Col. =asi' and we had a short conversation. And he
assured 'e that heCll do the 0est he can to help 'e find '* hus0and.
After a few wee@s, Mr. 3alvador called 'e up infor'in) 'e up infor'in) 'e that 2 a' to )o to Ca'p =atitipan to
'eet Col. =asi' for he has an ur)ent, confidential infor'ation to reveal.
#n $ove'0er 2F, 2007, we went 0ac@ to Ca'p =atitipan with '* three friends. &hat was the ti'e that Col. =asi'
read to us the confidential report that (n)r. &a)itis was alle)edl* connected GwithH different terrorist G)roupsH, one
of which he 'entioned in the report was #MAR PA&2= and a certain 3A$&#3 ! a ,ali@ 2sla'.
2t is also said that (n)r. &a)itis is carr*in) 0o6es of 'edicines for the inDured terrorists as a supplier. &hese are
the two infor'ation that 2 can still re'e'0er. 2t was written in a lon) 0ond paper with P$P 9etterhead. 2t was not
shown to us, *et Col. =asi' was the one who read it for us.
.e as@ed a favor to 'e that 4Please donCt 7uote '* $a'eO ,ecause this is a raw report.4 .e assured 'e that '*
hus0and is alive and he is in the custod* of the 'ilitar* for custodial investi)ation. 2 told hi' to please ta@e care of
'* hus0and 0ecause he has ali'ents and he recentl* too@ insulin for he is a dia0etic patient.
2n '* petition for writ of a'paro, 2 e'phasiAed the infor'ation that 2 )ot fro' =asi'.
#n /e0ruar* 88, 2008, the respondent presented Mrs. Mar*del Martin &al0in (Mrs. &al0in to corro0orate her
testi'on* re)ardin) her efforts to locate her hus0and, in relation particularl* with the infor'ation she received
fro' Col. =asi'. Mrs. &al0in testified that she was with the respondent when she went to ;a'0oan)a to see Col.
Ancanan, and to 1avao Cit* at Ca'p =atitipan to 'eet Col. =asi'.
2n ;a'0oan)a, Mrs. &al0in recounted that the* 'et with Col. Ancanan, who told the' that there was a report and
that he showed the' a series of te6t 'essa)es fro' &a)itisC cellular phone, which showed that &a)itis and his
dau)hter would 'eet in Manila on #cto0er E0, 2007.
3he further narrated that so'eti'e on $ove'0er 2F, 2007, she went with the respondent to)ether with two other
co'panions, na'el*, 3alvacion 3errano and Mini 9eon), to Ca'p =atitipan to tal@ to Col. =asi'. &he respondent
as@ed Col. =asi' if he @new the e6act location of (n)r. &a)itis. Col. =asi' told the' that &a)itis was in )ood
hands, althou)h he was not certain whether he was with the P$P or with the Ar'ed /orces of the Philippines
(A/P. 3he further recounted that 0ased on the report Col. =asi' read in their presence, &a)itis was under
custodial investi)ation 0ecause he was 0ein) char)ed with terroris'< &a)itis in fact had 0een under surveillance
since +anuar* 2007 up to the ti'e he was a0ducted when he was seen tal@in) to #'ar Pati@ and a certain
3antos of ,ulacan, a 4,ali@ 2sla'4 char)ed with terroris'. Col. =asi' also told the' that he could not )ive a cop*
of the report 0ecause it was a 4raw report.4 3he also related that the Col. =asi' did not tell the' e6actl* where
&a)itis was 0ein) @ept, althou)h he 'entioned &alipapao, 3ulu.Prof., lala0as din *an.4 Prof. Matli also
e'phasiAed that despite what his +anuar* F, 2008 affidavit indicated, he never told P3 3upt. Pin)a*, or 'ade an*
accusation, that &a)itis too@ awa* 'one* entrusted to hi'. Prof. Matli confir'ed, however, that that he had
received an e!'ail report fro' $ura*a 9ac@ian of the #ffice of Musli' Affairs in Manila that the 21, was see@in)
assistance of the office in locatin) the funds of 21, scholars deposited in &a)itisC personal account.
#n cross!e6a'ination 0* the respondentCs counsel, Prof. Matli testified that his +anuar* F, 2008 affidavit was
alread* prepared when P3 3upt. Pin)a* as@ed hi' to si)n it. Prof Matli clarified that althou)h he read the affidavit
0efore si)nin) it, he 4was not so 'uch aware ofM GitsH contents.4
88
#n /e0ruar* 88, 2008, the petitioners presented Col. =asi' to re0ut 'aterial portions of the respondentCs
testi'on*, particularl* the alle)ation that he had stated that &a)itis was in the custod* of either the 'ilitar* or the
P$P. Col. =asi' cate)oricall* denied the state'ents 'ade 0* the respondent in her narrative report, specificall*-
(8 that &a)itis was seen carr*in) 0o6es of 'edicines as supplier for the inDured terrorists< (2 that &a)itis was
under the custod* of the 'ilitar*, since he 'erel* said to the respondent that 4*our hus0and is in )ood hands4
and is 4pro0a0l* ta@en cared of 0* his ar'ed a0ductors<4 and (E that &a)itis was under custodial investi)ation 0*
the 'ilitar*, the P$P or the C21" ;a'0oan)a Cit*. Col. =asi' e'phasiAed that the 4infor'al letter4 he received
fro' his infor'ant in 3ulu did not indicate that &a)itis was in the custod* of the C21". .e also stressed that the
infor'ation he provided to the respondent was 'erel* a 4raw report4 sourced fro' 40aran)a* intelli)ence4 that
still needed confir'ation and 4follow!up4 as to its veracit*.
#n cross!e6a'ination, Col. =asi' testified that the infor'ation he )ave the respondent was )iven to hi' 0* his
infor'ant, who was a 4civilian asset,4 throu)h a letter which he considered as 4unofficial.4 Col. =asi' stressed
that the letter was onl* 'eant for his 4consu'ption4 and not for readin) 0* others. .e testified further that he
destro*ed the letter ri)ht after he read it to the respondent and her co'panions 0ecause 4it was not i'portant to
hi'4 and also 0ecause the infor'ation it contained had no i'portance in relation with the a0duction of &a)itis. .e
e6plained that he did not @eep the letter 0ecause it did not contain an* infor'ation re)ardin) the wherea0outs of
&a)itis and the person(s responsi0le for his a0duction.
2n the sa'e hearin) on /e0ruar* 88, 2008, the petitioners also presented Police 3enior 3uperintendent +ose
:olpane Pante (Col. Pante, Chief of the C21"!%, to disprove the respondentCs alle)ation that &a)itis was in the
custod* of C21"!;a'0oan)a Cit*. Col. Pante clarified that the C21" was the 4investi)ative ar'4 of the P$P, and
that the C21" 4investi)ates and prosecutes all cases involvin) violations in the Revised Penal Code particularl*
those considered as heinous cri'es.4 Col. Pante further testified that the alle)ation that % RC215 personnel were
involved in the disappearance of &a)itis was 0aseless, since the* did not conduct an* operation in +olo, 3ulu
0efore or after &a)itisC reported disappearance. Col. Pante added that the four (F personnel assi)ned to the 3ulu
C21& had no capa0ilit* to conduct an* 4operation,4 since the* were onl* assi)ned to investi)ate 'atters and to
'onitor the terroris' situation. .e denied that his office conducted an* surveillance on &a)itis prior to the latterCs
disappearance. Col. Pante further testified that his investi)ation of &a)itisC disappearance was unsuccessful< the
investi)ation was 4still facin) a 0lan@ wall4 on the wherea0outs of &a)itis.
&.( CA R592$"
#n March 7, 2008, the CA issued its decision confir'in) that the disappearance of &a)itis was an 4enforced
disappearance4 under the 5nited $ations (5$ 1eclaration on the Protection of All Persons fro' (nforced
1isappearances. &he CA ruled that when 'ilitar* intelli)ence pinpointed the investi)ative ar' of the P$P (C21"
to 0e involved in the a0duction, the 'issin)!person case 7ualified as an enforced disappearance. &he conclusion
that the C21" was involved was 0ased on the respondentCs testi'on*, corro0orated 0* her co'panion, Mrs.
&al0in. &he CA noted that the infor'ation that the C21", as the police intelli)ence ar', was involved in &a)itisC
a0duction ca'e fro' no less than the 'ilitar* B an independent a)enc* of )overn'ent. &he CA thus )reatl*
relied on the 4raw report4 fro' Col. =asi'Cs asset, pointin) to the C21"Cs involve'ent in &a)itisC a0duction. &he
CA held that 4raw reports4 fro' an 4asset4 carried 4)reat wei)ht4 in the intelli)ence world. 2t also la0eled as
4suspect4 Col. =asi'Cs su0se7uent and 0elated retraction of his state'ent that the 'ilitar*, the police, or the
C21" was involved in the a0duction of &a)itis.
&he CA characteriAed as 4too farfetched and un0elieva0le4 and 4a 0edla' of speculation4 police theories paintin)
the disappearance as 4intentional4 on the part of &a)itis. .e had no previous 0rushes with the law or an* record
of oversteppin) the 0ounds of an* trust re)ardin) 'one* entrusted to hi'< no student of the 21, scholarship
pro)ra' ever ca'e forward to co'plain that he or she did not )et his or her stipend. &he CA also found no 0asis
for the police theor* that &a)itis was 4tr*in) to escape fro' the clutches of his second wife,4 on the 0asis of the
respondentCs testi'on* that &a)itis was a Musli' who could have 'an* wives under the Musli' faith, and that
there was 4no issue4 at all when the latter divorced his first wife in order to 'arr* the second. /inall*, the CA also
ruled out @idnappin) for ranso' 0* the A0u 3a**af or 0* the ARMM para'ilitar* as the cause for &a)itisC
82
disappearance, since the respondent, the police and the 'ilitar* noted that there was no ac@nowled)e'ent of
&a)itisC a0duction or de'and for pa*'ent of ranso' B the usual 'odus operandi of these terrorist )roups.
,ased on these considerations, the CA thus e6tended the privile)e of the writ to &a)itis and his fa'il*, and
directed the C21" Chief, Col. +ose :olpane Pante, P$P Chief Avelino 2. RaAon, &as@ /orce &a)itis heads "en.
+oel "oltiao and Col. Ahiron ADiri', and PAC(R Chief 3r. 3upt. 9eonardo A. (spina to e6ert e6traordinar*
dili)ence and efforts to protect the life, li0ert* and securit* of &a)itis, with the o0li)ation to provide 'onthl* reports
of their actions to the CA. At the sa'e ti'e, the CA dis'issed the petition a)ainst the then respondents fro' the
'ilitar*, 9t. "en Ale6ander ?ano and "en. Ru0en Rafael, 0ased on the findin) that it was P$P!C21", not the
'ilitar*, that was involved.
#n March E8, 2008, the petitioners 'oved to reconsider the CA decision, 0ut the CA denied the 'otion in its
Resolution of April %, 2008.
&.( P(&2&2#$
2n this Rule FJ appeal 7uestionin) the CACs March 7, 2008 decision, the petitioners 'ainl* dispute the sufficienc*
in for' and su0stance of the A'paro petition filed 0efore the CA< the sufficienc* of the le)al re'edies the
respondent too@ 0efore petitionin) for the writ< the findin) that the ri)hts to life, li0ert* and securit* of &a)itis had
0een violated< the sufficienc* of evidence supportin) the conclusion that &a)itis was a0ducted< the conclusion
that the C21" ;a'0oan)a was responsi0le for the a0duction< and, )enerall*, the rulin) that the respondent
dischar)ed the 0urden of provin) the alle)ations of the petition 0* su0stantial evidence.
&.( C#5R&C3 R592$"
We do not find the petition 'eritorious.
3ufficienc* in /or' and 3u0stance
2n 7uestionin) the sufficienc* in for' and su0stance of the respondentCs A'paro petition, the petitioners contend
that the petition violated 3ection J(c, (d, and (e of the A'paro Rule. 3pecificall*, the petitioners alle)e that the
respondent failed to-
8 alle)e an* act or o'ission the petitioners co''itted in violation of &a)itisC ri)hts to life, li0ert* and securit*<
2 alle)e in a co'plete 'anner how &a)itis was a0ducted, the persons responsi0le for his disappearance, and
the respondentCs source of infor'ation<
E alle)e that the a0duction was co''itted at the petitionersC instructions or with their consent<
F i'plead the 'e'0ers of C21" re)ional office in ;a'0oan)a alle)ed to have custod* over her hus0and<
J attach the affidavits of witnesses to support her accusations<
L alle)e an* action or inaction attri0uta0le to the petitioners in the perfor'ance of their duties in the investi)ation
of &a)itisC disappearance< and
7 specif* what le)all* availa0le efforts she too@ to deter'ine the fate or wherea0outs of her hus0and.
A petition for the Writ of A'paro shall 0e si)ned and verified and shall alle)e, a'on) others (in ter's of the
portions the petitioners cite-
8E
'c( .he ri2h& &o "ie, "iber&4 %$, 1ec+ri&4 o &he %22rie0e, #%r&4 0io"%&e, or &hre%&e$e, 9i&h 0io"%&io$ b4 %$
+$"%9+" %c& or omi11io$ o &he re1#o$,e$&, %$, ho9 1+ch &hre%& or 0io"%&io$ i1 commi&&e, 9i&h &he
%&&e$,%$& circ+m1&%$ce1 ,e&%i"e, i$ 1+##or&i$2 %i,%0i&1<
',( .he i$0e1&i2%&io$ co$,+c&e,, i %$4, 1#eci4i$2 &he $%me1, #er1o$%" circ+m1&%$ce1, %$, %,,re11e1 o
&he i$0e1&i2%&i$2 %+&hori&4 or i$,i0i,+%"1, %1 9e"" %1 &he m%$$er %$, co$,+c& o &he i$0e1&i2%&io$,
&o2e&her 9i&h %$4 re#or&<
(e &he actions and recourses ta@en 0* the petitioner to deter'ine the fate or wherea0outs of the a))rieved part*
and the identit* of the person responsi0le for the threat, act or o'ission< and
&he fra'ers of the A'paro Rule never intended 3ection J(c to 0e co'plete in ever* detail in statin) the
threatened or actual violation of a victi'Cs ri)hts. As in an* other initiator* pleadin), the pleader 'ust of course
state the ulti'ate facts constitutin) the cause of action, o'ittin) the evidentiar* details. 2n an A'paro petition,
however, this re7uire'ent 'ust 0e read in li)ht of the nature and purpose of the proceedin), which addresses a
situation of uncertaint*< the petitioner 'a* not 0e a0le to descri0e with certaint* how the victi' e6actl*
disappeared, or who actuall* acted to @idnap, a0duct or arrest hi' or her, or where the victi' is detained,
0ecause these infor'ation 'a* purposel* 0e hidden or covered up 0* those who caused the disappearance. 2n
this t*pe of situation, to re7uire the level of specificit*, detail and precision that the petitioners apparentl* want to
read into the A'paro Rule is to 'a@e this Rule a to@en )esture of Dudicial concern for violations of the
constitutional ri)hts to life, li0ert* and securit*.
&o read the Rules of Court re7uire'ent on pleadin)s while addressin) the uni7ue A'paro situation, the test in
readin) the petition should 0e to deter'ine whether it contains the details availa0le to the petitioner under the
circu'stances, while presentin) a cause of action showin) a violation of the victi'Cs ri)hts to life, li0ert* and
securit* throu)h 3tate or private part* action. &he petition should li@ewise 0e read in its totalit*, rather than in
ter's of its isolated co'ponent parts, to deter'ine if the re7uired ele'ents B na'el*, of the disappearance, the
3tate or private action, and the actual or threatened violations of the ri)hts to life, li0ert* or securit* B are present.
2n the present case, the petition a'pl* recites in its para)raphs F to 88 the circu'stances under which &a)itis
suddenl* dropped out of si)ht after en)a)in) in nor'al activities, and thereafter was nowhere to 0e found despite
efforts to locate hi'. &he petition alle)ed, too, under its para)raph 7, in relation to para)raphs 8J and 8L, that
accordin) to relia0le infor'ation, police operatives were the perpetrators of the a0duction. 2t also clearl* alle)ed
how &a)itisC ri)hts to life, li0ert* and securit* were violated when he was 4forci0l* ta@en and 0oarded on a 'otor
vehicle 0* a couple of 0url* 'en 0elieved to 0e police intelli)ence operatives,4 and then ta@en 4into custod* 0*
the respondentsC police intelli)ence operatives since #cto0er E0, 2007, specificall* 0* the C21", P$P
;a'0oan)a Cit*, 6 6 6 held a)ainst his will in an earnest atte'pt of the police to involve and connect Ghi'H with
different terrorist )roups.4
&hese alle)ations, in our view, properl* pleaded ulti'ate facts within the pleaderCs @nowled)e a0out &a)itisC
disappearance, the participation 0* a)ents of the 3tate in this disappearance, the failure of the 3tate to release
&a)itis or to provide sufficient infor'ation a0out his wherea0outs, as well as the actual violation of his ri)ht to
li0ert*. &hus, the petition cannot 0e faulted for an* failure in its state'ent of a cause of action.
2f a defect can at all 0e attri0uted to the petition, this defect is its lac@ of supportin) affidavit, as re7uired 0*
3ection J(c of the A'paro Rule. #win) to the su''ar* nature of the proceedin)s for the writ and to facilitate the
resolution of the petition, the A'paro Rule incorporated the re7uire'ent for supportin) affidavits, with the
annotation that these can 0e used as the affiantCs direct testi'on*. &his re7uire'ent, however, should not 0e read
as an a0solute one that necessaril* leads to the dis'issal of the petition if not strictl* followed. Where, as in this
case, the petitioner has su0stantiall* co'plied with the re7uire'ent 0* su0'ittin) a verified petition sufficientl*
detailin) the facts relied upon, the strict need for the sworn state'ent that an affidavit represents is essentiall*
fulfilled. We note that the failure to attach the re7uired affidavits was full* cured when the respondent and her
8F
witness (Mrs. &al0in personall* testified in the CA hearin)s held on +anuar* 7 and 87 and /e0ruar* 88, 2008 to
swear to and flesh out the alle)ations of the petition. &hus, even on this point, the petition cannot 0e faulted.
3ection J(d of the A'paro Rule re7uires that prior investi)ation of an alle)ed disappearance 'ust have 0een
'ade, specif*in) the 'anner and results of the investi)ation. (ffectivel*, this re7uire'ent see@s to esta0lish at
the earliest opportunit* the level of dili)ence the pu0lic authorities undertoo@ in relation with the reported
disappearance.
We reDect the petitionersC ar)u'ent that the respondentCs petition did not co'pl* with the 3ection J(d
re7uire'ents of the A'paro Rule, as the petition specifies in its para)raph 88 that =unnon) and his co'panions
i''ediatel* reported &a)itisC disappearance to the police authorities in +olo, 3ulu as soon as the* were relativel*
certain that he indeed had disappeared. &he police, however, )ave the' the 4read* answer4 that &a)itis could
have 0een a0ducted 0* the A0u 3a**af )roup or other anti!)overn'ent )roups. &he respondent also alle)ed in
para)raphs 87 and 88 of her petition that she filed a 4co'plaint4 with the P$P Police 3tation in Coto0ato and in
+olo, 0ut she was told of 4an intri)uin) tale4 0* the police that her hus0and was havin) 4a )ood ti'e with another
wo'an.4 &he disappearance was alle)ed to have 0een reported, too, to no less than the "overnor of the ARMM,
followed 0* the respondentCs personal in7uiries that *ielded the factual 0ases for her petition.
&hese alle)ations, to our 'ind, sufficientl* specif* that reports have 0een 'ade to the police authorities, and that
investi)ations should have followed. &hat the petition did not state the 'anner and results of the investi)ation that
the A'paro Rule re7uires, 0ut rather )enerall* stated the inaction of the police, their failure to perfor' their dut*
to investi)ate, or at the ver* least, their reported failed efforts, should not 0e a reflection on the co'pleteness of
the petition. &o re7uire the respondent to ela0oratel* specif* the na'es, personal circu'stances, and addresses
of the investi)atin) authorit*, as well the 'anner and conduct of the investi)ation is an overl* strict interpretation
of 3ection J(d, )iven the respondentCs frustrations in securin) an investi)ation with 'eanin)ful results. 5nder
these circu'stances, we are 'ore than satisfied that the alle)ations of the petition on the investi)ations
underta@en are sufficientl* co'plete for purposes of 0rin)in) the petition forward.
3ection J(e is in the A'paro Rule to prevent the use of a petition B that otherwise is not supported 0* sufficient
alle)ations to constitute a proper cause of action B as a 'eans to 4fish4 for evidence. &he petitioners contend that
the respondentCs petition did not specif* what 4le)all* availa0le efforts were ta@en 0* the respondent,4 and that
there was an 4undue haste4 in the filin) of the petition when, instead of cooperatin) with authorities, the
respondent i''ediatel* invo@ed the CourtCs intervention.
We do not see the respondentCs petition as the petitioners view it.
3ection J(e 'erel* re7uires that the A'paro petitioner (the respondent in the present case alle)e 4the actions
and recourses ta@en to deter'ine the fate or wherea0outs of the a))rieved part* and the identit* of the person
responsi0le for the threat, act or o'ission.4 &he followin) alle)ations of the respondentCs petition dul* outlined the
actions she had ta@en and the frustrations she encountered, thus co'pellin) her to file her petition.
6 6 6 6
7. 3oon after the student left the roo', (n)r. &a)itis went out of the pension house to ta@e his earl* lunch 0ut
while out on the street, a couple of 0url* 'en 0elieved to 0e police intelli)ence operatives, forci0l* too@ hi' and
0oarded the latter on a 'otor vehicle then sped awa* without the @nowled)e of his student, Arsi'in =unnon)<
6 6 6 6
80. When =unnon) could not locate (n)r. &a)itis, the for'er sou)ht the help of another 21, scholar and reported
the 'atter to the local police a)enc*<
8J
88. Arsi'in =unnon), includin) his friends and co'panions in +olo, e6erted efforts in tr*in) to locate the
wherea0outs of (n)r. &a)itis and when he reported the 'atter to the police authorities in +olo, he was
i''ediatel* )iven a read* answer that (n)r. &a)itis could Ghave 0eenH a0ducted 0* the A0u 3a**af )roup and
other )roups @nown to 0e fi)htin) a)ainst the )overn'ent<
82. ,ein) scared with these su))estions and insinuations of the police officers, =unnon) reported the 'atter to
the GrespondentH(wife of (n)r. &a)itis 0* phone and other responsi0le officers and coordinators of the 21,
3cholarship Pro)ra''e in the Philippines who alerted the office of the "overnor of ARMM who was then
preparin) to attend the #2C 'eetin) in +eddah, 3audi Ara0ia<
8E. G&he respondentH, on the other hand, approached so'e of her co!e'plo*ees with the 9and ,an@ in 1i)os
0ranch, 1i)os Cit*, 1avao del 3ur, who li@ewise sou)ht help fro' so'e of their friends in the 'ilitar* who could
help the' findIlocate the wherea0outs of her hus0and<
6 6 6 6
8J. Accordin) to relia0le infor'ation received 0* the GrespondentH, su0Dect (n)r. &a)itis is in the custod* of police
intelli)ence operatives, specificall* with the C21", P$P ;a'0oan)a Cit*, 0ein) held a)ainst his will in an earnest
atte'pt of the police to involve and connect (n)r. &a)itis with the different terrorist )roups<
6 6 6 6
87. G&he respondentH filed her co'plaint with the P$P Police 3tation at the ARMM in Coto0ato and in +olo, as
su))ested 0* her friends, see@in) their help to find her hus0and, 0ut Gthe respondentCsH re7uest and pleadin)s
failed to produce an* positive results
6 6 6 6
20. 9atel*, GrespondentH was a)ain advised 0* one of the GpetitionersH to )o to the ARMM Police .ead7uarters
a)ain in Coto0ato Cit* and also to the different Police .ead7uarters includin) the police head7uarters in 1avao
Cit*, in ;a'0oan)a Cit*, in +olo, and in Ca'p Cra'e, KueAon Cit*, and all these places have 0een visited 0* the
GrespondentH in search for her hus0and, which entailed e6penses for her trips to these places there0* resortin)
her to 0orrowin)s and 0e))in)s GsicH for financial help fro' friends and relatives onl* to tr* co'pl*in) to the
different su))estions of these police officers, despite of which, her efforts produced no positive results up to the
present ti'e<
6 6 6 6
2J. G&he respondentH has e6hausted all ad'inistrative avenues and re'edies 0ut to no avail, and under the
circu'stances, GrespondentH has no other plain, speed* and ade7uate re'ed* to protect and )et the release of
su0Dect (n)r. Morced &a)itis fro' the ille)al clutches of Gthe petitionersH, their intelli)ence operatives and the li@e
which are in total violation of the su0DectCs hu'an and constitutional ri)hts, e6cept the issuance of a WR2& #/
AMPAR#.
,ased on these considerations, we rule that the respondentCs petition for the Writ of A'paro is sufficient in for'
and su0stance and that the Court of Appeals had ever* reason to proceed with its consideration of the case.
&he 1esaparecidos
&he present case is one of first i'pression in the use and application of the Rule on the Writ of A'paro in an
enforced disappearance situation. /or a deeper appreciation of the application of this Rule to an enforced
disappearance situation, a 0rief loo@ at the historical conte6t of the writ and enforced disappearances would 0e
ver* helpful.
8L
&he pheno'enon of enforced disappearance arisin) fro' 3tate action first attracted notice in Adolf .itlerCs $act
und $e0el (rlass or $i)ht and /o) 1ecree of 1ece'0er 7, 8%F8. &he &hird ReichCs $i)ht and /o) Pro)ra', a
3tate polic*, was directed at persons in occupied territories 4endan)erin) "er'an securit*4< the* were
transported secretl* to "er'an* where the* disappeared without a trace. 2n order to 'a6i'iAe the desired
inti'idatin) effect, the polic* prohi0ited )overn'ent officials fro' providin) infor'ation a0out the fate of these
tar)eted persons.
2n the 'id!8%70s, the pheno'enon of enforced disappearances resurfaced, shoc@in) and outra)in) the world
when individuals, nu'0erin) an*where fro' L,000 to 2F,000, were reported to have 4disappeared4 durin) the
'ilitar* re)i'e in Ar)entina. (nforced disappearances spread in 9atin A'erica, and the issue 0eca'e an
international concern when the world noted its widespread and s*ste'atic use 0* 3tate securit* forces in that
continent under #peration Condor and durin) the 1irt* War in the 8%70s and 8%80s. &he escalation of the
practice saw political activists secretl* arrested, tortured, and @illed as part of )overn'entsC counter!insur)enc*
ca'pai)ns. As this for' of political 0rutalit* 0eca'e routine elsewhere in the continent, the 9atin A'erican 'edia
standardiAed the ter' 4disappearance4 to descri0e the pheno'enon. &he victi's of enforced disappearances
were called the 4desaparecidos,4 which literall* 'eans the 4disappeared ones.4 2n )eneral, there are three
different @inds of 4disappearance4 cases-
8 those of people arrested without witnesses or without positive identification of the arrestin) a)ents and are
never found a)ain<
2 those of prisoners who are usuall* arrested without an appropriate warrant and held in co'plete isolation for
wee@s or 'onths while their fa'ilies are una0le to discover their wherea0outs and the 'ilitar* authorities den*
havin) the' in custod* until the* eventuall* reappear in one detention center or another< and
E those of victi's of 4salva)in)4 who have disappeared until their lifeless 0odies are later discovered.
2n the Philippines, enforced disappearances )enerall* fall within the first two cate)ories, and 8JJ cases were
recorded durin) the period of 'artial law fro' 8%72 until 8%8L. #f this nu'0er, J%J re'ained 'issin), 8E2
surfaced alive and 827 were found dead. 1urin) for'er President CoraAon C. A7uinoCs ter', 820 people were
reported to have disappeared and of these, L82 cases were docu'ented. #f this nu'0er, F07 re'ain 'issin),
808 surfaced alive and %7 were found dead. &he nu'0er of enforced disappearances dropped durin) for'er
President /idel :. Ra'osC ter' when onl* 87 cases were reported, while the three!*ear ter' of for'er President
+oseph (. (strada *ielded J8 reported cases. =ARAPA&A$, a local non!)overn'ental or)aniAation, reports that
as of March E8, 2008, the records show that there were a total of 8%E victi's of enforced disappearance under
incu'0ent President "loria M. Arro*oCs ad'inistration. &he Co''ission on .u'an Ri)htsC records show a total
of LEL verified cases of enforced disappearances fro' 8%8J to 8%%E. #f this nu'0er, F0L re'ained 'issin), %2
surfaced alive, L2 were found dead, and 7L still have undeter'ined status. Currentl*, the 5nited $ations Wor@in)
"roup on (nforced or 2nvoluntar* 1isappearance reports L8% outstandin) cases of enforced or involuntar*
disappearances coverin) the period 1ece'0er 8, 2007 to $ove'0er E0, 2008.
(nforced 1isappearances
5nder Philippine 9aw
&he A'paro Rule e6pressl* provides that the 4writ shall cover e6trale)al @illin)s and enforced disappearances or
threats thereof.4 We note that althou)h the writ specificall* covers 4enforced disappearances,4 this concept is
neither defined nor penaliAed in this Durisdiction. &he records of the 3upre'e Court Co''ittee on the Revision of
Rules (Co''ittee reveal that the drafters of the A'paro Rule initiall* considered providin) an ele'ental
definition of the concept of enforced disappearance-
87
+53&2C( MAR&2$(;- 2 0elieve that first and fore'ost we should co'e up or for'ulate a specific definition GforH
e6traDudicial @illin)s and enforced disappearances. /ro' that definition, then we can proceed to for'ulate the
rules, definite rules concernin) the sa'e.
C.2(/ +53&2C( P5$#- M As thin)s stand, there is no law penaliAin) e6traDudicial @illin)s and enforced
disappearancesM so initiall* also we have to Gco'e up withH the nature of these e6traDudicial @illin)s and enforced
disappearances Gto 0e covered 0* the RuleH 0ecause our concept of @illin)s and disappearances will define the
Durisdiction of the courts. 3o weCll have to a)ree a'on) ourselves a0out the nature of @illin)s and disappearances
for instance, in other Durisdictions, the rules onl* cover state actors. &hat is an ele'ent incorporated in their
concept of e6traDudicial @illin)s and enforced disappearances. 2n other Durisdictions, the concept includes acts and
o'issions not onl* of state actors 0ut also of non state actors. Well, 'ore specificall* in the case of the
Philippines for instance, should these rules include the @illin)s, the disappearances which 'a* 0e authored 0* let
us sa*, the $PAs or the leftist or)aniAations and others. 3o, a)ain we need to define the nature of the
e6traDudicial @illin)s and enforced disappearances that will 0e covered 0* these rules. G('phasis suppliedH
2n the end, the Co''ittee too@ co)niAance of several 0ills filed in the .ouse of Representatives and in the
3enate on e6traDudicial @illin)s and enforced disappearances, and resolved to do awa* with a clear te6tual
definition of these ter's in the Rule. &he Co''ittee instead focused on the nature and scope of the concerns
within its power to address and provided the appropriate re'ed* therefor, 'indful that an ele'ental definition
'a* intrude into the on)oin) le)islative efforts.
As the law now stands, e6tra!Dudicial @illin)s and enforced disappearances in this Durisdiction are not cri'es
penaliAed separatel* fro' the co'ponent cri'inal acts underta@en to carr* out these @illin)s and enforced
disappearances and are now penaliAed under the Revised Penal Code and special laws. &he si'ple reason is
that the 9e)islature has not spo@en on the 'atter< the deter'ination of what acts are cri'inal and what the
correspondin) penalt* these cri'inal acts should carr* are 'atters of su0stantive law that onl* the 9e)islature
has the power to enact under the countr*Cs constitutional sche'e and power structure.
(ven without the 0enefit of directl* applica0le su0stantive laws on e6tra!Dudicial @illin)s and enforced
disappearances, however, the 3upre'e Court is not powerless to act under its own constitutional 'andate to
pro'ul)ate 4rules concernin) the protection and enforce'ent of constitutional ri)hts, pleadin), practice and
procedure in all courts,4 since e6traDudicial @illin)s and enforced disappearances, 0* their nature and purpose,
constitute 3tate or private part* violation of the constitutional ri)hts of individuals to life, li0ert* and securit*.
Althou)h the CourtCs power is strictl* procedural and as such does not di'inish, increase or 'odif* su0stantive
ri)hts, the le)al protection that the Court can provide can 0e ver* 'eanin)ful throu)h the procedures it sets in
addressin) e6traDudicial @illin)s and enforced disappearances. &he Court, throu)h its procedural rules, can set the
procedural standards and there0* directl* co'pel the pu0lic authorities to act on actual or threatened violations of
constitutional ri)hts. &o state the o0vious, Dudicial intervention can 'a@e a difference B even if onl* procedurall* B
in a situation when the ver* sa'e investi)atin) pu0lic authorities 'a* have had a hand in the threatened or actual
violations of constitutional ri)hts.
9est this Court intervention 0e 'isunderstood, we clarif* once a)ain that we do not rule on an* issue of cri'inal
culpa0ilit* for the e6traDudicial @illin) or enforced disappearance. &his is an issue that re7uires cri'inal action
0efore our cri'inal courts 0ased on our e6istin) penal laws. #ur intervention is in deter'inin) whether an
enforced disappearance has ta@en place and who is responsi0le or accounta0le for this disappearance, and to
define and i'pose the appropriate re'edies to address it. &he 0urden for the pu0lic authorities to dischar)e in
these situations, under the Rule on the Writ of A'paro, is twofold. &he first is to ensure that all efforts at
disclosure and investi)ation are underta@en under pain of indirect conte'pt fro' this Court when )overn'ental
efforts are less than what the individual situations re7uire. &he second is to address the disappearance, so that
the life of the victi' is preserved and his or her li0ert* and securit* restored. 2n these senses, our orders and
directives relative to the writ are continuin) efforts that are not trul* ter'inated until the e6traDudicial @illin) or
enforced disappearance is full* addressed 0* the co'plete deter'ination of the fate and the wherea0outs of the
88
victi', 0* the production of the disappeared person and the restoration of his or her li0ert* and securit*, and, in
the proper case, 0* the co''ence'ent of cri'inal action a)ainst the )uilt* parties.
(nforced 1isappearance
5nder 2nternational 9aw
/ro' the 2nternational 9aw perspective, involuntar* or enforced disappearance is considered a fla)rant violation
of hu'an ri)hts. 2t does not onl* violate the ri)ht to life, li0ert* and securit* of the desaparecido< it affects their
fa'ilies as well throu)h the denial of their ri)ht to infor'ation re)ardin) the circu'stances of the disappeared
fa'il* 'e'0er. &hus, enforced disappearances have 0een said to 0e 4a dou0le for' of torture,4 with 4dou0l*
paral*Ain) i'pact for the victi's,4 as the* 4are @ept i)norant of their own fates, while fa'il* 'e'0ers are
deprived of @nowin) the wherea0outs of their detained loved ones4 and suffer as well the serious econo'ic
hardship and povert* that in 'ost cases follow the disappearance of the household 0readwinner.
&he 5$ "eneral Asse'0l* first considered the issue of 41isappeared Persons4 in 1ece'0er 8%78 under
Resolution EEI87E. &he Resolution e6pressed the "eneral Asse'0l*Cs deep concern arisin) fro' 4reports fro'
various parts of the world relatin) to enforced or involuntar* disappearances,4 and re7uested the 45$
Co''ission on .u'an Ri)hts to consider the issue of enforced disappearances with a view to 'a@in)
appropriate reco''endations.4
2n 8%%2, in response to the realit* that the insidious practice of enforced disappearance had 0eco'e a )lo0al
pheno'enon, the 5$ "eneral Asse'0l* adopted the 1eclaration on the Protection of All Persons fro' (nforced
1isappearance (1eclaration. &his 1eclaration, for the first ti'e, provided in its third prea'0ular clause a wor@in)
description of enforced disappearance, as follows-
1eepl* concerned that in 'an* countries, often in a persistent 'anner, enforced disappearances occur, in the
sense that persons are arrested, detained or a0ducted a)ainst their will or otherwise deprived of their li0ert* 0*
officials of different 0ranches or levels of "overn'ent, or 0* or)aniAed )roups or private individuals actin) on
0ehalf of, or with the support, direct or indirect, consent or ac7uiescence of the "overn'ent, followed 0* a refusal
to disclose the fate or wherea0outs of the persons concerned or a refusal to ac@nowled)e the deprivation of their
li0ert*, which places such persons outside the protection of the law. G('phasis suppliedH
/ourteen *ears after (or on 1ece'0er 20, 200L, the 5$ "eneral Asse'0l* adopted the 2nternational Convention
for the Protection of All Persons fro' (nforced 1isappearance (Convention. &he Convention was opened for
si)nature in Paris, /rance on /e0ruar* L, 2007. Article 2 of the Convention defined enforced disappearance as
follows-
/or the purposes of this Convention, 4enforced disappearance4 is considered to 0e the arrest, detention,
a0duction or an* other for' of deprivation of li0ert* 0* a)ents of the 3tate or 0* persons or )roups of persons
actin) with the authoriAation, support or ac7uiescence of the 3tate, followed 0* a refusal to ac@nowled)e the
deprivation of li0ert* or 0* conceal'ent of the fate or wherea0outs of the disappeared person, which place such a
person outside the protection of the law. G('phasis suppliedH
&he Convention is the first universal hu'an ri)hts instru'ent to assert that there is a ri)ht not to 0e su0Dect to
enforced disappearance and that this ri)ht is non!dero)a0le. 2t provides that no one shall 0e su0Dected to
enforced disappearance under an* circu'stances, 0e it a state of war, internal political insta0ilit*, or an* other
pu0lic e'er)enc*. 2t o0li)es 3tate Parties to codif* enforced disappearance as an offense punisha0le with
appropriate penalties under their cri'inal law. 2t also reco)niAes the ri)ht of relatives of the disappeared persons
and of the societ* as a whole to @now the truth on the fate and wherea0outs of the disappeared and on the
pro)ress and results of the investi)ation. 9astl*, it classifies enforced disappearance as a continuin) offense,
such that statutes of li'itations shall not appl* until the fate and wherea0outs of the victi' are esta0lished.
,indin) (ffect of 5$ Action on the Philippines
8%
&o date, the Philippines has neither si)ned nor ratified the Convention, so that the countr* is not *et co''itted to
enact an* law penaliAin) enforced disappearance as a cri'e. &he a0sence of a specific penal law, however, is
not a stu'0lin) 0loc@ for action fro' this Court, as heretofore 'entioned< underl*in) ever* enforced
disappearance is a violation of the constitutional ri)hts to life, li0ert* and securit* that the 3upre'e Court is
'andated 0* the Constitution to protect throu)h its rule!'a@in) powers.
3eparatel* fro' the Constitution (0ut still pursuant to its ter's, the Court is )uided, in actin) on A'paro cases,
0* the realit* that the Philippines is a 'e'0er of the 5$, 0ound 0* its Charter and 0* the various conventions we
si)ned and ratified, particularl* the conventions touchin) on hu'ans ri)hts. 5nder the 5$ Charter, the Philippines
pled)ed to 4pro'ote universal respect for, and o0servance of, hu'an ri)hts and funda'ental freedo's for all
without distinctions as to race, se6, lan)ua)e or reli)ion.4 Althou)h no universal a)ree'ent has 0een reached on
the precise e6tent of the 4hu'an ri)hts and funda'ental freedo's4 )uaranteed to all 0* the Charter, it was the
5$ itself that issued the 1eclaration on enforced disappearance, and this 1eclaration states-
An* act of enforced disappearance is an offence to di)nit*. 2t is conde'ned as a denial of the purposes of the
Charter of the 5nited $ations and as a )rave and fla)rant violation of hu'an ri)hts and funda'ental freedo's
proclai'ed in the 5niversal 1eclaration of .u'an Ri)hts and reaffir'ed and developed in international
instru'ents in this field. G('phasis suppliedH
As a 'atter of hu'an ri)ht and funda'ental freedo' and as a polic* 'atter 'ade in a 5$ 1eclaration, the 0an
on enforced disappearance cannot 0ut have its effects on the countr*, )iven our own adherence to 4)enerall*
accepted principles of international law as part of the law of the land.4
2n the recent case of Phar'aceutical and .ealth Care Association of the Philippines v. 1u7ue 222, we held that-
5nder the 8%87 Constitution, international law can 0eco'e part of the sphere of do'estic law either 0*
&r%$1orm%&io$ or i$cor#or%&io$. &he transfor'ation 'ethod re7uires that an international law 0e transfor'ed
into a do'estic law throu)h a constitutional 'echanis' such as local le)islation. .he i$cor#or%&io$ me&ho,
%##"ie1 9he$, b4 mere co$1&i&+&io$%" ,ec"%r%&io$, i$&er$%&io$%" "%9 i1 ,eeme, &o h%0e &he orce o
,ome1&ic "%9. G('phasis suppliedH
We characteriAed 4)enerall* accepted principles of international law4 as nor's of )eneral or custo'ar*
international law that are 0indin) on all states. We held further-
G"Henerall* accepted principles of international law, 0* virtue of the incorporation clause of the Constitution, for'
part of the laws of the land even if the* do not derive fro' treat* o0li)ations. &he classical for'ulation in
international law sees those custo'ar* rules accepted as 0indin) result fro' the co'0ination GofH two ele'ents-
the esta0lished, widespread, and consistent practice on the part of 3tates< and a ps*cholo)ical ele'ent @nown as
the opinion Duris 1i0e $ece11i&%&e1 (opinion as to law or necessit*. 2'plicit in the latter ele'ent is a 0elief that
the practice in 7uestion is rendered o0li)ator* 0* the e6istence of a rule of law re7uirin) it. G('phasis in the
ori)inalH
&he 'ost widel* accepted state'ent of sources of international law toda* is Article E8(8 of the 3tatute of the
2nternational Court of +ustice, which provides that the Court shall appl* 4international custo', as evidence of a
)eneral practice accepted as law.4 &he 'aterial sources of custo' include 3tate practice, 3tate le)islation,
international and national Dudicial decisions, recitals in treaties and other international instru'ents, a pattern of
treaties in the sa'e for', the practice of international or)ans, and resolutions relatin) to le)al 7uestions in the 5$
"eneral Asse'0l*. 3o'eti'es referred to as 4evidence4 of international law, these sources identif* the su0stance
and content of the o0li)ations of 3tates and are indicative of the 43tate practice4 and 4opinio Duris4 re7uire'ents of
international law. We note the followin) in these respects-
/irst, 0arel* two *ears fro' the adoption of the 1eclaration, the #r)aniAation of A'erican 3tates (#A3 "eneral
Asse'0l* adopted the 2nter!A'erican Convention on (nforced 1isappearance of Persons in +une 8%%F. 3tate
20
parties undertoo@ under this Convention 4not to practice, per'it, or tolerate the forced disappearance of persons,
even in states of e'er)enc* or suspension of individual )uarantees.4 #ne of the @e* provisions includes the
3tatesC o0li)ation to enact the cri'e of forced disappearance in their respective national cri'inal laws and to
esta0lish Durisdiction over such cases when the cri'e was co''itted within their Durisdiction, when the victi' is a
national of that 3tate, and 4when the alle)ed cri'inal is within its territor* and it does not proceed to e6tradite
hi',4 which can 0e interpreted as esta0lishin) universal Durisdiction a'on) the parties to the 2nter!A'erican
Convention. At present, Colo'0ia, "uate'ala, Para)ua*, Peru and :eneAuela have enacted separate laws in
accordance with the 2nter!A'erican Convention and have defined activities involvin) enforced disappearance to
0e cri'inal.
3econd, in (urope, the (uropean Convention on .u'an Ri)hts has no e6plicit provision dealin) with the
protection a)ainst enforced disappearance. &he (uropean Court of .u'an Ri)hts ((C.R, however, has applied
the Convention in a wa* that provides a'ple protection for the underl*in) ri)hts affected 0* enforced
disappearance throu)h the ConventionCs Article 2 on the ri)ht to life< Article E on the prohi0ition of torture< Article
J on the ri)ht to li0ert* and securit*< Article L, para)raph 8 on the ri)ht to a fair trial< and Article 8E on the ri)ht to
an effective re'ed*. A leadin) e6a'ple de'onstratin) the protection afforded 0* the (uropean Convention is
=urt v. &ur@e*, where the (C.R found a violation of the ri)ht to li0ert* and securit* of the disappeared person
when the applicantCs son disappeared after 0ein) ta@en into custod* 0* &ur@ish forces in the =urdish villa)e of
A)illi in $ove'0er 8%%E. 2t further found the applicant (the disappeared personCs 'other to 0e a victi' of a
violation of Article E, as a result of the silence of the authorities and the inade7uate character of the investi)ations
underta@en. &he (C.R also saw the lac@ of an* 'eanin)ful investi)ation 0* the 3tate as a violation of Article 8E.
&hird, in the 5nited 3tates, the status of the prohi0ition on enforced disappearance as part of custo'ar*
international law is reco)niAed in the 'ost recent edition of Restate'ent of the 9aw- &he &hird, which provides
that 4GaH 3tate violates international law if, as a 'atter of 3tate polic*, it practices, encoura)es, or condonesM (E
the 'urder or causin) the disappearance of individuals.4 We si)nificantl* note that in a related 'atter that finds
close identification with enforced disappearance B the 'atter of torture B the 5nited 3tates Court of Appeals for
the 3econd Circuit Court held in /ilarti)a v. Pena!2rala that the prohi0ition on torture had attained the status of
custo'ar* international law. &he court further ela0orated on the si)nificance of 5$ declarations, as follows-
&hese 5.$. declarations are si)nificant 0ecause the* specif* with )reat precision the o0li)ations of 'e'0er
nations under the Charter. 3ince their adoption, 4('e'0ers can no lon)er contend that the* do not @now what
hu'an ri)hts the* pro'ised in the Charter to pro'ote.4 Moreover, a 5.$. 1eclaration is, accordin) to one
authoritative definition, 4a for'al and sole'n instru'ent, suita0le for rare occasions when principles of )reat and
lastin) i'portance are 0ein) enunciated.4 Accordin)l*, it has 0een o0served that the 5niversal 1eclaration of
.u'an Ri)hts 4no lon)er fits into the dichoto'* of P0indin) treat*C a)ainst Pnon!0indin) pronounce'ent,Q 0ut is
rather an authoritative state'ent of the international co''unit*.4 &hus, a 1eclaration creates an e6pectation of
adherence, and 4insofar as the e6pectation is )raduall* Dustified 0* 3tate practice, a declaration 'a* 0* custo'
0eco'e reco)niAed as la*in) down rules 0indin) upon the 3tates.4 2ndeed, several co''entators have
concluded that the 5niversal 1eclaration has 0eco'e, in toto, a part of 0indin), custo'ar* international law.
GCitations o'ittedH
/ourth, in interpretin) Article 2 (ri)ht to an effective do'estic re'ed* of the 2nternational Convention on Civil and
Political Ri)hts (2CCPR, to which the Philippines is 0oth a si)nator* and a 3tate Part*, the 5$ .u'an Ri)hts
Co''ittee, under the #ffice of the .i)h Co''issioner for .u'an Ri)hts, has stated that the act of enforced
disappearance violates Articles L (ri)ht to life, 7 (prohi0ition on torture, cruel, inhu'an or de)radin) treat'ent or
punish'ent and % (ri)ht to li0ert* and securit* of the person of the 2CCPR, and the act 'a* also a'ount to a
cri'e a)ainst hu'anit*.
/ifth, Article 7, para)raph 8 of the 8%%8 Ro'e 3tatute esta0lishin) the 2nternational Cri'inal Court (2CC also
covers enforced disappearances insofar as the* are defined as cri'es a)ainst hu'anit*, i.e., cri'es 4co''itted
as part of a widespread or s*ste'atic attac@ a)ainst an* civilian population, with @nowled)e of the attac@.4 While
'ore than 800 countries have ratified the Ro'e 3tatute, the Philippines is still 'erel* a si)nator* and has not *et
28
ratified it. We note that Article 7(8 of the Ro'e 3tatute has 0een incorporated in the statutes of other
international and h*0rid tri0unals, includin) 3ierra 9eone 3pecial Court, the 3pecial Panels for 3erious Cri'es in
&i'or!9este, and the (6traordinar* Cha'0ers in the Courts of Ca'0odia. 2n addition, the i'ple'entin) le)islation
of 3tate Parties to the Ro'e 3tatute of the 2CC has )iven rise to a nu'0er of national cri'inal provisions also
coverin) enforced disappearance.
While the Philippines is not *et for'all* 0ound 0* the ter's of the Convention on enforced disappearance (or 0*
the specific ter's of the Ro'e 3tatute and has not for'all* declared enforced disappearance as a specific
cri'e, the a0ove recital shows that enforced disappearance as a 3tate practice has 0een repudiated 0* the
international co''unit*, so that the 0an on it is now a )enerall* 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 e6tent alread* allowed under
our laws and the international conventions that 0ind us.
&he followin) civil or political ri)hts under the 5niversal 1eclaration of .u'an Ri)hts, the 2CCPR and the
2nternational Convention on (cono'ic, 3ocial and Cultural Ri)hts (2C(3R 'a* 0e infrin)ed in the course of a
disappearance-
8 the ri)ht to reco)nition as a person 0efore the law<
2 the ri)ht to li0ert* and securit* of the person<
E the ri)ht not to 0e su0Dected to torture and other cruel, inhu'an or de)radin) treat'ent or punish'ent<
F the ri)ht to life, when the disappeared person is @illed<
J the ri)ht to an identit*<
L the ri)ht to a fair trial and to Dudicial )uarantees<
7 the ri)ht to an effective re'ed*, includin) reparation and co'pensation<
8 the ri)ht to @now the truth re)ardin) the circu'stances of a disappearance.
% the ri)ht to protection and assistance to the fa'il*<
80 the ri)ht to an ade7uate standard of livin)<
88 the ri)ht to health< and
82 the ri)ht to education G('phasis suppliedH
Article 2 of the 2CCPR, which 0inds the Philippines as a state part*, provides-
Ar&ic"e 2
E. (ach 3tate Part* to the present Covenant underta@es-
(a &o ensure that an* person whose ri)hts or freedo's as herein reco)niAed are violated shall have an effective
re'ed*, notwithstandin) that the violation has 0een co''itted 0* persons actin) in an official capacit*<
22
(0 &o ensure that an* person clai'in) such a re'ed* shall have his ri)ht thereto deter'ined 0* co'petent
Dudicial, ad'inistrative or le)islative authorities, or 0* an* other co'petent authorit* provided for 0* the le)al
s*ste' of the 3tate, and to develop the possi0ilities of Dudicial re'ed*<
(c &o ensure that the co'petent authorities shall enforce such re'edies when )ranted. G('phasis suppliedH
2n "eneral Co''ent $o. E8, the 5$ .u'an Ri)hts Co''ittee opined that the ri)ht to an effective re'ed* under
Article 2 of the 2CCPR includes the o0li)ation of the 3tate to investi)ate 2CCPR violations pro'ptl*, thorou)hl*,
and effectivel*, viA-
8E7
8J. Article 2, para)raph E, re7uires that in addition to effective protection of Covenant ri)hts, 3tates Parties 'ust
ensure that individuals also have accessi0le and effective re'edies to vindicate those ri)htsM &he Co''ittee
attaches i'portance to 3tates PartiesQ esta0lishin) appropriate Dudicial and ad'inistrative 'echanis's for
addressin) clai's of ri)hts violations under do'estic lawM Ad'inistrative 'echanis's are particularl* re7uired
to )ive effect to the )eneral o0li)ation to investi)ate alle)ations of violations pro'ptl*, thorou)hl* and effectivel*
throu)h independent and i'partial 0odies. A failure 0* a 3tate Part* to investi)ate alle)ations of violations could
in and of itself )ive rise to a separate 0reach of the Covenant. Cessation of an on)oin) violation is an essential
ele'ent of the ri)ht to an effective re'ed*. G('phasis suppliedH
&he 5$ .u'an Ri)hts Co''ittee further stated in the sa'e "eneral Co''ent $o. E8 that failure to investi)ate
as well as failure to 0rin) to Dustice the perpetrators of 2CCPR violations could in and of itself )ive rise to a
separate 0reach of the Covenant, thus-
88. Where the investi)ations referred to in para)raph 8J reveal violations of certain Covenant ri)hts, 3tates
Parties 'ust ensure that those responsi0le are 0rou)ht to Dustice. As with failure to investi)ate, failure to 0rin) to
Dustice perpetrators of such violations could in and of itself )ive rise to a separate 0reach of the Covenant. &hese
o0li)ations arise nota0l* in respect of those violations reco)niAed as cri'inal under either do'estic or
international law, such as torture and si'ilar cruel, inhu'an and de)radin) treat'ent (article 7, su''ar* and
ar0itrar* @illin) (article L and enforced disappearance (articles 7 and % and, fre7uentl*, L. 2ndeed, the pro0le' of
i'punit* for these violations, a 'atter of sustained concern 0* the Co''ittee, 'a* well 0e an i'portant
contri0utin) ele'ent in the recurrence of the violations. When co''itted as part of a widespread or s*ste'atic
attac@ on a civilian population, these violations of the Covenant are cri'es a)ainst hu'anit* (see Ro'e 3tatute
of the 2nternational Cri'inal Court, article 7. G('phasis suppliedH
2n 3ecretar* of $ational 1efense v. Manalo, this Court, in rulin) that the ri)ht to securit* of persons is a )uarantee
of the protection of oneCs ri)ht 0* the )overn'ent, held that-
&he ri)ht to securit* of person in this third sense is a corollar* of the polic* that the 3tate 4)uarantees full respect
for hu'an ri)hts4 under Article 22, 3ection 88 of the 8%87 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.
!ro&ec&io$ i$c"+,e1 co$,+c&i$2 eec&i0e i$0e1&i2%&io$1, or2%$i:%&io$ o &he 2o0er$me$& %##%r%&+1 &o
e;&e$, #ro&ec&io$ &o 0ic&im1 o e;&r%"e2%" <i""i$21 or e$orce, ,i1%##e%r%$ce1 'or &hre%&1 &hereo( %$,=or
&heir %mi"ie1, %$, bri$2i$2 oe$,er1 &o &he b%r o >+1&ice. &he 2nter!A'erican Court of .u'an Ri)hts
stressed the i'portance of investi)ation in the :elas7ueA Rodri)ueA Case, viA-
(&he dut* to investi)ate 'ust 0e underta@en in a serious 'anner and not as a 'ere for'alit* preordained to 0e
ineffective. An investi)ation 'ust have an o0Dective and 0e assu'ed 0* the 3tate as its own le)al dut*, not as a
step ta@en 0* private interests that depends upon the initiative of the victi' or his fa'il* or upon their offer of
proof, without an effective search for the truth 0* the )overn'ent. G('phasis suppliedH
2E
Manalo si)nificantl* cited =urt v. &ur@e*, where the (C.R interpreted the 4ri)ht to securit*4 not onl* as a
prohi0ition on the 3tate a)ainst ar0itrar* deprivation of li0ert*, 0ut also as the i'position of a positive dut* to
afford protection to the ri)ht to li0ert*. &he Court nota0l* 7uoted the followin) (C.R rulin)-
GAHn* deprivation of li0ert* 'ust not onl* have 0een effected in confor'it* with the su0stantive and procedural
rules of national law 0ut 'ust e7uall* 0e in @eepin) with the ver* purpose of Article J, na'el* to protect the
individual fro' ar0itrariness... .avin) assu'ed control over that individual, it is incu'0ent on the authorities to
account for his or her wherea0outs. /or this reason, Article J 'ust 0e seen as re7uirin) the authorities to ta@e
effective 'easures to safe)uard a)ainst the ris@ of disappearance and to conduct a pro'pt effective investi)ation
into an ar)ua0le clai' that a person has 0een ta@en into custod* and has not 0een seen since. G('phasis
suppliedH
&hese rulin)s effectivel* serve as the 0ac@drop for the Rule on the Writ of A'paro, which the Court 'ade
effective on #cto0er 2F, 2007. Althou)h the A'paro Rule still has )aps waitin) to 0e filled throu)h su0stantive
law, as evidenced pri'aril* 0* the lac@ of a concrete definition of 4enforced disappearance,4 the 'aterials cited
a0ove, a'on) others, provide a'ple )uidance and standards on how, throu)h the 'ediu' of the A'paro Rule,
the Court can provide re'edies and protect the constitutional ri)hts to life, li0ert* and securit* that underlie ever*
enforced disappearance.
(videntiar* 1ifficulties Posed 0* the 5ni7ue $ature of an (nforced 1isappearance
,efore )oin) into the issue of whether the respondent has dischar)ed the 0urden of provin) the alle)ations of the
petition for the Writ of A'paro 0* the de)ree of proof re7uired 0* the A'paro Rule, we shall discuss 0riefl* the
uni7ue evidentiar* difficulties presented 0* enforced disappearance cases< these difficulties for' part of the
settin) that the i'ple'entation of the A'paro Rule shall encounter.
&hese difficulties lar)el* arise 0ecause the 3tate itself B the part* whose involve'ent is alle)ed B investi)ates
enforced disappearances. Past e6periences in other Durisdictions show that the evidentiar* difficulties are
)enerall* threefold.
/irst, there 'a* 0e a deli0erate conceal'ent of the identities of the direct perpetrators. (6perts note that
a0ductors are well or)aniAed, ar'ed and usuall* 'e'0ers of the 'ilitar* or police forces, thus-
&he victi' is )enerall* arrested 0* the securit* forces or 0* persons actin) under so'e for' of )overn'ental
authorit*. 2n 'an* countries the units that plan, i'ple'ent and e6ecute the pro)ra' are )enerall* specialiAed,
hi)hl*!secret 0odies within the ar'ed or securit* forces. &he* are )enerall* directed throu)h a separate,
clandestine chain of co''and, 0ut the* have the necessar* credentials to avoid or prevent an* interference 0*
the 4le)al4 police forces. &hese authorities ta@e their victi's to secret detention centers where the* su0Dect the'
to interro)ation and torture without fear of Dudicial or other controls.
2n addition, there are usuall* no witnesses to the cri'e< if there are, these witnesses are usuall* afraid to spea@
out pu0licl* or to testif* on the disappearance out of fear for their own lives. We have had occasion to note this
difficult* in 3ecretar* of 1efense v. Manalo when we ac@nowled)ed that 4where powerful 'ilitar* officers are
i'plicated, the hesitation of witnesses to surface and testif* a)ainst the' co'es as no surprise.4
3econd, deli0erate conceal'ent of pertinent evidence of the disappearance is a distinct possi0ilit*< the central
piece of evidence in an enforced disappearance B i.e., the corpus delicti or the victi'Cs 0od* B is usuall*
concealed to effectivel* thwart the start of an* investi)ation or the pro)ress of one that 'a* have 0e)un. &he
pro0le' for the victi'Cs fa'il* is the 3tateCs virtual 'onopol* of access to pertinent evidence. &he 2nter!A'erican
Court of .u'an Ri)hts (2AC.R o0served in the land'ar@ case of :elas7ueA Rodri)ueA that inherent to the
practice of enforced disappearance is the deli0erate use of the 3tateCs power to destro* the pertinent evidence.
&he 2AC.R descri0ed the conceal'ent as a clear atte'pt 0* the 3tate to co''it the perfect cri'e.
2F
&hird is the ele'ent of denial< in 'an* cases, the 3tate authorities deli0eratel* den* that the enforced
disappearance ever occurred. 41enia0ilit*4 is central to the polic* of enforced disappearances, as the a0sence of
an* proven disappearance 'a@es it easier to escape the application of le)al standards ensurin) the victi'Cs
hu'an ri)hts. (6perience shows that )overn'ent officials t*picall* respond to re7uests for infor'ation a0out
desaparecidos 0* sa*in) that the* are not aware of an* disappearance, that the 'issin) people 'a* have fled
the countr*, or that their na'es have 'erel* 0een invented.
&hese considerations are alive in our 'inds, as these are the difficulties we confront, in one for' or another, in
our consideration of this case.
(vidence and ,urden of Proof in (nforced 1isappearances Cases
3ections 8E, 87 and 88 of the Amparo Rule define the nature of an Amparo proceedin) and the de)ree and
0urden of proof the parties to the case carr*, as follows-
3ection 8E. Summary Hearing. &he hearin) on the petition shall 0e 1+mm%r4. .owever, the court, Dustice or
Dud)e 'a* call for a preli'inar* conference to si'plif* the issues and deter'ine the possi0ilit* of o0tainin)
stipulations and ad'issions fro' the parties.
6 6 6 6
3ection 87. Burden of Proof and Standard of Diligence e!uired. B &he parties shall esta0lish their clai's 0*
1+b1&%$&i%" e0i,e$ce.
&he respondent who is a private individual 'ust prove that ordinar* dili)ence as re7uired 0* applica0le laws,
rules and re)ulations was o0served in the perfor'ance of dut*.
&he respondent who is a pu0lic official or e'plo*ee 'ust prove that e6traordinar* dili)ence as re7uired 0*
applica0le laws, rules and re)ulations was o0served in the perfor'ance of dut*.
&he respondent pu0lic official or e'plo*ee cannot invo@e the presu'ption that official dut* has 0een re)ularl*
perfor'ed or evade responsi0ilit* or lia0ilit*.
3ection 88. "udgment. B M 2f the %""e2%&io$1 i$ &he #e&i&io$ %re #ro0e$ b4 1+b1&%$&i%" e0i,e$ce, the court
shall 2r%$& the privile)e of the writ and such reliefs as 'a* 0e proper and appropriate< o&her9i1e, the privile)e
shall 0e ,e$ie,. G('phasis suppliedH
&hese characteristics B na'el*, of 0ein) su''ar* and the use of su0stantial evidence as the re7uired level of
proof (in contrast to the usual preponderance of evidence or proof 0e*ond reasona0le dou0t in court proceedin)s
B reveal the clear intent of the fra'ers of the A'paro Rule to have the e7uivalent of an ad'inistrative proceedin),
al0eit Dudiciall* conducted, in addressin) A'paro situations. &he standard of dili)ence re7uired B the dut* of
pu0lic officials and e'plo*ees to o0serve e6traordinar* dili)ence B point, too, to the e6traordinar* 'easures
e6pected in the protection of constitutional ri)hts and in the conse7uent handlin) and investi)ation of e6tra!
Dudicial @illin)s and enforced disappearance cases.
&hus, in these proceedin)s, the A'paro petitioner needs onl* to properl* co'pl* with the su0stance and for'
re7uire'ents of a Writ of A'paro petition, as discussed a0ove, and prove the alle)ations 0* su0stantial evidence.
#nce a re0utta0le case has 0een proven, the respondents 'ust then respond and prove their defenses 0ased on
the standard of dili)ence re7uired. &he re0utta0le case, of course, 'ust show that an enforced disappearance
too@ place under circu'stances showin) a violation of the victi'Cs constitutional ri)hts to life, li0ert* or securit*,
and the failure on the part of the investi)atin) authorities to appropriatel* respond.
2J
&he land'ar@ case of An) &i0a* v. Court of 2ndustrial Relations provided the Court its first opportunit* to define
the su0stantial evidence re7uired to arrive at a valid decision in ad'inistrative proceedin)s. &o directl* 7uote Ang
#ibay-
3u0stantial evidence is 'ore than a 'ere scintilla. 2t 'eans such relevant evidence as a reasona0le 'ind 'i)ht
accept as ade7uate to support a conclusion. Gcitations o'ittedH &he statute provides that Pthe rules of evidence
prevailin) in courts of law and e7uit* shall not 0e controllin).C &he o0vious purpose of this and si'ilar provisions is
to free ad'inistrative 0oards fro' the co'pulsion of technical rules so that the 'ere ad'ission of 'atter which
would 0e dee'ed inco'petent in Dudicial proceedin)s would not invalidate the ad'inistrative order. Gcitations
o'ittedH ,ut this assurance of a desira0le fle6i0ilit* in ad'inistrative procedure does not )o so far as to Dustif*
orders without a 0asis in evidence havin) rational pro0ative force. G('phasis suppliedH
2n 3ecretar* of 1efense v. Manalo, which was the CourtCs first petition for a Writ of A'paro, we reco)niAed that
the full and e6haustive proceedin)s that the su0stantial evidence standard re)ularl* re7uires do not need to appl*
due to the su''ar* nature of A'paro proceedin)s. We said-
&he re'ed* Gof the writ of a'paroH provides rapid Dudicial relief as it parta@es of a su''ar* proceedin) that
re7uires onl* su0stantial evidence to 'a@e the appropriate reliefs availa0le to the petitioner< it is not an action to
deter'ine cri'inal )uilt re7uirin) proof 0e*ond reasona0le dou0t, or lia0ilit* for da'a)es re7uirin) preponderance
of evidence, or ad'inistrative responsi0ilit* re7uirin) su0stantial evidence that will re7uire full and e6haustive
proceedin)s. G('phasis suppliedH
$ot to 0e for)otten in considerin) the evidentiar* aspects of A'paro petitions are the uni7ue difficulties presented
0* the nature of enforced disappearances, heretofore discussed, which difficulties this Court 'ust frontall* 'eet if
the A'paro Rule is to 0e )iven a chance to achieve its o0Dectives. &hese evidentiar* difficulties co'pel the Court
to adopt standards appropriate and responsive to the circu'stances, without trans)ressin) the due process
re7uire'ents that underlie ever* proceedin).
2n the se'inal case of :elas7ueA Rodri)ueA, the 2AC.R B faced with a lac@ of direct evidence that the
)overn'ent of .onduras was involved in :elas7ueA Rodri)ueAC disappearance B adopted a rela6ed and infor'al
evidentiar* standard, and esta0lished the rule that presu'es )overn'ental responsi0ilit* for a disappearance if it
can 0e proven that the )overn'ent carries out a )eneral practice of enforced disappearances and the specific
case can 0e lin@ed to that practice. &he 2AC.R too@ note of the realistic fact that enforced disappearances could
0e proven onl* throu)h circu'stantial or indirect evidence or 0* lo)ical inference< otherwise, it was i'possi0le to
prove that an individual had 0een 'ade to disappear. 2t held-
8E0. &he practice of international and do'estic courts shows that direct evidence, whether testi'onial or
docu'entar*, is not the onl* t*pe of evidence that 'a* 0e le)iti'atel* considered in reachin) a decision.
Circu'stantial evidence, indicia, and presu'ptions 'a* 0e considered, so lon) as the* lead to conclusions
consistent with the facts.
8E8. Circu'stantial or presu'ptive evidence is especiall* i'portant in alle)ations of disappearances, 0ecause
this t*pe of repression is characteriAed 0* an atte'pt to suppress all infor'ation a0out the @idnappin) or the
wherea0outs and fate of the victi'. G('phasis suppliedH
2n concludin) that the disappearance of Manfredo :elRs7ueA (Manfredo was carried out 0* a)ents who acted
under cover of pu0lic authorit*, the 2AC.R relied on circu'stantial evidence includin) the hearsa* testi'on* of
;enaida :elRs7ueA, the victi'Cs sister, who descri0ed ManfredoCs @idnappin) on the 0asis of conversations she
had with witnesses who saw Manfredo @idnapped 0* 'en in civilian clothes in 0road da*li)ht. 3he also told the
Court that a for'er .onduran 'ilitar* official had announced that Manfredo was @idnapped 0* a special 'ilitar*
s7uadron actin) under orders of the Chief of the Ar'ed /orces. &he 2AC.R li@ewise considered the hearsa*
testi'on* of a second witness who asserted that he had 0een told 0* a .onduran 'ilitar* officer a0out the
2L
disappearance, and a third witness who testified that he had spo@en in prison to a 'an who identified hi'self as
Manfredo.
:elas7ueA stresses the lesson that fle6i0ilit* is necessar* under the uni7ue circu'stances that enforced
disappearance cases pose to the courts< to have an effective re'ed*, the standard of evidence 'ust 0e
responsive to the evidentiar* difficulties faced. #n the one hand, we cannot 0e ar0itrar* in the ad'ission and
appreciation of evidence, as ar0itrariness entails violation of ri)hts and cannot 0e used as an effective counter!
'easure< we onl* co'pound the pro0le' if a wron) is addressed 0* the co''ission of another wron). #n the
other hand, we cannot 0e ver* strict in our evidentiar* rules and cannot consider evidence the wa* we do in the
usual cri'inal and civil cases< precisel*, the proceedin)s 0efore us are ad'inistrative in nature where, as a rule,
technical rules of evidence are not strictl* o0served. &hus, while we 'ust follow the su0stantial evidence rule, we
'ust o0serve fle6i0ilit* in considerin) the evidence we shall ta@e into account.
&he fair and proper rule, to our 'ind, is to consider all the pieces of evidence adduced in their totalit*, and to
consider an* evidence otherwise inad'issi0le under our usual rules to 0e ad'issi0le if it is consistent with the
ad'issi0le evidence adduced. 2n other words, we reduce our rules to the 'ost 0asic test of reason B i.e., to the
relevance of the evidence to the issue at hand and its consistenc* with all other pieces of adduced evidence.
&hus, even hearsa* evidence can 0e ad'itted if it satisfies this 0asic 'ini'u' test.
We note in this re)ard that the use of fle6i0ilit* in the consideration of evidence is not at all novel in the Philippine
le)al s*ste'. 2n child a0use cases, 3ection 28 of the Rule on (6a'ination of a Child Witness is e6pressl*
reco)niAed as an e6ception to the hearsa* rule. &his Rule allows the ad'ission of the hearsa* testi'on* of a
child descri0in) an* act or atte'pted act of se6ual a0use in an* cri'inal or non!cri'inal proceedin), su0Dect to
certain prere7uisites and the ri)ht of cross!e6a'ination 0* the adverse part*. &he ad'ission of the state'ent is
deter'ined 0* the court in li)ht of specified su0Dective and o0Dective considerations that provide sufficient indicia
of relia0ilit* of the child witness. &hese re7uisites for ad'ission find their counterpart in the present case under
the a0ove!descri0ed conditions for the e6ercise of fle6i0ilit* in the consideration of evidence, includin) hearsa*
evidence, in e6traDudicial @illin)s and enforced disappearance cases.
Assess'ent of the (vidence
&he threshold 7uestion for our resolution is- was there an enforced disappearance within the 'eanin) of this ter'
under the 5$ 1eclaration we have citedN
&he Convention defines enforced disappearance as 4the arrest, detention, a0duction or an* other for' of
deprivation of li0ert* 0* a)ents of the 3tate or 0* persons or )roups of persons actin) with the authoriAation,
support or ac7uiescence of the 3tate, followed 0* a refusal to ac@nowled)e the deprivation of li0ert* or 0*
conceal'ent of the fate or wherea0outs of the disappeared person, which place such a person outside the
protection of the law.4 5nder this definition, the ele'ents that constitute enforced disappearance are essentiall*
fourfold-
(a arrest, detention, a0duction or an* for' of deprivation of li0ert*<
(0 carried out 0* a)ents of the 3tate or persons or )roups of persons actin) with the authoriAation, support or
ac7uiescence of the 3tate<
(c followed 0* a refusal to ac@nowled)e the detention, or a conceal'ent of the fate of the disappeared person<
and
(d place'ent of the disappeared person outside the protection of the law. G('phasis suppliedH
We find no direct evidence indicatin) how the victi' actuall* disappeared. &he direct evidence at hand onl*
shows that &a)itis went out of the A3? Pension .ouse after depositin) his roo' @e* with the hotel des@ and was
27
never seen nor heard of a)ain. &he undisputed conclusion, however, fro' all concerned B the petitioner, &a)itisC
collea)ues and even the police authorities B is that &a)istis disappeared under '*sterious circu'stances and
was never seen a)ain. &he respondent inDected the causal ele'ent in her petition and testi'on*, as we shall
discuss 0elow.
We li@ewise find no direct evidence showin) that operatives of P$P C21" ;a'0oan)a a0ducted or arrested
&a)itis. 2f at all, onl* the respondentCs alle)ation that &a)istis was under C21" ;a'0oan)a custod* stands on
record, 0ut it is not supported 0* an* other evidence, direct or circu'stantial.
2n her direct testi'on*, the respondent pointed to two sources of infor'ation as her 0ases for her alle)ation that
&a)istis had 0een placed under )overn'ent custod* (in contrast with C21" ;a'0oan)a custod*. &he first was
an unna'ed friend in ;a'0oan)a (later identified as Col. Ancanan, who occupied a hi)h position in the 'ilitar*
and who alle)edl* 'entioned that &a)itis was in )ood hands. $othin) ca'e out of this clai', as 0oth the
respondent herself and her witness, Mrs. &al0in, failed to esta0lish that Col. Ancanan )ave the' an* infor'ation
that &a)itis was in )overn'ent custod*. Col. Ancanan, for his part, ad'itted the 'eetin) with the respondent 0ut
denied )ivin) her an* infor'ation a0out the disappearance.
&he 'ore specific and productive source of infor'ation was Col. =asi', who' the respondent, to)ether with her
witness Mrs. &al0in, 'et in Ca'p =atitipan in 1avao Cit*. &o 7uote the relevant portions of the respondentCs
testi'on*-
K- Were *ou a0le to spea@ to other 'ilitar* officials re)ardin) the wherea0outs of *our hus0and particularl* those
in char)e of an* records or investi)ationN
A- 2 went to Ca'p =atitipan in 1avao Cit*. &hen one 'ilitar* officer, Col. Casi', told 'e that '* hus0and is 0ein)
a0ducted GsicH 0ecause he is under custodial investi)ation 0ecause he is alle)edl* 4paran) liason n) +.2.4, sir.
K- What is +.2.N
A- +e'aCah 2sla'iah, sir.
K- Was there an* infor'ation that was read to *ou durin) one of those visits of *ours in that Ca'pN
A- Col. Casi' did not furnish 'e a cop* of his report 0ecause he said those reports are hi)hl* confidential, sir.
K- Was it read to *ou then even thou)h *ou were not furnished a cop*N
A- ?es, sir. 2n front of us, '* friends.
K- And what was the content of that hi)hl* confidential reportN
A- &hose alle)ed activities of (n)ineer &a)itis, sir. G('phasis suppliedH
3he confir'ed this testi'on* in her cross!e6a'ination-
K- ?ou also 'entioned that *ou went to Ca'p =atitipan in 1avao Cit*N
A- ?es, 'aCa'.
K- And a certain Col. =asi' told *ou that *our hus0and was a0ducted and under custodial investi)ationN
A- ?es, 'aCa'.
28
K- And *ou 'entioned that he showed *ou a reportN
A- ?es, 'aCa'.
K- Were *ou a0le to read the contents of that reportN
A- .e did not furnish 'e a cop* of those GsicH report 0ecause those GsicH were hi)hl* confidential. &hat is a 'ilitar*
report, 'aCa'.
K- ,ut *ou were a0le to read the contentsN
A- $o. ,ut he read it in front of us, '* friends, 'aCa'.
K- .ow 'an* were *ou when *ou went to see Col. =asi'N
A- &here were three of us, 'aCa'.
K- Who were *our co'panionsN
A- Mrs. &al0in, tapos *un) dalawan) friends n*a fro' Mati Cit*, 1avao #riental, 'aCa'.
6 6 6 6
K- When *ou were told that *our hus0and is in )ood hands, what was *our reaction and what did *ou doN
A- Ma* 0inasa @asi s*a that '* hus0and has a paran) 'eetin) with other people na paran) ')a terorista na ')a
tao. &apos at the end of the report is GsicH under custodial investi)ation. 3o 2 told hi' 4Colonel, '* hus0and is
sic@. .e is dia0etic at na)'e'aintain *un n) )a'ot. Pa@isa0i lan) sa na)hohold sa asawa @o na 0i)*an si*a n)
)a'ot, 'aCa'.4
6 6 6 6
K- ?ou 'entioned that *ou received infor'ation that (n)ineer &a)itis is 0ein) held 0* the C21" in ;a'0oan)a,
did *ou )o to C21" ;a'0oan)a to verif* that infor'ationN
A- 2 did not )o to C21" ;a'0oan)a. 2 went to Ca'p =arin)al instead. (nou)h na *un na effort @o 0ecause 2 @now
that the* would den* it, 'aCa'.
#n /e0ruar* 88, 2008, the respondent presented Mrs. &al0in to corro0orate her testi'on* that her hus0and was
a0ducted and held under custodial investi)ation 0* the P$P!C21" ;a'0oan)a Cit*, viA-
K- ?ou said that *ou went to Ca'p =atitipan in 1avao Cit* so'eti'e $ove'0er 2F, 2007, who was with *ou
when *ou went thereN
A- Mar* +ean &a)itis, sir.
K- #nl* the two of *ouN
A- $o. We have so'e other co'panions. We were four at that ti'e, sir.
K- Who were the*N
2%
A- 3alvacion 3errano, Mini 9eon), Mrs. &a)itis and 'e, sir.
K- Were *ou a0le to tal@, see so'e other officials at Ca'p =atitipan durin) that ti'eN
A- Col. =asi' (P3 3upt. +ulasiri' Ahadin =asi' onl*, sir.
K- Were *ou a0le to tal@ to hi'N
A- ?es, sir.
K- &he four of *ouN
A- ?es, sir.
K- What infor'ation did *ou )et fro' Col. =asi' durin) that ti'eN
A- &he first ti'e we 'et with Ghi'H 2 as@ed hi' if he @new of the e6act location, if he can furnish us the location of
(n)r. &a)itis. And he was readin) this report. .e told us that (n)r. &a)itis is in )ood hands. .e is with the
'ilitar*, 0ut he is not certain whether he is with the A/P or P$P. .e has this serious case. .e was char)ed of
terroris' 0ecause he was under surveillance fro' +anuar* 2007 up to the ti'e that he was a0ducted. .e told us
that he was under custodial investi)ation. As 2Cve said earlier, he was seen under surveillance fro' +anuar*. .e
was seen tal@in) to #'ar Pati@, a certain 3antos of ,ulacan who is also a ,ali@ 2sla' and char)ed with terroris'.
.e was seen carr*in) 0o6es of 'edicines. &hen we as@ed hi' how lon) will he 0e in custodial investi)ation. .e
said until we can )et so'e infor'ation. ,ut he also told us that he cannot )ive us that report 0ecause it was a raw
report. 2t was not official, sir.
K- ?ou said that he was readin) a report, was that report in docu'ent for', in a piece of paper or was it in the
co'puter or whatN
A- As far as 2 can see it, sir, it is written in white 0ond paper. 2 donCt @now if it was co'puteriAed 0ut 2C' certain
that it was t*pewritten. 2C' not sure if it used co'puter, fa6 or what, sir.
K- When he was readin) it to *ou, was he readin) it line 0* line or he was readin) in a su''ar* for'N
A- 3o'eti'es he was )lancin) to the report and tal@in) to us, sir.
6 6 6 6
K- Were *ou infor'ed as to the place where he was 0ein) @ept durin) that ti'eN
A- .e did not tell us where he G&a)itisH was 0ein) @ept. ,ut he 'entioned this &alipapao, 3ulu, sir.
K- After that incident, what did *ou do if an*N
A- We Dust left and as 2Cve 'entioned, we Dust waited 0ecause that raw infor'ation that he was readin) to us GsicH
after the custodial investi)ation, (n)ineer &a)itis will 0e released. G('phasis suppliedH
Col. =asi' never denied that he 'et with the respondent and her friends, and that he provided the' infor'ation
0ased on the input of an unna'ed asset. .e si'pl* clai'ed in his testi'on* that the 4infor'al letter4 he received
fro' his infor'ant in 3ulu did not indicate that &a)itis was in the custod* of the C21". .e also stressed that the
infor'ation he provided the respondent was 'erel* a 4raw report4 fro' 40aran)a* intelli)ence4 that still needed
confir'ation and 4follow up4 as to its veracit*.
E0
&o 0e sure, the respondentCs and Mrs. &al0inCs testi'onies were far fro' perfect, as the petitioners pointed out.
&he respondent 'ista@enl* characteriAed Col. =asi' as a 4'ilitar* officer4 who told her that 4her hus0and is 0ein)
a0ducted 0ecause he is under custodial investi)ation 0ecause he is alle)edl* Pparan) liason n) +.2.C4 &he
petitioners also noted that 4Mrs. &al0inCs testi'on* i'putin) certain state'ents to 3r. 3upt. =asi' that (n)r.
&a)itis is with the 'ilitar*, 0ut he is not certain whether it is the P$P or A/P is not worth* of 0elief, since 3r. 3upt.
=asi' is a hi)h ran@in) police officer who would certainl* @now that the P$P is not part of the 'ilitar*.4
5pon deeper consideration of these inconsistencies, however, what appears clear to us is that the petitioners
never reall* steadfastl* disputed or presented evidence to refute the credi0ilit* of the respondent and her witness,
Mrs. &al0in. &he inconsistencies the petitioners point out relate, 'ore than an*thin) else, to details that should
not affect the credi0ilit* of the respondent and Mrs. &al0in< the inconsistencies are not on 'aterial points. We
note, for e6a'ple, that these witnesses are la* people in so far as 'ilitar* and police 'atters are concerned, and
confusion 0etween the police and the 'ilitar* is not unusual. As a rule, 'inor inconsistencies such as these
indicate truthfulness rather than prevarication and onl* tend to stren)then their pro0ative value, in contrast to
testi'onies fro' various witnesses dovetailin) on ever* detail< the latter cannot 0ut )enerate suspicion that the
'aterial circu'stances the* testified to were inte)ral parts of a well thou)ht of and prefa0ricated stor*.
,ased on these considerations and the uni7ue evidentiar* situation in enforced disappearance cases, we hold it
dul* esta0lished that Col. =asi' infor'ed the respondent and her friends, 0ased on the infor'antCs letter, that
&a)itis, reputedl* a liaison for the +2 and who had 0een under surveillance since +anuar* 2007, was 4in )ood
hands4 and under custodial investi)ation for co'plicit* with the +2 after he was seen tal@in) to one #'ar Pati@
and a certain 43antos4 of ,ulacan, a 4,ali@ 2sla'4 char)ed with terroris'. &he respondentCs and Mrs. &al0inCs
testi'onies cannot si'pl* 0e defeated 0* Col. =asi'Cs plain denial and his clai' that he had destro*ed his
infor'antCs letter, the critical piece of evidence that supports or ne)ates the partiesC conflictin) clai's. Col.
=asi'Cs ad'itted destruction of this letter B effectivel*, a suppression of this evidence B raises the presu'ption
that the letter, if produced, would 0e proof of what the respondent clai'ed. /or 0revit*, we shall call the evidence
of what Col. =asi' reported to the respondent to 0e the 4=asi' evidence.4
"iven this evidence, our ne6t step is to decide whether we can accept this evidence, in lieu of direct evidence, as
proof that the disappearance of &a)itis was due to action with )overn'ent participation, @nowled)e or consent
and that he was held for custodial investi)ation. We note in this re)ard that Col. =asi' was never 7uoted to have
said that the custodial investi)ation was 0* the C21" ;a'0oan)a. &he =asi' evidence onl* i'plies )overn'ent
intervention throu)h the use of the ter' 4custodial investi)ation,4 and does not at all point to C21" ;a'0oan)a as
&a)itisC custodian.
3trictl* spea@in), we are faced here with a classic case of hearsa* evidence B i.e., evidence whose pro0ative
value is not 0ased on the personal @nowled)e of the witnesses (the respondent, Mrs. &al0in and Col. =asi'
hi'self 0ut on the @nowled)e of so'e other person not on the witness stand (the infor'ant.
&o sa* that this piece of evidence is inco'petent and inad'issi0le evidence of what it su0stantivel* states is to
ac@nowled)e B as the petitioners effectivel* su))est B that in the a0sence of an* direct evidence, we should
si'pl* dis'iss the petition. &o our 'ind, an i''ediate dis'issal for this reason is no different fro' a state'ent
that the A'paro Rule B despite its ter's B is ineffective, as it cannot allow for the special evidentiar* difficulties
that are unavoida0l* present in A'paro situations, particularl* in e6traDudicial @illin)s and enforced
disappearances. &he A'paro Rule was not pro'ul)ated with this intent or with the intent to 'a@e it a to@en
)esture of concern for constitutional ri)hts. 2t was pro'ul)ated to provide effective and ti'el* re'edies, usin)
and profitin) fro' local and international e6periences in e6traDudicial @illin)s and enforced disappearances, as the
situation 'a* re7uire. Conse7uentl*, we have no choice 0ut to 'eet the evidentiar* difficulties inherent in
enforced disappearances with the fle6i0ilit* that these difficulties de'and.
&o )ive full 'eanin) to our Constitution and the ri)hts it protects, we hold that, as in :elas7ueA, we should at
least ta@e a close loo@ at the availa0le evidence to deter'ine the correct i'port of ever* piece of evidence B even
of those usuall* considered inad'issi0le under the )eneral rules of evidence B ta@in) into account the
E8
surroundin) circu'stances and the test of reason that we can use as 0asic 'ini'u' ad'issi0ilit* re7uire'ent. 2n
the present case, we should at least deter'ine whether the =asi' evidence 0efore us is relevant and 'eanin)ful
to the disappearance of &a)istis and reasona0l* consistent with other evidence in the case.
&he evidence a0out &a)itisC personal circu'stances surrounded hi' with an air of '*ster*. .e was reputedl* a
consultant of the World ,an@ and a 3enior .onorar* Counselor for the 21, who attended a se'inar in
;a'0oan)a and thereafter proceded to +olo for an overni)ht sta*, indicated 0* his re7uest to =unnon) for the
purchase of a return tic@et to ;a'0oan)a the da* after he arrived in +olo. $othin) in the records indicates the
purpose of his overni)ht soDourn in +olo. A collea)ue in the 21,, Prof. Matli, earl* on infor'ed the +olo police that
&a)itis 'a* have ta@en funds )iven to hi' in trust for 21, scholars. Prof Matli later on stated that he never
accused &a)itis of ta@in) awa* 'one* held in trust, althou)h he confir'ed that the 21, was see@in) assistance in
locatin) funds of 21, scholars deposited in &a)itisC personal account. #ther than these pieces of evidence, no
other infor'ation e6ists in the records relatin) to the personal circu'stances of &a)itis.
&he actual disappearance of &a)itis is as 'ur@* as his personal circu'stances. While the A'paro petition recited
that he was ta@en awa* 0* 40url* 'en 0elieved to 0e police intelli)ence operatives,4 no evidence whatsoever was
introduced to support this alle)ation. &hus, the availa0le direct evidence is that &a)itis was last seen at 82.E0
p.'. of #cto0er E0, 2007 B the da* he arrived in +olo B and was never seen a)ain.
&he =asi' evidence assu'es critical 'aterialit* )iven the dearth of direct evidence on the a0ove aspects of the
case, as it supplies the )aps that were never loo@ed into and clarified 0* police investi)ation. 2t is the evidence,
too, that colors a si'ple 'issin) person report into an enforced disappearance case, as it inDects the ele'ent of
participation 0* a)ents of the 3tate and thus 0rin)s into 7uestion how the 3tate reacted to the disappearance.
1enials on the part of the police authorities, and frustration on the part of the respondent, characteriAe the
atte'pts to locate &a)itis. 2nitiall* in +olo, the police infor'ed =unnon) that &a)itis could have 0een ta@en 0* the
A0u 3a**af or other )roups fi)htin) the )overn'ent. $o evidence was ever offered on whether there was active
+olo police investi)ation and how and wh* the +olo police arrived at this conclusion. &he respondentCs own in7uir*
in +olo *ielded the answer that he was not 'issin) 0ut was with another wo'an so'ewhere. A)ain, no evidence
e6ists that this e6planation was arrived at 0ased on an investi)ation. As alread* related a0ove, the in7uir* with
Col. Ancanan in ;a'0oan)a *ielded a'0ivalent results not useful for evidentiar* purposes. &hus, it was onl* the
in7uir* fro' Col. =asi' that *ielded positive results. Col. =asi'Cs stor*, however, confir'ed onl* the fact of his
custodial investi)ation (and, i'pliedl*, his arrest or a0duction, without identif*in) his a0ductorIs or the part*
holdin) hi' in custod*. &he 'ore si)nificant part of Col. =asi'Cs stor* is that the a0duction ca'e after &a)itis
was seen tal@in) with #'ar Pati@ and a certain 3antos of ,ulacan, a 4,ali@ 2sla'4 char)ed with terroris'. Mrs.
&al0in 'entioned, too, that &a)itis was 0ein) held at &alipapao, 3ulu. $one of the police a)encies participatin) in
the investi)ation ever pursued these leads. $ota0l*, &as@ /orce &a)itis to which this infor'ation was rela*ed did
not appear to have lifted a fin)er to pursue these aspects of the case.
More denials were 'anifested in the Returns on the writ to the CA 'ade 0* the petitioners. &hen P$P Chief "en.
Avelino 2. RaAon 'erel* reported the directives he sent to the ARMM Re)ional 1irector and the Re)ional Chief of
the C21" on &a)itis, and these reports 'erel* reiterated the open!ended initial report of the disappearance. &he
C21" directed a search in all of its divisions with ne)ative results. &hese, to the P$P Chief, constituted the
e6haustion 4of all possi0le efforts.4 P$P!C21" Chief "eneral (d)ardo M. 1oro'al, for his part, also reported
ne)ative results after searchin) 4all divisions and depart'ents Gof the C21"H for a person na'ed (n)r. Morced $.
&a)itis . . . and after a dili)ent and thorou)h research, records show that no such person is 0ein) detained in the
C21" or an* of its depart'ent or divisions.4 P$P!PAC(R Chief P3 3upt. 9eonardo A. (spina and P$P PR#
ARMM Re)ional 1irector PC 3uperintendent +oel R. "oltiao did no 0etter in their affidavits!returns, as the*
essentiall* reported the results of their directives to their units to search for &a)itis.
&he e6tent to which the police authorities acted was full* tested when the CA constituted &as@ /orce &a)itis, with
specific directives on what to do. &he ne)ative results reflected in the Returns on the writ were a)ain replicated
durin) the three hearin)s the CA scheduled. Aside fro' the previousl* 'entioned 4retraction4 that Prof. Matli
E2
'ade to correct his accusation that &a)itis too@ 'one* held in trust for students, P3 3upt. ADiri' reiterated in his
testi'on* that the C21" consistentl* denied an* @nowled)e or co'plicit* in an* a0duction and said that there
was no 0asis to conclude that the C21" or an* police unit had an*thin) to do with the disappearance of &a)itis<
he li@ewise considered it pre'ature to conclude that &a)itis si'pl* ran awa* with the 'one* in his custod*. As
alread* noted a0ove, the &as@ /orce nota0l* did not pursue an* investi)ation a0out the personal circu'stances
of &a)itis, his 0ac@)round in relation to the 21, and the 0ac@)round and activities of this ,an@ itself, and the
reported si)htin) of &a)istis with terrorists and his alle)ed custod* in &alipapao, 3ulu. $o atte'pt appears to
have ever 0een 'ade to loo@ into the alle)ed 21, funds that &a)itis held in trust, or to tap an* of the 4assets4 who
are indispensa0le in investi)ations of this nature. &hese o'issions and ne)ative results were a))ravated 0* the
CA findin)s that it was onl* as late as +anuar* 28, 2008 or three 'onths after the disappearance that the police
authorities re7uested for clear pictures of &a)itis. Col. =asi' could not attend the trial 0ecause his su0poena was
not served, despite the fact that he was desi)nated as ADiri'Cs replace'ent in the latterCs last post. &hus, Col.
=asi' was not then 7uestioned. $o investi)ation B even an internal one B appeared to have 0een 'ade to in7uire
into the identit* of Col. =asi'Cs 4asset4 and what he indeed wrote.
We )lean fro' all these pieces of evidence and develop'ents a consistenc* in the )overn'entCs denial of an*
co'plicit* in the disappearance of &a)itis, disrupted onl* 0* the report 'ade 0* Col. =asi' to the respondent at
Ca'p =atitipan. (ven Col. =asi', however, eventuall* denied that he ever 'ade the disclosure that &a)itis was
under custodial investi)ation for co'plicit* in terroris'. Another distinctive trait that runs throu)h these
develop'ents is the )overn'entCs dis'issive approach to the disappearance, startin) fro' the initial response 0*
the +olo police to =unnon)Cs initial reports of the disappearance, to the responses 'ade to the respondent when
she herself reported and in7uired a0out her hus0andCs disappearance, and even at &as@ /orce &a)itis itself.
As the CA found throu)h &as@ /orce &a)itis, the investi)ation was at 0est haphaAard since the authorities were
loo@in) for a 'an whose picture the* initiall* did not even secure. &he returns and reports 'ade to the CA fared
no 0etter, as the C21" efforts the'selves were confined to searchin) for custodial records of &a)itis in their
various depart'ents and divisions. &o point out the o0vious, if the a0duction of &a)itis was a 40lac@4 operation
0ecause it was unrecorded or officiall* unauthoriAed, no record of custod* would ever appear in the C21"
records< &a)itis, too, would not 0e detained in the usual police or C21" detention places. 2n su', none of the
reports on record contains an* 'eanin)ful results or details on the depth and e6tent of the investi)ation 'ade. &o
0e sure, reports of top police officials indicatin) the personnel and units the* directed to investi)ate can never
constitute e6haustive and 'eanin)ful investi)ation, or e7ual detailed investi)ative reports of the activities
underta@en to search for &a)itis. 2ndisputa0l*, the police authorities fro' the ver* 0e)innin) failed to co'e up to
the e6traordinar* dili)ence that the A'paro Rule re7uires.
C#$C9532#$3 A$1 &.( AMPAR# R(M(1?
,ased on these considerations, we conclude that Col. =asi'Cs disclosure, 'ade in an un)uarded 'o'ent,
une7uivocall* point to so'e )overn'ent co'plicit* in the disappearance. &he consistent 0ut unfounded denials
and the haphaAard investi)ations cannot 0ut point to this conclusion. /or wh* would the )overn'ent and its
officials en)a)e in their chorus of conceal'ent if the intent had not 0een to den* what the* alread* @new of the
disappearanceN Would not an in!depth and thorou)h investi)ation that at least credi0l* deter'ined the fate of
&a)itis 0e a feather in the )overn'entCs cap under the circu'stances of the disappearanceN /ro' this
perspective, the evidence and develop'ents, particularl* the =asi' evidence, alread* esta0lish a concrete case
of enforced disappearance that the A'paro Rule covers. /ro' the pris' of the 5$ 1eclaration, heretofore cited
and 7uoted, the evidence at hand and the develop'ents in this case confir' the fact of the enforced
disappearance and )overn'ent co'plicit*, under a 0ac@)round of consistent and unfounded )overn'ent denials
and haphaAard handlin). &he disappearance as well effectivel* placed &a)itis outside the protection of the law B
a situation that will su0sist unless this Court acts.
&his @ind of fact situation and the conclusion reached are not without precedent in international enforced
disappearance rulin)s. While the facts are not e6actl* the sa'e, the facts of this case run ver* close to those of
&i'urtas v. &ur@e*, a case decided 0* (C.R. &he (uropean tri0unal in that case acted on the 0asis of the
EE
photocop* of a 4post!operation report4 in findin) that A0dulvahap &i'urtas (A0dulvahap was a0ducted and later
detained 0* a)ents ()endar'es of the )overn'ent of &ur@e*. &he victi'Qs father in this case 0rou)ht a clai'
a)ainst &ur@e* for nu'erous violations of the (uropean Convention, includin) the ri)ht to life (Article 2 and the
ri)hts to li0ert* and securit* of a person (Article J. &he applicant contended that on Au)ust 8F, 8%%E, )endar'es
apprehended his son, A0dulvahap for 0ein) a leader of the =urdish Wor@ersC Part* (P== in the 3ilopi re)ion. &he
petition was filed in southeast &ur@e* nearl* si6 and one half *ears after the apprehension. Accordin) to the
father, )endar'es first detained A0dulvahap and then transferred hi' to another detain'ent facilit*. Althou)h
there was no e*ewitness evidence of the apprehension or su0se7uent detain'ent, the applicant presented
evidence corro0oratin) his version of events, includin) a photocop* of a post!operation report si)ned 0* the
co''ander of )endar'e operations in 3ilopi, &ur@e*. &he report included a description of A0dulvahapQs arrest
and the result of a su0se7uent interro)ation durin) detention where he was accused of 0ein) a leader of the P==
in the 3ilopi re)ion. #n this 0asis, &ur@e* was held responsi0le for A0dulvahapCs enforced disappearance.
/ollowin) the lead of this &ur@ish e6perience ! adDusted to the Philippine le)al settin) and the A'paro re'ed* this
Court has esta0lished, as applied to the uni7ue facts and develop'ents of this case B we 0elieve and so hold that
the )overn'ent in )eneral, throu)h the P$P and the P$P!C21", and in particular, the Chiefs of these
or)aniAations to)ether with Col. =asi', should 0e held full* accounta0le for the enforced disappearance of
&a)itis.
&he P$P and C21" are accounta0le 0ecause 3ection 2F of Repu0lic Act $o. L%7J, otherwise @nown as the 4P$P
9aw,4 specifies the P$P as the )overn'ental office with the 'andate 4to investi)ate and prevent cri'es, effect
the arrest of cri'inal offenders, 0rin) offenders to Dustice and assist in their prosecution.4 &he P$P!C21", as Col.
+ose :olpane Pante (then Chief of C21" Re)ion % testified, is the 4investi)ative ar'4 of the P$P and is
'andated to 4investi)ate and prosecute all cases involvin) violations of the Revised Penal Code, particularl*
those considered as heinous cri'es.4 5nder the P$P or)aniAational structure, the P$P!C21" is tas@ed to
investi)ate all 'aDor cri'es involvin) violations of the Revised Penal Code and operates a)ainst or)aniAed cri'e
)roups, unless the President assi)ns the case e6clusivel* to the $ational ,ureau of 2nvesti)ation ($,2. $o
indication e6ists in this case showin) that the President ever directl* intervened 0* assi)nin) the investi)ation of
&a)itisC disappearance e6clusivel* to the $,2.
"iven their 'andates, the P$P and P$P!C21" officials and 'e'0ers were the ones who were re'iss in their
duties when the )overn'ent co'pletel* failed to e6ercise the e6tralQS&o full* enforce the A'paro re'ed*, we
refer this case 0ac@ to the CA for appropriate proceedin)s directed at the 'onitorin) of the P$P and the P$P!
C21" investi)ations and actions, and the validation of their results throu)h hearin)s the CA 'a* dee'
appropriate to conduct. /or purposes of these investi)ations, the P$PIP$P!C21" shall initiall* present to the CA
a plan of action for further investi)ation, periodicall* reportin) the detailed results of its investi)ation to the CA for
its consideration and action. #n 0ehalf of this Court, the CA shall pass upon- the need for the P$P and the P$P!
C21" to 'a@e disclosures of 'atters @nown to the' as indicated in this 1ecision and as further CA hearin)s 'a*
indicate< the petitionersC su0'issions< the sufficienc* of their investi)ative efforts< and su0'it to this Court a
7uarterl* report containin) its actions and reco''endations, cop* furnished the petitioners and the respondent,
with the first report due at the end of the first 7uarter counted fro' the finalit* of this 1ecision. &he P$P and the
P$P!C21" shall have one (8 full *ear to underta@e their investi)ation. &he CA shall su0'it its full report for the
consideration of this Court at the end of the Fth 7uarter counted fro' the finalit* of this 1ecision.
W.(R(/#R(, pre'ises considered, we 1($? the petitionersC petition for review on certiorari for lac@ of 'erit,
and A//2RM the decision of the Court of Appeals dated March 7, 2008 under the followin) ter's-
a. Reco)nition that the disappearance of (n)ineer Morced $. &a)itis is an enforced disappearance covered 0*
the Rule on the Writ of A'paro<
0. Without an* specific pronounce'ent on e6act authorship and responsi0ilit*, declarin) the )overn'ent (throu)h
the P$P and the P$P!C21" and Colonel +ulasiri' Ahadin =asi' accounta0le for the enforced disappearance of
(n)ineer Morced $. &a)itis<
EF
c. Confir'ation of the validit* of the Writ of A'paro the Court of Appeals issued<
d. .oldin) the P$P, throu)h the P$P Chief, and the P$P!C21", throu)h its Chief, directl* responsi0le for the
disclosure of 'aterial facts @nown to the )overn'ent and to their offices re)ardin) the disappearance of (n)ineer
Morced $. &a)itis, and for the conduct of proper investi)ations usin) e6traordinar* dili)ence, with the o0li)ation to
show investi)ation results accepta0le to this Court<
e. #rderin) Colonel +ulasiri' Ahadin =asi' i'pleaded in this case and holdin) hi' accounta0le with the
o0li)ation to disclose infor'ation @nown to hi' and to his 4assets4 in relation with the enforced disappearance of
(n)ineer Morced $. &a)itis<
f. Referrin) this case 0ac@ to the Court of Appeals for appropriate proceedin)s directed at the 'onitorin) of the
P$P and P$P!C21" investi)ations, actions and the validation of their results< the P$P and the P$P!C21" shall
initiall* present to the Court of Appeals a plan of action for further investi)ation, periodicall* reportin) their results
to the Court of Appeals for consideration and action<
). Re7uirin) the Court of Appeals to su0'it to this Court a 7uarterl* report with its reco''endations, cop*
furnished the incu'0ent P$P and P$P!C21" Chiefs as petitioners and the respondent, with the first report due at
the end of the first 7uarter counted fro' the finalit* of this 1ecision<
h. &he P$P and the P$P!C21" shall have one (8 full *ear to underta@e their investi)ations< the Court of Appeals
shall su0'it its full report for the consideration of this Court at the end of the Fth 7uarter counted fro' the finalit*
of this 1ecision<
&hese directives and those of the Court of AppealsC 'ade pursuant to this 1ecision shall 0e )iven to, and shall 0e
directl* enforcea0le a)ainst, whoever 'a* 0e the incu'0ent Chiefs of the Philippine $ational Police and its
Cri'inal 2nvesti)ation and 1etection "roup, under pain of conte'pt fro' this Court when the initiatives and
efforts at disclosure and investi)ation constitute less than the e6traordinar* dili)ence that the Rule on the Writ of
A'paro and the circu'stances of this case de'and. "iven the uni7ue nature of A'paro cases and their var*in)
attendant circu'stances, these directives B particularl*, the referral 0ac@ to and 'onitorin) 0* the CA B are
specific to this case and are not standard re'edies that can 0e applied to ever* A'paro situation.
&he dis'issal of the A'paro petition with respect to "eneral Ale6ander ?ano, Co''andin) "eneral, Philippine
Ar'*, and "eneral Ru0en Rafael, Chief, Anti!&erroris' &as@ /orce Co'et, ;a'0oan)a Cit*, is here0*
A//2RM(1.
3# #R1(R(1.
EJ
G.R. No. 13932? A#ri" 12, 200?
!RI*CILLA C. 5IJARE*, LORE..A ANN !. RO*ALE*, @ILDA 7. NARCI*O, *R. 5ARIANI DI5ARANAN,
*8IC, %$, JOEL C. LA5ANGAN i$ &heir beh%" %$, o$ beh%" o &he C"%11 !"%i$&i1 i$ C"%11 Ac&io$ No.
5DL 840, -$i&e, *&%&e1 Di1&ric& Co+r& o @%9%ii, Petitioner,
vs.
@ON. *AN.IAGO JAVIER RANADA, i$ hi1 c%#%ci&4 %1 !re1i,i$2 J+,2e o 7r%$ch 13A, Re2io$%" .ri%"
Co+r&, 5%<%&i Ci&4, %$, &he E*.A.E O8 8ERDINAND E. 5ARCO*, &hro+2h i&1 co+r& %##oi$&e, "e2%"
re#re1e$&%&i0e1 i$ C"%11 Ac&io$ 5DL 840, -$i&e, *&%&e1 Di1&ric& Co+r& o @%9%ii, $%me"4B Ime",% R.
5%rco1 %$, 8er,i$%$, 5%rco1, Jr., Respondents.
#ur 'artial law e6perience 0ore stran)e unwanted fruits, and we have *et to finish weedin) out its 0itter crop.
While the restoration of freedo' and the funda'ental structures and processes of de'ocrac* have 0een
'uch lauded, accordin) to a si)nificant nu'0er, the chan)es, however, have not sufficientl* healed the
colossal da'a)e wrou)ht under the oppressive conditions of the 'artial law period. &he cries of Dustice for the
tortured, the 'urdered, and the desaparecidos arouse outra)e and s*'path* in the hearts of the fair!'inded,
*et the dispensation of the appropriate relief due the' cannot 0e e6tended throu)h the sa'e caprice or whi'
that characteriAed the ill!wind of 'artial rule. &he da'a)e done was not 'erel* personal 0ut institutional, and
the proper re0u@e to the ini7uitous past has to involve the award of reparations due within the confines of the
restored rule of law.
&he petitioners in this case are pro'inent victi's of hu'an ri)hts violations who, deprived of the opportunit*
to directl* confront the 'an who once held a0solute rule over this countr*, have chosen to do 0attle instead
with the earthl* representative, his estate. &he clash has 0een for now interrupted 0* a trial court rulin),
see'in)l* co'ported to le)al lo)ic, that re7uired the petitioners to pa* a whoppin) filin) fee of over /our
.undred 3event*!&wo Million Pesos (PF72,000,000.00 in order that the* 0e a0le to enforce a Dud)'ent
awarded the' 0* a forei)n court. &here is an understanda0le te'ptation to cast the stru))le within the
si'plistic confines of a 'oralit* tale, and to e'plo* short!cuts to arrive at what 'i)ht see' the desira0le
solution. ,ut eas*, refle6ive resort to the e7uit* principle all too often leads to a result that 'a* 0e 'orall*
correct, 0ut le)all* wron).
$onetheless, the application of the le)al principles involved in this case will co'fort those who 'aintain that
our su0stantive and procedural laws, for all their perceived a'0i)uit* and suscepti0ilit* to '*riad
interpretations, are inherentl* fair and Dust. &he relief sou)ht 0* the petitioners is e6pressl* 'andated 0* our
laws and confor's to esta0lished le)al principles. &he )rantin) of this petition for certiorari is warranted in
order to correct the le)all* infir' and una0ashedl* unDust rulin) of the respondent Dud)e.
&he essential facts 0ear little ela0oration. #n % Ma* 8%%8, a co'plaint was filed with the 5nited 3tates 1istrict
Court (53 1istrict Court, 1istrict of .awaii, a)ainst the (state of for'er Philippine President /erdinand (.
Marcos (Marcos (state. &he action was 0rou)ht forth 0* ten /ilipino citiAens who each alle)ed havin)
suffered hu'an ri)hts a0uses such as ar0itrar* detention, torture and rape in the hands of police or 'ilitar*
forces durin) the Marcos re)i'e. &he Alien &ort Act was invo@ed as 0asis for the 53 1istrict CourtQs
Durisdiction over the co'plaint, as it involved a suit 0* aliens for tortious violations of international law. &hese
plaintiffs 0rou)ht the action on their own 0ehalf and on 0ehalf of a class of si'ilarl* situated individuals,
particularl* consistin) of all current civilian citiAens of the Philippines, their heirs and 0eneficiaries, who
0etween 8%72 and 8%87 were tortured, su''aril* e6ecuted or had disappeared while in the custod* of
'ilitar* or para'ilitar* )roups. Plaintiffs alle)ed that the class consisted of appro6i'atel* ten thousand
(80,000 'e'0ers< hence, Doinder of all these persons was i'practica0le.
&he institution of a class action suit was warranted under Rule 2E(a and (0(8(, of the 53 /ederal Rules of
Civil Procedure, the provisions of which were invo@ed 0* the plaintiffs. 3u0se7uentl*, the 53 1istrict Court
EL
certified the case as a class action and created three (E su0!classes of torture, su''ar* e6ecution and
disappearance victi's.
J
&rial ensued, and su0se7uentl* a Dur* rendered a verdict and an award of
co'pensator* and e6e'plar* da'a)es in favor of the plaintiff class. &hen, on E /e0ruar* 8%%J, the 53
1istrict Court, presided 0* +ud)e Manuel 9. Real, rendered a /inal +ud)'ent $%inal "udgment& awardin) the
plaintiff class a total of #ne ,illion $ine .undred 3i6t* /our Million /ive &housand (i)ht .undred /ift* $ine
1ollars and $inet* Cents (T8,%LF,00J,8J%.%0. &he %inal "udgment was eventuall* affir'ed 0* the 53 Court
of Appeals for the $inth Circuit, in a decision rendered on 87 1ece'0er 8%%L.
#n 20 Ma* 8%%7, the present petitioners filed Complaint with the Re)ional &rial Court, Cit* of Ma@ati (Ma@ati
R&C for the enforce'ent of the %inal "udgment. &he* alle)ed that the* are 'e'0ers of the plaintiff class in
whose favor the 53 1istrict Court awarded da'a)es. &he* ar)ued that since the Marcos (state failed to file a
petition for certiorari with the 53 3upre'e Court after the $inth Circuit Court of Appeals had affir'ed the
%inal "udgment, the decision of the 53 1istrict Court had 0eco'e final and e6ecutor*, and hence should 0e
reco)niAed and enforced in the Philippines, pursuant to 3ection J0, Rule E% of the Rules of Court then in
force.
#n J /e0ruar* 8%%8, the Marcos (state filed a 'otion to dis'iss, raisin), a'on) others, the non!pa*'ent of
the correct filin) fees. 2t alle)ed that petitioners had onl* paid /our .undred &en Pesos (PF80.00 as doc@et
and filin) fees, notwithstandin) the fact that the* sou)ht to enforce a 'onetar* a'ount of da'a)es in the
a'ount of over &wo and a Kuarter ,illion 53 1ollars (53T2.2J ,illion. &he Marcos (state cited 3upre'e
Court Circular $o. 7, pertainin) to the proper co'putation and pa*'ent of doc@et fees. 2n response, the
petitioners clai'ed that an action for the enforce'ent of a forei)n Dud)'ent is not capa0le of pecuniar*
esti'ation< hence, a filin) fee of onl* /our .undred &en Pesos (PF80.00 was proper, pursuant to 3ection
7(c of Rule 8F8.
#n % 3epte'0er 8%%8, respondent +ud)e 3antia)o +avier Ranada of the Ma@ati R&C issued the su0Dect
'rder dis'issin) the co'plaint without preDudice. Respondent Dud)e opined that contrar* to the petitionersQ
su0'ission, the su0Dect 'atter of the co'plaint was indeed capa0le of pecuniar* esti'ation, as it involved a
Dud)'ent rendered 0* a forei)n court orderin) the pa*'ent of definite su's of 'one*, allowin) for eas*
deter'ination of the value of the forei)n Dud)'ent. #n that score, 3ection 7(a of Rule 8F8 of the Rules of
Civil Procedure would find application, and the R&C esti'ated the proper a'ount of filin) fees was
appro6i'atel* /our .undred 3event* &wo Million Pesos, which o0viousl* had not 0een paid.
$ot surprisin)l*, petitioners filed a (otion for econsideration, which +ud)e Ranada denied in an 'rder dated
28 +ul* 8%%%. /ro' this denial, petitioners filed a Petition for Certiorari under Rule LJ assailin) the twin orders
of respondent Dud)e. &he* pra*ed for the annul'ent of the 7uestioned orders, and an order directin) the
reinstate'ent of Civil Case $o. %7!80J2 and the conduct of appropriate proceedin)s thereon.
Petitioners su0'it that their action is incapa0le of pecuniar* esti'ation as the su0Dect 'atter of the suit is the
enforce'ent of a forei)n Dud)'ent, and not an action for the collection of a su' of 'one* or recover* of
da'a)es. &he* also point out that to re7uire the class plaintiffs to pa* /our .undred 3event* &wo Million
Pesos (PF72,000,000.00 in filin) fees would ne)ate and render inutile the li0eral construction ordained 0* the
Rules of Court, as re7uired 0* 3ection L, Rule 8 of the Rules of Civil Procedure, particularl* the ine6pensive
disposition of ever* action.
Petitioners invo@e 3ection 88, Article 222 of the ,ill of Ri)hts of the Constitution, which provides that 4/ree
access to the courts and 7uasi!Dudicial 0odies and ade7uate le)al assistance shall not 0e denied to an*
person 0* reason of povert*,4 a 'andate which is essentiall* defeated 0* the re7uired e6or0itant filin) fee.
&he adDudicated a'ount of the filin) fee, as arrived at 0* the R&C, was characteriAed as indisputa0l* unfair,
ine7uita0le, and unDust.
&he Co''ission on .u'an Ri)hts (C.R was per'itted to intervene in this case. 2t ur)ed that the petition 0e
)ranted and a Dud)'ent rendered, orderin) the enforce'ent and e6ecution of the 1istrict Court Dud)'ent in
E7
accordance with 3ection F8, Rule E% of the 8%%7 Rules of Civil Procedure. /or the C.R, the Ma@ati R&C
erred in interpretin) the action for the e6ecution of a forei)n Dud)'ent as a new case, in violation of the
principle that once a case has 0een decided 0etween the sa'e parties in one countr* on the sa'e issue with
finalit*, it can no lon)er 0e reliti)ated a)ain in another countr*. &he C.R li@ewise invo@es the principle of
co'it*, and of vested ri)hts.
&he CourtQs disposition on the issue of filin) fees will prove a useful Durisprudential )uidepost for courts
confronted with actions enforcin) forei)n Dud)'ents, particularl* those lod)ed a)ainst an estate. &here is no
0asis for the issuance a li'ited pro hac vice rulin) 0ased on the special circu'stances of the petitioners as
victi's of 'artial law, or on the e'otionall*!char)ed alle)ation of hu'an ri)hts a0uses.
An e6a'ination of Rule 8F8 of the Rules of Court readil* evinces that the respondent Dud)e i)nored the clear
letter of the law when he concluded that the filin) fee 0e co'puted 0ased on the total su' clai'ed or the
stated value of the propert* in liti)ation.
2n dis'issin) the co'plaint, the respondent Dud)e relied on 3ection 7(a, Rule 8F8 as 0asis for the
co'putation of the filin) fee of over PF72 Million. &he provision states-
3(C. 7. Cler@ of Re)ional &rial Court.!
(a /or filin) an action or a per'issive counterclai' or mo$e4 c"%im %2%i$1& %$ e1&%&e $o&
b%1e, o$ >+,2me$&, or for filin) with leave of court a third!part*, fourth!part*, etc., co'plaint,
or a co'plaint in intervention, and for all clerical services in the sa'e ti'e, if the total su'
clai'ed, e6clusive of interest, or the started value of the propert* in liti)ation, is-
8. 9ess than P 800,00.00 B P J00.00
2. P 800,000.00 or 'ore 0ut less than P
8J0,000.00
B P 800.00
E. P 8J0,000.00 or 'ore 0ut less than P
200,000.00
B P 8,000.00
F. P 200,000.00 or 'ore 0ut less than P
2J0,000.00
B P 8,J00.00
J. P 2J0,000.00 or 'ore 0ut less than P
E00,00.00
B P 8,7J0.00
L. P E00,000.00 or 'ore 0ut not 'ore than P
F00,000.00
B P 2,000.00
7. P EJ0,000.00 or 'ore 0ut not 'ore than
PF00,000.00
B P 2,2J0.00
8. /or each P 8,000.00 in e6cess of P
F00,000.00
B P 80.00
(('phasis supplied
#0viousl*, the a0ove!7uoted provision covers, on one hand, ordinar* actions, per'issive counterclai's, third!
part*, etc. co'plaints and co'plaints!in!interventions, and on the other, 'one* clai's a)ainst estates which
are not 0ased on Dud)'ent. &hus, the relevant 7uestion for purposes of the present petition is whether the
action filed with the lower court is a 4'one* clai' a)ainst an estate not 0ased on Dud)'ent.4
E8
PetitionersQ co'plaint 'a* have 0een lod)ed a)ainst an estate, 0ut it is clearl* 0ased on a Dud)'ent, the
%inal "udgment of the 53 1istrict Court. &he provision does not 'a@e an* distinction 0etween a local
Dud)'ent and a forei)n Dud)'ent, and where the law does not distin)uish, we shall not distin)uish.
A readin) of 3ection 7 in its entiret* reveals several instances wherein the filin) fee is co'puted on the 0asis
of the a'ount of the relief sou)ht, or on the value of the propert* in liti)ation. &he filin) fee for re7uests for
e6traDudicial foreclosure of 'ort)a)e is 0ased on the a'ount of inde0tedness or the 'ort)a)eeQs clai'. 2n
special proceedin)s involvin) properties such as for the allowance of wills, the filin) fee is a)ain 0ased on the
value of the propert*. &he aforecited rules evidentl* have no application to petitionersQ co'plaint.
Petitioners rel* on 3ection 7(0, particularl* the proviso on actions where the value of the su0Dect 'atter
cannot 0e esti'ated. &he provision reads in full-
3(C. 7. Cler@ of Re)ional &rial Court.!
(0 /or filin)
8. Actions where the value
of the su0Dect 'atter
cannot 0e esti'ated !!! P L00.00
2. 3pecial civil actions e6cept
Dudicial foreclosure which
shall 0e )overned 0*
para)raph (a a0ove !!! P L00.00
E. All other actions not
involvin) propert* !!! P L00.00
2n a real action, the assessed value of the propert*, or if there is none, the esti'ated value, thereof shall 0e
alle)ed 0* the clai'ant and shall 0e the 0asis in co'putin) the fees.
2t is worth notin) that the provision also provides that in real actions, the assessed value or esti'ated value of
the propert* shall 0e alle)ed 0* the clai'ant and shall 0e the 0asis in co'putin) the fees. ?et a)ain, this
provision does not appl* in the case at 0ar. A real action is one where the plaintiff see@s the recover* of real
propert* or an action affectin) title to or recover* of possession of real propert*. $either the co'plaint nor the
award of da'a)es adDudicated 0* the 53 1istrict Court involves an* real propert* of the Marcos (state.
&hus, respondent Dud)e was in clear and serious error when he concluded that the filin) fees should 0e
co'puted on the 0asis of the sche'atic ta0le of 3ection 7(a, as the action involved pertains to a clai'
a)ainst an estate 0ased on Dud)'ent. What provision, if an*, then should appl* in deter'inin) the filin) fees
for an action to enforce a forei)n Dud)'entN
&o resolve this 7uestion, a proper understandin) is re7uired on the nature and effects of a forei)n Dud)'ent in
this Durisdiction.
E%
&he rules of co'it*, utilit* and convenience of nations have esta0lished a usa)e a'on) civiliAed states 0*
which final Dud)'ents of forei)n courts of co'petent Durisdiction are reciprocall* respected and rendered
efficacious under certain conditions that 'a* var* in different countries. &his principle was pro'inentl*
affir'ed in the leadin) A'erican case of Hilton v. )uyot and e6pressl* reco)niAed in our Durisprudence
0e)innin) with *ngenholl v. +alter ,. 'lsen - Co. &he conditions re7uired 0* the Philippines for reco)nition
and enforce'ent of a forei)n Dud)'ent were ori)inall* contained in 3ection E88 of the Code of Civil
Procedure, which was ta@en fro' the California Code of Civil Procedure which, in turn, was derived fro' the
California Act of March 88, 8872. Re'ar@a0l*, the procedural rule now outlined in 3ection F8, Rule E% of the
Rules of Civil Procedure has re'ained unchan)ed down to the last word in nearl* a centur*. 3ection F8
states-
3(C. F8. (ffect of forei)n Dud)'ents. U &he effect of a Dud)'ent of a tri0unal of a forei)n
countr*, havin) Durisdiction to pronounce the Dud)'ent is as follows-
(a 2n case of a Dud)'ent upon a specific thin), the Dud)'ent is conclusive upon the title to the
thin)<
(0 2n case of a Dud)'ent a)ainst a person, the Dud)'ent is presu'ptive evidence of a ri)ht as
0etween the parties and their successors in interest 0* a su0se7uent title<
2n either case, the Dud)'ent or final order 'a* 0e repelled 0* evidence of a want of Durisdiction, want
of notice to the part*, collusion, fraud, or clear 'ista@e of law or fact.
&here is an evident distinction 0etween a forei)n Dud)'ent in an action in rem and one in personam. /or an
action in rem, the forei)n Dud)'ent is dee'ed conclusive upon the title to the thin), while in an action in
personam, the forei)n Dud)'ent is presu'ptive, and not conclusive, of a ri)ht as 0etween the parties and their
successors in interest 0* a su0se7uent title. .owever, in 0oth cases, the forei)n Dud)'ent is suscepti0le to
i'peach'ent in our local courts on the )rounds of want of Durisdiction or notice to the part*, collusion, fraud,
or clear 'ista@e of law or fact. &hus, the part* a))rieved 0* the forei)n Dud)'ent is entitled to defend a)ainst
the enforce'ent of such decision in the local foru'. 2t is essential that there should 0e an opportunit* to
challen)e the forei)n Dud)'ent, in order for the court in this Durisdiction to properl* deter'ine its efficac*.
2t is clear then that it is usuall* necessar* for an action to 0e filed in order to enforce a forei)n Dud)'ent, even
if such Dud)'ent has conclusive effect as in the case of in rem actions, if onl* for the purpose of allowin) the
losin) part* an opportunit* to challen)e the forei)n Dud)'ent, and in order for the court to properl* deter'ine
its efficac*. Conse7uentl*, the part* attac@in) a forei)n Dud)'ent has the 0urden of overco'in) the
presu'ption of its validit*.
&he rules are silent as to what initiator* procedure 'ust 0e underta@en in order to enforce a forei)n Dud)'ent
in the Philippines. ,ut there is no 7uestion that the filin) of a civil co'plaint is an appropriate 'easure for
such purpose. A civil action is one 0* which a part* sues another for the enforce'ent or protection of a ri)ht,
and clearl* an action to enforce a forei)n Dud)'ent is in essence a vindication of a ri)ht prescindin) either
fro' a 4conclusive Dud)'ent upon title4 or the 4presu'ptive evidence of a ri)ht.4 A0sent perhaps a statutor*
)rant of Durisdiction to a 7uasi!Dudicial 0od*, the clai' for enforce'ent of Dud)'ent 'ust 0e 0rou)ht 0efore the
re)ular courts.
&here are distinctions, nuanced 0ut discerni0le, 0etween the cause of action arisin) fro' the enforce'ent of a
forei)n Dud)'ent, and that arisin) fro' the facts or alle)ations that occasioned the forei)n Dud)'ent. &he*
'a* pertain to the sa'e set of facts, 0ut there is an essential difference in the ri)ht!dut* correlatives that are
sou)ht to 0e vindicated. /or e6a'ple, in a co'plaint for da'a)es a)ainst a tortfeasor, the cause of action
e'anates fro' the violation of the ri)ht of the co'plainant throu)h the act or o'ission of the respondent. #n
the other hand, in a co'plaint for the enforce'ent of a forei)n Dud)'ent awardin) da'a)es fro' the sa'e
F0
tortfeasor, for the violation of the sa'e ri)ht throu)h the sa'e 'anner of action, the cause of action derives
not fro' the tortious act 0ut fro' the forei)n Dud)'ent itself.
More i'portantl*, the 'atters for proof are different. 5sin) the a0ove e6a'ple, the co'plainant will have to
esta0lish 0efore the court the tortious act or o'ission co''itted 0* the tortfeasor, who in turn is allowed to
re0ut these factual alle)ations or prove e6tenuatin) circu'stances. (6tensive liti)ation is thus conducted on
the facts, and fro' there the ri)ht to and a'ount of da'a)es are assessed. #n the other hand, in an action to
enforce a forei)n Dud)'ent, the 'atter left for proof is the forei)n Dud)'ent itself, and not the facts fro' which
it prescinds.
As stated in 3ection F8, Rule E%, the actiona0le issues are )enerall* restricted to a review of Durisdiction of the
forei)n court, the service of personal notice, collusion, fraud, or 'ista@e of fact or law. &he li'itations on
review is in consonance with a stron) and pervasive polic* in all le)al s*ste's to li'it repetitive liti)ation on
clai's and issues.
E2
#therwise @nown as the polic* of preclusion, it see@s to protect part* e6pectations
resultin) fro' previous liti)ation, to safe)uard a)ainst the harass'ent of defendants, to insure that the tas@ of
courts not 0e increased 0* never!endin) liti)ation of the sa'e disputes, and B in a lar)er sense B to pro'ote
what 9ord Co@e in the %errer.s Case of 8J%% stated to 0e the )oal of all law- 4rest and 7uietness.4 2f ever*
Dud)'ent of a forei)n court were reviewa0le on the 'erits, the plaintiff would 0e forced 0ac@ on hisIher
ori)inal cause of action, renderin) i''aterial the previousl* concluded liti)ation.
Petitioners appreciate this distinction, and rel* upon it to support the proposition that the su0Dect 'atter of the
is incapa0le ofthe enforce'ent of a forei)n Dud)'entco'plaint pecuniar* esti'ation. Ad'ittedl* the
proposition, as it applies in this case, is counter!intuitive, and thus deserves strict scrutin*. /or in all practical
intents and purposes, the 'atter at hand is capa0le of pecuniar* esti'ation, down to the last cent. 2n the
assailed 'rder, the respondent Dud)e pounced upon this point without e7uivocation-
&he Rules use the ter' 4where the value of the su0Dect 'atter cannot 0e esti'ated.4 &he su0Dect
'atter of the present case is the Dud)'ent rendered 0* the forei)n court orderin) defendant to pa*
plaintiffs definite su's of 'one*, as and for co'pensator* da'a)es. &he Court finds that the value of
the forei)n Dud)'ent can 0e esti'ated< indeed, it can even 0e easil* deter'ined. &he Court is not
'inded to distin)uish 0etween the enforce'ent of a Dud)'ent and the a'ount of said Dud)'ent, and
separate the two, for purposes of deter'inin) the correct filin) fees. 3i'ilarl*, a plaintiff suin) on
pro'issor* note for P8 'illion cannot 0e allowed to pa* onl* PF00 filin) fees $sic&, on the reasonin)
that the su0Dect 'atter of his suit is not the P8 'illion, 0ut the enforce'ent of the pro'issor* note, and
that the value of such 4enforce'ent4 cannot 0e esti'ated.
&he Durisprudential standard in )au)in) whether the su0Dect 'atter of an action is capa0le of pecuniar*
esti'ation is well!entrenched. &he Marcos (state cites Singsong v. *sabela Sawmill and aymundo v. Court
of Appeals, which ruled-
G2Hn deter'inin) whether an action is one the su0Dect 'atter of which is not capa0le of pecuniar*
esti'ation this Court has adopted the criterion of first ascertainin) the nature of the principal action or
re'ed* sou)ht. 2f it is pri'aril* for the recover* of a su' of 'one*, the clai' is considered capa0le of
pecuniar* esti'ation, and whether Durisdiction is in the 'unicipal courts or in the courts of first instance
would depend on the a'ount of the clai'. .owever, where the 0asic issue is so'ethin) other than
the ri)ht to recover a su' of 'one*, where the 'one* clai' is purel* incidental to, or a conse7uence
of, the principal relief sou)ht, this Court has considered such actions as cases where the su0Dect of the
liti)ation 'a* not 0e esti'ated in ter's of 'one*, and are co)niAa0le e6clusivel* 0* courts of first
instance (now Re)ional &rial Courts.
#n the other hand, petitioners cite the ponencia of +ustice +,9 Re*es in /apitan v. Scandia, fro' which the
rule in Singsong and aymundo actuall* derives, 0ut which incorporates this additional nuance o'itted in the
latter cases-
F8
666 .owever, where the 0asic issue is so'ethin) other than the ri)ht to recover a su' of 'one*,
where the 'one* clai' is purel* incidental to, or a conse7uence of, the principal relief sou)ht, "i<e i$
1+i&1 &o h%0e &he ,ee$,%$& #erorm hi1 #%r& o &he co$&r%c& '1#eciic #erorm%$ce( %$, i$
%c&io$1 or 1+##or&, or or %$$+"me$& o >+,2me$& or &o orec"o1e % mor&2%2e, this Court has
considered such actions as cases where the su0Dect of the liti)ation 'a* not 0e esti'ated in ter's of
'one*, and are co)niAa0le e6clusivel* 0* courts of first instance.
Petitioners )o on to add that a'on) the actions the Court has reco)niAed as 0ein) incapa0le of pecuniar*
esti'ation include le)alit* of conve*ances and 'one* deposits, validit* of a 'ort)a)e, the ri)ht to support,
validit* of docu'ents, rescission of contracts, specific perfor'ance, and validit* or annul'ent of Dud)'ents. 2t
is ur)ed that an action for enforce'ent of a forei)n Dud)'ent 0elon)s to the sa'e class.
&his is an intri)uin) ar)u'ent, 0ut ulti'atel* it is self!evident that while the su0Dect 'atter of the action is
undou0tedl* the enforce'ent of a forei)n Dud)'ent, the effect of a providential award would 0e the
adDudication of a su' of 'one*. Perhaps in theor*, such an action is pri'aril* for 4the enforce'ent of the
forei)n Dud)'ent,4 0ut there is a certain o0tuseness to that sort of ar)u'ent since there is no den*in) that the
enforce'ent of the forei)n Dud)'ent will necessaril* result in the award of a definite su' of 'one*.
,ut 0efore we insist upon this conclusion past 0e*ond the point of rec@onin), we 'ust e6a'ine its possi0le
ra'ifications. Petitioners raise the point that a declaration that an action for enforce'ent of forei)n Dud)'ent
'a* 0e capa0le of pecuniar* esti'ation 'i)ht lead to an instance wherein a first level court such as the
Municipal &rial Court would have Durisdiction to enforce a forei)n Dud)'ent. ,ut under the statute definin) the
Durisdiction of first level courts, ,.P. 82%, such courts are not vested with Durisdiction over actions for the
enforce'ent of forei)n Dud)'ents.
3ec. EE. "urisdiction of (etropolitan #rial Courts, (unicipal #rial Courts and (unicipal Circuit #rial
Courts in civil cases. U Metropolitan &rial Courts, Municipal &rial Courts, and Municipal Circuit &rial
Courts shall e6ercise-
(8 (6clusive ori)inal Durisdiction over civil actions and pro0ate proceedin)s, testate and intestate,
includin) the )rant of provisional re'edies in proper cases, where the value of the personal propert*,
estate, or a'ount of the de'and does not e6ceed #ne hundred thousand pesos (P800,000.00 or, in
Metro Manila where such personal propert*, estate, or a'ount of the de'and does not e6ceed &wo
hundred thousand pesos (P200,000.00 e6clusive of interest da'a)es of whatever @ind, attorne*Qs
fees, liti)ation e6penses, and costs, the a'ount of which 'ust 0e specificall* alle)ed- Provided, &hat
where there are several clai's or causes of action 0etween the sa'e or different parties, e'0odied in
the sa'e co'plaint, the a'ount of the de'and shall 0e the totalit* of the clai's in all the causes of
action, irrespective of whether the causes of action arose out of the sa'e or different transactions<
(2 (6clusive ori)inal Durisdiction over cases of forci0le entr* and unlawful detainer- Provided, &hat
when, in such cases, the defendant raises the 7uestion of ownership in his pleadin)s and the 7uestion
of possession cannot 0e resolved without decidin) the issue of ownership, the issue of ownership shall
0e resolved onl* to deter'ine the issue of possession.
(E (6clusive ori)inal Durisdiction in all civil actions which involve title to, or possession of, real propert*,
or an* interest therein where the assessed value of the propert* or interest therein does not e6ceed
&went* thousand pesos (P20,000.00 or, in civil actions in Metro Manila, where such assessed value
does not e6ceed /ift* thousand pesos (PJ0,000.00 e6clusive of interest, da'a)es of whatever @ind,
attorne*Qs fees, liti)ation e6penses and costs- Provided, &hat value of such propert* shall 0e
deter'ined 0* the assessed value of the adDacent lots.
3ection EE of ,.P. 82% refers to instances wherein the cause of action or su0Dect 'atter pertains to an
assertion of ri)hts and interests over propert* or a su' of 'one*. ,ut as earlier pointed out, the su0Dect
F2
'atter of an action to enforce a forei)n Dud)'ent is the forei)n Dud)'ent itself, and the cause of action arisin)
fro' the adDudication of such Dud)'ent.
An e6a'ination of 3ection 8%(L, ,.P. 82% reveals that the instant co'plaint for enforce'ent of a forei)n
Dud)'ent, even if capa0le of pecuniar* esti'ation, would fall under the Durisdiction of the Re)ional &rial
Courts, thus ne)atin) the fears of the petitioners. 2ndeed, an e6a'ination of the provision indicates that it can
0e relied upon as Durisdictional 0asis with respect to actions for enforce'ent of forei)n Dud)'ents, provided
that no other court or office is vested Durisdiction over such co'plaint-
3ec. 8%. "urisdiction in civil cases. U Re)ional &rial Courts shall e6ercise e6clusive ori)inal
Durisdiction-
666
(L 2n all cases not within the e6clusive Durisdiction of an* court, tri0unal, person or 0od* e6ercisin)
Durisdiction or an* court, tri0unal, person or 0od* e6ercisin) Dudicial or 7uasi!Dudicial functions.
&hus, we are co'forta0le in assertin) the o0vious, that the co'plaint to enforce the 53 1istrict Court
Dud)'ent is one capa0le of pecuniar* esti'ation. ,ut at the sa'e ti'e, it is also an action 0ased on Dud)'ent
a)ainst an estate, thus placin) it 0e*ond the a'0it of 3ection 7(a of Rule 8F8. What provision then )overns
the proper co'putation of the filin) fees over the instant co'plaintN /or this case and other si'ilarl* situated
instances, we find that it is covered 0* 3ection 7(0(E, involvin) as it does, 4other actions not involvin)
propert*.4
$ota0l*, the a'ount paid as doc@et fees 0* the petitioners on the pre'ise that it was an action incapa0le of
pecuniar* esti'ation corresponds to the sa'e a'ount re7uired for 4other actions not involvin) propert*.4 &he
petitioners thus paid the correct a'ount of filin) fees, and it was a )rave a0use of discretion for respondent
Dud)e to have applied instead a clearl* inapplica0le rule and dis'issed the co'plaint.
&here is another consideration of supre'e relevance in this case, one which should disa0use the notion that
the doctrine affir'ed in this decision is )rounded solel* on the letter of the procedural rule. We earlier
adverted to the the internationall* reco)niAed polic* of preclusion, as well as the principles of co'it*, utilit*
and convenience of nations as the 0asis for the evolution of the rule callin) for the reco)nition and
enforce'ent of forei)n Dud)'ents. &he 53 3upre'e Court in Hilton v. )uyot relied heavil* on the concept of
co'it*, as especiall* derived fro' the land'ar@ treatise of +ustice 3tor* in his Co''entaries on the Conflict
of 9aws of 88EF. ?et the notion of 4co'it*4 has since 0een criticiAed as one 4of di' contours4 or sufferin) fro'
a nu'0er of fallacies. #ther conceptual 0ases for the reco)nition of forei)n Dud)'ents have evolved such as
the vested ri)hts theor* or the 'odern doctrine of o0li)ation.
&here have 0een atte'pts to codif* throu)h treaties or 'ultilateral a)ree'ents the standards for the
reco)nition and enforce'ent of forei)n Dud)'ents, 0ut these have not 0orne fruition. &he 'e'0ers of the
(uropean Co''on Mar@et accede to the "udgments Convention, si)ned in 8%78, which eli'inates as to
participatin) countries all of such o0stacles to reco)nition such as reciprocit* and r0vision au fond. &he 'ost
a'0itious of these atte'pts is the Convention on the ecognition and ,nforcement of %oreign "udgments in
Civil and Commercial (atters, prepared in 8%LL 0* the .a)ue Conference of 2nternational 9aw. While it has
not received the ratifications needed to have it ta@e effect, it is reco)niAed as representin) current scholarl*
thou)ht on the topic. $either the Philippines nor the 5nited 3tates are si)natories to the Convention.
?et even if there is no unani'it* as to the applica0le theor* 0ehind the reco)nition and enforce'ent of forei)n
Dud)'ents or a universal treat* renderin) it o0li)ator* force, there is consensus that the via0ilit* of such
reco)nition and enforce'ent is essential. 3teiner and :a)ts note-
FE
. . . &he notion of unconnected 0odies of national law on private international law, each followin) a
7uite separate path, is not one conducive to the )rowth of a transnational co''unit* encoura)in)
travel and co''erce a'on) its 'e'0ers. &here is a conte'porar* resur)ence of writin) stressin) the
identit* or si'ilarit* of the values that s*ste's of pu0lic and private international law see@ to further B
a co''unit* interest in co''on, or at least reasona0le, rules on these 'atters in national le)al
s*ste's. And such )eneric principles as reciprocit* pla* an i'portant role in 0oth fields.
3alon)a, whose treatise on private international law is of worldwide renown, points out-
Whatever 0e the theor* as to the 0asis for reco)niAin) forei)n Dud)'ents, there can 0e little dispute
that the end is to protect the reasona0le e6pectations and de'ands of the parties. Where the parties
have su0'itted a 'atter for adDudication in the court of one state, and proceedin)s there are not
tainted with irre)ularit*, the* 'a* fairl* 0e e6pected to su0'it, within the state or elsewhere, to the
enforce'ent of the Dud)'ent issued 0* the court.
&here is also consensus as to the re7uisites for reco)nition of a forei)n Dud)'ent and the defenses a)ainst
the enforce'ent thereof. As earlier discussed, the e6ceptions enu'erated in 3ection F8, Rule E% have re'ain
unchan)ed since the ti'e the* were adapted in this Durisdiction fro' lon) standin) A'erican rules. &he
re7uisites and e6ceptions as delineated under 3ection F8 are 0ut a restate'ent of )enerall* accepted
principles of international law. 3ection %8 of &he Restate'ent, 3econd, Conflict of 9aws, states that 4a valid
Dud)'ent rendered in a forei)n nation after a fair trial in a contested proceedin) will 0e reco)niAed in the
5nited 3tates,4 and on its face, the ter' 4valid4 0rin)s into pla* re7uire'ents such notions as valid Durisdiction
over the su0Dect 'atter and parties. 3i'ilarl*, the notion that fraud or collusion 'a* preclude the enforce'ent
of a forei)n Dud)'ent finds affir'ation with forei)n Durisprudence and co''entators, as well as the doctrine
that the forei)n Dud)'ent 'ust not constitute 4a clear 'ista@e of law or fact.4 And finall*, it has 0een
reco)niAed that 4pu0lic polic*4 as a defense to the reco)nition of Dud)'ents serves as an u'0rella for a
variet* of concerns in international practice which 'a* lead to a denial of reco)nition.
&he via0ilit* of the pu0lic polic* defense a)ainst the enforce'ent of a forei)n Dud)'ent has 0een reco)niAed
in this Durisdiction. &his defense allows for the application of local standards in reviewin) the forei)n Dud)'ent,
especiall* when such Dud)'ent creates onl* a presu'ptive ri)ht, as it does in cases wherein the Dud)'ent is
a)ainst a person. &he defense is also reco)niAed within the international sphere, as 'an* civil law nations
adhere to a 0road pu0lic polic* e6ception which 'a* result in a denial of reco)nition when the forei)n court, in
the li)ht of the choice!of!law rules of the reco)niAin) court, applied the wron) law to the case. &he pu0lic
polic* defense can safe)uard a)ainst possi0le a0uses to the eas* resort to offshore liti)ation if it can 0e
de'onstrated that the ori)inal clai' is no6ious to our constitutional values.
&here is no o0li)ator* rule derived fro' treaties or conventions that re7uires the Philippines to reco)niAe
forei)n Dud)'ents, or allow a procedure for the enforce'ent thereof. .owever, )enerall* accepted principles
of international law, 0* virtue of the incorporation clause of the Constitution, for' part of the laws of the land
even if the* do not derive fro' treat* o0li)ations. &he classical for'ulation in international law sees those
custo'ar* rules accepted as 0indin) result fro' the co'0ination two ele'ents- the esta0lished, widespread,
and consistent practice on the part of 3tates< and a ps*cholo)ical ele'ent @nown as the opinion 1uris sive
necessitates (opinion as to law or necessit*. 2'plicit in the latter ele'ent is a 0elief that the practice in
7uestion is rendered o0li)ator* 0* the e6istence of a rule of law re7uirin) it.
While the definite conceptual para'eters of the reco)nition and enforce'ent of forei)n Dud)'ents have not
0een authoritativel* esta0lished, the Court can assert with certaint* that such an underta@in) is a'on) those
)enerall* accepted principles of international law. As earlier de'onstrated, there is a widespread practice
a'on) states acceptin) in principle the need for such reco)nition and enforce'ent, al0eit su0Dect to
li'itations of var*in) de)rees. &he fact that there is no 0indin) universal treat* )overnin) the practice is not
indicative of a widespread reDection of the principle, 0ut onl* a disa)ree'ent as to the i'posa0le specific rules
)overnin) the procedure for reco)nition and enforce'ent.
FF
Aside fro' the widespread practice, it is indu0ita0le that the procedure for reco)nition and enforce'ent is e'0odied in
the rules of law, whether statutor* or Durisprudential, adopted in various forei)n Durisdictions. 2n the Philippines, this is
evidenced pri'aril* 0* 3ection F8, Rule E% of the Rules of Court which has e6isted in its current for' since the earl*
8%00s. Certainl*, the Philippine le)al s*ste' has lon) a)o accepted into its Durisprudence and procedural rules the
via0ilit* of an action for enforce'ent of forei)n Dud)'ent, as well as the re7uisites for such valid enforce'ent, as derived
fro' internationall* accepted doctrines. A)ain, there 'a* 0e distinctions as to the rules adopted 0* each particular state,
0ut the* all prescind fro' the pre'ise that there is a rule of law o0li)in) states to allow for, however )enerall*, the
reco)nition and enforce'ent of a forei)n Dud)'ent. &he 0are principle, to our 'ind, has attained the status of opinio 1uris
in international practice.
&his is a si)nificant proposition, as it ac@nowled)es that the procedure and re7uisites outlined in 3ection F8, Rule E%
derive their efficac* not 'erel* fro' the procedural rule, 0ut 0* virtue of the incorporation clause of the Constitution.
Rules of procedure are pro'ul)ated 0* the 3upre'e Court, and could ver* well 0e a0ro)ated or revised 0* the hi)h
court itself. ?et the 3upre'e Court is o0li)ed, as are all 3tate co'ponents, to o0e* the laws of the land, includin)
)enerall* accepted principles of international law which for' part thereof, such as those ensurin) the 7ualified
reco)nition and enforce'ent of forei)n Dud)'ents.
&hus, relative to the enforce'ent of forei)n Dud)'ents in the Philippines, it e'er)es that there is a )eneral ri)ht
reco)niAed within our 0od* of laws, and affir'ed 0* the Constitution, to see@ reco)nition and enforce'ent of forei)n
Dud)'ents, as well as a ri)ht to defend a)ainst such enforce'ent on the )rounds of want of Durisdiction, want of notice to
the part*, collusion, fraud, or clear 'ista@e of law or fact.
&he preclusion of an action for enforce'ent of a forei)n Dud)'ent in this countr* 'erel* due to an e6hor0itant
assess'ent of doc@et fees is alien to )enerall* accepted practices and principles in international law. 2ndeed, there are
)rave concerns in conditionin) the a'ount of the filin) fee on the pecuniar* award or the value of the propert* su0Dect of
the forei)n decision. 3uch pecuniar* award will al'ost certainl* 0e in forei)n deno'ination, co'puted in accordance
with the applica0le laws and standards of the foru'. &he va)aries of inflation, as well as the relative low!inco'e capacit*
of the /ilipino, to date 'a* ver* well translate into an award virtuall* unenforcea0le in this countr*, despite its inte)ral
validit*, if the doc@et fees for the enforce'ent thereof were predicated on the a'ount of the award sou)ht to 0e
enforced. &he theor* adopted 0* respondent Dud)e and the Marcos (state 'a* even lead to a0surdities, such as if
applied to an award involvin) real propert* situated in places such as the 5nited 3tates or 3candinavia where real
propert* values are ine6ora0l* hi)h. We cannot ver* well re7uire that the filin) fee 0e co'puted 0ased on the value of
the forei)n propert* as deter'ined 0* the standards of the countr* where it is located.
As crafted, Rule 8F8 of the Rules of Civil Procedure avoids unreasona0leness, as it reco)niAes that the su0Dect 'atter of
an action for enforce'ent of a forei)n Dud)'ent is the forei)n Dud)'ent itself, and not the ri)ht!dut* correlatives that
resulted in the forei)n Dud)'ent. 2n this particular circu'stance, )iven that the co'plaint is lod)ed a)ainst an estate and
is 0ased on the 53 1istrict CourtQs %inal "udgment, this forei)n Dud)'ent 'a*, for purposes of classification under the
)overnin) procedural rule, 0e dee'ed as su0su'ed under 3ection 7(0(E of Rule 8F8, i.e., within the class of 4all other
actions not involvin) propert*.4 &hus, onl* the 0lan@et filin) fee of 'ini'al a'ount is re7uired.
/inall*, petitioners also invo@e 3ection 88, Article 222 of the Constitution, which states that 4G/Hree access to the courts and
7uasi!Dudicial 0odies and ade7uate le)al assistance shall not 0e denied to an* person 0* reason of povert*.4 3ince the
provision is a'on) the )uarantees ensured 0* the ,ill of Ri)hts, it certainl* )ives rise to a de'anda0le ri)ht. .owever,
now is not the occasion to ela0orate on the para'eters of this constitutional ri)ht. "iven our precedin) discussion, it is
not necessar* to utiliAe this provision in order to )rant the relief sou)ht 0* the petitioners. 2t is a6io'atic that the
constitutionalit* of an act will not 0e resolved 0* the courts if the controvers* can 0e settled on other )rounds or unless
the resolution thereof is indispensa0le for the deter'ination of the case.
#ne 'ore word. 2t 0ears notin) that 3ection F8, Rule E% ac@nowled)es that the %inal "udgment is not conclusive *et, 0ut
presu'ptive evidence of a ri)ht of the petitioners a)ainst the Marcos (state. Moreover, the Marcos (state is not
precluded to present evidence, if an*, of want of Durisdiction, want of notice to the part*, collusion, fraud, or clear 'ista@e
of law or fact. &his rulin), decisive as it is on the 7uestion of filin) fees and no other, does not render verdict on the
enforcea0ilit* of the %inal "udgment 0efore the courts under the Durisdiction of the Philippines, or for that 'atter an* other
issue which 'a* le)iti'atel* 0e presented 0efore the trial court. 3uch issues are to 0e liti)ated 0efore the trial court, 0ut
within the confines of the 'atters for proof as laid down in 3ection F8, Rule E%. #n the other hand, the speed* resolution
of this clai' 0* the trial court is encoura)ed, and contu'acious dela* of the decision on the 'erits will not 0e 0roo@ed 0*
this Court.
FJ
C@ERE8ORE, the petition is "RA$&(1. &he assailed orders are $5992/2(1 and 3(& A321(, and a new order
R(2$3&A&2$" Civil Case $o. %7!80J2 is here0* issued. $o costs. *O ORDERED.
G.R. No. 1?9D18 8ebr+%r4 1, 2011
7A6AN 5-NA, %1 re#re1e$&e, b4 Re#. *A.-R OCA5!O, Re#. CRI*!IN 7EL.RAN, %$, Re#. LIZA L.
5AZA, Petitioner,
vs.
AL7ER.O RO5-LO, i$ hi1 c%#%ci&4 %1 E;ec+&i0e *ecre&%r4, %$, 7LA* 8. O!LE, i$ hi1 c%#%ci&4 %1
*ecre&%r4 o 8orei2$ A%ir1, Respondents.
.he C%1e
&his petition for certiorari, 'anda'us and prohi0ition under Rule LJ assails and see@s to nullif* the $on!
3urrender A)ree'ent concluded 0* and 0etween the Repu0lic of the Philippines (RP and the 5nited 3tates
of A'erica (53A.
.he 8%c&1
Petitioner ,a*an Muna is a dul* re)istered part*!list )roup esta0lished to represent the 'ar)inaliAed sectors
of societ*. Respondent ,las /. #ple, now deceased, was the 3ecretar* of /orei)n Affairs durin) the period
'aterial to this case. Respondent Al0erto Ro'ulo was i'pleaded in his capacit* as then (6ecutive 3ecretar*.
Rome *&%&+&e o &he I$&er$%&io$%" Crimi$%" Co+r&
.avin) a @e* deter'inative 0earin) on this case is the Ro'e 3tatute esta0lishin) the 2nternational Cri'inal
Court (2CC with 4the power to e2ercise its 1urisdiction over persons for the most serious crimes of
international concern 6 6 6 and shall be complementary to the national criminal 1urisdictions.4 &he serious
cri'es adverted to cover those considered )rave under international law, such as )enocide, cri'es a)ainst
hu'anit*, war cri'es, and cri'es of a))ression.
#n 1ece'0er 28, 2000, the RP, throu)h Char)e dCAffaires (nri7ue A. Manalo, si)ned the Ro'e 3tatute
which, 0* its ter's, is 4su0Dect to ratification, acceptance or approval4 0* the si)nator* states. As of the filin)
of the instant petition, onl* %2 out of the 8E% si)nator* countries appear to have co'pleted the ratification,
approval and concurrence process. &he Philippines is not a'on) the %2.
R!3-* No$3*+rre$,er A2reeme$&
#n Ma* %, 200E, then A'0assador /rancis +. Ricciardone sent 53 ('0ass* $ote $o. 0F70 to the
1epart'ent of /orei)n Affairs (1/A proposin) the ter's of the non!surrender 0ilateral a)ree'ent
(Agreement, hereinafter 0etween the 53A and the RP.
:ia (6chan)e of $otes $o. ,/#!028!0E dated Ma* 8E, 200E ((I$ ,/#!028!0E, hereinafter, the RP,
represented 0* then 1/A 3ecretar* #ple, a)reed with and accepted the 53 proposals e'0odied under the
53 ('0ass* $ote adverted to and put in effect the Agreement with the 53 )overn'ent. 2n esse, the
Agreement ai's to protect what it refers to and defines as 4persons4 of the RP and 53 fro' frivolous and
harass'ent suits that 'i)ht 0e 0rou)ht a)ainst the' in international tri0unals. 2t is reflective of the increasin)
pace of the strate)ic securit* and defense partnership 0etween the two countries. As of Ma* 2, 200E, si'ilar
0ilateral a)ree'ents have 0een effected 0* and 0etween the 53 and EE other countries.
&he Agreement pertinentl* provides as follows-
FL
8. /or purposes of this A)ree'ent, 4persons4 are current or for'er "overn'ent officials, e'plo*ees
(includin) contractors, or 'ilitar* personnel or nationals of one Part*.
2. Persons of one Part* present in the territor* of the other shall not, a0sent the e6press consent of the
first Part*,
(a 0e surrendered or transferred 0* an* 'eans to an* international tri0unal for an* purpose,
unless such tri0unal has 0een esta0lished 0* the 5$ 3ecurit* Council, or
(0 0e surrendered or transferred 0* an* 'eans to an* other entit* or third countr*, or e6pelled
to a third countr*, for the purpose of surrender to or transfer to an* international tri0unal, unless
such tri0unal has 0een esta0lished 0* the 5$ 3ecurit* Council.
E. When the G53H e6tradites, surrenders, or otherwise transfers a person of the Philippines to a third
countr*, the G53H will not a)ree to the surrender or transfer of that person 0* the third countr* to an*
international tri0unal, unless such tri0unal has 0een esta0lished 0* the 5$ 3ecurit* Council, a0sent
the e6press consent of the "overn'ent of the Repu0lic of the Philippines G"RPH.
F. When the G"RPH e6tradites, surrenders, or otherwise transfers a person of the G53AH to a third
countr*, the G"RPH will not a)ree to the surrender or transfer of that person 0* the third countr* to an*
international tri0unal, unless such tri0unal has 0een esta0lished 0* the 5$ 3ecurit* Council, a0sent
the e6press consent of the "overn'ent of the G53H.
J. &his A)ree'ent shall re'ain in force until one *ear after the date on which one part* notifies the
other of its intent to ter'inate the A)ree'ent. &he provisions of this A)ree'ent shall continue to appl*
with respect to an* act occurrin), or an* alle)ation arisin), 0efore the effective date of ter'ination.
2n response to a 7uer* of then 3olicitor "eneral Alfredo 9. ,enipa*o on the status of the non!surrender
a)ree'ent, A'0assador Ricciardone replied in his letter of #cto0er 28, 200E that the e6chan)e of diplo'atic
notes constituted a le)all* 0indin) a)ree'ent under international law< and that, under 53 law, the said
a)ree'ent did not re7uire the advice and consent of the 53 3enate.
2n this proceedin), petitioner i'putes )rave a0use of discretion to respondents in concludin) and ratif*in) the
Agreement and pra*s that it 0e struc@ down as unconstitutional, or at least declared as without force and
effect.
/or their part, respondents 7uestion petitionerCs standin) to 'aintain a suit and counter that the Agreement,
0ein) in the nature of an e6ecutive a)ree'ent, does not re7uire 3enate concurrence for its efficac*. And for
reasons detailed in their co''ent, respondents assert the constitutionalit* of the Agreement.
.he I11+e1
2. W.(&.(R &.( GRPH PR(321($& A$1 &.( G1/AH 3(CR(&AR? 6 6 6 "RA:(9? A,53(1 &.(2R
123CR(&2#$ AM#5$&2$" &# 9AC= #R (>C(33 #/ +5R2312C&2#$ /#R C#$C9512$" &.(
R!3-* NON *-RRENDER AGREE5EN. ,? M(A$3 #/ G,34H B%'5678569 DA#,D :9 (A; 7669,
W.($ &.( P.292PP2$( "#:(R$M($& .A3 A9R(A1? 32"$(1 &.( '(, S#A#<#, '% #H,
=*CC> A9&.#5". &.23 23 P($12$" RA&2/2CA&2#$ ,? &.( P.292PP2$( 3($A&(.
A. Whether 0* enterin) into the 6 6 6 A2reeme$& Respondents )ravel* a0used their discretion
when the* capriciousl* a0andoned, waived and relin7uished our onl* le)iti'ate recourse
throu)h the ome Statute of the =*CC> to prosecute and tr* 4persons4 as defined in the 6 6 6
A2reeme$&, 6 6 6 or literall* an* conduit of A'erican interests, who have co''itted cri'es of
F7
)enocide, cri'es a)ainst hu'anit*, war cri'es and the cri'e of a))ression, there0* a0dicatin)
Philippine 3overei)nt*.
,. Whether after the si)nin) and pendin) ratification of the ome Statute of the =*CC> the GRPH
President and the G1/AH 3ecretar* 6 6 6 are o0li)ed 0* the principle of )ood faith to refrain fro'
doin) all acts which would su0stantiall* i'pair the value of the underta@in) as si)ned.
C. Whether the 6 6 6 A2reeme$& constitutes an act which defeats the o0Dect and purpose of
the ome Statute of the *nternational Criminal Court and contravenes the o0li)ation of )ood
faith inherent in the si)nature of the President affi6ed on the ome Statute of the *nternational
Criminal Court, and if so whether the 6 6 6 A2reeme$& is void and unenforcea0le on this
)round.
1. Whether the R!3-* No$3*+rre$,er A2reeme$& is void and unenforcea0le for )rave a0use
of discretion a'ountin) to lac@ or e6cess of Durisdiction in connection with its e6ecution.
22. W.(&.(R &.( R!3-* NON *-RRENDER AGREE5EN. 23 :#21 AB *4*#*' /#R
C#$&RAC&2$" #,92"A&2#$3 &.A& AR( (2&.(R 2MM#RA9 #R #&.(RW23( A& :AR2A$C(
W2&. 5$2:(R3A99? R(C#"$2;(1 PR2$C2P9(3 #/ 2$&(R$A&2#$A9 9AW.
222. W.(&.(R &.( 6 6 6 AGREE5EN. 23 :A921, ,2$12$" A$1 (//(C&2:( W2&.#5& &.(
C#$C5RR($C( ,? A& 9(A3& &W#!&.2R13 (2IE #/ A99 &.( M(M,(R3 #/ &.( 3($A&( 6 6
6.
&he fore)oin) issues 'a* 0e su''ariAed into two- first, whether or not the Agreement was contracted validl*,
which resolves itself into the 7uestion of whether or not respondents )ravel* a0used their discretion in
concludin) it< and second, whether or not the Agreement, which has not 0een su0'itted to the 3enate for
concurrence, contravenes and under'ines the Ro'e 3tatute and other treaties. ,ut 0ecause respondents
e6pectedl* raised it, we shall first tac@le the issue of petitionerCs le)al standin).
.he Co+r&E1 R+"i$2
&his petition is 0ereft of 'erit.
!roce,+r%" I11+eB Locus Standi o !e&i&io$er
Petitioner, throu)h its three part*!list representatives, contends that the issue of the validit* or invalidit* of the
Agreement carries with it constitutional si)nificance and is of para'ount i'portance that Dustifies its standin).
Cited in this re)ard is what is usuall* referred to as the e'er)enc* powers cases, in which ordinar* citiAens
and ta6pa*ers were accorded the personalit* to 7uestion the constitutionalit* of e6ecutive issuances.
9ocus standi is 4a ri)ht of appearance in a court of Dustice on a )iven 7uestion.4 3pecificall*, it is 4a part*Cs
personal and su0stantial interest in a case where he has sustained or will sustain direct inDur* as a result4 of
the act 0ein) challen)ed, and 4calls for 'ore than Dust a )eneraliAed )rievance.4 &he ter' 4interest4 refers to
'aterial interest, as distin)uished fro' one that is 'erel* incidental. &he rationale for re7uirin) a part* who
challen)es the validit* of a law or international a)ree'ent to alle)e such a personal sta@e in the outco'e of
the controvers* is 4to assure the concrete adverseness which sharpens the presentation of issues upon which
the court so lar)el* depends for illu'ination of difficult constitutional 7uestions.4
9ocus standi, however, is 'erel* a 'atter of procedure and it has 0een reco)niAed that, in so'e cases, suits
are not 0rou)ht 0* parties who have 0een personall* inDured 0* the operation of a law or an* other
)overn'ent act, 0ut 0* concerned citiAens, ta6pa*ers, or voters who actuall* sue in the pu0lic interest.
Conse7uentl*, in a catena of cases, this Court has invaria0l* adopted a li0eral stance on locus standi.
F8
"oin) 0* the petition, petitionerCs representatives pursue the instant suit pri'aril* as concerned citiAens
raisin) issues of transcendental i'portance, 0oth for the Repu0lic and the citiAenr* as a whole.
When suin) as a citiAen to 7uestion the validit* of a law or other )overn'ent action, a petitioner needs to
'eet certain specific re7uire'ents 0efore he can 0e clothed with standin). %rancisco, "r. v. 4agmamalasa?it
na mga (anananggol ng mga (anggagawang Pilipino, *nc. e6pounded on this re7uire'ent, thus-
2n a lon) line of cases, however, concerned citiAens, ta6pa*ers and le)islators when specific re7uire'ents
have 0een 'et have 0een )iven standin) 0* this Court.
When suin) as a citiAen, the interest of the petitioner assailin) the constitutionalit* of a statute 'ust 0e direct
and personal. .e 'ust 0e a0le to show, not onl* that the law or an* )overn'ent act is invalid, 0ut also that he
sustained or is in i''inent dan)er of sustainin) so'e direct inDur* as a result of its enforce'ent, and not
'erel* that he suffers there0* in so'e indefinite wa*. 2t 'ust appear that the person co'plainin) has 0een or
is a0out to 0e denied so'e ri)ht or privile)e to which he is lawfull* entitled or that he is a0out to 0e su0Dected
to so'e 0urdens or penalties 0* reason of the statute or act co'plained of. 2n fine, when the proceedin)
involves the assertion of a pu0lic ri)ht, the 'ere fact that he is a citiAen satisfies the re7uire'ent of personal
interest.
2n the case at 0ar, petitionerCs representatives have co'plied with the 7ualif*in) conditions or specific
re7uire'ents e6acted under the locus standi rule. As citiAens, their interest in the su0Dect 'atter of the petition
is direct and personal. At the ver* least, their assertions 7uestionin) the A)ree'ent are 'ade of a pu0lic ri)ht,
i.e., to ascertain that the Agreement did not )o a)ainst esta0lished national policies, practices, and o0li)ations
0earin) on the 3tateCs o0li)ation to the co''unit* of nations.
At an* event, the pri'ordial i'portance to /ilipino citiAens in )eneral of the issue at hand i'pels the Court to
0rush aside the procedural 0arrier posed 0* the traditional re7uire'ent of locus standi, as we have done in a
lon) line of earlier cases, nota0l* in the old 0ut oft!cited e'er)enc* powers cases and @ilosbayan v.
)uingona, "r. 2n cases of transcendental i'portance, we wrote a)ain in Bayan v. Aamora, 4&he Court 'a*
rela6 the standin) re7uire'ents and allow a suit to prosper even where there is no direct inDur* to the part*
clai'in) the ri)ht of Dudicial review.4
Moreover, 0earin) in 'ind what the Court said in #aBada v. Angara, 4that it will not shir@, di)ress fro' or
a0andon its sacred dut* and authorit* to uphold the Constitution in 'atters that involve )rave a0use of
discretion 0rou)ht 0efore it in appropriate cases, co''itted 0* an* officer, a)enc*, instru'entalit* or
depart'ent of the )overn'ent,4 we cannot 0ut resolve head on the issues raised 0efore us. 2ndeed, where an
action of an* 0ranch of )overn'ent is seriousl* alle)ed to have infrin)ed the Constitution or is done with
)rave a0use of discretion, it 0eco'es not onl* the ri)ht 0ut in fact the dut* of the Dudiciar* to settle it. As in this
petition, issues are precisel* raised puttin) to the fore the propriet* of the Agreement pendin) the ratification
of the Ro'e 3tatute.
V%"i,i&4 o &he R!3-* No$3*+rre$,er A2reeme$&
PetitionerCs initial challen)e a)ainst the Agreement relates to for', its threshold posture 0ein) that (I$ ,/#!
028!0E cannot 0e a valid 'ediu' for concludin) the Agreement.
PetitionersC contentionBBperhaps ta@en unaware of certain well!reco)niAed international doctrines, practices,
and Dar)onsBBis untena0le. #ne of these is the doctrine of incorporation, as e6pressed in 3ection 2, Article 22
of the Constitution, wherein the Philippines adopts the )enerall* accepted principles of international law and
international Durisprudence as part of the law of the land and adheres to the polic* of peace, cooperation, and
a'it* with all nations. An e6chan)e of notes falls 4into the cate)or* of inter!)overn'ental a)ree'ents,4 which
is an internationall* accepted for' of international a)ree'ent. &he 5nited $ations &reat* Collections (&reat*
Reference "uide defines the ter' as follows-
F%
An 4e6chan)e of notes4 is a record of a routine a)ree'ent, that has 'an* si'ilarities with the private law
contract. &he a)ree'ent consists of the e6chan)e of two docu'ents, each of the parties 0ein) in the
possession of the one si)ned 0* the representative of the other. 5nder the usual procedure, the acceptin)
3tate repeats the te6t of the offerin) 3tate to record its assent. &he si)natories of the letters 'a* 0e
)overn'ent Ministers, diplo'ats or depart'ental heads. &he techni7ue of e6chan)e of notes is fre7uentl*
resorted to, either 0ecause of its speed* procedure, or, so'eti'es, to avoid the process of le)islative
approval.
2n another perspective, the ter's 4e6chan)e of notes4 and 4e6ecutive a)ree'ents4 have 0een used
interchan)ea0l*, e6chan)e of notes 0ein) considered a for' of e6ecutive a)ree'ent that 0eco'es 0indin)
throu)h e6ecutive action. #n the other hand, e6ecutive a)ree'ents concluded 0* the President 4so'eti'es
ta@e the for' of e6chan)e of notes and at other ti'es that of 'ore for'al docu'ents deno'inated
Pa)ree'entsC or Pprotocols.C4 As for'er 53 .i)h Co''issioner to the Philippines /rancis ,. 3a*re o0served in
his wor@, #he Constitutionality of #rade Agreement Acts-
&he point where ordinar* correspondence 0etween this and other )overn'ents ends and a)ree'ents B
whether deno'inated e6ecutive a)ree'ents or e6chan)e of notes or otherwise B 0e)in, 'a* so'eti'es 0e
difficult of read* ascertain'ent. 6 6 6
2t is fairl* clear fro' the fore)oin) dis7uisition that (I$ ,/#!028!0EBB0e it viewed as the $on!3urrender
A)ree'ent itself, or as an inte)ral instru'ent of acceptance thereof or as consent to 0e 0oundBBis a
reco)niAed 'ode of concludin) a le)all* 0indin) international written contract a'on) nations.
*e$%&e Co$c+rre$ce No& ReF+ire,
Article 2 of the :ienna Convention on the 9aw of &reaties defines a treat* as 4an international a)ree'ent
concluded 0etween states in written for' and )overned 0* international law, whether e'0odied in a sin)le
instru'ent or in two or 'ore related instru'ents and whatever its particular desi)nation.4 2nternational
a)ree'ents 'a* 0e in the for' of (8 treaties that re7uire le)islative concurrence after e6ecutive ratification<
or (2 e6ecutive a)ree'ents that are si'ilar to treaties, e6cept that the* do not re7uire le)islative concurrence
and are usuall* less for'al and deal with a narrower ran)e of su0Dect 'atters than treaties.
5nder international law, there is no difference 0etween treaties and e6ecutive a)ree'ents in ter's of their
0indin) effects on the contractin) states concerned, as lon) as the ne)otiatin) functionaries have re'ained
within their powers. $either, on the do'estic sphere, can one 0e held valid if it violates the Constitution.
Authorities are, however, a)reed that one is distinct fro' another for accepted reasons apart fro' the
concurrence!re7uire'ent aspect. As has 0een o0served 0* 53 constitutional scholars, a treat* has )reater
4di)nit*4 than an e6ecutive a)ree'ent, 0ecause its constitutional efficac* is 0e*ond dou0t, a treat* havin)
0ehind it the authorit* of the President, the 3enate, and the people< a ratified treat*, unli@e an e6ecutive
a)ree'ent, ta@es precedence over an* prior statutor* enact'ent.
Petitioner parla*s the notion that the Agreement is of du0ious validit*, parta@in) as it does of the nature of a
treat*< hence, it 'ust 0e dul* concurred in 0* the 3enate. Petitioner ta@es a cue fro' Commissioner of
Customs v. ,astern Sea #rading, in which the Court reproduced the followin) o0servations 'ade 0* 53 le)al
scholars- 4G2Hnternational a)ree'ents involvin) political issues or chan)es of national polic* and those
involvin) international arran)e'ents of a per'anent character usuall* ta@e the for' of treaties GwhileH those
e'0od*in) adDust'ents of detail carr*in) out well esta0lished national policies and traditions and those
involvin) arran)e'ents of a 'ore or less te'porar* nature ta@e the for' of e6ecutive a)ree'ents.4
Pressin) its point, petitioner su0'its that the su0Dect of the Agreement does not fall under an* of the su0Dect!
cate)ories that are enu'erated in the ,astern Sea #rading case, and that 'a* 0e covered 0* an e6ecutive
a)ree'ent, such as co''ercialIconsular relations, 'ost!favored nation ri)hts, patent ri)hts, trade'ar@ and
cop*ri)ht protection, postal and navi)ation arran)e'ents and settle'ent of clai's.
J0
2n addition, petitioner foists the applica0ilit* to the instant case of Adolfo v. C%* of Aambales and (erchant,
F8
holdin) that an e6ecutive a)ree'ent throu)h an e6chan)e of notes cannot 0e used to a'end a treat*.
We are not persuaded.
&he cate)oriAation of su0Dect 'atters that 'a* 0e covered 0* international a)ree'ents 'entioned in ,astern
Sea #rading is not cast in stone. &here are no hard and fast rules on the propriet* of enterin), on a )iven
su0Dect, into a treat* or an e6ecutive a)ree'ent as an instru'ent of international relations. &he pri'ar*
consideration in the choice of the for' of a)ree'ent is the partiesC intent and desire to craft an international
a)ree'ent in the for' the* so wish to further their respective interests. :eril*, the 'atter of for' ta@es a 0ac@
seat when it co'es to effectiveness and 0indin) effect of the enforce'ent of a treat* or an e6ecutive
a)ree'ent, as the parties in either international a)ree'ent each la0or under the pacta sunt servanda
principle.
As 'a* 0e noted, al'ost half a centur* has elapsed since the Court rendered its decision in ,astern Sea
#rading. 3ince then, the conduct of forei)n affairs has 0eco'e 'ore co'ple6 and the do'ain of international
law wider, as to include such su0Dects as hu'an ri)hts, the environ'ent, and the sea. 2n fact, in the 53 alone,
the e6ecutive a)ree'ents e6ecuted 0* its President fro' 8%80 to 2000 covered su0Dects such as defense,
trade, scientific cooperation, aviation, ato'ic ener)*, environ'ental cooperation, peace corps, ar's li'itation,
and nuclear safet*, a'on) others. 3urel*, the enu'eration in ,astern Sea #rading cannot circu'scri0e the
option of each state on the 'atter of which the international a)ree'ent for'at would 0e convenient to serve
its 0est interest. As /rancis 3a*re said in his wor@ referred to earlier-
6 6 6 2t would 0e useless to underta@e to discuss here the lar)e variet* of e6ecutive a)ree'ents as such
concluded fro' ti'e to ti'e. .undreds of e6ecutive a)ree'ents, other than those entered into under the
trade!a)ree'ent act, have 0een ne)otiated with forei)n )overn'ents. 6 6 6 &he* cover such su0Dects as the
inspection of vessels, navi)ation dues, inco'e ta6 on shippin) profits, the ad'ission of civil air craft, custo'
'atters and co''ercial relations )enerall*, international clai's, postal 'atters, the re)istration of trade'ar@s
and cop*ri)hts, etc. 6 6 6
And lest it 0e overloo@ed, one t*pe of e6ecutive a)ree'ent is a treat*!authoriAed or a treat*!i'ple'entin)
e6ecutive a)ree'ent, which necessaril* would cover the sa'e 'atters su0Dect of the underl*in) treat*.
,ut over and a0ove the fore)oin) considerations is the fact thatBBsave for the situation and 'atters
conte'plated in 3ec. 2J, Art. >:222 of the ConstitutionBBwhen a treat* is re7uired, the Constitution does not
classif* an* su0Dect, li@e that involvin) political issues, to 0e in the for' of, and ratified as, a treat*. What the
Constitution 'erel* prescri0es is that treaties need the concurrence of the 3enate 0* a vote defined therein to
co'plete the ratification process.
PetitionerCs reliance on Adolfo is 'isplaced, said case 0ein) inapplica0le owin) to different factual 'ilieus.
&here, the Court held that an e6ecutive a)ree'ent cannot 0e used to a'end a dul* ratified and e6istin)
treat*, i.e., the ,ases &reat*. 2ndeed, an e6ecutive a)ree'ent that does not re7uire the concurrence of the
3enate for its ratification 'a* not 0e used to a'end a treat* that, under the Constitution, is the product of the
ratif*in) acts of the (6ecutive and the 3enate. &he presence of a treat*, purportedl* 0ein) su0Dect to
a'end'ent 0* an e6ecutive a)ree'ent, does not o0tain under the pre'ises.
Considerin) the a0ove discussion, the Court need not 0ela0or at len)th the third 'ain issue raised, referrin)
to the validit* and effectivit* of the Agreement without the concurrence 0* at least two!thirds of all the
'e'0ers of the 3enate. &he Court has, in ,astern Sea #rading, as reiterated in Bayan, )iven reco)nition to
the o0li)ator* effect of e6ecutive a)ree'ents without the concurrence of the 3enate-
6 6 6 G&Hhe ri)ht of the (6ecutive to enter into 0indin) a)ree'ents without the necessit* of su0se7uent
Con)ressional approval has 0een confir'ed 0* lon) usa)e. /ro' the earliest da*s of our histor*, we have
J8
entered e6ecutive a)ree'ents coverin) such su0Dects as co''ercial and consular relations, 'ost favored!
nation ri)hts, patent ri)hts, trade'ar@ and cop*ri)ht protection, postal and navi)ation arran)e'ents and the
settle'ent of clai's. &he validit* of these has never 0een seriousl* 7uestioned 0* our courts.
.he A2reeme$& No& i$ Co$&r%0e$&io$ o &he Rome *&%&+&e
2t is the petitionerCs ne6t contention that the Agreement under'ines the esta0lish'ent of the 2CC and is null
and void insofar as it undul* restricts the 2CCCs Durisdiction and infrin)es upon the effectivit* of the Ro'e
3tatute. Petitioner posits that the Agreement was constituted solel* for the purpose of providin) individuals or
)roups of individuals with i''unit* fro' the Durisdiction of the 2CC< and such )rant of i''unit* throu)h non!
surrender a)ree'ents alle)edl* does not le)iti'atel* fall within the scope of Art. %8 of the Ro'e 3tatute. 2t
concludes that state parties with non!surrender a)ree'ents are prevented fro' 'eetin) their o0li)ations
under the Ro'e 3tatute, there0* constitutin) a 0reach of Arts. 27, 8L, 8% and %0 thereof.
Petitioner stresses that the overall o0Dect and purpose of the Ro'e 3tatute is to ensure that those responsi0le
for the worst possi0le cri'es are 0rou)ht to Dustice in all cases, pri'aril* 0* states, 0ut as a last resort, 0* the
2CC< thus, an* a)ree'entUli@e the non!surrender a)ree'entUthat precludes the 2CC fro' e6ercisin) its
co'ple'entar* function of actin) when a state is una0le to or unwillin) to do so, defeats the o0Dect and
purpose of the Ro'e 3tatute.
Petitioner would add that the President and the 1/A 3ecretar*, as representatives of a si)nator* of the Ro'e
3tatute, are o0li)ed 0* the i'peratives of )ood faith to refrain fro' perfor'in) acts that su0stantiall* devalue
the purpose and o0Dect of the 3tatute, as si)ned. Addin) a nullif*in) in)redient to the Agreement, accordin) to
petitioner, is the fact that it has an i''oral purpose or is otherwise at variance with a priorl* e6ecuted treat*.
Contrar* to petitionerCs pretense, the Agreement does not contravene or under'ine, nor does it differ fro',
the Ro'e 3tatute. /ar fro' )oin) a)ainst each other, one co'ple'ents the other. As a 'atter of fact, the
principle of co'ple'entarit* underpins the creation of the 2CC. As aptl* pointed out 0* respondents and
ad'itted 0* petitioners, the Durisdiction of the 2CC is to 40e co'ple'entar* to national cri'inal Durisdictions Gof
the si)nator* statesH.4 Art. 8 of the Ro'e 3tatute pertinentl* provides-
Article 8 &he Court
An 2nternational Cri'ininal Court (4the Court4 is here0* esta0lished. 2t 6 6 6 1h%"" h%0e &he #o9er &o
e;erci1e i&1 >+ri1,ic&io$ over persons for the 'ost serious cri'es of international concern, as referred to in
this 3tatute, and 1h%"" be com#"eme$&%r4 &o $%&io$%" crimi$%" >+ri1,ic&io$1. &he Durisdiction and
functionin) of the Court shall 0e )overned 0* the provisions of this 3tatute. (('phasis ours.
3i)nificantl*, the si6th prea'0ular para)raph of the Ro'e 3tatute declares that 4it is the dut* of ever* 3tate to
e6ercise its cri'inal Durisdiction over those responsi0le for international cri'es.4 &his provision indicates that
pri'ar* Durisdiction over the so!called international cri'es rests, at the first instance, with the state where the
cri'e was co''itted< secondaril*, with the 2CC in appropriate situations conte'plated under Art. 87, par. 8 of
the Ro'e 3tatute.
#f particular note is the application of the principle of ne bis in idem under par. E of Art. 20, Ro'e 3tatute,
which a)ain underscores the pri'ac* of the Durisdiction of a state vis!a!vis that of the 2CC. As far as relevant,
the provision states that 4no person who has 0een tried 0* another court for conduct 6 6 6 Gconstitutin) cri'es
within its DurisdictionH shall 0e tried 0* the G2nternational Cri'inalH Court with respect to the sa'e conduct 6 6
6.4
&he fore)oin) provisions of the Ro'e 3tatute, ta@en collectivel*, ar)ue a)ainst the idea of Durisdictional
conflict 0etween the Philippines, as part* to the non!surrender a)ree'ent, and the 2CC< or the idea of the
A)ree'ent su0stantiall* i'pairin) the value of the RPCs underta@in) under the Ro'e 3tatute. 2)norin) for a
J2
while the fact that the RP si)ned the Ro'e 3tatute ahead of the Agreement, it is a0undantl* clear to us that
the Ro'e 3tatute e6pressl* reco)niAes the pri'ar* Durisdiction of states, li@e the RP, over serious cri'es
co''itted within their respective 0orders, the co'ple'entar* Durisdiction of the 2CC co'in) into pla* onl*
when the si)nator* states are unwillin) or una0le to prosecute.
"iven the a0ove consideration, petitionerCs su))estionBBthat the RP, 0* enterin) into the Agreement, violated
its dut* re7uired 0* the i'peratives of )ood faith and 0reached its co''it'ent under the :ienna Convention
J7
to refrain fro' perfor'in) an* act tendin) to i'pair the value of a treat*, e.)., the Ro'e 3tatuteBBhas to 0e
reDected outri)ht. /or nothin) in the provisions of the Agreement, in relation to the Ro'e 3tatute, tends to
di'inish the efficac* of the 3tatute, let alone defeats the purpose of the 2CC. 9est it 0e overloo@ed, the Ro'e
3tatute contains a proviso that enDoins the 2CC fro' see@in) the surrender of an errin) person, should the
process re7uire the re7uested state to perfor' an act that would violate so'e international a)ree'ent it has
entered into. We refer to Art. %8(2 of the Ro'e 3tatute, which reads-
Article %8 Cooperation with respect to waiver of i''unit* and consent to surrender
6 6 6 6
2. &he Court 'a* not proceed with a re7uest for surrender which would re7uire the re7uested 3tate to act
inconsistentl* with its o0li)ations under international a)ree'ents pursuant to which the consent of a sendin)
3tate is re7uired to surrender a person of that 3tate to the Court, unless the Court can first o0tain the
cooperation of the sendin) 3tate for the )ivin) of consent for the surrender.
Moreover, under international law, there is a considera0le difference 0etween a 3tate!Part* and a si)nator* to
a treat*. 5nder the :ienna Convention on the 9aw of &reaties, a si)nator* state is onl* o0li)ed to refrain fro'
acts which would defeat the o0Dect and purpose of a treat*< whereas a 3tate!Part*, on the other hand, is
le)all* o0li)ed to follow all the provisions of a treat* in )ood faith.
2n the instant case, it 0ears stressin) that the Philippines is onl* a si)nator* to the Ro'e 3tatute and not a
3tate!Part* for lac@ of ratification 0* the 3enate. &hus, it is onl* o0li)ed to refrain fro' acts which would
defeat the o0Dect and purpose of the Ro'e 3tatute. An* ar)u'ent o0li)in) the Philippines to follow an*
provision in the treat* would 0e pre'ature.
As a result, petitionerCs ar)u'ent that 3tate!Parties with non!surrender a)ree'ents are prevented fro'
'eetin) their o0li)ations under the Ro'e 3tatute, specificall* Arts. 27, 8L, 8% and %0, 'ust fail. &hese articles
are onl* le)all* 0indin) upon 3tate!Parties, not si)natories.
/urther'ore, a careful readin) of said Art. %0 would show that the A)ree'ent is not inco'pati0le with the
Ro'e 3tatute. 3pecificall*, Art. %0(F provides that 4GiHf the re7uestin) 3tate is a 3tate not Part* to this 3tatute
the re7uested 3tate, if it is not under an international o0li)ation to e6tradite the person to the re7uestin) 3tate,
shall )ive priorit* to the re7uest for surrender fro' the Court. 6 6 64 2n appl*in) the provision, certain
undisputed facts should 0e pointed out- first, the 53 is neither a 3tate!Part* nor a si)nator* to the Ro'e
3tatute< and second, there is an international a)ree'ent 0etween the 53 and the Philippines re)ardin)
e6tradition or surrender of persons, i.e., the A)ree'ent. Clearl*, even assu'in) that the Philippines is a
3tate!Part*, the Ro'e 3tatute still reco)niAes the pri'ac* of international a)ree'ents entered into 0etween
3tates, even when one of the 3tates is not a 3tate!Part* to the Ro'e 3tatute.
*o0erei2$&4 Limi&e, b4 I$&er$%&io$%" A2reeme$&1
Petitioner ne6t ar)ues that the RP has, throu)h the Agreement, a0dicated its soverei)nt* 0* 0ar)ainin) awa*
the Durisdiction of the 2CC to prosecute 53 nationals, )overn'ent officialsIe'plo*ees or 'ilitar* personnel
who co''it serious cri'es of international concerns in the Philippines. /or'ulatin) petitionerCs ar)u'ent a
0it differentl*, the RP, 0* enterin) into the Agreement, does there0* a0dicate its soverei)nt*, a0dication 0ein)
JE
done 0* its waivin) or a0andonin) its ri)ht to see@ recourse throu)h the Ro'e 3tatute of the 2CC for errin)
A'ericans co''ittin) international cri'es in the countr*.
We are not persuaded. As it were, the Agreement is 0ut a for' of affir'ance and confir'ance of the
PhilippinesC national cri'inal Durisdiction. $ational cri'inal Durisdiction 0ein) pri'ar*, as e6plained a0ove, it is
alwa*s the responsi0ilit* and within the prero)ative of the RP either to prosecute cri'inal offenses e7uall*
covered 0* the Ro'e 3tatute or to accede to the Durisdiction of the 2CC. &hus, the Philippines 'a* decide to
tr* 4persons4 of the 53, as the ter' is understood in the Agreement, under our national cri'inal Dustice
s*ste'. #r it 'a* opt not to e6ercise its cri'inal Durisdiction over its errin) citiAens or over 53 4persons4
co''ittin) hi)h cri'es in the countr* and defer to the secondar* cri'inal Durisdiction of the 2CC over the'. As
to 4persons4 of the 53 who' the Philippines refuses to prosecute, the countr* would, in effect, accord
discretion to the 53 to e6ercise either its national cri'inal Durisdiction over the 4person4 concerned or to )ive
its consent to the referral of the 'atter to the 2CC for trial. 2n the sa'e 0reath, the 53 'ust e6tend the sa'e
privile)e to the Philippines with respect to 4persons4 of the RP co''ittin) hi)h cri'es within 53 territorial
Durisdiction.
2n the conte6t of the Constitution, there can 0e no serious o0Dection to the Philippines a)reein) to underta@e
the thin)s set forth in the Agreement. 3urel*, one 3tate can a)ree to waive DurisdictionUto the e6tent a)reed
uponUto su0Dects of another 3tate due to the reco)nition of the principle of e6traterritorial i''unit*. What the
Court wrote in 4icolas v. omuloUa case involvin) the i'ple'entation of the cri'inal Durisdiction provisions
of the RP!53 :isitin) /orces A)ree'entUis apropos-
$othin) in the Constitution prohi0its such a)ree'ents reco)niAin) i''unit* fro' Durisdiction or so'e aspects
of Durisdiction (such as custod*, in relation to lon)!reco)niAed su0Dects of such i''unit* li@e .eads of 3tate,
diplo'ats and 'e'0ers of the ar'ed forces contin)ents of a forei)n 3tate allowed to enter another 3tateCs
territor*. 6 6 6
&o 0e sure, the nullit* of the su0Dect non!surrender a)ree'ent cannot 0e predicated on the postulate that
so'e of its provisions constitute a virtual a0dication of its soverei)nt*. Al'ost ever* ti'e a state enters into
an international a)ree'ent, it voluntaril* sheds off part of its soverei)nt*. &he Constitution, as drafted, did not
envision a reclusive Philippines isolated fro' the rest of the world. 2t even adheres, as earlier stated, to the
polic* of cooperation and a'it* with all nations.
,* their nature, treaties and international a)ree'ents actuall* have a li'itin) effect on the otherwise
enco'passin) and a0solute nature of soverei)nt*. ,* their voluntar* act, nations 'a* decide to surrender or
waive so'e aspects of their state power or a)ree to li'it the e6ercise of their otherwise e6clusive and
a0solute Durisdiction. &he usual underl*in) consideration in this partial surrender 'a* 0e the )reater 0enefits
derived fro' a pact or a reciprocal underta@in) of one contractin) part* to )rant the sa'e privile)es or
i''unities to the other. #n the rationale that the Philippines has adopted the )enerall* accepted principles of
international law as part of the law of the land, a portion of soverei)nt* 'a* 0e waived without violatin) the
Constitution. 3uch waiver does not a'ount to an unconstitutional di'inution or deprivation of Durisdiction of
Philippine courts.
A2reeme$& No& Immor%"=No& %& V%ri%$ce 9i&h !ri$ci#"e1 o I$&er$%&io$%" L%9
Petitioner ur)es that the Agreement 0e struc@ down as void ab initio for i'posin) i''oral o0li)ations andIor
0ein) at variance with alle)edl* universall* reco)niAed principles of international law. &he i''oral aspect
proceeds fro' the fact that the Agreement, as petitioner would put it, 4leaves cri'inals i''une fro'
responsi0ilit* for uni'a)ina0le atrocities that deepl* shoc@ the conscience of hu'anit*< 6 6 6 it precludes our
countr* fro' deliverin) an A'erican cri'inal to the G2CCH 6 6 6.4
JF
&he a0ove ar)u'ent is a @ind of rec*clin) of petitionerCs earlier position, which, as alread* discussed,
contends that the RP, 0* enterin) into the Agreement, virtuall* a0dicated its soverei)nt* and in the process
under'ined its treat* o0li)ations under the Ro'e 3tatute, contrar* to international law principles.
&he Court is not persuaded. 3uffice it to state in this re)ard that the non!surrender a)ree'ent, as aptl*
descri0ed 0* the 3olicitor "eneral, 4is an assertion 0* the Philippines of its desire to tr* and punish cri'es
under its national law. 6 6 6 &he a)ree'ent is a reco)nition of the pri'ac* and co'petence of the countr*Cs
Dudiciar* to tr* offenses under its national cri'inal laws and dispense Dustice fairl* and Dudiciousl*.4
Petitioner, we 0elieve, la0ors under the erroneous i'pression that the A)ree'ent would allow /ilipinos and
A'ericans co''ittin) hi)h cri'es of international concern to escape cri'inal trial and punish'ent. &his is
'anifestl* incorrect. Persons who 'a* have co''itted acts penaliAed under the Ro'e 3tatute can 0e
prosecuted and punished in the Philippines or in the 53< or with the consent of the RP or the 53, 0efore the
2CC, assu'in), for the nonce, that all the for'alities necessar* to 0ind 0oth countries to the Ro'e 3tatute
have 0een 'et. /or perspective, what the Agreement conte6tuall* prohi0its is the surrender 0* either part* of
individuals to international tri0unals, li@e the 2CC, without the consent of the other part*, which 'a* desire to
prosecute the cri'e under its e6istin) laws. With the view we ta@e of thin)s, there is nothin) i''oral or
violative of international law concepts in the act of the Philippines of assu'in) cri'inal Durisdiction pursuant to
the non!surrender a)ree'ent over an offense considered cri'inal 0* 0oth Philippine laws and the Ro'e
3tatute.
No Gr%0e Ab+1e o Di1cre&io$
PetitionerCs final point revolves around the necessit* of the 3enateCs concurrence in the A)ree'ent. And
without specificall* sa*in) so, petitioner would ar)ue that the non!surrender a)ree'ent was e6ecuted 0* the
President, thru the 1/A 3ecretar*, in )rave a0use of discretion.
&he Court need not delve on and 0ela0or the first portion of the a0ove posture of petitioner, the sa'e havin)
0een discussed at len)th earlier on. As to the second portion, We wish to state that petitioner virtuall* faults
the President for perfor'in), throu)h respondents, a tas@ conferred the President 0* the ConstitutionUthe
power to enter into international a)ree'ents.
,* constitutional fiat and 0* the nature of his or her office, the President, as head of state and )overn'ent, is
the sole or)an and authorit* in the e6ternal affairs of the countr*. &he Constitution vests in the President the
power to enter into international a)ree'ents, su0Dect, in appropriate cases, to the re7uired concurrence votes
of the 3enate. ,ut as earlier indicated, e6ecutive a)ree'ents 'a* 0e validl* entered into without such
concurrence. As the President wields vast powers and influence, her conduct in the e6ternal affairs of the
nation is, as ,a*an would put it, 4e6ecutive alto)ether.4 &he ri)ht of the President to enter into or ratif* 0indin)
e6ecutive a)ree'ents has 0een confir'ed 0* lon) practice.
2n thus a)reein) to conclude the Agreement thru (I$ ,/#!028!0E, then President "loria Macapa)al!Arro*o,
represented 0* the 3ecretar* of /orei)n Affairs, acted within the scope of the authorit* and discretion vested
in her 0* the Constitution. At the end of the da*, the PresidentBB0* ratif*in), thru her deputies, the non!
surrender a)ree'entBBdid nothin) 'ore than dischar)e a constitutional dut* and e6ercise a prero)ative that
pertains to her office.
While the issue of ratification of the Ro'e 3tatute is not deter'inative of the other issues raised herein, it 'a*
perhaps 0e pertinent to re'ind all and sundr* that a0out the ti'e this petition was interposed, such issue of
ratification was laid to rest in Pimentel, "r. v. 'ffice of the ,2ecutive Secretary. As the Court e'phasiAed in
said case, the power to ratif* a treat*, the 3tatute in that instance, rests with the President, su0Dect to the
concurrence of the 3enate, whose role relative to the ratification of a treat* is li'ited 'erel* to concurrin) in
or withholdin) the ratification. And conco'itant with this treat*!'a@in) power of the President is his or her
prero)ative to refuse to su0'it a treat* to the 3enate< or havin) secured the latterCs consent to the ratification
JJ
of the treat*, refuse to ratif* it. &his prero)ative, the Court hastened to add, is the PresidentCs alone and
cannot 0e encroached upon via a writ of 'anda'us. ,arrin) intervenin) events, then, the Philippines re'ains
to 0e Dust a si)nator* to the Ro'e 3tatute. 5nder Art. 82J thereof, the final acts re7uired to co'plete the
treat* process and, thus, 0rin) it into force, insofar as the Philippines is concerned, have *et to 0e done.
A2reeme$& Nee, No& 7e i$ &he 8orm o % .re%&4
#n 1ece'0er 88, 200%, then President Arro*o si)ned into law Repu0lic Act $o. (RA %8J8, otherwise @nown
as the 4Philippine Act on Cri'es A)ainst 2nternational .u'anitarian 9aw, "enocide, and #ther Cri'es
A)ainst .u'anit*.4 3ec. 87 of RA %8J8, particularl* the second para)raph thereof, provides-
*ec&io$ 1A. "urisdiction. B 6 6 6 6
2n the interest of Dustice, the relevant Philippine authorities may dispense with the investi)ation or prosecution
of a cri'e punisha0le under this Act if another court or international tri0unal is alread* conductin) the
investi)ation or underta@in) the prosecution of such cri'e. 2nstead, the authorities may surrender or e6tradite
suspected or accused persons in the Philippines to the appropriate international court, if an*, or to another
3tate pursuant to the applica0le e6tradition laws and treaties. (('phasis supplied.
A view is advanced that the Agreement a'ends e6istin) 'unicipal laws on the 3tateCs o0li)ation in relation to
)rave cri'es a)ainst the law of nations, i.e., )enocide, cri'es a)ainst hu'anit* and war cri'es. Rel*in) on
the a0ove!7uoted statutor* proviso, the view posits that the Philippine is re7uired to surrender to the proper
international tri0unal those persons accused of the )rave cri'es defined under RA %8J8, if it does not
e6ercise its pri'ar* Durisdiction to prosecute the'.
&he 0asic pre'ise rests on the interpretation that if it does not decide to prosecute a forei)n national for
violations of RA %8J8, the Philippines has onl* two options, to wit- (8 surrender the accused to the proper
international tri0unal< or (2 surrender the accused to another 3tate if such surrender is 4pursuant to the
applica0le e6tradition laws and treaties.4 ,ut the Philippines 'a* e6ercise these options onl* in cases where
4another court or international tri0unal is alread* conductin) the investi)ation or underta@in) the prosecution
of such cri'e<4 otherwise, the Philippines 'ust prosecute the cri'e 0efore its own courts pursuant to RA
%8J8.
Posin) the situation of a 53 national under prosecution 0* an international tri0unal for an* cri'e under RA
%8J8, the Philippines has the option to surrender such 53 national to the international tri0unal if it decides not
to prosecute such 53 national here. &he view asserts that this option of the Philippines under 3ec. 87 of RA
%8J8 is not su0Dect to the consent of the 53, and an* dero)ation of 3ec. 87 of RA %8J8, such as re7uirin) the
consent of the 53 0efore the Philippines can e6ercise such option, re7uires an a'endator* law. 2n line with
this scenario, the view stron)l* ar)ues that the Agreement prevents the PhilippinesUwithout the consent of
the 53Ufro' surrenderin) to an* international tri0unal 53 nationals accused of cri'es covered 0* RA %8J8,
and, thus, in effect a'ends 3ec. 87 of RA %8J8. Conse7uentl*, the view is stron)l* i'pressed that the
Agreement cannot 0e e'0odied in a si'ple e6ecutive a)ree'ent in the for' of an e6chan)e of notes 0ut
'ust 0e i'ple'ented throu)h an e6tradition law or a treat* with the correspondin) for'alities.
Moreover, consonant with the fore)oin) view, citin) 3ec. 2, Art. 22 of the Constitution, where the Philippines
adopts, as a national polic*, the 4)enerall* accepted principles of international law as part of the law of the
land,4 the Court is further i'pressed to perceive the Ro'e 3tatute as declarator* of custo'ar* international
law. 2n other words, the 3tatute e'0odies principles of law which constitute custo'ar* international law or
custo' and for which reason it assu'es the status of an enforcea0le do'estic law in the conte6t of the
aforecited constitutional provision. As a corollar*, it is ar)ued that an* dero)ation fro' the Ro'e 3tatute
principles cannot 0e underta@en via a 'ere e6ecutive a)ree'ent, which, as an e6clusive act of the e6ecutive
0ranch, can onl* i'ple'ent, 0ut cannot a'end or repeal, an e6istin) law. &he Agreement, so the ar)u'ent
JL
)oes, see@s to frustrate the o0Dects of the principles of law or alters custo'ar* rules e'0odied in the Ro'e
3tatute.
Prescindin) fro' the fore)oin) pre'ises, the view thus advanced considers the Agreement inefficacious,
unless it is e'0odied in a treat* dul* ratified with the concurrence of the 3enate, the theor* 0ein) that a
3enate! ratified treat* parta@es of the nature of a 'unicipal law that can a'end or supersede another law, in
this instance 3ec. 87 of RA %8J8 and the status of the Ro'e 3tatute as constitutive of enforcea0le do'estic
law under 3ec. 2, Art. 22 of the Constitution.
We are una0le to lend co)enc* to the view thus ta@en. /or one, we find that the Agreement does not a'end
or is repu)nant to RA %8J8. /or another, the view does not clearl* state what precise principles of law, if an*,
the Agreement alters. And for a third, it does not de'onstrate in the concrete how the Agreement see@s to
frustrate the o0Dectives of the principles of law su0su'ed in the Ro'e 3tatute.
/ar fro' it, as earlier e6plained, the Agreement does not under'ine the Ro'e 3tatute as the for'er 'erel*
reinforces the pri'ac* of the national Durisdiction of the 53 and the Philippines in prosecutin) cri'inal
offenses co''itted 0* their respective citiAens and 'ilitar* personnel, a'on) others. &he Durisdiction of the
2CC pursuant to the Ro'e 3tatute over hi)h cri'es indicated thereat is clearl* and un'ista@a0l*
co'ple'entar* to the national cri'inal Durisdiction of the si)nator* states.
Moreover, RA %8J8 clearl*- (8 defines and esta0lishes the cri'es a)ainst international hu'anitarian law,
)enocide and other cri'es a)ainst hu'anit*< (2 provides penal sanctions and cri'inal lia0ilit* for their
co''ission< and (E esta0lishes special courts for the prosecution of these cri'es and for the 3tate to
e6ercise pri'ar* cri'inal Durisdiction. $owhere in RA %8J8 is there a proviso that )oes a)ainst the tenor of the
Agreement.
&he view 'a@es 'uch of the a0ove 7uoted second par. of 3ec. 87, RA %8J8 as reF+iri$2 the Philippine 3tate
to surrender to the proper international tri0unal those persons accused of cri'es sanctioned under said law if
it does not e6ercise its pri'ar* Durisdiction to prosecute such persons. &his view is not entirel* correct, for the
a0ove 7uoted proviso clearl* provides ,i1cre&io$ to the Philippine 3tate on whether to surrender or not a
person accused of the cri'es under RA %8J8. &he statutor* proviso uses the word 4may.4 2t is settled doctrine
in statutor* construction that the word 4'a*4 denotes discretion, and cannot 0e construed as havin)
'andator* effect. &hus, the pertinent second parara)raph of 3ec. 87, RA %8J8 is si'pl* per'issive on the
part of the Philippine 3tate.
,esides, even )rantin) that the surrender of a person is 'andatoril* re7uired when the Philippines does not
e6ercise its pri'ar* Durisdiction in cases where 4another court or international tri0unal is alread* conductin)
the investi)ation or underta@in) the prosecution of such cri'e,4 still, the tenor of the Agreement is not
repu)nant to 3ec. 87 of RA %8J8. 3aid le)al proviso aptl* provides that the surrender 'a* 0e 'ade 4to
another 3tate pursuant to the applica0le e6tradition laws and treaties.4 &he A)ree'ent can alread* 0e
considered a treat* followin) this CourtCs decision in $icolas v. Ro'ulo which cited Wein0er)er v. Rossi. 2n
$icolas, We held that 4an e6ecutive a)ree'ent is a Ptreat*C within the 'eanin) of that word in international law
and constitutes enforcea0le do'estic law vis!V!vis the 5nited 3tates.4
9i@ewise, the Philippines and the 53 alread* have an e6istin) e6tradition treat*, i.e., RP!53 (6tradition
&reat*, which was e6ecuted on $ove'0er 8E, 8%%F. &he pertinent Philippine law, on the other hand, is
Presidential 1ecree $o. 80L%, issued on +anuar* 8E, 8%77. &hus, the Agreement, in conDunction with the RP!
53 (6tradition &reat*, would neither violate nor run counter to 3ec. 87 of RA %8J8.
&he viewCs reliance on 3uplico v. $eda is si'ilarl* i'proper. 2n that case, several petitions were filed
7uestionin) the power of the President to enter into forei)n loan a)ree'ents. .owever, 0efore the petitions
could 0e resolved 0* the Court, the #ffice of the 3olicitor "eneral filed a Manifestation and Motion averrin)
that the Philippine "overn'ent decided not to continue with the ;&( $ational ,road0and $etwor@ ProDect,
J7
thus renderin) the petition 'oot. 2n resolvin) the case, the Court too@ Dudicial notice of the act of the e6ecutive
depart'ent of the Philippines (the President and found the petition to 0e indeed 'oot. Accordin)l*, it
dis'issed the petitions.
2n his dissent in the a0ove'entioned case, +ustice Carpio discussed the le)al i'plications of an e6ecutive
a)ree'ent. .e stated that 4an e6ecutive a)ree'ent has the force and effect of law 6 6 6 GitH cannot a'end or
repeal prior laws.4 .ence, this ar)u'ent finds no application in this case seein) as RA %8J8 is a su0se7uent
law, not a prior one. $ota0l*, this ar)u'ent cannot 0e found in the ratio decidendi of the case, 0ut onl* in the
dissentin) opinion.
&he view further contends that the RP!53 (6tradition &reat* is inapplica0le to RA %8J8 for the reason that
under par. 8, Art. 2 of the RP!53 (6tradition &reat*, 4GaHn offense shall 0e an e6tradita0le offense if it is
punisha0le under the laws in 0oth Contractin) Parties 6 6 6,4 and there0* concludin) that while the Philippines
has cri'inaliAed under RA %8J8 the acts defined in the Ro'e 3tatute as war cri'es, )enocide and other
cri'es a)ainst hu'anit*, there is no si'ilar le)islation in the 53. 2t is further ar)ued that, citin) 5.3. v.
Coolid)e, in the 53, a person cannot 0e tried in the federal courts for an international cri'e unless Con)ress
adopts a law definin) and punishin) the offense.
&his view 'ust fail.
#n the contrar*, the 53 has alread* enacted le)islation punishin) the hi)h cri'es 'entioned earlier. 2n fact,
as earl* as #cto0er 200L, the 53 enacted a law cri'inaliAin) war cri'es. 3ection 2FF8, Chapter 888, Part 2,
&itle 88 of the 5nited 3tates Code Annotated (53CA provides for the cri'inal offense of 4war cri'es4 which
is si'ilar to the war cri'es found in 0oth the Ro'e 3tatute and RA %8J8, thus-
(a #ffense B Whoever, whether inside or outside the 5nited 3tates, co''its a war cri'e, in an* of
the circu'stances descri0ed in su0section (0, shall 0e fined under this title or i'prisoned for life or
an* ter' of *ears, or 0oth, and if death results to the victi', shall also 0e su0Dect to the penalt* of
death.
(0 Circu'stances B &he circu'stances referred to in su0section (a are that the person co''ittin)
such war cri'e or the victi' of such war cri'e is a 'e'0er of the Ar'ed /orces of the 5nited 3tates
or a national of the 5nited 3tates (as defined in 3ection 808 of the 2''i)ration and $ationalit* Act.
(c 1efinition B As used in this 3ection the ter' 4war cri'e4 'eans an* conduct B
(8 1efined as a )rave 0reach in an* of the international conventions si)ned at "eneva 82
Au)ust 8%F%, or an* protocol to such convention to which the 5nited 3tates is a part*<
(2 Prohi0ited 0* Article 2E, 2J, 27 or 28 of the Anne6 to the .a)ue Convention 2:, Respectin)
the 9aws and Custo's of War on 9and, si)ned 88 #cto0er 8%07<
(E Which constitutes a )rave 0reach of co''on Article E (as defined in su0section GdH when
co''itted in the conte6t of and in association with an ar'ed conflict not of an international
character< or
(F #f a person who, in relation to an ar'ed conflict and contrar* to the provisions of the
Protocol on Prohi0itions or Restrictions on the 5se of Mines, ,oo0*!&raps and #ther 1evices
as a'ended at "eneva on E Ma* 8%%L (Protocol 22 as a'ended on E Ma* 8%%L, when the
5nited 3tates is a part* to such Protocol, willfull* @ills or causes serious inDur* to civilians.
3i'ilarl*, in 1ece'0er 200%, the 53 adopted a law that cri'inaliAed )enocide, to wit-
J8
W80%8. "enocide
(a ,asic #ffense B Whoever, whether in the ti'e of peace or in ti'e of war and with specific intent to
destro*, in whole or in su0stantial part, a national, ethnic, racial or reli)ious )roup as suchB
(8 @ills 'e'0ers of that )roup<
(2 causes serious 0odil* inDur* to 'e'0ers of that )roup<
(E causes the per'anent i'pair'ent of the 'ental faculties of 'e'0ers of the )roup throu)h
dru)s, torture, or si'ilar techni7ues<
(F su0Dects the )roup to conditions of life that are intended to cause the ph*sical destruction of
the )roup in whole or in part<
(J i'poses 'easures intended to prevent 0irths within the )roup< or
(L transfers 0* force children of the )roup to another )roup<
shall 0e punished as provided in su0section (0.
Ar)uin) further, another view has 0een advanced that the current 53 laws do not cover ever* cri'e listed
within the Durisdiction of the 2CC and that there is a )ap 0etween the definitions of the different cri'es under
the 53 laws versus the Ro'e 3tatute. &he view used a report written 0* :ictoria =. .olt and (lisa0eth W.
1allas, entitled 4#n &rial- &he 53 Militar* and the 2nternational Cri'inal Court,4 as its 0asis.
At the outset, it should 0e pointed out that the report used 'a* not have an* wei)ht or value under
international law. Article E8 of the 3tatute of the 2nternational Court of +ustice (2C+ lists the sources of
international law, as follows- (8 international conventions, whether )eneral or particular, esta0lishin) rules
e6pressl* reco)niAed 0* the contestin) states< (2 international custo', as evidence of a )eneral practice
accepted as law< (E the )eneral principles of law reco)niAed 0* civiliAed nations< and (F su0Dect to the
provisions of Article J%, Dudicial decisions and the teachin)s of the 'ost hi)hl* 7ualified pu0licists of the
various nations, as su0sidiar* 'eans for the deter'ination of rules of law. &he report does not fall under an*
of the fore)oin) enu'erated sources. 2t cannot even 0e considered as the 4teachin)s of hi)hl* 7ualified
pu0licists.4 A hi)hl* 7ualified pu0licist is a scholar of pu0lic international law and the ter' usuall* refers to
le)al scholars or 4acade'ic writers.4 2t has not 0een shown that the authors of this report are hi)hl* 7ualified
pu0licists.
Assu'in) ar)uendo that the report has wei)ht, still, the perceived )aps in the definitions of the cri'es are
none6istent. &o hi)hli)ht, the ta0le 0elow shows the definitions of )enocide and war cri'es under the Ro'e
3tatute vis!V!vis the definitions under 53 laws-
Ro'e 3tatute 53 9aw
Article L
"enocide
/or the purpose of this 3tatute,
4)enocide4 'eans an* of the
followin) acts co''itted with
intent to destro*, in whole or in
part, a national, ethnical, racial or
reli)ious )roup, as such-
W80%8. "enocide
(a ,asic #ffense B
Whoever, whether in the
ti'e of peace or in ti'e of
war and with specific intent
to destro*, in whole or in
su0stantial part, a national,
ethnic, racial or reli)ious
J%
(a =illin) 'e'0ers of the
)roup<
(0 Causin) serious 0odil*
or 'ental har' to
'e'0ers of the )roup<
(c 1eli0eratel* inflictin) on
the )roup conditions of life
calculated to 0rin) a0out its
ph*sical destruction in
whole or in part<
(d 2'posin) 'easures
intended to prevent 0irths
within the )roup<
(e /orci0l* transferrin)
children of the )roup to
another )roup.
)roup as suchB
(8 @ills 'e'0ers of
that )roup<
(2 causes serious
0odil* inDur* to
'e'0ers of that
)roup<
(E causes the
per'anent
i'pair'ent of the
'ental faculties of
'e'0ers of the
)roup throu)h
dru)s, torture, or
si'ilar techni7ues<
(F su0Dects the
)roup to conditions
of life that are
intended to cause
the ph*sical
destruction of the
)roup in whole or in
part<
(J i'poses
'easures intended
to prevent 0irths
within the )roup< or
(L transfers 0*
force children of the
)roup to another
)roup<
shall 0e punished as
provided in su0section (0.
Article 8
War Cri'es
2. /or the purpose of this
3tatute, 4war cri'es4
'eans-
(a "rave 0reaches
of the "eneva
Conventions of 82
Au)ust 8%F%,
(d 1efinition B As used in
this 3ection the ter' 4war
cri'e4 'eans an* conduct
B
(8 1efined as a )rave
0reach in an* of the
international conventions
si)ned at "eneva 82
Au)ust 8%F%, or an*
protocol to such convention
L0
na'el*, an* of the
followin) acts
a)ainst persons or
propert* protected
under the
provisions of the
relevant "eneva
Convention- 6 6 6
(0 #ther serious
violations of the
laws and custo's
applica0le in
international ar'ed
conflict, within the
esta0lished
fra'ewor@ of
international law,
na'el*, an* of the
followin) acts-
6 6 6 6
(c 2n the case of an
ar'ed conflict not
of an international
character, serious
violations of article
E co''on to the
four "eneva
Conventions of 82
Au)ust 8%F%,
na'el*, an* of the
followin) acts
co''itted a)ainst
persons ta@in) no
active part in the
hostilities, includin)
'e'0ers of ar'ed
forces who have
laid down their ar's
and those placed
hors de co'0at 0*
sic@ness, wounds,
detention or an*
other cause-
6 6 6 6
(d Para)raph 2 (c
applies to ar'ed
conflicts not of an
to which the 5nited 3tates
is a part*<
(2 Prohi0ited 0* Article 2E,
2J, 27 or 28 of the Anne6
to the .a)ue Convention
2:, Respectin) the 9aws
and Custo's of War on
9and, si)ned 88 #cto0er
8%07<
(E Which constitutes a
)rave 0reach of co''on
Article E (as defined in
su0section GdH when
co''itted in the conte6t of
and in association with an
ar'ed conflict not of an
international character< or
(F #f a person who, in
relation to an ar'ed
conflict and contrar* to the
provisions of the Protocol
on Prohi0itions or
Restrictions on the 5se of
Mines, ,oo0*!&raps and
#ther 1evices as a'ended
at "eneva on E Ma* 8%%L
(Protocol 22 as a'ended on
E Ma* 8%%L, when the
5nited 3tates is a part* to
such Protocol, willfull* @ills
or causes serious inDur* to
civilians.
L8
international
character and thus
does not appl* to
situations of internal
distur0ances and
tensions, such as
riots, isolated and
sporadic acts of
violence or other
acts of a si'ilar
nature.
(e #ther serious
violations of the
laws and custo's
applica0le in ar'ed
conflicts not of an
international
character, within the
esta0lished
fra'ewor@ of
international law,
na'el*, an* of the
followin) acts- 6 6 6.
(videntl*, the )aps pointed out as to the definition of the cri'es are not present. 2n fact, the report itself stated
as 'uch, to wit-
/ew 0elieved there were wide differences 0etween the cri'es under the Durisdiction of the Court and cri'es
within the 5nifor' Code of Militar* +ustice that would e6pose 53 personnel to the Court. 3ince 53 'ilitar*
law*ers were instru'ental in draftin) the ele'ents of cri'es outlined in the Ro'e 3tatute, the* ensured that
'ost of the cri'es were consistent with those outlined in the 5CM+ and )ave stren)th to co'ple'entarit* for
the 53. 3'all areas of potential )aps 0etween the 5CM+ and the Ro'e 3tatute, 'ilitar* e6perts ar)ued,
could 0e addressed throu)h e6istin) 'ilitar* laws. 6 6 6
&he report went on further to sa* that 4GaHccordin) to those involved, the ele'ents of cri'es laid out in the
Ro'e 3tatute have 0een part of 53 'ilitar* doctrine for decades.4 &hus, the ar)u'ent proffered cannot
stand.
$onetheless, despite the lac@ of actual do'estic le)islation, the 53 nota0l* follows the doctrine of
incorporation. As earl* as 8%00, the estee'ed +ustice "ra* in &he Pa7uete .a0ana case alread* held
international law as part of the law of the 53, to wit-
2nternational law is part of our law, and 'ust 0e ascertained and ad'inistered 0* the courts of Dustice of
appropriate Durisdiction as often as 7uestions of ri)ht dependin) upon it are dul* presented for their
deter'ination. /or this purpose, where there is no treat* and no controllin) e6ecutive or le)islative act or
Dudicial decision, resort 'ust 0e had to the custo's and usa)es of civiliAed nations, and, as evidence of
these, to the wor@s of Durists and co''entators who 0* *ears of la0or, research, and e6perience have 'ade
the'selves peculiarl* well ac7uainted with the su0Dects of which the* treat. 3uch wor@s are resorted to 0*
Dudicial tri0unals, not for the speculations of their authors concernin) what the law ou)ht to 0e, 0ut for the
trustworth* evidence of what the law reall* is. (('phasis supplied.
L2
&hus, a person can 0e tried in the 53 for an international cri'e despite the lac@ of do'estic le)islation. &he
cited rulin) in 5.3. v. Coolid)e, which in turn is 0ased on the holdin) in 5.3. v. .udson, onl* applies to
co''on law and not to the law of nations or international law. 2ndeed, the Court in 5.3. v. .udson onl*
considered the 7uestion, 4whether the Circuit Courts of the 5nited 3tates can e6ercise a co''on law
Durisdiction in cri'inal cases.4 3tated otherwise, there is no co''on law cri'e in the 53 0ut this is
considera0l* different fro' international law.
&he 53 dou0tless reco)niAes international law as part of the law of the land, necessaril* includin)
international cri'es, even without an* local statute. 2n fact, *ears later, 53 courts would appl* international
law as a source of cri'inal lia0ilit* despite the lac@ of a local statute cri'inaliAin) it as such. 3o it was that in
(6 Parte Kuirin the 53 3upre'e Court noted that 4GfHro' the ver* 0e)innin) of its histor* this Court has
reco)niAed and applied the law of war as includin) that part of the law of nations which prescri0es, for the
conduct of war, the status, ri)hts and duties of ene'* nations as well as of ene'* individuals.4 2t went on
further to e6plain that Con)ress had not underta@en the tas@ of codif*in) the specific offenses covered in the
law of war, thus-
2t is no o0Dection that Con)ress in providin) for the trial of such offenses has not itself underta@en to codif*
that 0ranch of international law or to 'ar@ its precise 0oundaries, or to enu'erate or define 0* statute all the
acts which that law conde'ns. An Act of Con)ress punishin) Pthe cri'e of pirac* as defined 0* the law of
nations is an appropriate e6ercise of its constitutional authorit*, Art. 2, s 8, cl. 80, Pto define and punishC the
offense since it has adopted 0* reference the sufficientl* precise definition of international law. 6 6 6 3i'ilarl*
0* the reference in the 8Jth Article of War to Poffenders or offenses that 6 6 6 0* the law of war 'a* 0e tria0le
0* such 'ilitar* co''issions. Con)ress has incorporated 0* reference, as within the Durisdiction of 'ilitar*
co''issions, all offenses which are defined as such 0* the law of war 6 6 6, and which 'a* constitutionall*
0e included within that Durisdiction. 6 6 6 (('phasis supplied.
&his rule finds an even stron)er hold in the case of cri'es a)ainst hu'anit*. 2t has 0een held that )enocide,
war cri'es and cri'es a)ainst hu'anit* have attained the status of custo'ar* international law. 3o'e even
)o so far as to state that these cri'es have attained the status of Dus co)ens.
Custo'ar* international law or international custo' is a source of international law as stated in the 3tatute of
the 2C+. 2t is defined as the 4)eneral and consistent practice of states reco)niAed and followed 0* the' fro' a
sense of le)al o0li)ation.4 2n order to esta0lish the custo'ar* status of a particular nor', two ele'ents 'ust
concur- 3tate practice, the o0Dective ele'ent< and opinio Duris sive necessitates, the su0Dective ele'ent.
3tate practice refers to the continuous repetition of the sa'e or si'ilar @ind of acts or nor's 0* 3tates. 2t is
de'onstrated upon the e6istence of the followin) ele'ents- (8 )eneralit*< (2 unifor'it* and consistenc*< and
(E duration. While, opinio Duris, the ps*cholo)ical ele'ent, re7uires that the state practice or nor' 40e carried
out in such a wa*, as to 0e evidence of a 0elief that this practice is rendered o0li)ator* 0* the e6istence of a
rule of law re7uirin) it.4
4&he ter' PDus co)ensC 'eans the Pco'pellin) law.C4 Corollar*, 4a Dus co)ens nor' holds the hi)hest
hierarchical position a'on) all other custo'ar* nor's and principles.4 As a result, Dus co)ens nor's are
dee'ed 4pere'ptor* and non!dero)a0le.4 When applied to international cri'es, 4Dus co)ens cri'es have
0een dee'ed so funda'ental to the e6istence of a Dust international le)al order that states cannot dero)ate
fro' the', even 0* a)ree'ent.4
&hese Dus co)ens cri'es relate to the principle of universal Durisdiction, i.e., 4an* state 'a* e6ercise
Durisdiction over an individual who co''its certain heinous and widel* conde'ned offenses, even when no
other reco)niAed 0asis for Durisdiction e6ists.4 4&he rationale 0ehind this principle is that the cri'e co''itted
is so e)re)ious that it is considered to 0e co''itted a)ainst all 'e'0ers of the international co''unit*4 and
thus )rantin) ever* 3tate Durisdiction over the cri'e.
LE
&herefore, even with the current lac@ of do'estic le)islation on the part of the 53, it still has 0oth the doctrine
of incorporation and universal Durisdiction to tr* these cri'es.
Conse7uentl*, no 'atter how hard one insists, the 2CC, as an international tri0unal, found in the Ro'e
3tatute is not declarator* of custo'ar* international law.
&he first ele'ent of custo'ar* international law, i.e., 4esta0lished, widespread, and consistent practice on the
part of 3tates,4 does not, under the pre'ises, appear to 0e o0tainin) as reflected in this si'ple realit*- As of
#cto0er 82, 2080, onl* 88F 3tates have ratified the Ro'e 3tatute, su0se7uent to its co'in) into force ei)ht
(8 *ears earlier, or on +ul* 8, 2002. &he fact that 88F 3tates out of a total of 8%F countries in the world, or
rou)hl* J8.7LX, have ratified the Ro'e 3tatute casts dou0t on whether or not the perceived principles
contained in the 3tatute have attained the status of custo'ar* law and should 0e dee'ed as o0li)ator*
international law. &he nu'0ers even tend to ar)ue a)ainst the ur)enc* of esta0lishin) international cri'inal
courts envisioned in the Ro'e 3tatute. 9est it 0e overloo@ed, the Philippines, Dud)in) 0* the action or inaction
of its top officials, does not even feel 0ound 0* the Ro'e 3tatute. es ipsa lo!uitur. More than ei)ht (8 *ears
have elapsed since the Philippine representative si)ned the 3tatute, 0ut the treat* has not 0een trans'itted to
the 3enate for the ratification process.
And this 0rin)s us to what /r. ,ernas, 3.+. aptl* said respectin) the application of the concurrin) ele'ents,
thus-
Custo' or custo'ar* international law 'eans 4a )eneral and consistent practice of states followed 0* the'
fro' a sense of le)al o0li)ation Gopinio 1urisH 6 6 6.4 &his state'ent contains the two 0asic ele'ents of custo'-
the 'aterial factor, that is how the states 0ehave, and the ps*cholo)ical factor or su0Dective factor, that is,
wh* the* 0ehave the wa* the* do.
6 6 6 6
&he initial factor for deter'inin) the e6istence of custo' is &he %c&+%" beh%0ior o 1&%&e1. &his includes
several ele'ents- duration, consistenc*, and )eneralit* of the practice of states.
&he re7uired duration can 0e either short or lon). 6 6 6
6 6 6 6
1uration therefore is not the 'ost i'portant ele'ent. More i'portant is the consistenc* and the )eneralit* of
the practice. 6 6 6
6 6 6 6
O$ce &he e;i1&e$ce o 1&%&e #r%c&ice h%1 bee$ e1&%b"i1he,, it 0eco'es necessar* &o ,e&ermi$e 9h4
1&%&e1 beh%0e &he 9%4 &he4 ,o. 1o states 0ehave the wa* the* do 0ecause the* consider it o0li)ator* to
0ehave thus or do the* do it onl* as a 'atter of courtes*N 'pinio 1uris, or the 0elief that a certain for' of
0ehavior is o0li)ator*, is what 'a@es practice an international rule. Without it, practice is not law. (('phasis
added.
(videntl*, there is, as *et, no overwhel'in) consensus, let alone prevalent practice, a'on) the different
countries in the world that the prosecution of internationall* reco)niAed cri'es of )enocide, etc. should 0e
handled 0* a particular international cri'inal court.
A0sent the widespreadIconsistent!practice!of!states factor, the second or the ps*cholo)ical ele'ent 'ust 0e
dee'ed non!e6istent, for an in7uir* on wh* states 0ehave the wa* the* do presupposes, in the first place,
that the* are actuall* 0ehavin), as a 'atter of settled and consistent practice, in a certain 'anner. &his
LF
i'plicitl* re7uires 0elief that the practice in 7uestion is rendered o0li)ator* 0* the e6istence of a rule of law
re7uirin) it. 9i@e the first ele'ent, the second ele'ent has li@ewise not 0een shown to 0e present.
/urther, the Ro'e 3tatute itself reDects the concept of universal Durisdiction over the cri'es enu'erated
therein as evidenced 0* it re7uirin) 3tate consent. (ven further, the Ro'e 3tatute specificall* and
une7uivocall* re7uires that- 4&his 3tatute is sub1ect to ratification, acceptance or approval 0* si)nator*
3tates.4 &hese clearl* ne)ate the ar)u'ent that such has alread* attained custo'ar* status.
More i'portantl*, an act of the e6ecutive 0ranch with a forei)n )overn'ent 'ust 0e afforded )reat respect.
&he power to enter into e6ecutive a)ree'ents has lon) 0een reco)niAed to 0e lod)ed with the President. As
We held in $eri v. 3enate Co''ittee on Accounta0ilit* of Pu0lic #fficers and 2nvesti)ations, 4GtHhe power to
enter into an e6ecutive a)ree'ent is in essence an e6ecutive power. &his authorit* of the President to enter
into e6ecutive a)ree'ents without the concurrence of the 9e)islature has traditionall* 0een reco)niAed in
Philippine Durisprudence.4 &he rationale 0ehind this principle is the inviola0le doctrine of separation of powers
a'on) the le)islative, e6ecutive and Dudicial 0ranches of the )overn'ent. &hus, a0sent an* clear
contravention of the law, courts should e6ercise ut'ost caution in declarin) an* e6ecutive a)ree'ent invalid.
2n li)ht of the a0ove consideration, the position or view that the challen)ed RP!53 $on!3urrender A)ree'ent
ou)ht to 0e in the for' of a treat*, to 0e effective, has to 0e reDected.
W.(R(/#R(, the petition for certiorari, 'anda'us and prohi0ition is here0* 123M233(1 for lac@ of 'erit.
$o costs.
3# #R1(R(1.
G.R. No. 1D2230 A#ri" 28, 2010
LJ
I*A7ELI.A C. VIN-6A, VIC.ORIA C. DELA !E/A, @ER5INI@ILDA 5ANI57O, LEONOR @.
*-5ACANG, CANDELARIA L. *OLI5AN, 5ARIA L. G-ILAN.ANG, 5ARIA L. 5AGI*A, NA.ALIA 5.
ALONZO, LO-RDE* 5. NAVARO, 8RANCI*CA 5. A.ENCIO, ERLINDA 5ANALA*.A*, .ARCILA 5.
*A5!ANG, E*.ER 5. !ALACIO, 5AHI5A R. DELA CR-Z, 7ELEN A. *AG-5, 8ELICIDAD .-RLA,
8LORENCIA 5. DELA !E/A, E-GENIA 5. LAL-, J-LIANA G. 5AGA., CECILIA *ANG-6O, ANA
ALONZO, R-8INA !. 5ALLARI, RO*ARIO 5. ALARCON, R-8INA C. G-LA!A, ZOILA 7. 5ANAL-*,
CORAZON C. CAL5A, 5AR.A A. G-LA!A, .EODORA 5. @ERNANDEZ, 8ER5IN 7. DELA !E/A,
5ARIA DELA !AZ 7. C-LALA, E*!ERANZA 5ANA!OL, J-ANI.A 5. 7RIONE*, VERGINIA 5.
G-EVARRA, 5AHI5A ANG-LO, E5ILIA *ANGIL, .EO8ILA R. !-NZALAN, JAN-ARIA G. GARCIA,
!ERLA 7. 7ALINGI., 7ELEN A. C-LALA, !ILAR G. GALANG, RO*ARIO C. 7-CO, GA-DENCIA C.
DELA !E/A, R-8INA G. CA.AC-.AN, 8RANCIA A. 7-CO, !A*.ORA C. G-EVARRA, VIC.ORIA 5.
DELA CR-Z, !E.RONILA O. DELA CR-Z, ZENAIDA !. DELA CR-Z, CORAZON 5. *-7A,
E5ERINCIANA A. VIN-6A, L6DIA A. *ANC@EZ, RO*ALINA 5. 7-CO, !A.RICIA A. 7ERNARDO,
L-CILA @. !A6ACAL, 5AGDALENA LICAG, E*.ER C. 7ALINGI., JOVI.A A. DAVID, E5ILIA C.
5ANGILI., VERGINIA 5. 7ANGI., G-ILLER5A *. 7ALINGI., .ERECI.A !ANGILINAN, 5A5ER.A C.
!-NO, CRI*ENCIANA C. G-LA!A, *E8ERINA *. .-RLA, 5AHI5A 7. .-RLA, LEONICIA G.
G-EVARRA, RO*ALINA 5. C-LALA, CA.ALINA 6. 5ANIO, 5A5ER.A .. *AG-5, CARIDAD L.
.-RLA, e& %". I$ &heir c%#%ci&4 %$, %1 member1 o &he I5%"%4% Lo"%1 Or2%$i:%&io$I, Petitioners,
vs.
.@E @ONORA7LE EHEC-.IVE *ECRE.AR6 AL7ER.O G. RO5-LO, .@E @ONORA7LE *ECRE.AR6
O8 8OREIGN A88AIR* DELIA DO5INGO3AL7ER., .@E @ONORA7LE *ECRE.AR6 O8 J-*.ICE
5ERCEDI.A* N. G-.IERREZ, %$, .@E @ONORA7LE *OLICI.OR GENERAL AL8REDO L. 7ENI!A6O,
Respondents.
&he &reat* of Peace with +apan, insofar as it 0arred future clai's such as those asserted 0* plaintiffs in these
actions, e6chan)ed full co'pensation of plaintiffs for a future peace. .istor* has vindicated the wisdo' of that
0ar)ain. And while full co'pensation for plaintiffsQ hardships, in the purel* econo'ic sense, has 0een denied
these for'er prisoners and countless other survivors of the war, the i''easura0le 0ount* of life for
the'selves and their posterit* in a free societ* and in a 'ore peaceful world services the de0t.
&here is a 0road ran)e of vitall* i'portant areas that 'ust 0e re)ularl* decided 0* the (6ecutive 1epart'ent
without either challen)e or interference 0* the +udiciar*. #ne such area involves the delicate arena of forei)n
relations. 2t would 0e stran)e indeed if the courts and the e6ecutive spo@e with different voices in the real' of
forei)n polic*. Precisel* 0ecause of the nature of the 7uestions presented, and the lapse of 'ore than L0
*ears since the conduct co'plained of, we 'a@e no atte'pt to la* down )eneral )uidelines coverin) other
situations not involved here, and confine the opinion onl* to the ver* 7uestions necessar* to reach a decision
on this 'atter.
/actual Antecedents
&his is an ori)inal Petition for Certiorari under Rule LJ of the Rules of Court with an application for the
issuance of a writ of preli'inar* 'andator* inDunction a)ainst the #ffice of the (6ecutive 3ecretar*, the
3ecretar* of the 1epart'ent of /orei)n Affairs (1/A, the 3ecretar* of the 1epart'ent of +ustice (1#+, and
the #ffice of the 3olicitor "eneral (#3".
Petitioners are all 'e'0ers of the MA9A?A 9#9A3, a non!stoc@, non!profit or)aniAation re)istered with the
3ecurities and (6chan)e Co''ission, esta0lished for the purpose of providin) aid to the victi's of rape 0*
+apanese 'ilitar* forces in the Philippines durin) the 3econd World War.
Petitioners narrate that durin) the 3econd World War, the +apanese ar'* attac@ed villa)es and
s*ste'aticall* raped the wo'en as part of the destruction of the villa)e. &heir co''unities were 0o'0ed,
houses were looted and 0urned, and civilians were pu0licl* tortured, 'utilated, and slau)htered. +apanese
soldiers forci0l* seiAed the wo'en and held the' in houses or cells, where the* were repeatedl* raped,
LL
0eaten, and a0used 0* +apanese soldiers. As a result of the actions of their +apanese tor'entors, the
petitioners have spent their lives in 'iser*, havin) endured ph*sical inDuries, pain and disa0ilit*, and 'ental
and e'otional sufferin).
Petitioners clai' that since 8%%8, the* have approached the (6ecutive 1epart'ent throu)h the 1#+, 1/A,
and #3", re7uestin) assistance in filin) a clai' a)ainst the +apanese officials and 'ilitar* officers who
ordered the esta0lish'ent of the 4co'fort wo'en4 stations in the Philippines. .owever, officials of the
(6ecutive 1epart'ent declined to assist the petitioners, and too@ the position that the individual clai's of the
co'fort wo'en for co'pensation had alread* 0een full* satisfied 0* +apanCs co'pliance with the Peace
&reat* 0etween the Philippines and +apan.
I11+e1
.ence, this petition where petitioners pra* for this court to (a declare that respondents co''itted )rave
a0use of discretion a'ountin) to lac@ or e6cess of discretion in refusin) to espouse their clai's for the cri'es
a)ainst hu'anit* and war cri'es co''itted a)ainst the'< and (0 co'pel the respondents to espouse their
clai's for official apolo)* and other for's of reparations a)ainst +apan 0efore the 2nternational Court of
+ustice (2C+ and other international tri0unals.
PetitionersC ar)u'ents
Petitioners ar)ue that the )eneral waiver of clai's 'ade 0* the Philippine )overn'ent in the &reat* of Peace
with +apan is void. &he* clai' that the co'fort wo'en s*ste' esta0lished 0* +apan, and the 0rutal rape and
enslave'ent of petitioners constituted a cri'e a)ainst hu'anit*,
E
se6ual slaver*,
F
and torture.
J
&he* alle)e
that the prohi0ition a)ainst these international cri'es is Dus co)ens nor's fro' which no dero)ation is
possi0le< as such, in waivin) the clai's of /ilipina co'fort wo'en and failin) to espouse their co'plaints
a)ainst +apan, the Philippine )overn'ent is in 0reach of its le)al o0li)ation not to afford i'punit* for cri'es
a)ainst hu'anit*. /inall*, petitioners assert that the Philippine )overn'entCs acceptance of the 4apolo)ies4
'ade 0* +apan as well as funds fro' the Asian Wo'enCs /und (AW/ were contrar* to international law.
RespondentsC Ar)u'ents
Respondents 'aintain that all clai's of the Philippines and its nationals relative to the war were dealt with in
the 3an /rancisco Peace &reat* of 8%J8 and the 0ilateral Reparations A)ree'ent of 8%JL.
L
Article 8F of the &reat* of Peace
7
provides-
Article 8F. Clai's and Propert*
a 2t is reco)niAed that +apan should pa* reparations to the Allied Powers for the da'a)e and
sufferin) caused 0* it durin) the war. $evertheless it is also reco)niAed that the resources of +apan
are not presentl* sufficient, if it is to 'aintain a via0le econo'*, to 'a@e co'plete reparation for all
such da'a)e and sufferin) and at the present ti'e 'eet its other o0li)ations.
0 (6cept as otherwise provided in the present &reat*, the Allied Powers waive all reparations clai's
of the Allied Powers, other clai's of the Allied Powers and their nationals arisin) out of an* actions
ta@en 0* +apan and its nationals in the course of the prosecution of the war, and clai's of the Allied
Powers for direct 'ilitar* costs of occupation.
2n addition, respondents ar)ue that the apolo)ies 'ade 0* +apan
8
have 0een satisfactor*, and that +apan had
addressed the individual clai's of the wo'en throu)h the atone'ent 'one* paid 0* the Asian Wo'enCs
/und.
L7
.istorical ,ac@)round
&he co'fort wo'en s*ste' was the tra)ic le)ac* of the Rape of $an@in). 2n 1ece'0er 8%E7, +apanese
'ilitar* forces captured the cit* of $an@in) in China and 0e)an a 40ar0aric ca'pai)n of terror4 @nown as the
Rape of $an@in), which included the rapes and 'urders of an esti'ated 20,000 to 80,000 Chinese wo'en,
includin) *oun) )irls, pre)nant 'others, and elderl* wo'en.
2n reaction to international outcr* over the incident, the +apanese )overn'ent sou)ht wa*s to end
international conde'nation
80
0* esta0lishin) the 4co'fort wo'en4 s*ste'. 5nder this s*ste', the 'ilitar*
could si'ultaneousl* appease soldiersQ se6ual appetites and contain soldiersQ activities within a re)ulated
environ'ent.
88
Co'fort stations would also prevent the spread of venereal disease a'on) soldiers and
discoura)e soldiers fro' rapin) inha0itants of occupied territories.
82

1ail* life as a co'fort wo'an was 4un'iti)ated 'iser*.4
8E
&he 'ilitar* forced victi's into 0arrac@s!st*le
stations divided into tin* cu0icles where the* were forced to live, sleep, and have se6 with as 'an* E0
soldiers per da*.
8F
&he E0 'inutes allotted for se6ual relations with each soldier were E0!'inute incre'ents of
uni'a)ina0le horror for the wo'en.
8J
1isease was ra'pant.
8L
Militar* doctors re)ularl* e6a'ined the wo'en,
0ut these chec@s were carried out to prevent the spread of venereal diseases< little notice was ta@en of the
fre7uent ci)arette 0urns, 0ruises, 0a*onet sta0s and even 0ro@en 0ones inflicted on the wo'en 0* soldiers.
/ewer than E0X of the wo'en survived the war.
87
&heir a)on* continued in havin) to suffer with the residual
ph*sical, ps*cholo)ical, and e'otional scars fro' their for'er lives. 3o'e returned ho'e and were
ostraciAed 0* their fa'ilies. 3o'e co''itted suicide. #thers, out of sha'e, never returned ho'e.
88

(fforts to 3ecure Reparation
&he 'ost pro'inent atte'pts to co'pel the +apanese )overn'ent to accept le)al responsi0ilit* and pa*
co'pensator* da'a)es for the co'fort wo'en s*ste' were throu)h a series of lawsuits, discussion at the
5nited $ations (5$, resolutions 0* various nations, and the Wo'enCs 2nternational Cri'inal &ri0unal. &he
+apanese )overn'ent, in turn, responded throu)h a series of pu0lic apolo)ies and the creation of the AW/.
8%

9awsuits
2n 1ece'0er 8%%8, =i' .a@!3un and two other survivors filed the first lawsuit in +apan 0* for'er co'fort
wo'en a)ainst the +apanese )overn'ent. &he &o@*o 1istrict Court however dis'issed their case.
20
#ther
suits followed,
28
0ut the +apanese )overn'ent has, thus far, successfull* caused the dis'issal of ever*
case.
22

5ndou0tedl* frustrated 0* the failure of liti)ation 0efore +apanese courts, victi's of the co'fort wo'en
s*ste' 0rou)ht their clai's 0efore the 5nited 3tates (53. #n 3epte'0er 88, 2000, 8J co'fort wo'en filed a
class action lawsuit in the 53 1istrict Court for the 1istrict of Colu'0ia
2E
4see@in) 'one* da'a)es for
Galle)edl*H havin) 0een su0Dected to se6ual slaver* and torture 0efore and durin) World War 22,4 in violation of
40oth positive and custo'ar* international law.4 &he case was filed pursuant to the Alien &ort Clai's Act
(4A&CA4,
2F
which allowed the plaintiffs to sue the +apanese )overn'ent in a 53 federal district court.
2J
#n
#cto0er F, 2008, the district court dis'issed the lawsuit due to lac@ of Durisdiction over +apan, statin) that
4GtHhere is no 7uestion that this court is not the appropriate foru' in which plaintiffs 'a* see@ to reopen 6 6 6
discussions nearl* half a centur* later 6 6 6 G(Hven if +apan did not enDo* soverei)n i''unit*, plaintiffsQ clai's
are non!Dusticia0le and 'ust 0e dis'issed.4
&he 1istrict of Colu'0ia Court of Appeals affir'ed the lower courtQs dis'issal of the case.
2L
#n appeal, the
53 3upre'e Court )ranted the wo'enCs petition for writ of certiorari, vacated the Dud)'ent of the 1istrict of
Colu'0ia Court of Appeals, and re'anded the case.
27
#n re'and, the Court of Appeals affir'ed its prior
decision, notin) that 4'uch as we 'a* feel for the pli)ht of the appellants, the courts of the 53 si'pl* are not
L8
authoriAed to hear their case.4
28
&he wo'en a)ain 0rou)ht their case to the 53 3upre'e Court which denied
their petition for writ of certiorari on /e0ruar* 28, 200L.
(fforts at the 5nited $ations
2n 8%%2, the =orean Council for the Wo'en 1rafted for Militar* 3e6ual 3laver* 0* +apan (=CW3, su0'itted a
petition to the 5$ .u'an Ri)hts Co''ission (5$.RC, as@in) for assistance in investi)atin) cri'es
co''itted 0* +apan a)ainst =orean wo'en and see@in) reparations for for'er co'fort wo'en.
2%
&he
5$.RC placed the issue on its a)enda and appointed Radhi@a Coo'araswa'* as the issueQs special
investi)ator. 2n 8%%L, Coo'araswa'* issued a Report reaffir'in) +apanQs responsi0ilit* in forcin) =orean
wo'en to act as se6 slaves for the i'perial ar'*, and 'ade the followin) reco''endations-
A. At the national level
8E7. &he "overn'ent of +apan should-
(a Ac@nowled)e that the s*ste' of co'fort stations set up 0* the +apanese 2'perial Ar'* durin) the
3econd World War was a violation of its o0li)ations under international law and accept le)al
responsi0ilit* for that violation<
(0 Pa* co'pensation to individual victi's of +apanese 'ilitar* se6ual slaver* accordin) to principles
outlined 0* the 3pecial Rapporteur of the 3u0!Co''ission on Prevention of 1iscri'ination and
Protection of Minorities on the ri)ht to restitution, co'pensation and reha0ilitation for victi's of )rave
violations of hu'an ri)hts and funda'ental freedo's. A special ad'inistrative tri0unal for this purpose
should 0e set up with a li'ited ti'e!fra'e since 'an* of the victi's are of a ver* advanced a)e<
(c Ma@e a full disclosure of docu'ents and 'aterials in its possession with re)ard to co'fort stations
and other related activities of the +apanese 2'perial Ar'* durin) the 3econd World War<
(d Ma@e a pu0lic apolo)* in writin) to individual wo'en who have co'e forward and can 0e
su0stantiated as wo'en victi's of +apanese 'ilitar* se6ual slaver*<
(e Raise awareness of these issues 0* a'endin) educational curricula to reflect historical realities<
(f 2dentif* and punish, as far as possi0le, perpetrators involved in the recruit'ent and
institutionaliAation of co'fort stations durin) the 3econd World War.
"a* +. Mc1ou)al, the 3pecial Rapporteur for the 5$ 3u0!Co''ission on Prevention of 1iscri'ination and
Protection of Minorities, also presented a report to the 3u0!Co''ittee on +une 22, 8%%8 entitled
Conte'porar* /or's of 3laver*- 3*ste'atic Rape, 3e6ual 3laver* and 3laver*!li@e Practices 1urin) Ar'ed
Conflict. &he report included an appendi6 entitled An Anal*sis of the 9e)al 9ia0ilit* of the "overn'ent of
+apan for QCo'fort Wo'en 3tationsQ esta0lished durin) the 3econd World War,
E0
which contained the
followin) findin)s-
L8. &he present report concludes that the +apanese "overn'ent re'ains lia0le for )rave violations of hu'an
ri)hts and hu'anitarian law, violations that a'ount in their totalit* to cri'es a)ainst hu'anit*. &he +apanese
"overn'entCs ar)u'ents to the contrar*, includin) ar)u'ents that see@ to attac@ the underl*in) hu'anitarian
law prohi0ition of enslave'ent and rape, re'ain as unpersuasive toda* as the* were when the* were first
raised 0efore the $ure'0er) war cri'es tri0unal 'ore than J0 *ears a)o. 2n addition, the +apanese
"overn'entCs ar)u'ent that +apan has alread* settled all clai's fro' the 3econd World War throu)h peace
treaties and reparations a)ree'ents followin) the war re'ains e7uall* unpersuasive. &his is due, in lar)e
part, to the failure until ver* recentl* of the +apanese "overn'ent to ad'it the e6tent of the +apanese
'ilitar*Cs direct involve'ent in the esta0lish'ent and 'aintenance of these rape centres. &he +apanese
L%
"overn'entCs silence on this point durin) the period in which peace and reparations a)ree'ents 0etween
+apan and other Asian "overn'ents were 0ein) ne)otiated followin) the end of the war 'ust, as a 'atter of
law and Dustice, preclude +apan fro' rel*in) toda* on these peace treaties to e6tin)uish lia0ilit* in these
cases.
L%. &he failure to settle these clai's 'ore than half a centur* after the cessation of hostilities is a testa'ent to
the de)ree to which the lives of wo'en continue to 0e undervalued. 3adl*, this failure to address cri'es of a
se6ual nature co''itted on a 'assive scale durin) the 3econd World War has added to the level of i'punit*
with which si'ilar cri'es are co''itted toda*. &he "overn'ent of +apan has ta@en so'e steps to apolo)iAe
and atone for the rape and enslave'ent of over 200,000 wo'en and )irls who were 0rutaliAed in 4co'fort
stations4 durin) the 3econd World War. .owever, an*thin) less than full and un7ualified acceptance 0* the
"overn'ent of +apan of le)al lia0ilit* and the conse7uences that flow fro' such lia0ilit* is wholl* inade7uate.
2t 'ust now fall to the "overn'ent of +apan to ta@e the necessar* final steps to provide ade7uate redress.
&he 5$, since then, has not ta@en an* official action directin) +apan to provide the reparations sou)ht.
Come$J1 I$&er$%&io$%" C%r Crime1 .rib+$%"
&he Wo'enQs 2nternational War Cri'es &ri0unal (W2WC& was a 4peopleQs tri0unal4 esta0lished 0* a nu'0er
of Asian wo'en and hu'an ri)hts or)aniAations, supported 0* an international coalition of non!)overn'ental
or)aniAations.
E8
/irst proposed in 8%%8, the W2WC& convened in &o@*o in 2000 in order to 4adDudicate
+apanQs 'ilitar* se6ual violence, in particular the enslave'ent of co'fort wo'en, to 0rin) those responsi0le
for it to Dustice, and to end the on)oin) c*cle of i'punit* for warti'e se6ual violence a)ainst wo'en.4
After e6a'inin) the evidence for 'ore than a *ear, the 4tri0unal4 issued its verdict on 1ece'0er F, 2008,
findin) the for'er ('peror .irohito and the 3tate of +apan )uilt* of cri'es a)ainst hu'anit* for the rape and
se6ual slaver* of wo'en.
E2
2t 0ears stressin), however, that althou)h the tri0unal included prosecutors,
witnesses, and Dud)es, its Dud)'ent was not le)all* 0indin) since the tri0unal itself was or)aniAed 0* private
citiAens.
Action 0* 2ndividual "overn'ents
#n +anuar* E8, 2007, 53 Representative Michael .onda of California, alon) with si6 co!sponsor
representatives, introduced .ouse Resolution 828 which called for +apanese action in li)ht of the on)oin)
stru))le for closure 0* for'er co'fort wo'en. &he Resolution was for'all* passed on +ul* E0, 2007,
EE
and
'ade four distinct de'ands-
G2Ht is the sense of the .ouse of Representatives that the "overn'ent of +apan (8 should for'all*
ac@nowled)e, apolo)iAe, and accept historical responsi0ilit* in a clear and une7uivocal 'anner for its 2'perial
Ar'ed /orcesQ coercion of *oun) wo'en into se6ual slaver*, @nown to the world as 4co'fort wo'en4, durin)
its colonial and warti'e occupation of Asia and the Pacific 2slands fro' the 8%E0s throu)h the duration of
World War 22< (2 would help to resolve recurrin) 7uestions a0out the sincerit* and status of prior state'ents if
the Pri'e Minister of +apan were to 'a@e such an apolo)* as a pu0lic state'ent in his official capacit*< (E
should clearl* and pu0licl* refute an* clai's that the se6ual enslave'ent and traffic@in) of the 4co'fort
wo'en4 for the +apanese 2'perial Ar'* never occurred< and (F should educate current and future
)enerations a0out this horri0le cri'e while followin) the reco''endations of the international co''unit* with
respect to the 4co'fort wo'en.4
EF

2n 1ece'0er 2007, the (uropean Parlia'ent, the )overnin) 0od* of the (uropean 5nion, drafted a resolution
si'ilar to .ouse Resolution 828.
EJ
(ntitled, 4+ustice for Co'fort Wo'en,4 the resolution de'anded- (8 a
for'al ac@nowled)'ent of responsi0ilit* 0* the +apanese )overn'ent< (2 a re'oval of the le)al o0stacles
preventin) co'pensation< and (E una0rid)ed education of the past. &he resolution also stressed the ur)enc*
with which +apan should act on these issues, statin)- 4the ri)ht of individuals to clai' reparations a)ainst the
70
)overn'ent should 0e e6pressl* reco)niAed in national law, and cases for reparations for the survivors of
se6ual slaver*, as a cri'e under international law, should 0e prioritiAed, ta@in) into account the a)e of the
survivors.4
&he Canadian and 1utch parlia'ents have each followed suit in draftin) resolutions a)ainst +apan. CanadaQs
resolution de'ands the +apanese )overn'ent to issue a for'al apolo)*, to ad'it that its 2'perial Militar*
coerced or forced hundreds of thousands of wo'en into se6ual slaver*, and to restore references in
+apanese te6t0oo@s to its war cri'es.
EL
&he 1utch parlia'entQs resolution calls for the +apanese )overn'ent
to uphold the 8%%E declaration of re'orse 'ade 0* Chief Ca0inet 3ecretar* ?ohei =ono.
&he /orei)n Affairs Co''ittee of the 5nited =in)do'Cs Parlia'ent also produced a report in $ove'0er, 2008
entitled, 4"lo0al 3ecurit*- +apan and =orea4 which concluded that +apan should ac@nowled)e the pain
caused 0* the issue of co'fort wo'en in order to ensure cooperation 0etween +apan and =orea.
3tate'ents of Re'orse 'ade 0* representatives of the +apanese )overn'ent
:arious officials of the "overn'ent of +apan have issued the followin) pu0lic state'ents concernin) the
co'fort s*ste'-
a 3tate'ent 0* the Chief Ca0inet 3ecretar* ?ohei =ono in 8%%E-
&he "overn'ent of +apan has 0een conductin) a stud* on the issue of warti'e 4co'fort wo'en4 since
1ece'0er 8%%8. 2 wish to announce the findin)s as a result of that stud*.
As a result of the stud* which indicates that co'fort stations were operated in e6tensive areas for lon)
periods, it is apparent that there e6isted a )reat nu'0er of co'fort wo'en. Co'fort stations were operated in
response to the re7uest of the 'ilitar* authorities of the da*. &he then +apanese 'ilitar* was, directl* or
indirectl*, involved in the esta0lish'ent and 'ana)e'ent of the co'fort stations and the transfer of co'fort
wo'en. &he recruit'ent of the co'fort wo'en was conducted 'ainl* 0* private recruiters who acted in
response to the re7uest of the 'ilitar*. &he "overn'ent stud* has revealed that in 'an* cases the* were
recruited a)ainst their own will, throu)h coa6in) coercion, etc., and that, at ti'es, ad'inistrativeI'ilitar*
personnel directl* too@ part in the recruit'ents. &he* lived in 'iser* at co'fort stations under a coercive
at'osphere.
As to the ori)in of those co'fort wo'en who were transferred to the war areas, e6cludin) those fro' +apan,
those fro' the =orean Peninsula accounted for a lar)e part. &he =orean Peninsula was under +apanese rule
in those da*s, and their recruit'ent, transfer, control, etc., were conducted )enerall* a)ainst their will, throu)h
coa6in), coercion, etc.
5ndenia0l*, this was an act, with the involve'ent of the 'ilitar* authorities of the da*, that severel* inDured
the honor and di)nit* of 'an* wo'en. &he "overn'ent of +apan would li@e to ta@e this opportunit* once
a)ain to e6tend its sincere apolo)ies and re'orse to all those, irrespective of place of ori)in, who suffered
i''easura0le pain and incura0le ph*sical and ps*cholo)ical wounds as co'fort wo'en.
2t is incu'0ent upon us, the "overn'ent of +apan, to continue to consider seriousl*, while listenin) to the
views of learned circles, how 0est we can e6press this senti'ent.
We shall face s7uarel* the historical facts as descri0ed a0ove instead of evadin) the', and ta@e the' to
heart as lessons of histor*. We here0* reiterated our fir' deter'ination never to repeat the sa'e 'ista@e 0*
forever en)ravin) such issues in our 'e'ories throu)h the stud* and teachin) of histor*.
78
As actions have 0een 0rou)ht to court in +apan and interests have 0een shown in this issue outside +apan,
the "overn'ent of +apan shall continue to pa* full attention to this 'atter, includin) private researched
related thereto.
0 Pri'e Minister &o'iichi Mura*a'aCs 3tate'ent in 8%%F
#n the issue of warti'e 4co'fort wo'en4, which seriousl* stained the honor and di)nit* of 'an* wo'en, 2
would li@e to ta@e this opportunit* once a)ain to e6press '* profound and sincere re'orse and apolo)ies4
c 9etters fro' the Pri'e Minister of +apan to 2ndividual Co'fort Wo'en
&he issue of co'fort wo'en, with the involve'ent of the +apanese 'ilitar* authorities at that ti'e, was a
)rave affront to the honor and di)nit* of a lar)e nu'0er of wo'en.
As Pri'e Minister of +apan, 2 thus e6tend anew '* 'ost sincere apolo)ies and re'orse to all the wo'en who
endured i''easura0le and painful e6periences and suffered incura0le ph*sical and ps*cholo)ical wounds as
co'fort wo'en.
2 0elieve that our countr*, painfull* aware of its 'oral responsi0ilities, with feelin)s of apolo)* and re'orse,
should face up s7uarel* to its past histor* and accuratel* conve* it to future )enerations.
d &he 1iet (+apanese Parlia'ent passed resolutions in 8%%J and 200J
3ole'nl* reflectin) upon the 'an* instances of colonial rule and acts of a))ression that occurred in 'odern
world histor*, and reco)niAin) that +apan carried out such acts in the past and inflicted sufferin) on the people
of other countries, especiall* in Asia, the Me'0ers of this .ouse here0* e6press deep re'orse. (Resolution
of the .ouse of Representatives adopted on +une %, 8%%J
e :arious Pu0lic 3tate'ents 0* +apanese Pri'e Minister 3hinAo A0e
2 have tal@ed a0out this 'atter in the 1iet sessions last *ear, and recentl* as well, and to the press. 2 have
0een consistent. 2 will stand 0* the =ono 3tate'ent. &his is our consistent position. /urther, we have 0een
apolo)iAin) sincerel* to those who suffered i''easura0le pain and incura0le ps*cholo)ical wounds as
co'fort wo'en. /or'er Pri'e Ministers, includin) Pri'e Ministers =oiAu'i and .ashi'oto, have issued
letters to the co'fort wo'en. 2 would li@e to 0e clear that 2 carr* the sa'e feelin). &his has not chan)ed even
sli)htl*. ((6cerpt fro' Re'ar@s 0* Pri'e Minister A0e at an 2nterview 0* $.=, March 88, 2007.
2 a' apolo)iAin) here and now. 2 a' apolo)iAin) as the Pri'e Minister and it is as stated in the state'ent 0*
the Chief Ca0inet 3ecretar* =ono. ((6cerpt fro' Re'ar@s 0* Pri'e Minister A0e at the ,ud)et Co''ittee,
the .ouse of Councilors, the 1iet of +apan, March 2L, 2007.
2 a' deepl* s*'pathetic to the for'er co'fort wo'en who suffered hardships, and 2 have e6pressed '*
apolo)ies for the e6tre'el* a)oniAin) circu'stances into which the* were placed. ((6cerpt fro' &elephone
Conference 0* Pri'e Minister A0e to President "eor)e W. ,ush, April E, 2007.
2 have to e6press s*'path* fro' the 0otto' of '* heart to those people who were ta@en as warti'e co'fort
wo'en. As a hu'an 0ein), 2 would li@e to e6press '* s*'pathies, and also as pri'e 'inister of +apan 2 need
to apolo)iAe to the'. M* ad'inistration has 0een sa*in) all alon) that we continue to stand 0* the =ono
3tate'ent. We feel responsi0le for havin) forced these wo'en to )o throu)h that hardship and pain as
co'fort wo'en under the circu'stances at the ti'e. ((6cerpt fro' an interview article 4A Conversation with
3hinAo A0e4 0* the Washin)ton Post, April 22, 2007.
72
6 6 6 0oth personall* and as Pri'e Minister of +apan, '* heart )oes out in s*'path* to all those who suffered
e6tre'e hardships as co'fort wo'en< and 2 e6pressed '* apolo)ies for the fact that the* were forced to
endure such e6tre'e and harsh conditions. .u'an ri)hts are violated in 'an* parts of the world durin) the
20th Centur*< therefore we 'ust wor@ to 'a@e the 28st Centur* a wonderful centur* in which no hu'an ri)hts
are violated. And the "overn'ent of +apan and 2 wish to 'a@e si)nificant contri0utions to that end. ((6cerpt
fro' Pri'e Minister A0eQs re'ar@s at the +oint Press Availa0ilit* after the su''it 'eetin) at Ca'p 1avid
0etween Pri'e Minister A0e and President ,ush, April 27, 2007.
&he Asian Wo'enQs /und
(sta0lished 0* the +apanese )overn'ent in 8%%J, the AW/ represented the )overn'entQs concrete atte'pt
to address its 'oral responsi0ilit* 0* offerin) 'onetar* co'pensation to victi's of the co'fort wo'en
s*ste'.
E7
&he purpose of the AW/ was to show atone'ent of the +apanese people throu)h e6pressions of
apolo)* and re'orse to the for'er warti'e co'fort wo'en, to restore their honor, and to de'onstrate
+apanCs stron) respect for wo'en.
E8

&he AW/ announced three pro)ra's for for'er co'fort wo'en who applied for assistance- (8 an atone'ent
fund pa*in) Y2 'illion (appro6i'atel* T20,000 to each wo'an< (2 'edical and welfare support pro)ra's,
pa*in) Y2.J!E 'illion (T2J,000!TE0,000 for each wo'an< and (E a letter of apolo)* fro' the +apanese Pri'e
Minister to each wo'an. /undin) for the pro)ra' ca'e fro' the +apanese )overn'ent and private donations
fro' the +apanese people. As of March 200L, the AW/ provided Y700 'illion (appro6i'atel* T7 'illion for
these pro)ra's in 3outh =orea, &aiwan, and the Philippines< YE80 'illion (appro6i'atel* TE.8 'illion in
2ndonesia< and Y2F2 'illion (appro6i'atel* T2.F 'illion in the $etherlands.
#n +anuar* 8J, 8%%7, the AW/ and the Philippine )overn'ent si)ned a Me'orandu' of 5nderstandin) for
'edical and welfare support pro)ra's for for'er co'fort wo'en. #ver the ne6t five *ears, these were
i'ple'ented 0* the 1epart'ent of 3ocial Welfare and 1evelop'ent.
#ur Rulin)
3tripped down to its essentials, the issue in this case is whether the (6ecutive 1epart'ent co''itted )rave
a0use of discretion in not espousin) petitionersC clai's for official apolo)* and other for's of reparations
a)ainst +apan.
&he petition lac@s 'erit.
/ro' a 1o'estic 9aw Perspective, the (6ecutive 1epart'ent has the e6clusive prero)ative to deter'ine
whether to espouse petitionersC clai's a)ainst +apan.
Ba?er v. Carr
E%
re'ains the startin) point for anal*sis under the political 7uestion doctrine. &here the 53
3upre'e Court e6plained that-
6 6 6 Pro'inent on the surface of an* case held to involve a political 7uestion is found a te6tuall*
de'onstra0le constitutional co''it'ent of the issue to a coordinate political depart'ent or a lac@ of Dudiciall*
discovera0le and 'ana)ea0le standards for resolvin) it, or the i'possi0ilit* of decidin) without an initial polic*
deter'ination of a @ind clearl* for non!Dudicial discretion< or the i'possi0ilit* of a courtQs underta@in)
independent resolution without e6pressin) lac@ of the respect due coordinate 0ranches of )overn'ent< or an
unusual need for un7uestionin) adherence to a political decision alread* 'ade< or the potentialit* of
e'0arrass'ent fro' 'ultifarious pronounce'ents 0* various depart'ents on 7uestion.
2n &aZada v. Cuenco,
F0
we held that political 7uestions refer 4to those 7uestions which, under the Constitution,
are to 0e decided 0* the people in their soverei)n capacit*, or in re)ard to which full discretionar* authorit*
7E
has 0een dele)ated to the le)islative or e6ecutive 0ranch of the )overn'ent. 2t is concerned with issues
dependent upon the wisdo', not le)alit* of a particular 'easure.4
Certain t*pes of cases often have 0een found to present political 7uestions.
F8
#ne such cate)or* involves
7uestions of forei)n relations. 2t is well!esta0lished that 4GtHhe conduct of the forei)n relations of our
)overn'ent is co''itted 0* the Constitution to the e6ecutive and le)islative!!Qthe politicalQ!!depart'ents of
the )overn'ent, and the propriet* of what 'a* 0e done in the e6ercise of this political power is not su0Dect to
Dudicial in7uir* or decision.4
F2
&he 53 3upre'e Court has further cautioned that decisions relatin) to forei)n
polic*
are delicate, co'ple6, and involve lar)e ele'ents of prophec*. &he* are and should 0e underta@en onl* 0*
those directl* responsi0le to the people whose welfare the* advance or i'peril. &he* are decisions of a @ind
for which the +udiciar* has neither aptitude, facilities nor responsi0ilit*.
FE

&o 0e sure, not all cases i'plicatin) forei)n relations present political 7uestions, and courts certainl* possess
the authorit* to construe or invalidate treaties and e6ecutive a)ree'ents.
FF
.owever, the 7uestion whether the
Philippine )overn'ent should espouse clai's of its nationals a)ainst a forei)n )overn'ent is a forei)n
relations 'atter, the authorit* for which is de'onstra0l* co''itted 0* our Constitution not to the courts 0ut to
the political 0ranches. 2n this case, the (6ecutive 1epart'ent has alread* decided that it is to the 0est interest
of the countr* to waive all clai's of its nationals for reparations a)ainst +apan in the &reat* of Peace of 8%J8.
&he wisdo' of such decision is not for the courts to 7uestion. $either could petitioners herein assail the said
deter'ination 0* the (6ecutive 1epart'ent via the instant petition for certiorari.
2n the se'inal case of 53 v. Curtiss!Wri)ht (6port Corp.,
FJ
the 53 3upre'e Court held that 4GtHhe President is
the sole or)an of the nation in its e6ternal relations, and its sole representative with forei)n relations.4
2t is 7uite apparent that if, in the 'aintenance of our international relations, e'0arrass'ent !! perhaps serious
e'0arrass'ent !! is to 0e avoided and success for our ai's achieved, con)ressional le)islation which is to 0e
'ade effective throu)h ne)otiation and in7uir* within the international field 'ust often accord to the President
a de)ree of discretion and freedo' fro' statutor* restriction which would not 0e ad'issi0le where do'estic
affairs alone involved. Moreover, he, not Con)ress, has the 0etter opportunit* of @nowin) the conditions which
prevail in forei)n countries, and especiall* is this true in ti'e of war. .e has his confidential sources of
infor'ation. .e has his a)ents in the for' of diplo'atic, consular and other officials. 6 6 6
&his rulin) has 0een incorporated in our Durisprudence throu)h ,a*an v. (6ecutive 3ecretar*
FL
and Pi'entel
v. (6ecutive 3ecretar*<
F7
its overreachin) principle was, perhaps, 0est articulated in (now Chief +ustice
PunoCs dissent in 3ecretar* of +ustice v. 9antion-
F8
6 6 6 &he conduct of forei)n relations is full of co'ple6ities and conse7uences, so'eti'es with life and death
si)nificance to the nation especiall* in ti'es of war. 2t can onl* 0e entrusted to that depart'ent of )overn'ent
which can act on the 0asis of the 0est availa0le infor'ation and can decide with decisiveness. 6 6 6 2t is also
the President who possesses the 'ost co'prehensive and the 'ost confidential infor'ation a0out forei)n
countries for our diplo'atic and consular officials re)ularl* 0rief hi' on 'eanin)ful events all over the world.
.e has also unli'ited access to ultra!sensitive 'ilitar* intelli)ence data. 2n fine, the presidential role in forei)n
affairs is do'inant and the President is traditionall* accorded a wider de)ree of discretion in the conduct of
forei)n affairs. &he re)ularit*, na*, validit* of his actions are adDud)ed under less strin)ent standards, lest
their Dudicial repudiation lead to 0reach of an international o0li)ation, rupture of state relations, forfeiture of
confidence, national e'0arrass'ent and a plethora of other pro0le's with e7uall* undesira0le
conse7uences.
&he (6ecutive 1epart'ent has deter'ined that ta@in) up petitionersC cause would 0e ini'ical to our countr*Cs
forei)n polic* interests, and could disrupt our relations with +apan, there0* creatin) serious i'plications for
sta0ilit* in this re)ion. /or us to overturn the (6ecutive 1epart'entCs deter'ination would 'ean an
7F
assess'ent of the forei)n polic* Dud)'ents 0* a coordinate political 0ranch to which authorit* to 'a@e that
Dud)'ent has 0een constitutionall* co''itted.
2n an* event, it cannot reasona0l* 0e 'aintained that the Philippine )overn'ent was without authorit* to
ne)otiate the &reat* of Peace with +apan. And it is e7uall* true that, since ti'e i''e'orial, when ne)otiatin)
peace accords and settlin) international clai's-
6 6 6 G)Hovern'ents have dealt with 6 6 6 private clai's as their own, treatin) the' as national assets, and as
counters, [chipsQ, in international 0ar)ainin). 3ettle'ent a)ree'ents have lu'ped, or lin@ed, clai's derivin)
fro' private de0ts with others that were inter)overn'ental in ori)in, and concessions in re)ard to one
cate)or* of clai's 'i)ht 0e set off a)ainst concessions in the other, or a)ainst lar)er political considerations
unrelated to de0ts.
F%
2ndeed, e6cept as an a)ree'ent 'i)ht otherwise provide, international settle'ents )enerall* wipe out the
underl*in) private clai's, there0* ter'inatin) an* recourse under do'estic law. 2n +are v. Hylton,
J0
a case
0rou)ht 0* a ,ritish su0Dect to recover a de0t confiscated 0* the Co''onwealth of :ir)inia durin) the war,
+ustice Chase wrote-
2 apprehend that the treat* of peace a0olishes the su0Dect of the war, and that after peace is concluded,
neither the 'atter in dispute, nor the conduct of either part*, durin) the war, can ever 0e revived, or 0rou)ht
into contest a)ain. All violences, inDuries, or da'a)es sustained 0* the )overn'ent, or people of either, durin)
the war, are 0uried in o0livion< and all those thin)s are i'plied 0* the ver* treat* of peace< and therefore not
necessar* to 0e e6pressed. .ence it follows, that the restitution of, or co'pensation for, ,ritish propert*
confiscated, or e6tin)uished, durin) the war, 0* an* of the 5nited 3tates, could onl* 0e provided for 0* the
treat* of peace< and if there had been no provision, respecting these sub1ects, in the treaty, the* could not 0e
a)itated after the treat*, 0* the ,ritish )overn'ent, 'uch less 0* her su0Dects in courts of Dustice. (('phasis
supplied.
&his practice of settlin) clai's 0* 'eans of a peace treat* is certainl* nothin) new. /or instance, in 1a'es \
Moore v. Re)an,
J8
the 53 3upre'e Court held-
$ot infre7uentl* in affairs 0etween nations, outstandin) clai's 0* nationals of one countr* a)ainst the
)overn'ent of another countr* are 4sources of friction4 0etween the two soverei)ns. <nited States v. Pin? ,
E8J 5.3. 20E, 22J, L2 3.Ct. JJ2, JLE, 8L 9.(d. 7%L (8%F2. &o resolve these difficulties, nations have often
entered into a)ree'ents settlin) the clai's of their respective nationals. As one treatise writer puts it,
international a)ree'ents settlin) clai's 0* nationals of one state a)ainst the )overn'ent of another 4are
esta0lished international practice reflectin) traditional international theor*.4 9. .en@in, /orei)n Affairs and the
Constitution 2L2 (8%72. Consistent with that principle, the 5nited 3tates has repeatedl* e6ercised its
soverei)n authorit* to settle the clai's of its nationals a)ainst forei)n countries. 6 6 6 5nder such
a)ree'ents, the President has a)reed to renounce or e6tin)uish clai's of 5nited 3tates nationals a)ainst
forei)n )overn'ents in return for lu'p!su' pa*'ents or the esta0lish'ent of ar0itration procedures. &o 0e
sure, 'an* of these settle'ents were encoura)ed 0* the 5nited 3tates clai'ants the'selves, since a
clai'antQs onl* hope of o0tainin) an* pa*'ent at all 'i)ht lie in havin) his "overn'ent ne)otiate a diplo'atic
settle'ent on his 0ehalf. ,ut it is also undisputed that the 45nited 3tates has so'eti'es disposed of the
clai's of its citiAens without their consent, or even without consultation with the', usuall* without e6clusive
re)ard for their interests, as distin)uished fro' those of the nation as a whole.4 .en@in, supra , at 2L2!2LE .
Accord, Restate'ent (3econd of /orei)n Relations 9aw of the 5nited 3tates W 28E (8%LJ (President 4'a*
waive or settle a clai' a)ainst a forei)n state 6 6 6 GevenH without the consent of the GinDuredH national4. 2t is
clear that the practice of settlin) clai's continues toda*.
Respondents e6plain that the Allied Powers concluded the Peace &reat* with +apan not necessaril* for the
co'plete atone'ent of the sufferin) caused 0* +apanese a))ression durin) the war, not for the pa*'ent of
ade7uate reparations, 0ut for securit* purposes. &he treat* sou)ht to prevent the spread of co''unis' in
7J
+apan, which occupied a strate)ic position in the /ar (ast. &hus, the Peace &reat* co'pro'ised individual
clai's in the collective interest of the free world.
&his was also the findin) in a si'ilar case involvin) A'erican victi's of +apanese slave la0or durin) the
war.
J2
2n a consolidated case in the $orthern 1istrict of California,
JE
the court dis'issed the lawsuits filed,
rel*in) on the 8%J8 peace treat* with +apan,
JF
0ecause of the followin) polic* considerations-
&he official record of treat* ne)otiations esta0lishes that a funda'ental )oal of the a)ree'ent was to settle
the reparations issue once and for all. As the state'ent of the chief 5nited 3tates ne)otiator, +ohn /oster
1ulles, 'a@es clear, it was well understood that leavin) open the possi0ilit* of future clai's would 0e an
unaccepta0le i'pedi'ent to a lastin) peace-
Reparation is usuall* the 'ost controversial aspect of peace'a@in). &he present peace is no e6ception.
#n the one hand, there are clai's 0oth vast and Dust. +apanQs a))ression caused tre'endous cost, losses
and sufferin).
#n the other hand, to 'eet these clai's, there stands a +apan presentl* reduced to four ho'e islands which
are una0le to produce the food its people need to live, or the raw 'aterials the* need to wor@. 6 6 6
&he polic* of the 5nited 3tates that +apanese lia0ilit* for reparations should 0e sharpl* li'ited was infor'ed
0* the e6perience of si6 *ears of 5nited 3tates!led occupation of +apan. 1urin) the occupation the 3upre'e
Co''ander of the Allied Powers (3CAP for the re)ion, "eneral 1ou)las MacArthur, confiscated +apanese
assets in conDunction with the tas@ of 'ana)in) the econo'ic affairs of the van7uished nation and with a view
to reparations pa*'ents. 2t soon 0eca'e clear that +apanQs financial condition would render an* a))ressive
reparations plan an e6ercise in futilit*. Meanwhile, the i'portance of a sta0le, de'ocratic +apan as a 0ulwar@
to co''unis' in the re)ion increased. At the end of 8%F8, MacArthur e6pressed the view that 4GtHhe use of
reparations as a weapon to retard the reconstruction of a via0le econo'* in +apan should 0e co'0ated with
all possi0le 'eans4 and 4reco''ended that the reparations issue 0e settled finall* and without dela*.4
&hat this polic* was e'0odied in the treat* is clear not onl* fro' the ne)otiations histor* 0ut also fro' the
3enate /orei)n Relations Co''ittee report reco''endin) approval of the treat* 0* the 3enate. &he
co''ittee noted, for e6a'ple-
#0viousl* insistence upon the pa*'ent of reparations in an* proportion co''ensurate with the clai's of the
inDured countries and their nationals would wrec@ +apanQs econo'*, dissipate an* credit that it 'a* possess at
present, destro* the initiative of its people, and create 'iser* and chaos in which the seeds of discontent and
co''unis' would flourish. 2n short, GitH would 0e contrar* to the 0asic purposes and polic* of 6 6 6 the 5nited
3tates 6 6 6.
We thus hold that, fro' a 'unicipal law perspective, that certiorari will not lie. As a )eneral principle B and
particularl* here, where such an e6traordinar* len)th of ti'e has lapsed 0etween the treat*Cs conclusion and
our consideration B the (6ecutive 'ust 0e )iven a'ple discretion to assess the forei)n polic* considerations
of espousin) a clai' a)ainst +apan, fro' the standpoint of 0oth the interests of the petitioners and those of
the Repu0lic, and decide on that 0asis if apolo)ies are sufficient, and whether further steps are appropriate or
necessar*.
&he Philippines is not under an* international o0li)ation to espouse petitionersC clai's.
2n the international sphere, traditionall*, the onl* 'eans availa0le for individuals to 0rin) a clai' within the
international le)al s*ste' has 0een when the individual is a0le to persuade a )overn'ent to 0rin) a clai' on
the individualCs 0ehalf.
JJ
(ven then, it is not the individualCs ri)hts that are 0ein) asserted, 0ut rather, the
7L
stateCs own ri)hts. $owhere is this position 'ore clearl* reflected than in the dictu' of the Per'anent Court of
2nternational +ustice (PC2+ in the 8%2F (avrommatis Palestine Concessions Case-
,* ta@in) up the case of one of its su0Dects and 0* resortin) to diplo'atic action or international Dudicial
proceedin)s on his 0ehalf, a 3tate is in realit* assertin) its own right to ensure, in the person of its su0Dects,
respect for the rules of international law. &he 7uestion, therefore, whether the present dispute ori)inates in an
inDur* to a private interest, which in point of fact is the case in 'an* international disputes, is irrelevant fro'
this standpoint. #nce a 3tate has ta@en up a case on 0ehalf of one of its su0Dects 0efore an international
tri0unal, in the e*es of the latter the 3tate is sole clai'ant.
JL

3ince the e6ercise of diplo'atic protection is the ri)ht of the 3tate, reliance on the ri)ht is within the a0solute
discretion of states, and the decision whether to e6ercise the discretion 'a* invaria0l* 0e influenced 0*
political considerations other than the le)al 'erits of the particular clai'.
J7
As clearl* stated 0* the 2C+ in
Barcelona #raction-
&he Court would here o0serve that, within the li'its prescri0ed 0* international law, a 3tate 'a* e6ercise
diplo'atic protection 0* whatever 'eans and to whatever e6tent it thin@s fit, for it is its own ri)ht that the 3tate
is assertin). 3hould the natural or le)al person on whose 0ehalf it is actin) consider that their ri)hts are not
ade7uatel* protected, the* have no re'ed* in international law. All the* can do is resort to national law, if
'eans are availa0le, with a view to furtherin) their cause or o0tainin) redress. &he 'unicipal le)islator 'a*
la* upon the 3tate an o0li)ation to protect its citiAens a0road, and 'a* also confer upon the national a ri)ht to
de'and the perfor'ance of that o0li)ation, and clothe the ri)ht with correspondin) sanctions.:awwphi:
.owever, all these 7uestions re'ain within the province of 'unicipal law and do not affect the position
internationall*.
J8
(('phasis supplied
&he 3tate, therefore, is the sole Dud)e to decide whether its protection will 0e )ranted, to what e6tent it is
)ranted, and when will it cease. 2t retains, in this respect, a discretionar* power the e6ercise of which 'a* 0e
deter'ined 0* considerations of a political or other nature, unrelated to the particular case.
&he 2nternational 9aw Co''issionCs (29CCs 1raft Articles on 1iplo'atic Protection full* support this traditional
view. &he* (i state that 4the ri)ht of diplo'atic protection 0elon)s to or vests in the 3tate,4
J%
(ii affir' its
discretionar* nature 0* clarif*in) that diplo'atic protection is a 4soverei)n prero)ative4 of the 3tate<
L0
and (iii
stress that the state 4has the ri)ht to e6ercise diplo'atic protection
on 0ehalf of a national. 2t is under no dut* or o0li)ation to do so.4
L8

2t has 0een ar)ued, as petitioners ar)ue now, that the 3tate has a duty to protect its nationals and act on
hisIher 0ehalf when ri)hts are inDured.
L2
.owever, at present, there is no sufficient evidence to esta0lish a
)eneral international o0li)ation for 3tates to e6ercise diplo'atic protection of their own nationals a0road.
LE
&hou)h, perhaps desira0le, neither state practice nor opinio 1uris has evolved in such a direction. 2f it is a dut*
internationall*, it is onl* a 'oral and not a le)al dut*, and there is no 'eans of enforcin) its fulfill'ent.
We full* a)ree that rape, se6ual slaver*, torture, and se6ual violence are 'orall* reprehensi0le as well as le)all*
prohi0ited under conte'porar* international law.
LJ
.owever, petitioners ta@e 7uite a theoretical leap in clai'in) that
these proscriptions auto'aticall* i'pl* that that the Philippines is under a non!dero)a0le o0li)ation to prosecute
international cri'es, particularl* since petitioners do not de'and the i'putation of individual cri'inal lia0ilit*, 0ut see@ to
recover 'onetar* reparations fro' the state of +apan. A0sent the consent of states, an applica0le treat* re)i'e, or a
directive 0* the 3ecurit* Council, there is no non!dero)a0le dut* to institute proceedin)s a)ainst +apan. 2ndeed, precisel*
0ecause of statesC reluctance to directl* prosecute clai's a)ainst another state, recent develop'ents support the
'odern trend to e'power individuals to directl* participate in suits a)ainst perpetrators of international cri'es.
LL
$onetheless, notwithstandin) an arra* of "eneral Asse'0l* resolutions callin) for the prosecution of cri'es a)ainst
hu'anit* and the stron) polic* ar)u'ents warrantin) such a rule, the practice of states does not *et support the present
e6istence of an o0li)ation to prosecute international cri'es.
L7
#f course a custo'ar* dut* of prosecution is ideal, 0ut we
77
cannot find enou)h evidence to reasona0l* assert its e6istence. &o the e6tent that an* state practice in this area is
widespread, it is in the practice of )rantin) a'nesties, i''unit*, selective prosecution, or de facto i'punit* to those who
co''it cri'es a)ainst hu'anit*.4
L8

(ven the invocation of Dus co)ens nor's and er)a o'nes o0li)ations will not alter this anal*sis. (ven if we sidestep the
7uestion of whether Dus co)ens nor's e6isted in 8%J8, petitioners have not dei)ned to show that the cri'es co''itted
0* the +apanese ar'* violated Dus co)ens prohi0itions at the ti'e the &reat* of Peace was si)ned, or that the dut* to
prosecute perpetrators of international cri'es is an er)a o'nes o0li)ation or has attained the status of Dus co)ens.
&he ter' er)a o'nes (9atin- in relation to everyone in international law has 0een used as a le)al ter' descri0in)
o0li)ations owed 0* 3tates towards the co''unit* of states as a whole. &he concept was reco)niAed 0* the 2C+ in
,arcelona &raction-
6 6 6 an essential distinction should 0e drawn 0etween the o0li)ations of a 3tate towards the international co''unit* as
a whole, and those arisin) vis!V!vis another 3tate in the field of diplo'atic protection. ,* their ver* nature, the for'er are
the concern of all 3tates. 2n view of the i'portance of the ri)hts involved, all 3tates can 0e held to have a le)al interest in
their protection< the* are o0li)ations er)a o'nes.http-IIwww.search.co'IreferenceI(r)a]o'nes ! ]note!0^]note!0
3uch o0li)ations derive, for e6a'ple, in conte'porar* international law, fro' the outlawin) of acts of a))ression, and of
)enocide, as also fro' the principles and rules concernin) the 0asic ri)hts of the hu'an person, includin) protection
fro' slaver* and racial discri'ination. 3o'e of the correspondin) ri)hts of protection have entered into the 0od* of
)eneral international law M others are conferred 0* international instru'ents of a universal or 7uasi!universal character.
&he 9atin phrase, Perga omnes,C has since 0eco'e one of the rall*in) cries of those sharin) a 0elief in the e'er)ence of
a value!0ased international pu0lic order. .owever, as is so often the case, the realit* is neither so clear nor so 0ri)ht.
Whatever the relevance of o0li)ations erga omnes as a le)al concept, its full potential re'ains to 0e realiAed in
practice.
L%

&he ter' is closel* connected with the international law concept of Dus co)ens. 2n international law, the ter' 41us cogens4
(literall*, 4co'pellin) law4 refers to nor's that co''and pere'ptor* authorit*, supersedin) conflictin) treaties and
custo'. +us co)ens nor's are considered pere'ptor* in the sense that the* are 'andator*, do not ad'it dero)ation,
and can 0e 'odified onl* 0* )eneral international nor's of e7uivalent authorit*.
70

(arl* strains of the Dus co)ens doctrine have e6isted since the 8700s,
78
0ut pere'ptor* nor's 0e)an to attract )reater
scholarl* attention with the pu0lication of Alfred von :erdrossQs influential 8%E7 article, /or0idden &reaties in 2nternational
9aw.
72
&he reco)nition of Dus co)ens )ained even 'ore force in the 8%J0s and 8%L0s with the 29CCs preparation of the
:ienna Convention on the 9aw of &reaties (:C9&.
7E
&hou)h there was a consensus that certain international nor's had
attained the status of Dus co)ens,
7F
the 29C was una0le to reach a consensus on the proper criteria for identif*in)
pere'ptor* nor's.
After an e6tended de0ate over these and other theories of Dus co)ens, the 29C concluded ruefull* in 8%LE that 4there is
not as *et an* )enerall* accepted criterion 0* which to identif* a )eneral rule of international law as havin) the character
of Dus co)ens.4
7J
2n a co''entar* acco'pan*in) the draft convention, the 29C indicated that 4the prudent course see's
to 0e to 6 6 6 leave the full content of this rule to 0e wor@ed out in 3tate practice and in the Durisprudence of international
tri0unals.4
7L
&hus, while the e6istence of Dus co)ens in international law is undisputed, no consensus e6ists on its
su0stance,
77
0e*ond a tin* core of principles and rules.
78
#f course, we )reatl* s*'pathiAe with the cause of petitioners, and we cannot 0e)in to co'prehend the uni'a)ina0le
horror the* underwent at the hands of the +apanese soldiers. We are also deepl* concerned that, in apparent
contravention of funda'ental principles of law, the petitioners appear to 0e without a re'ed* to challen)e those that
have offended the' 0efore appropriate fora. $eedless to sa*, our )overn'ent should ta@e the lead in protectin) its
citiAens a)ainst violation of their funda'ental hu'an ri)hts. Re)retta0l*, it is not within our power to order the (6ecutive
1epart'ent to ta@e up the petitionersC cause. #urs is onl* the power to urge and exhort the (6ecutive 1epart'ent to
ta@e up petitionersC cause.
W.(R(/#R(, the Petition is here0* 123M233(1. *O ORDERED.
78
G.R. No. 1A3034 Oc&ober 9, 200A
!@AR5ACE-.ICAL AND @EAL.@ CARE A**OCIA.ION O8 .@E !@ILI!!INE*, petitioner,
vs.
@EAL.@ *ECRE.AR6 8RANCI*CO .. D-G-E III) @EAL.@ -NDER *ECRE.ARIE* DR. E.@EL6N !.
NIE.O, DR. 5ARGARI.A 5. GALON, A..6. ALEHANDER A. !ADILLA, K DR. JADE 8. DEL 5-NDO)
%$, A**I*.AN. *ECRE.ARIE* DR. 5ARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR.
NE5E*IO .. GALO, respondents.
&he Court and all parties involved are in a)ree'ent that the 0est nourish'ent for an infant is 'otherQs 'il@.
&here is nothin) )reater than for a 'other to nurture her 0eloved child strai)ht fro' her 0oso'. &he ideal is,
of course, for each and ever* /ilipino child to enDo* the une7ualed 0enefits of 0reast'il@. ,ut how should this
end 0e attainedN
,efore the Court is a petition for certiorari under Rule LJ of the Rules of Court, see@in) to nullif*
Ad'inistrative #rder (A.#. $o. 200L!0082 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51 Other!ise "no!n as #he $%il& 'ode$ Relevant International (greements
)enali*ing +iolations #hereof and for Other )urposes (R2RR. Petitioner posits that the R2RR is not valid
as it contains provisions that are not constitutional and )o 0e*ond the law it is supposed to i'ple'ent.
$a'ed as respondents are the .ealth 3ecretar*, 5ndersecretaries, and Assistant 3ecretaries of the
1epart'ent of .ealth (1#.. /or purposes of herein petition, the 1#. is dee'ed i'pleaded as a co!
respondent since respondents issued the 7uestioned R2RR in their capacit* as officials of said e6ecutive
a)enc*.
8
(6ecutive #rder $o. J8 (Mil@ Code was issued 0* President CoraAon A7uino on #cto0er 28, 8%8L 0* virtue
of the le)islative powers )ranted to the president under the /reedo' Constitution. #ne of the prea'0ular
clauses of the Mil@ Code states that the law see@s to )ive effect to Article 88
2
of the 2nternational Code of
Mar@etin) of ,reast'il@ 3u0stitutes (2CM,3, a code adopted 0* the World .ealth Asse'0l* (W.A in 8%88.
/ro' 8%82 to 200L, the W.A adopted several Resolutions to the effect that 0reastfeedin) should 0e
supported, pro'oted and protected, hence, it should 0e ensured that nutrition and health clai's are not
per'itted for 0reast'il@ su0stitutes.
2n 8%%0, the Philippines ratified the 2nternational Convention on the Ri)hts of the Child. Article 2F of said
instru'ent provides that 3tate Parties should ta@e appropriate 'easures to di'inish infant and child 'ortalit*,
and ensure that all se)'ents of societ*, speciall* parents and children, are infor'ed of the advanta)es of
0reastfeedin).
#n Ma* 8J, 200L, the 1#. issued herein assailed R2RR which was to ta@e effect on +ul* 7, 200L.
.owever, on +une 28, 200L, petitioner, representin) its 'e'0ers that are 'anufacturers of 0reast'il@
su0stitutes, filed the present Petition for Certiorari and Prohi0ition with Pra*er for the 2ssuance of a &e'porar*
Restrainin) #rder (&R# or Writ of Preli'inar* 2nDunction.
&he 'ain issue raised in the petition is whether respondents officers of the 1#. acted without or in e6cess of
Durisdiction, or with )rave a0use of discretion a'ountin) to lac@ or e6cess of Durisdiction, and in violation of the
provisions of the Constitution in pro'ul)atin) the R2RR.
E

#n Au)ust 8J, 200L, the Court issued a Resolution )rantin) a &R# enDoinin) respondents fro' i'ple'entin)
the 7uestioned R2RR.
After the Co''ent and Repl* had 0een filed, the Court set the case for oral ar)u'ents on +une 8%, 2007.
&he Court issued an Advisor* ("uidance for #ral Ar)u'ents dated +une J, 2007, to wit-
7%
&he Court here0* sets the followin) issues-
8. Whether or not petitioner is a real part*!in!interest<
2. Whether Ad'inistrative #rder $o. 200L!0082 or the Revised 2'ple'entin) Rules and Re)ulations
(R2RR issued 0* the 1epart'ent of .ealth (1#. is not constitutional<
2.8 Whether the R2RR is in accord with the provisions of (6ecutive #rder $o. J8 (Mil@ Code<
2.2 Whether pertinent international a)ree'ents
8
entered into 0* the Philippines are part of the law of
the land and 'a* 0e i'ple'ented 0* the 1#. throu)h the R2RR< 2f in the affir'ative, whether the
R2RR is in accord with the international a)ree'ents<
2.E Whether 3ections F, J(w, 22, E2, F7, and J2 of the R2RR violate the due process clause and are
in restraint of trade< and
2.F Whether 3ection 8E of the R2RR on &otal (ffect provides sufficient standards.
]]]]]]]]]]]]]
8 (8 5nited $ations Convention on the Ri)hts of the Child< (2 the W.# and 5nicef 42002 "lo0al
3trate)* on 2nfant and ?oun) Child /eedin)<4 and (E various World .ealth Asse'0l* (W.A
Resolutions.
&he parties filed their respective 'e'oranda.
&he petition is partl* i'0ued with 'erit.
'n the issue of petitioner.s standing
With re)ard to the issue of whether petitioner 'a* prosecute this case as the real part*!in!interest, the Court
adopts the view enunciated in (6ecutive 3ecretar* v. Court of Appeals,
F
to wit-
&he 'odern view is that an association has standin) to co'plain of inDuries to its 'e'0ers. &his view
fuses the le)al identit* of an association with that of its 'e'0ers. A$ %11oci%&io$ h%1 1&%$,i$2 &o
i"e 1+i& or i&1 9or<er1 ,e1#i&e i&1 "%c< o ,irec& i$&ere1& i i&1 member1 %re %ec&e, b4 &he
%c&io$. A$ or2%$i:%&io$ h%1 1&%$,i$2 &o %11er& &he co$cer$1 o i&1 co$1&i&+e$&1.
6 6 6 6
6 6 6 We note that, under its Articles of 2ncorporation, the respondent was or)aniAed 6 6 6 to act as the
representative of an* individual, co'pan*, entit* or association on 'atters related to the 'anpower
recruit'ent industr*, and to perfor' other acts and activities necessar* to acco'plish the purposes
e'0odied therein. &he re1#o$,e$& i1, &h+1, &he %##ro#ri%&e #%r&4 &o %11er& &he ri2h&1 o i&1
member1, bec%+1e i& %$, i&1 member1 %re i$ e0er4 #r%c&ic%" 1e$1e i,e$&ic%". 6 6 6 .he
re1#o$,e$& M%11oci%&io$N i1 b+& &he me,i+m &hro+2h 9hich i&1 i$,i0i,+%" member1 1ee< &o
m%<e more eec&i0e &he e;#re11io$ o &heir 0oice1 %$, &he re,re11 o &heir 2rie0%$ce1.
J
(('phasis supplied
which was reasserted in Puro? Bagong Silang Association, *nc. v. ;uipco,
L
where the Court ruled that an
association has the le)al personalit* to represent its 'e'0ers 0ecause the results of the case will affect their
vital interests.
7
80
.erein petitionerQs A'ended Articles of 2ncorporation contains a si'ilar provision Dust li@e in (6ecutive
3ecretar*, that the association is for'ed 4to represent directl* or throu)h approved representatives the
phar'aceutical and health care industr* 0efore the Philippine "overn'ent and an* of its a)encies, the
'edical professions and the )eneral pu0lic.4
8
&hus, as an or)aniAation, petitioner definitel* has an interest in
fulfillin) its avowed purpose of representin) 'e'0ers who are part of the phar'aceutical and health care
industr*. Petitioner is dul* authoriAed
%
to ta@e the appropriate course of action to 0rin) to the attention of
)overn'ent a)encies and the courts an* )rievance suffered 0* its 'e'0ers which are directl* affected 0* the
R2RR. Petitioner, which is 'andated 0* its A'ended Articles of 2ncorporation to represent the entire industr*,
would 0e re'iss in its duties if it fails to act on )overn'ental action that would affect an* of its industr*
'e'0ers, no 'atter how few or nu'erous the* are. .ence, petitioner, whose le)al identit* is dee'ed fused
with its 'e'0ers, should 0e considered as a real part*!in!interest which stands to 0e 0enefited or inDured 0*
an* Dud)'ent in the present action.
'n the constitutionality of the provisions of the *
8ir1&, the Court will deter'ine if pertinent international instru'ents adverted to 0* respondents are part of the
law of the land.
Petitioner assails the R2RR for alle)edl* )oin) 0e*ond the provisions of the Mil@ Code, there0* a'endin) and
e6pandin) the covera)e of said law. &he defense of the 1#. is that the R2RR i'ple'ents not onl* the Mil@
Code 0ut also various international instru'ents
80
re)ardin) infant and *oun) child nutrition. 2t is respondentsQ
position that said international instru'ents are dee'ed part of the law of the land and therefore the 1#. 'a*
i'ple'ent the' throu)h the R2RR.
&he Court notes that the followin) international instru'ents invo@ed 0* respondents, na'el*- (8 &he 5nited
$ations Convention on the Ri)hts of the Child< (2 &he 2nternational Covenant on (cono'ic, 3ocial and
Cultural Ri)hts< and (E the Convention on the (li'ination of All /or's of 1iscri'ination A)ainst Wo'en, onl*
provide in )eneral ter's that steps 'ust 0e ta@en 0* 3tate Parties to di'inish infant and child 'ortalit* and
infor' societ* of the advanta)es of 0reastfeedin), ensure the health and well!0ein) of fa'ilies, and ensure
that wo'en are provided with services and nutrition in connection with pre)nanc* and lactation. 3aid
instru'ents do not contain specific provisions re)ardin) the use or 'ar@etin) of 0reast'il@ su0stitutes.
&he international instru'ents that do have specific provisions re)ardin) 0reast'il@ su0stitutes are the 2CM,3
and various W.A Resolutions.
5nder the 8%87 Constitution, international law can 0eco'e part of the sphere of do'estic law either 0*
&r%$1orm%&io$ or i$cor#or%&io$.
88
&he transfor'ation 'ethod re7uires that an international law 0e
transfor'ed into a do'estic law throu)h a constitutional 'echanis' such as local le)islation. &he
incorporation 'ethod applies when, 0* 'ere constitutional declaration, international law is dee'ed to have
the force of do'estic law.
82
&reaties 0eco'e part of the law of the land throu)h &r%$1orm%&io$ pursuant to Article :22, 3ection 28 of the
Constitution which provides that 4GnHo treat* or international a)ree'ent shall 0e valid and effective unless
concurred in 0* at least two!thirds of all the 'e'0ers of the 3enate.4 &hus, treaties or conventional
international law 'ust )o throu)h a process prescri0ed 0* the Constitution for it to 0e transfor'ed into
'unicipal law that can 0e applied to do'estic conflicts.
8E

&he 2CM,3 and W.A Resolutions are not treaties as the* have not 0een concurred in 0* at least two!thirds of
all 'e'0ers of the 3enate as re7uired under 3ection 28, Article :22 of the 8%87 Constitution.
.owever, the 2CM,3 which was adopted 0* the W.A in 8%88 had 0een transfor'ed into do'estic law
throu)h local le)islation, the Mil@ Code. Conse7uentl*, it is the Mil@ Code that has the force and effect of law
in this Durisdiction and not the 2CM,3 per se.
88
&he Mil@ Code is al'ost a ver0ati' reproduction of the 2CM,3, 0ut it is well to e'phasiAe at this point that the
Code did not adopt the provision in the IC57* %b1o"+&e"4 #rohibi&i$2 %,0er&i1i$2 or other for's of
pro'otion to the )eneral pu0lic of products within the scope of the 2CM,3. 2nstead, &he 5i"< Co,e e;#re11"4
#ro0i,e1 &h%& %,0er&i1i$2, #romo&io$, or o&her m%r<e&i$2 m%&eri%"1 m%4 be %""o9e, i 1+ch m%&eri%"1
%re ,+"4 %+&hori:e, %$, %##ro0e, b4 &he I$&er3A2e$c4 Commi&&ee 'IAC(.
#n the other hand, 3ection 2, Article 22 of the 8%87 Constitution, to wit-
3(C&2#$ 2. &he Philippines renounces war as an instru'ent of national polic*, adopts the generally
accepted principles of international la! as part of the la! of the land and adheres to the polic* of
peace, e7ualit*, Dustice, freedo', cooperation and a'it* with all nations. (('phasis supplied
e'0odies the i$cor#or%&io$ 'ethod.
8F

2n (i1ares v. anada,
8J
the Court held thus-
G"Henerall* accepted principles of international law, 0* virtue of the incorporation clause of the
Constitution, for' part of the laws of the land even if the* do not derive fro' treat* o0li)ations. &he
classical for'ulation in international law sees those custo'ar* rules accepted as 0indin) result fro'
the co'0ination GofH two ele'ents- the esta0lished, widespread, and consistent practice on the part of
3tates< and a ps*cholo)ical ele'ent @nown as the opinion Duris 1i0e $ece11i&%&e1 (opinion as to law
or necessit*. 2'plicit in the latter ele'ent is a 0elief that the practice in 7uestion is rendered o0li)ator*
0* the e6istence of a rule of law re7uirin) it.
8L
(('phasis supplied
4"enerall* accepted principles of international law4 refers to nor's of )eneral or custo'ar* international law
which are 0indin) on all states,
87
i.e., renunciation of war as an instru'ent of national polic*, the principle of
soverei)n i''unit*,
88
a personQs ri)ht to life, li0ert* and due process,
8%
and pacta sunt servanda,
20
a'on)
others. &he concept of 4)enerall* accepted principles of law4 has also 0een depicted in this wise-
3o'e le)al scholars and Dud)es loo@ upon certain 4)eneral principles of law4 as a pri'ar* source of
international law 0ecause &he4 h%0e &he Ich%r%c&er o >+1 r%&io$%"eI %$, %re I0%"i, &hro+2h %"" <i$,1 o
h+m%$ 1ocie&ie1.I (+ud)e &ana@a in his dissentin) opinion in the 8%LL 3outh West Africa Case, 8%LL 2.C.+.
2%L. #QConnell holds that certain priniciples are part of international law 0ecause &he4 %re Ib%1ic &o "e2%"
141&em1 2e$er%""4I %$, he$ce #%r& o &he >+1 2e$&i+m. &hese principles, he 0elieves, are esta0lished 0* a
process of reasonin) 0ased on the co''on identit* of all le)al s*ste's. 2f there should 0e dou0t or
disa)ree'ent, one 'ust loo@ to state practice and deter'ine whether the 'unicipal law principle provides a
Dust and accepta0le solution. 6 6 6
28
(('phasis supplied
/r. +oa7uin ". ,ernas defines custo'ar* international law as follows-
Custo' or custo'ar* international law 'eans 4a )eneral and consistent practice of states followed 0*
the' fro' a sense of le)al o0li)ation Gopinio 1urisH.4 (Restate'ent .hi1 1&%&eme$& co$&%i$1 &he &9o
b%1ic e"eme$&1 o c+1&omB &he material factor that i1, ho9 1&%&e1 beh%0e, %$, &he
#14cho"o2ic%" or su,-ective factor, &h%& i1, 9h4 &he4 beh%0e &he 9%4 &he4 ,o.
6 6 6 6
&he initial factor for deter'inin) the e6istence of custo' is the actual 0ehavior of states. &his includes
several ele'ents- duration, consistenc*, and )eneralit* of the practice of states.
&he re7uired duration can 0e either short or lon). 6 6 6
6 6 6 6
82
1uration therefore is not the 'ost i'portant ele'ent. More i'portant is the consistenc* and the
)eneralit* of the practice. 6 6 6
6 6 6 6
#nce the e6istence of state practice has 0een esta0lished, it 0eco'es necessar* to deter'ine wh*
states 0ehave the wa* the* do. 1o states 0ehave the wa* the* do 0ecause &he4 co$1i,er i&
ob"i2%&or4 to 0ehave thus or ,o &he4 ,o i& o$"4 %1 % m%&&er o co+r&e14N Opinio -uris, or &he be"ie
&h%& % cer&%i$ orm o beh%0ior i1 ob"i2%&or4, i1 9h%& m%<e1 #r%c&ice %$ i$&er$%&io$%" r+"e.
Without it, practice is not law.
22
(5nderscorin) and ('phasis supplied
Clearl*, custo'ar* international law is dee'ed incorporated into our do'estic s*ste'.
2E

W.A Resolutions have not 0een e'0odied in an* local le)islation. .ave the* attained the status of custo'ar*
law and should the* then 0e dee'ed incorporated as part of the law of the landN
&he World .ealth #r)aniAation (W.# is one of the international specialiAed a)encies allied with the 5nited
$ations (5$ 0* virtue of Article J7,
2F
in relation to Article LE
2J
of the 5$ Charter. 5nder the 8%FL W.#
Constitution, it is the W.A which deter'ines the policies of the W.#,
2L
and has the power to adopt
re)ulations concernin) 4advertisin) and la0elin) of 0iolo)ical, phar'aceutical and si'ilar products 'ovin) in
international co''erce,4
27
and to 4'a@e reco''endations to 'e'0ers with respect to an* 'atter within the
co'petence of the #r)aniAation.4
28
&he le)al effect of its re)ulations, as opposed to reco''endations, is
7uite different.
Re)ulations, alon) with conventions and a)ree'ents, dul* adopted 0* the W.A bi$, member 1&%&e1 thus-
Article 8%. &he .ealth Asse'0l* shall have authorit* to adopt conventions or a)ree'ents with respect
to an* 'atter within the co'petence of the #r)aniAation. A two!thirds vote of the .ealth Asse'0l*
shall 0e re7uired for the adoption of such co$0e$&io$1 or %2reeme$&1, which 1h%"" come i$&o orce
or e%ch 5ember 9he$ %cce#&e, b4 i& i$ %ccor,%$ce 9i&h i&1 co$1&i&+&io$%" #roce11e1.
Article 20. E%ch 5ember +$,er&%<e1 &h%& i& 9i"", within ei)hteen 'onths after the adoption 0* the
.ealth Asse'0l* of a convention or a)ree'ent, &%<e %c&io$ re"%&i0e &o &he %cce#&%$ce o 1+ch
co$0e$&io$ or %2reeme$&. (ach Me'0er shall notif* the 1irector!"eneral of the action ta@en, and if it
does not accept such convention or a)ree'ent within the ti'e li'it, it will furnish a state'ent of the
reasons for non!acceptance. 2n case of acceptance, each Me'0er a)rees to 'a@e an annual report to
the 1irector!"eneral in accordance with Chapter >2:.
Article 28. &he .ealth Asse'0l* shall have authorit* to adopt re)ulations concernin)- (a sanitar* and
7uarantine re7uire'ents and other procedures desi)ned to prevent the international spread of
disease< (0 no'enclatures with respect to diseases, causes of death and pu0lic health practices< (c
standards with respect to dia)nostic procedures for international use< (d standards with respect to the
safet*, purit* and potenc* of 0iolo)ical, phar'aceutical and si'ilar products 'ovin) in international
co''erce< (e advertisin) and la0elin) of 0iolo)ical, phar'aceutical and si'ilar products 'ovin) in
international co''erce.
Article 22. egulations adopted pursuant to Article 7: shall come into force for all (embers after due
notice has been given of their adoption by the Health Assembly e2cept for such (embers as may
notify the Director5)eneral of re1ection or reservations within the period stated in the notice. (('phasis
supplied
8E
#n the other hand, +$,er Ar&ic"e 23, recomme$,%&io$1 o &he C@A ,o $o& come i$&o orce or
member1, in the sa'e wa* that conventions or a)ree'ents under Article 8% and re2+"%&io$1 +$,er Ar&ic"e
21 co'e into force. Article 2E of the W.# Constitution reads-
Article 2E. &he .ealth Asse'0l* shall have authority to ma&e recommendations to Me'0ers with
respect to an* 'atter within the co'petence of the #r)aniAation. (('phasis supplied
&he a0sence of a provision in Article 2E of an* 'echanis' 0* which the reco''endation would co'e into
force for 'e'0er states is conspicuous.
&he for'er 3enior 9e)al #fficer of W.#, 3a'i 3hu00er, stated that W.A reco''endations are )enerall* not
0indin), 0ut the* 4carr* 'oral and political wei)ht, as the* constitute the Dud)'ent on a health issue of the
collective 'e'0ership of the hi)hest international 0od* in the field of health.4
2%
(ven the 2CM,3 itself was
adopted as a 'ere reco''endation, as W.A Resolution $o. EF.22 states-
4&he &hirt*!/ourth World .ealth Asse'0l* 6 6 6 adopts, i$ &he 1e$1e o Ar&ic"e 23 o &he
Co$1&i&+&io$, the 2nternational Code of Mar@etin) of ,reast'il@ 3u0stitutes anne6ed to the present
resolution.4 (('phasis supplied
&he 2ntroduction to the 2CM,3 also reads as follows-
2n +anuar* 8%88, the (6ecutive ,oard of the World .ealth #r)aniAation at its si6t*!seventh session,
considered the fourth draft of the code, endorsed it, and unani'ousl* reco''ended to the &hirt*!
fourth World .ealth Asse'0l* the te6t of a resolution 0* which i& 9o+", %,o#& &he co,e i$ &he orm
o % recomme$,%&io$ r%&her &h%$ % re2+"%&io$. 6 6 6 (('phasis supplied
&he le)al value of W.A Resolutions as reco''endations is su''ariAed in Article L2 of the W.#
Constitution, to wit-
Art. L2. (ach 'e'0er shall report annuall* on the action ta@en with respect to reco''endations
'ade to it 0* the #r)aniAation, and with respect to conventions, a)ree'ents and re)ulations.
Apparentl*, the W.A Resolution adoptin) the 2CM,3 and su0se7uent W.A Resolutions ur)in) 'e'0er
states to i'ple'ent the 2CM,3 are 'erel* reco''endator* and le)all* non!0indin). .h+1, +$"i<e 9h%& h%1
bee$ ,o$e 9i&h &he IC57* 9hereb4 &he "e2i1"%&+re e$%c&e, mo1& o &he #ro0i1io$1 i$&o "%9 9hich i1
&he 5i"< Co,e, &he 1+b1eF+e$& C@A Re1o"+&io$1,
E0
1#eciic%""4 #ro0i,i$2 or e;c"+1i0e bre%1&ee,i$2
rom 03D mo$&h1, co$&i$+e, bre%1&ee,i$2 +# &o 24 mo$&h1, %$, %b1o"+&e"4 #rohibi&i$2 %,0er&i1eme$&1
%$, #romo&io$1 o bre%1&mi"< 1+b1&i&+&e1, h%0e $o& bee$ %,o#&e, %1 % ,ome1&ic "%9.
2t is propounded that W.A Resolutions 'a* constitute 4soft law4 or non!0indin) nor's, principles and
practices that influence state 0ehavior.
E8

43oft law4 does not fall into an* of the cate)ories of international law set forth in Article E8, Chapter 222 of the
8%FL 3tatute of the 2nternational Court of +ustice.
E2
2t is, however, an e6pression of non!0indin) nor's,
principles, and practices that influence state 0ehavior.
EE
Certain declarations and resolutions of the 5$
"eneral Asse'0l* fall under this cate)or*.
EF
&he 'ost nota0le is the 5$ 1eclaration of .u'an Ri)hts, which
this Court has enforced in various cases, specificall*, )overnment of Hong?ong Special Administrative
egion v. 'lalia,
EJ
(e1off v. Director of Prisons,
EL
(i1ares v. aBada
E7
and Shangri5la *nternational Hotel
(anagement, /td. v. Developers )roup of Companies, *nc..
E8

&he World 2ntellectual Propert* #r)aniAation (W2P#, a specialiAed a)enc* attached to the 5$ with the
'andate to pro'ote and protect intellectual propert* worldwide, has resorted to soft law as a rapid 'eans of
nor' creation, in order 4to reflect and respond to the chan)in) needs and de'ands of its constituents.4
E%
8F
#ther international or)aniAations which have resorted to soft law include the 2nternational 9a0or #r)aniAation
and the /ood and A)riculture #r)aniAation (in the for' of the Code2 Alimentarius.
F0
W.# has resorted to soft law. &his was 'ost evident at the ti'e of the 3evere Acute Respirator* 3*ndro'e
(3AR3 and Avian flu out0rea@s.
(lthough the I.R Resolution does not create ne! international la! ,inding on /.O mem,er
states it provides an excellent example of the po!er of $soft la!$ in international relations.
International la!yers typically distinguish ,inding rules of international la!0$hard la!$0from
non0,inding norms principles and practices that influence state ,ehavior0$soft la!.$ /.O has
during its existence generated many soft la! norms creating a $soft la! regime$ in
international governance for pu,lic health.
&he 4soft law4 3AR3 and 2.R Resolutions represent si)nificant steps in la*in) the political )roundwor@
for i'proved international cooperation on infectious diseases. &hese resolutions clearl* define W.#
'e'0er statesQ nor'ative dut* to cooperate full* with other countries and with W.# in connection
with infectious disease surveillance and response to out0rea@s.
#his duty is neither ,inding nor enforcea,le ,ut in the !a&e of the S(RS epidemic the duty is
po!erful politically for two reasons. /irst, the 3AR3 out0rea@ has tau)ht the lesson that participatin)
in, and enhancin), international cooperation on infectious disease controls is in a countr*Qs self!interest
6 6 6 if this warnin) is heeded, the 4soft law4 in the 3AR3 and 2.R Resolution could infor' the
develop'ent of )eneral and consistent state practice on infectious disease surveillance and out0rea@
response, perhaps cr*stalliAin) eventuall* into custo'ar* international law on infectious disease
prevention and control.
F8
2n the Philippines, the e6ecutive depart'ent i'ple'ented certain 'easures reco''ended 0* W.# to
address the out0rea@s of 3AR3 and Avian flu 0* issuin) (6ecutive #rder ((.#. $o. 208 on April 2L, 200E
and (.#. $o. 280 on /e0ruar* 2, 200F, dele)atin) to various depart'ents 0road powers to close down
schoolsIesta0lish'ents, conduct health surveillance and 'onitorin), and 0an i'portation of poultr* and
a)ricultural products.
2t 'ust 0e e'phasiAed that even under such an international e'er)enc*, the dut* of a state to i'ple'ent the
2.R Resolution was still considered not 0indin) or enforcea0le, althou)h said resolutions had )reat political
influence.
As previousl* discussed, for an international rule to 0e considered as custo'ar* law, it 'ust 0e esta0lished
that such rule is 0ein) followed 0* states 0ecause the* co$1i,er i& ob"i2%&or4 to co'pl* with such rules
(opinio 1uris. Respondents have not presented an* evidence to prove that the W.A Resolutions, althou)h
si)ned 0* 'ost of the 'e'0er states, were in fact enforced or practiced 0* at least a 'aDorit* of the 'e'0er
states< neither have respondents proven that an* co'pliance 0* 'e'0er states with said W.A Resolutions
was o0li)ator* in nature.
Respondents failed to esta0lish that the provisions of pertinent W.A Resolutions are custo'ar* international
law that 'a* 0e dee'ed part of the law of the land.
Conse7uentl*, le)islation is necessar* to transfor' the provisions of the W.A Resolutions into do'estic law.
.he #ro0i1io$1 o &he C@A Re1o"+&io$1 c%$$o& be co$1i,ere, %1 #%r& o &he "%9 o &he "%$, &h%& c%$
be im#"eme$&e, b4 e;ec+&i0e %2e$cie1 9i&ho+& &he $ee, o % "%9 e$%c&e, b4 &he "e2i1"%&+re.
*eco$,, the Court will deter'ine whether the 1#. 'a* i'ple'ent the provisions of the W.A Resolutions 0*
virtue of its powers and functions under the Revised Ad'inistrative Code even in the a0sence of a do'estic
law.
8J
3ection E, Chapter 8, &itle 2> of the Revised Ad'inistrative Code of 8%87 provides that the 1#. shall ,ei$e
&he $%&io$%" he%"&h #o"ic4 and i'ple'ent a national health plan within the fra'ewor@ of the )overn'entQs
)eneral policies and plans, and i11+e or,er1 %$, re2+"%&io$1 co$cer$i$2 &he im#"eme$&%&io$ o
e1&%b"i1he, he%"&h #o"icie1.
2t is crucial to ascertain whether the a0solute prohi0ition on advertisin) and other for's of pro'otion of
0reast'il@ su0stitutes provided in so'e W.A Resolutions has 0een adopted as part of the national health
polic*.
Respondents su0'it that the national polic* on infant and *oun) child feedin) is e'0odied in A.#. $o. 200J!
008F, dated Ma* 2E, 200J. ,asicall*, the Ad'inistrative #rder declared the followin) polic* )uidelines- (8
ideal 0reastfeedin) practices, such as earl* initiation of 0reastfeedin), e6clusive 0reastfeedin) for the first si6
'onths, e6tended 0reastfeedin) up to two *ears and 0e*ond< (2 appropriate co'ple'entar* feedin), which
is to start at a)e si6 'onths< (E 'icronutrient supple'entation< (F universal salt iodiAation< (J the e6ercise of
other feedin) options< and (L feedin) in e6ceptionall* difficult circu'stances. 2ndeed, the pri'ac* of
0reastfeedin) for children is e'phasiAed as a national health polic*. @o9e0er, $o9here i$ A.O. No. 200?3
0014 i1 i& ,ec"%re, &h%& %1 #%r& o 1+ch he%"&h #o"ic4, &he %,0er&i1eme$& or #romo&io$ o bre%1&mi"<
1+b1&i&+&e1 1ho+", be %b1o"+&e"4 #rohibi&e,.
&he national polic* of protection, pro'otion and support of 0reastfeedin) cannot auto'aticall* 0e e7uated
with a total 0an on advertisin) for 0reast'il@ su0stitutes.
2n view of the enact'ent of the Mil@ Code which does not contain a total 0an on the advertisin) and pro'otion
of 0reast'il@ su0stitutes, 0ut instead, specificall* creates an 2AC which will re)ulate said advertisin) and
pro'otion, it follows that a total 0an polic* could 0e i'ple'ented onl* #+r1+%$& &o % "%9 a'endin) the Mil@
Code passed 0* the constitutionall* authoriAed 0ranch of )overn'ent, the le)islature.
&hus, onl* the provisions of the Mil@ Code, 0ut $o& &ho1e o 1+b1eF+e$& C@A Re1o"+&io$1, can 0e validl*
i'ple'ented 0* the 1#. throu)h the su0Dect R2RR.
.hir,, the Court will now deter'ine whether the provisions of the R2RR are in accordance with those of the
Mil@ Code.
2n support of its clai' that the R2RR is inconsistent with the Mil@ Code, petitioner alle)es the followin)-
8. &he Mil@ Code li'its its covera)e to children 0!82 'onths old, 0ut the R2RR e6tended its covera)e
to 4*oun) children4 or those fro' a)es two *ears old and 0e*ond-
5ILL CODE RIRR
C@EREA*, in order to ensure that
safe and ade7uate nutrition for
infants is provided, there is a need
to protect and pro'ote
0reastfeedin) and to infor' the
pu0lic a0out the proper use of
0reast'il@ su0stitutes and
supple'ents and related products
throu)h ade7uate, consistent and
o0Dective infor'ation and
appropriate re)ulation of the
'ar@etin) and distri0ution of the
said su0stitutes, supple'ents and
related products<
*ec&io$ 2. !+r#o1e O &hese
Revised Rules and Re)ulations are
here0* pro'ul)ated to ensure the
provision of safe and ade7uate
nutrition for infants and *oun)
children 0* the pro'otion,
protection and support of
0reastfeedin) and 0* ensurin) the
proper use of 0reast'il@
su0stitutes, 0reast'il@ supple'ents
and related products when these
are 'edicall* indicated and onl*
when necessar*, on the 0asis of
ade7uate infor'ation and throu)h
8L
*EC.ION 4'e(. 42nfant4 'eans a
person fallin) within the a)e 0rac@et
of 0!82 'onths.
appropriate 'ar@etin) and
distri0ution.
*ec&io$ ?'(. 4?oun) Child4 'eans
a person fro' the a)e of 'ore than
twelve (82 'onths up to the a)e of
three (E *ears (EL 'onths.
2. &he Mil@ Code reco)niAes that infant for'ula 'a* 0e a proper and possi0le su0stitute for 0reast'il@
in certain instances< 0ut the R2RR provides 4e6clusive 0reastfeedin) for infants fro' 0!L 'onths4 and
declares that 4there is no su0stitute nor replace'ent for 0reast'il@4-
5ILL CODE RIRR
C@EREA*, in order to ensure that
safe and ade7uate nutrition for
infants is provided, there is a need
to protect and pro'ote
0reastfeedin) and to infor' the
pu0lic a0out the proper use of
0reast'il@ su0stitutes and
supple'ents and related products
throu)h ade7uate, consistent and
o0Dective infor'ation and
appropriate re)ulation of the
'ar@etin) and distri0ution of the
said su0stitutes, supple'ents and
related products<
*ec&io$ 4. Dec"%r%&io$ o
!ri$ci#"e1 O &he followin) are the
underl*in) principles fro' which the
revised rules and re)ulations are
pre'ised upon-
a. (6clusive 0reastfeedin) is for
infants fro' 0 to si6 (L 'onths.
0. &here is no su0stitute or
replace'ent for 0reast'il@.
E. &he Mil@ Code onl* re)ulates and does not i'pose unreasona0le re7uire'ents for advertisin) and
pro'otion< R2RR i'poses an a0solute 0an on such activities for 0reast'il@ su0stitutes intended for
infants fro' 0!2F 'onths old or 0e*ond, and for0ids the use of health and nutritional clai's. 3ection
8E of the R2RR, which provides for a 4total effect4 in the pro'otion of products within the scope of the
Code, is va)ue-
5ILL CODE RIRR
*EC.ION D. .he Ge$er%" !+b"ic
%$, 5o&her1. O
(a $o advertisin), pro'otion or
other 'ar@etin) 'aterials, whether
written, audio or visual, for products
within the scope of this Code shall
0e printed, pu0lished, distri0uted,
e6hi0ited and 0roadcast unless
such 'aterials are dul* authoriAed
and approved 0* an inter!a)enc*
co''ittee created herein pursuant
to the applica0le standards
provided for in this Code.
*ec&io$ 4. Dec"%r%&io$ o
!ri$ci#"e1 O &he followin) are the
underl*in) principles fro' which the
revised rules and re)ulations are
pre'ised upon-
6 6 6 6
f. Advertisin), pro'otions, or
sponsor!ships of infant for'ula,
0reast'il@ su0stitutes and other
related products are prohi0ited.
*ec&io$ 11. !rohibi&io$ O $o
advertisin), pro'otions,
sponsorships, or 'ar@etin)
'aterials and activities for
0reast'il@ su0stitutes intended for
87
infants and *oun) children up to
twent*!four (2F 'onths, shall 0e
allowed, 0ecause the* tend to
conve* or )ive su0li'inal 'essa)es
or i'pressions that under'ine
0reast'il@ and 0reastfeedin) or
otherwise e6a))erate 0reast'il@
su0stitutes andIor replace'ents, as
well as related products covered
within the scope of this Code.
*ec&io$ 13. I.o&%" Eec&I !
Pro'otion of products within the
scope of this Code 'ust 0e
o0Dective and should not e7uate or
'a@e the product appear to 0e as
)ood or e7ual to 0reast'il@ or
0reastfeedin) in the advertisin)
concept. 2t 'ust not in an* case
under'ine 0reast'il@ or
0reastfeedin). &he 4total effect4
should not directl* or indirectl*
su))est that 0u*in) their product
would produce 0etter individuals, or
resultin) in )reater love,
intelli)ence, a0ilit*, har'on* or in
an* 'anner 0rin) 0etter health to
the 0a0* or other such e6a))erated
and unsu0stantiated clai'.
*ec&io$ 1?. Co$&e$& o 5%&eri%"1.
! &he followin) shall not 0e included
in advertisin), pro'otional and
'ar@etin) 'aterials-
a. &e6ts, pictures, illustrations or
infor'ation which discoura)e or
tend to under'ine the 0enefits or
superiorit* of 0reastfeedin) or
which idealiAe the use of 0reast'il@
su0stitutes and 'il@ supple'ents.
2n this connection, no pictures of
0a0ies and children to)ether with
their 'others, fathers, si0lin)s,
)randparents, other relatives or
care)ivers (or *a*as shall 0e used
in an* advertise'ents for infant
for'ula and 0reast'il@
supple'ents<
0. &he ter' 4hu'aniAed,4
4'aternaliAed,4 4close to 'otherQs
88
'il@4 or si'ilar words in descri0in)
0reast'il@ su0stitutes or 'il@
supple'ents<
c. Pictures or te6ts that idealiAe the
use of infant and 'il@ for'ula.
*ec&io$ 1D. All health and nutrition
clai's for products within the scope
of the Code are a0solutel*
prohi0ited. /or this purpose, an*
phrase or words that connotes to
increase e'otional, intellectual
a0ilities of the infant and *oun)
child and other li@e phrases shall
not 0e allowed.
F. &he R2RR i'poses additional la0elin) re7uire'ents not found in the Mil@ Code-
5ILL CODE RIRR
*EC.ION 10. Co$&%i$er1=L%be". O
(a Containers andIor la0els shall
0e desi)ned to provide the
necessar* infor'ation a0out the
appropriate use of the products,
and in such a wa* as not to
discoura)e 0reastfeedin).
(0 (ach container shall have a
clear, conspicuous and easil*
reada0le and understanda0le
'essa)e in Pilipino or (n)lish
printed on it, or on a la0el, which
'essa)e can not readil* 0eco'e
separated fro' it, and which shall
include the followin) points-
(i the words 42'portant $otice4 or
their e7uivalent<
(ii a state'ent of the superiorit* of
0reastfeedin)<
(iii a state'ent that the product
shall 0e used onl* on the advice of
a health wor@er as to the need for
its use and the proper 'ethods of
use< and
(iv instructions for appropriate
*ec&io$ 2D. Co$&e$& O (ach
containerIla0el shall contain such
'essa)e, in 0oth /ilipino and
(n)lish lan)ua)es, and which
'essa)e cannot 0e readil*
separated therefro', relative the
followin) points-
(a &he words or phrase 42'portant
$otice4 or 4"overn'ent Warnin)4 or
their e7uivalent<
(0 A state'ent of the superiorit* of
0reastfeedin)<
(c A state'ent that there is no
su0stitute for 0reast'il@<
(d A state'ent that the product
shall 0e used onl* on the advice of
a health wor@er as to the need for
its use and the proper 'ethods of
use<
(e 2nstructions for appropriate
prepara!tion, and a warnin) a)ainst
the health haAards of inappropriate
preparation< and
(f &he health haAards of
unnecessar* or i'proper use of
8%
preparation, and a warnin) a)ainst
the health haAards of inappropriate
preparation.
infant for'ula and other related
products includin) infor'ation that
powdered infant for'ula 'a*
contain patho)enic 'icroor)anis's
and 'ust 0e prepared and used
appropriatel*.
J. &he Mil@ Code allows disse'ination of infor'ation on infant for'ula to health professionals< the
R2RR totall* prohi0its such activit*-
5ILL CODE RIRR
*EC.ION A. @e%"&h C%re *41&em.
O
(0 $o facilit* of the health care
s*ste' shall 0e used for the
purpose of pro'otin) infant for'ula
or other products within the scope
of this Code. &his Code does not,
however, preclude the
disse'ination of infor'ation to
health professionals as provided in
3ection 8(0.
*EC.ION 8. @e%"&h Cor<er1. !
(0 2nfor'ation provided 0*
'anufacturers and distri0utors to
health professionals re)ardin)
products within the scope of this
Code shall 0e restricted to scientific
and factual 'atters and such
infor'ation shall not i'pl* or create
a 0elief that 0ottle!feedin) is
e7uivalent or superior to
0reastfeedin). 2t shall also include
the infor'ation specified in 3ection
J(0.
*ec&io$ 22. $o 'anufacturer,
distri0utor, or representatives of
products covered 0* the Code shall
0e allowed to conduct or 0e
involved in an* activit* on
0reastfeedin) pro'otion, education
and production of 2nfor'ation,
(ducation and Co''unication
(2(C 'aterials on 0reastfeedin),
holdin) of or participatin) as
spea@ers in classes or se'inars for
wo'en and children activities and
to avoid the use of these venues to
'ar@et their 0rands or co'pan*
na'es.
*EC.ION 1D. All health and
nutrition clai's for products within
the scope of the Code are
a0solutel* prohi0ited. /or this
purpose, an* phrase or words that
connotes to increase e'otional,
intellectual a0ilities of the infant and
*oun) child and other li@e phrases
shall not 0e allowed.
L. &he Mil@ Code per'its 'il@ 'anufacturers and distri0utors to e6tend assistance in research and
continuin) education of health professionals< R2RR a0solutel* for0ids the sa'e.
5ILL CODE RIRR
*EC.ION 8. @e%"&h Cor<er1 B
(e Manufacturers and distri0utors
of products within the scope of this
Code 'a* assist in the research,
scholarships and continuin)
education, of health professionals,
in accordance with the rules and
re)ulations pro'ul)ated 0* the
Ministr* of .ealth.
*ec&io$ 4. Dec"%r%&io$ o
!ri$ci#"e1 O
&he followin) are the underl*in)
principles fro' which the revised
rules and re)ulations are pre'ised
upon-
i. Mil@ co'panies, and their
%0
representatives, should not for'
part of an* polic*'a@in) 0od* or
entit* in relation to the
advance'ent of 0reasfeedin).
*EC.ION 22. $o 'anufacturer,
distri0utor, or representatives of
products covered 0* the Code shall
0e allowed to conduct or 0e
involved in an* activit* on
0reastfeedin) pro'otion, education
and production of 2nfor'ation,
(ducation and Co''unication
(2(C 'aterials on 0reastfeedin),
holdin) of or participatin) as
spea@ers in classes or se'inars for
wo'en and children activities and
to avoid the use of these venues to
'ar@et their 0rands or co'pan*
na'es.
*EC.ION 32. !rim%r4
Re1#o$1ibi"i&4 o @e%"&h Cor<er1
! 2t is the pri'ar* responsi0ilit* of
the health wor@ers to pro'ote,
protect and support 0reastfeedin)
and appropriate infant and *oun)
child feedin). Part of this
responsi0ilit* is to continuousl*
update their @nowled)e and s@ills
on 0reastfeedin). $o assistance,
support, lo)istics or trainin) fro'
'il@ co'panies shall 0e per'itted.
7. &he Mil@ Code re)ulates the )ivin) of donations< R2RR a0solutel* prohi0its it.
5ILL CODE RIRR
*EC.ION D. .he Ge$er%" !+b"ic
%$, 5o&her1. O
(f $othin) herein contained shall
prevent donations fro'
'anufacturers and distri0utors of
products within the scope of this
Code upon re7uest 0* or with the
approval of the Ministr* of .ealth.
*ec&io$ ?1. Do$%&io$1 Ci&hi$ &he
*co#e o .hi1 Co,e ! 1onations of
products, 'aterials, defined and
covered under the Mil@ Code and
these i'ple'entin) rules and
re)ulations, shall 0e strictl*
prohi0ited.
*ec&io$ ?2. O&her Do$%&io$1 74
5i"< Com#%$ie1 No& Co0ere, b4
&hi1 Co,e. ! 1onations of products,
e7uip'ents, and the li@e, not
otherwise fallin) within the scope of
this Code or these Rules, )iven 0*
'il@ co'panies and their a)ents,
%8
representatives, whether in @ind or
in cash, 'a* onl* 0e coursed
throu)h the 2nter A)enc*
Co''ittee (2AC, which shall
deter'ine whether such donation
0e accepted or otherwise.
8. &he R2RR provides for ad'inistrative sanctions not i'posed 0* the Mil@ Code.
5ILL CODE RIRR
*ec&io$ 4D. A,mi$i1&r%&i0e
*%$c&io$1. O &he followin)
ad'inistrative sanctions shall 0e
i'posed upon an* person, Duridical
or natural, found to have violated
the provisions of the Code and its
i'ple'entin) Rules and
Re)ulations-
a 8
st
violation B Warnin)<
0 2
nd
violation B Ad'inistrative fine
of a 'ini'u' of &en &housand
(P80,000.00 to /ift* &housand
(PJ0,000.00 Pesos, dependin) on
the )ravit* and e6tent of the
violation, includin) the recall of the
offendin) product<
c E
rd
violation B Ad'inistrative /ine
of a 'ini'u' of 3i6t* &housand
(PL0,000.00 to #ne .undred /ift*
&housand (P8J0,000.00 Pesos,
dependin) on the )ravit* and e6tent
of the violation, and in addition
thereto, the recall of the offendin)
product, and suspension of the
Certificate of Product Re)istration
(CPR<
d F
th
violation BAd'inistrative /ine
of a 'ini'u' of &wo .undred
&housand (P200,000.00 to /ive
.undred (PJ00,000.00 &housand
Pesos, dependin) on the )ravit*
and e6tent of the violation< and in
addition thereto, the recall of the
product, revocation of the CPR,
suspension of the 9icense to
#perate (9&# for one *ear<
e J
th
and succeedin) repeated
violations B Ad'inistrative /ine of
%2
#ne Million (P8,000,000.00 Pesos,
the recall of the offendin) product,
cancellation of the CPR, revocation
of the 9icense to #perate (9&# of
the co'pan* concerned, includin)
the 0lac@listin) of the co'pan* to
0e furnished the 1epart'ent of
,ud)et and Mana)e'ent (1,M
and the 1epart'ent of &rade and
2ndustr* (1&2<
f An additional penalt* of &wo
&hou!sand /ive .undred
(P2,J00.00 Pesos per da* shall 0e
'ade for ever* da* the violation
continues after havin) received the
order fro' the 2AC or other such
appropriate 0od*, notif*in) and
penaliAin) the co'pan* for the
infraction.
/or purposes of deter'inin)
whether or not there is 4repeated4
violation, each product violation
0elon)in) or owned 0* a co'pan*,
includin) those of their su0sidiaries,
are dee'ed to 0e violations of the
concerned 'il@ co'pan* and shall
not 0e 0ased on the specific
violatin) product alone.
%. &he R2RR provides for repeal of e6istin) laws to the contrar*.
&he Court shall resolve the 'erits of the alle)ations of petitioner seriatim.
8. Petitioner is 'ista@en in its clai' that the Mil@ CodeQs covera)e is li'ited onl* to children 0!82 'onths old.
3ection E of the Mil@ Code states-
3(C&2#$ E. Scope of the Code B &he Code applies to the 'ar@etin), and practices related thereto, of
the followin) products- 0reast'il@ su0stitutes, includin) infant for'ula< other 'il@ products, foods and
0evera)es, includin) 0ottle!fed co'ple'entar* foods, when 'ar@eted or otherwise represented to 0e
suita0le, with or without 'odification, for use as a partial or total replace'ent of 0reast'il@< feedin)
0ottles and teats. 2t also applies to their 7ualit* and availa0ilit*, and to infor'ation concernin) their
use.
Clearl*, the covera)e of the Mil@ Code is not dependent on the a)e of the child 0ut on the <i$, o #ro,+c&
0ein) 'ar@eted to the pu0lic. &he law treats infant for'ula, 0ottle!fed co'ple'entar* food, and 0reast'il@
su0stitute as separate and distinct product cate)ories.
3ection F(h of the Mil@ Code defines infant for'ula as 4a 0reast'il@ su0stitute 6 6 6 to satisf* the nor'al
nutritional re7uire'ents of infants up to 0etween four to si6 'onths of a)e, and adapted to their ph*siolo)ical
characteristics4< while under 3ection F(0, 0ottle!fed co'ple'entar* food refers to 4an* food, whether
%E
'anufactured or locall* prepared, suita0le as a co'ple'ent to 0reast'il@ or infant for'ula, when either
0eco'es insufficient to satisf* the nutritional re7uire'ents of the infant.4 An infant under 3ection F(e is a
person fallin) within the a)e 0rac@et 0!82 'onths. 2t is the nourish'ent of this )roup of infants or children
a)ed 0!82 'onths that is sou)ht to 0e pro'oted and protected 0* the Mil@ Code.
,ut there is another tar)et )roup. ,reast'il@ su0stitute is defined under 3ection F(a as 4an* food 0ein)
'ar@eted or otherwise presented as a partial or total replace'ent for 0reast'il@, whether or not suita0le for
that purpose.4 .hi1 1ec&io$ co$1#ic+o+1"4 "%c<1 reere$ce &o %$4 #%r&ic+"%r %2e32ro+# o chi",re$.
@e$ce, &he #ro0i1io$ o &he 5i"< Co,e c%$$o& be co$1i,ere, e;c"+1i0e or chi",re$ %2e, 0312 mo$&h1.
2n other words, 0reast'il@ su0stitutes 'a* also 0e intended for *oun) children 'ore than 82 'onths of a)e.
&herefore, 0* re)ulatin) 0reast'il@ su0stitutes, the Mil@ Code also intends to protect and pro'ote the
nourish'ent of children 'ore than 82 'onths old.
(videntl*, as lon) as what is 0ein) 'ar@eted falls within the scope of the Mil@ Code as provided in 3ection E,
then it can 0e su0Dect to re)ulation pursuant to said law, even if the product is to 0e used 0* children a)ed
over 82 'onths.
&here is, therefore, nothin) o0Dectiona0le with 3ections 2
F2
and J(ff
FE
of the R2RR.
2. 2t is also incorrect for petitioner to sa* that the R2RR, unli@e the Mil@ Code, does not reco)niAe that
0reast'il@ su0stitutes 'a* 0e a proper and possi0le su0stitute for 0reast'il@.
&he entiret* of the R2RR, not 'erel* truncated portions thereof, 'ust 0e considered and construed to)ether.
As held in De /una v. Pascual,
FF
4GtHhe particular words, clauses and phrases in the Rule should not 0e
studied as detached and isolated e6pressions, 0ut the whole and ever* part thereof 'ust 0e considered in
fi6in) the 'eanin) of an* of its parts and in order to produce a har'onious whole.4
3ection 7 of the R2RR provides that 4when 'edicall* indicated and onl* when necessar*, &he +1e o
bre%1&mi"< 1+b1&i&+&e1 i1 #ro#er if 0ased on co'plete and updated infor'ation.4 3ection 8 of the R2RR also
states that infor'ation and educational 'aterials should include infor'ation on the proper use of infant
for'ula when the use thereof is needed.
.ence, &he RIRR, >+1& "i<e &he 5i"< Co,e, %"1o reco2$i:e1 &h%& i$ cer&%i$ c%1e1, &he +1e o bre%1&mi"<
1+b1&i&+&e1 m%4 be #ro#er.
E. &he Court shall ascertain the 'erits of alle)ations E
FJ
and F
FL
to)ether as the* are interlin@ed with each
other.
&o resolve the 7uestion of whether the la0elin) re7uire'ents and advertisin) re)ulations under the R2RR are
valid, it is i'portant to deal first with the nature, purpose, and depth of the re)ulator* powers of the 1#., as
defined in )eneral under the 8%87 Ad'inistrative Code,
F7
and as dele)ated in particular under the Mil@ Code.
.ealth is a le)iti'ate su0Dect 'atter for re)ulation 0* the 1#. (and certain other ad'inistrative a)encies in
e6ercise of police powers dele)ated to it. &he sheer span of Durisprudence on that 'atter precludes the need
to further discuss it.
.F8
.owever, health infor'ation, particularl* advertisin) 'aterials on apparentl* non!to6ic
products li@e 0reast'il@ su0stitutes and supple'ents, is a relativel* new area for re)ulation 0* the 1#..
F%

As earl* as the 8%87 Revised Ad'inistrative Code of the Philippine 2slands,
J0
health infor'ation was alread*
within the a'0it of the re)ulator* powers of the predecessor of 1#..
J8
3ection %E8 thereof char)ed it with the
dut* to protect the health of the people, and vested it with such powers as 4() the disse'ination of h*)ienic
infor'ation a'on) the people and especially the inculcation of &no!ledge as to the proper care of
infants and the 'ethods of preventin) and co'0atin) dan)erous co''unica0le diseases.4
%F
3event* *ears later, the 8%87 Ad'inistrative Code tas@ed respondent 1#. to carr* out the state polic*
pronounced under 3ection 8J, Article 22 of the 8%87 Constitution, which is 4to protect and pro'ote the ri)ht to
health of the people and instill health consciousness a'on) the'.4
J2
&o that end, it was )ranted under
3ection E of the Ad'inistrative Code the power to 4(L propa)ate health infor'ation and educate the
population on i'portant health, 'edical and environ'ental 'atters which have health i'plications.4
JE

When it co'es to infor'ation re)ardin) nutrition of infants and *oun) children, however, the Mil@ Code
specificall* dele)ated to the Ministr* of .ealth (hereinafter referred to as 1#. the power to ensure that there
is ade7uate, consistent and o0Dective infor'ation on 0reastfeedin) and use of 0reast'il@ su0stitutes,
supple'ents and related products< and the power to co$&ro" such infor'ation. &hese are e6pressl* provided
for in 3ections 82 and J(a, to wit-
3(C&2#$ 82. *mplementation and (onitoring B
6 6 6 6
(0 &he Ministr* of .ealth shall 0e principall* responsi0le for the i'ple'entation and enforce'ent of
the provisions of this Code. /or this purpose, the Ministr* of .ealth shall have the followin) powers
and functions-
(8 &o pro'ul)ate such rules and re)ulations as are necessar* or proper for the
i'ple'entation of this Code and the acco'plish'ent of its purposes and o0Dectives.
6 6 6 6
(F &o e6ercise such other powers and functions as 'a* 0e necessar* for or incidental to the
attain'ent of the purposes and o0Dectives of this Code.
3(C&2#$ J. *nformation and ,ducation B
(a &he )overn'ent shall ensure that ob>ec&i0e %$, co$1i1&e$& infor'ation is provided on infant
feedin), for use 0* fa'ilies and those involved in the field of infant nutrition. &his responsi0ilit* shall
cover the plannin), provision, desi)n and disse'ination of infor'ation, and the control thereof, on
infant nutrition. (('phasis supplied
/urther, 1#. is authoriAed 0* the Mil@ Code to co$&ro" the content of an* infor'ation on 0reast'il@ vis5C5vis
0reast'il@ su0stitutes, supple'ent and related products, in the followin) 'anner-
3(C&2#$ J. 6 6 6
(0 2nfor'ational and educational 'aterials, whether written, audio, or visual, dealin) with the feedin)
of infants and intended to reach pre)nant wo'en and 'others of infants, shall include clear
infor'ation on all the followin) points- (8 the 0enefits and superiorit* of 0reastfeedin)< (2 'aternal
nutrition, and the preparation for and 'aintenance of 0reastfeedin)< (E the ne)ative effect on
0reastfeedin) of introducin) partial 0ottlefeedin)< (F the difficult* of reversin) the decision not to
0reastfeed< and (J where needed, the proper use of infant for'ula, whether 'anufactured industriall*
or ho'e!prepared. /hen such materials contain information a,out the use of infant formula
they shall include the social and financial implications of its use1 the health ha*ards of
inappropriate foods or feeding methods1 and in particular the health ha*ards of unnecessary
or improper use of infant formula and other ,reastmil& su,stitutes. Such materials shall not
use any picture or text !hich may ideali*e the use of ,reastmil& su,stitutes.
S,C#*'4 8. Health +or?ers D
%J
6 6 6 6
(0 2nfor'ation provided 0* 'anufacturers and distri0utors to health professionals re)ardin) products
within the scope of this Code 1h%"" be re1&ric&e, &o 1cie$&iic %$, %c&+%" m%&&er1, %$, 1+ch
i$orm%&io$ 1h%"" $o& im#"4 or cre%&e % be"ie &h%& bo&&"eee,i$2 i1 eF+i0%"e$& or 1+#erior &o
bre%1&ee,i$2. I& 1h%"" %"1o i$c"+,e &he i$orm%&io$ 1#eciie, i$ *ec&io$ ?'b(.
S,C#*'4 :6. Containers3/abel D
(a Containers andIor la0els shall 0e desi)ned to provide the necessar* infor'ation a0out the
appropriate use of the products, and i$ 1+ch % 9%4 %1 $o& &o ,i1co+r%2e bre%1&ee,i$2.
6 6 6 6
(d &he ter' 4hu'aniAed,4 4'aternaliAed4 or si'ilar ter's shall not 0e used. (('phasis supplied
&he 1#. is also authoriAed to control the purpose of the infor'ation and to who' such infor'ation 'a* 0e
disse'inated under 3ections L throu)h % of the Mil@ Code
JF
to ensure that the infor'ation that would reach
pre)nant wo'en, 'others of infants, and health professionals and wor@ers in the health care s*ste' is
restricted to scientific and factual 'atters and shall $o& i'pl* or create a 0elief that 0ottlefeedin) is e7uivalent
or superior to 0reastfeedin).
2t 0ears e'phasis, however, that the 1#.Qs power under the Mil@ Code to co$&ro" infor'ation re)ardin)
0reast'il@ vis5a5vis 0reast'il@ su0stitutes i1 $o& %b1o"+&e as the power to control does not enco'pass the
power to a0solutel* prohi0it the advertisin), 'ar@etin), and pro'otion of 0reast'il@ su0stitutes.
&he followin) are the provisions of the Mil@ Code that une7uivocall* indicate that the control over infor'ation
)iven to the 1#. is not a0solute and that a0solute prohi0ition is not conte'plated 0* the Code-
a 3ection 2 which re7uires ade7uate infor'ation and appropriate 'ar@etin) and distri0ution of
0reast'il@ su0stitutes, to wit-
3(C&2#$ 2. Aim of the Code D &he ai' of the Code is to contri0ute to the provision of safe
and ade7uate nutrition for infants 0* the protection and pro'otion of 0reastfeedin) and 0*
ensurin) the proper use of 0reast'il@ su0stitutes and 0reast'il@ supple'ents when these are
necessar*, on the 0asis of ade7uate infor'ation and throu)h appropriate 'ar@etin) and
distri0ution.
0 3ection E which specificall* states that the Code applies to the 'ar@etin) of and practices related to
0reast'il@ su0stitutes, includin) infant for'ula, and to infor'ation concernin) their use<
c 3ection J(a which provides that the )overn'ent shall ensure that o0Dective and consistent
infor'ation is provided on infant feedin)<
d 3ection J(0 which provides that written, audio or visual infor'ational and educational 'aterials
shall not use an* picture or te6t which 'a* idealiAe the use of 0reast'il@ su0stitutes and should
include infor'ation on the health haAards of unnecessar* or i'proper use of said product<
e 3ection L(a in relation to 3ection 82(a which creates and e'powers the 2AC to review and
e6a'ine advertisin), pro'otion, and other 'ar@etin) 'aterials<
%L
f 3ection 8(0 which states that 'il@ co'panies 'a* provide infor'ation to health professionals 0ut
such infor'ation should 0e restricted to factual and scientific 'atters and shall not i'pl* or create a
0elief that 0ottlefeedin) is e7uivalent or superior to 0reastfeedin)< and
) 3ection 80 which provides that containers or la0els should not contain infor'ation that would
discoura)e 0reastfeedin) and idealiAe the use of infant for'ula.
2t is in this conte6t that the Court now e6a'ines the assailed provisions of the R2RR re)ardin) la0elin) and
advertisin).
3ections 8E
JJ
on 4total effect4 and 2L
JL
of Rule :22 of the R2RR contain so'e la0elin) re7uire'ents,
specificall*- a that there 0e a state'ent that there is no su0stitute to 0reast'il@< and 0 that there 0e a
state'ent that powdered infant for'ula 'a* contain patho)enic 'icroor)anis's and 'ust 0e prepared and
used appropriatel*. 3ection 8L
J7
of the R2RR prohi0its all health and nutrition clai's for products within the
scope of the Mil@ Code, such as clai's of increased e'otional and intellectual a0ilities of the infant and *oun)
child.
&hese re7uire'ents and li'itations are consistent with the provisions of 3ection 8 of the Mil@ Code, to wit-
3(C&2#$ 8. Health wor?ers !
6 6 6 6
(0 2nfor'ation provided 0* 'anufacturers and distri0utors to health professionals re)ardin) products
within the scope of this Code shall 0e re1&ric&e, &o 1cie$&iic %$, %c&+%" m%&&er1, and such
infor'ation 1h%"" $o& i'pl* or create a 0elief that 0ottlefeedin) is e2uivalent or 1+#erior to
0reastfeedin). 2t shall also include the infor'ation specified in 3ection J.
J8
(('phasis supplied
and 3ection 80(d
J%
which 0ars the use on containers and la0els of the ter's 4hu'aniAed,4 4'aternaliAed,4 or
si'ilar ter's.
&hese provisions of the Mil@ Code e6pressl* for0id infor'ation that would i'pl* or create a 0elief that there is
an* 'il@ product e7uivalent to 0reast'il@ or which is hu'aniAed or 'aternaliAed, as such infor'ation would
0e inconsistent with the superiorit* of 0reastfeedin).
2t 'a* 0e ar)ued that 3ection 8 of the Mil@ Code refers onl* to infor'ation )iven to health wor@ers re)ardin)
0reast'il@ su0stitutes, not to containers and la0els thereof. .owever, such restrictive application of 3ection
8(0 will result in the a0surd situation in which 'il@ co'panies and distri0utors are for0idden to clai' to health
wor@ers that their products are su0stitutes or e7uivalents of 0reast'il@, and *et 0e allowed to displa* on the
containers and la0els of their products the e6act opposite 'essa)e. &hat as@ewed interpretation of the Mil@
Code is precisel* what 3ection J(a thereof see@s to avoid 0* 'andatin) that all infor'ation re)ardin)
0reast'il@ vis5a5vis 0reast'il@ su0stitutes 0e consistent, at the sa'e ti'e )ivin) the )overn'ent control over
plannin), provision, desi)n, and disse'ination of infor'ation on infant feedin).
&hus, 3ection 2L(c of the R2RR which re7uires containers and la0els to state that the product offered is not a
su0stitute for 0reast'il@, is a reasona0le 'eans of enforcin) 3ection 8(0 of the Mil@ Code and deterrin)
circu'vention of the protection and pro'otion of 0reastfeedin) as e'0odied in 3ection 2
L0
of the Mil@ Code.
3ection 2L(f
L8
of the R2RR is an e7uall* reasona0le la0elin) re7uire'ent. 2t i'ple'ents 3ection J(0 of the
Mil@ Code which reads-
3(C&2#$ J. 6 6 6
%7
6 6 6 6
(0 2nfor'ational and educational 'aterials, whether written, audio, or visual, dealin) with the feedin)
of infants and intended to reach pre)nant wo'en and 'others of infants, shall include clear
infor'ation on all the followin) points- 6 6 6 (J where needed, the proper use of infant for'ula,
whether 'anufactured industriall* or ho'e!prepared. When such 'aterials contain infor'ation a0out
the use of infant for'ula, the* shall include the social and financial i'plications of its use< the health
ha*ards of inappropriate foods or feeding methods1 and in particular the health ha*ards of
unnecessary or improper use of infant formula and other ,reastmil& su,stitutes. 3uch 'aterials
shall not use an* picture or te6t which 'a* idealiAe the use of 0reast'il@ su0stitutes. (('phasis
supplied
&he la0el of a product contains i$orm%&io$ a0out said product intended for the 0u*ers thereof. &he 0u*ers of
0reast'il@ su0stitutes are 'others of infants, and 3ection 2L of the R2RR 'erel* adds a fair warnin) a0out
the li@elihood of patho)enic 'icroor)anis's 0ein) present in infant for'ula and other related products when
these are prepared and used inappropriatel*.
PetitionerCs counsel has ad'itted durin) the hearin) on +une 8%, 2007 that for'ula 'il@ is prone to
conta'inations and there is as *et no technolo)* that allows production of powdered infant for'ula that
eli'inates all for's of conta'ination.
L2
2nelucta0l*, the re7uire'ent under 3ection 2L(f of the R2RR for the la0el to contain the 'essa)e re)ardin)
health haAards includin) the possi0ilit* of conta'ination with patho)enic 'icroor)anis's is in accordance
with 3ection J(0 of the Mil@ Code.
&he authorit* of 1#. to control infor'ation re)ardin) 0reast'il@ vis5a5vis 0reast'il@ su0stitutes and
supple'ents and related products cannot 0e 7uestioned. 2t is its intervention into the area of advertisin),
pro'otion, and 'ar@etin) that is 0ein) assailed 0* petitioner.
2n furtherance of 3ection L(a of the Mil@ Code, to wit-
3(C&2#$ L. #he )eneral Public and (others. B
(a $o advertisin), pro'otion or other 'ar@etin) 'aterials, whether written, audio or visual, for
products within the scope of this Code shall 0e printed, pu0lished, distri0uted, e6hi0ited and 0roadcast
unless such 'aterials are dul* authoriAed and approved 0* an inter!a)enc* co''ittee created herein
pursuant to the applica0le standards provided for in this Code.
the Mil@ Code invested re)ulator* authorit* over advertisin), pro'otional and 'ar@etin) 'aterials to an 2AC,
thus-
3(C&2#$ 82. *mplementation and (onitoring !
(a /or purposes of 3ection L(a of this Code, an inter!a)enc* co''ittee co'posed of the followin)
'e'0ers is here0* created-
Minister of .ealth !!!!!!!!!!!!!!!!!
!!
Chair'an
Minister of &rade and 2ndustr* !!!!!!!!!!!!!!!!!
!!
Me'0er
Minister of +ustice !!!!!!!!!!!!!!!!! Me'0er
%8
!!
Minister of 3ocial 3ervices and
1evelop'ent
!!!!!!!!!!!!!!!!!
!!
Me'0er
&he 'e'0ers 'a* desi)nate their dul* authoriAed representative to ever* 'eetin) of the Co''ittee.
&he Co''ittee shall have the followin) powers and functions-
(8 &o review and e6a'ine all advertisin). pro'otion or other 'ar@etin) 'aterials, whether
written, audio or visual, on products within the scope of this Code<
(2 &o approve or disapprove, delete o0Dectiona0le portions fro' and prohi0it the printin),
pu0lication, distri0ution, e6hi0ition and 0roadcast of, all advertisin) pro'otion or other
'ar@etin) 'aterials, whether written, audio or visual, on products within the scope of this
Code<
(E &o prescri0e the internal and operational procedure for the e6ercise of its powers and
functions as well as the perfor'ance of its duties and responsi0ilities< and
(F .o #rom+"2%&e 1+ch r+"e1 %$, re2+"%&io$1 %1 %re $ece11%r4 or #ro#er or &he
im#"eme$&%&io$ o *ec&io$ D'%( o &hi1 Co,e. 6 6 6 (('phasis supplied
.owever, 3ection 88 of the R2RR, to wit-
3(C&2#$ 88. Prohibition O $o advertisin), pro'otions, sponsorships, or 'ar@etin) 'aterials and
activities for 0reast'il@ su0stitutes intended for infants and *oun) children up to twent*!four (2F
'onths, shall 0e allowed, 0ecause the* tend to conve* or )ive su0li'inal 'essa)es or i'pressions
that under'ine 0reast'il@ and 0reastfeedin) or otherwise e6a))erate 0reast'il@ su0stitutes andIor
replace'ents, as well as related products covered within the scope of this Code.
prohi0its advertisin), pro'otions, sponsorships or 'ar@etin) 'aterials and activities for 0reast'il@ su0stitutes
in line with the R2RRCs declaration of principle under 3ection F(f, to wit-
3(C&2#$ F. Declaration of Principles D
6 6 6 6
(f Advertisin), pro'otions, or sponsorships of infant for'ula, 0reast'il@ su0stitutes and other related
products are prohi0ited.
&he 1#., throu)h its co!respondents, evidentl* arro)ated to itself not onl* the re)ulator* authorit* )iven to
the 2AC 0ut also i'posed a0solute prohi0ition on advertisin), pro'otion, and 'ar@etin).
?et, oddl* enou)h, 3ection 82 of the R2RR reiterated the re7uire'ent of the Mil@ Code in 3ection L thereof for
prior approval 0* 2AC of all advertisin), 'ar@etin) and pro'otional 'aterials prior to disse'ination.
(ven respondents, throu)h the #3", ac@nowled)ed the authorit* of 2AC, and repeatedl* insisted, durin) the
oral ar)u'ents on +une 8%, 2007, that the prohi0ition under 3ection 88 is not actuall* operational, viE-
3#92C2&#R "($(RA9 1(:A$A1(RA-
%%
6 6 6 6
6 6 6 $ow, the cru6 of the 'atter that is 0ein) 7uestioned 0* Petitioner is whether or not there is an
a0solute prohi0ition on advertisin) 'a@in) A# 200L!82 unconstitutional. We 'aintained that what A#
200L!82 provides is not an a0solute prohi0ition 0ecause 3ection 88 while it states and it is entitled
prohi0ition it states that no advertisin), pro'otion, sponsorship or 'ar@etin) 'aterials and activities
for 0reast 'il@ su0stitutes intended for infants and *oun) children up to 2F 'onths shall 0e allowed
0ecause this is the standard the* tend to conve* or )ive su0li'inal 'essa)es or i'pression
under'ine that 0reast'il@ or 0reastfeedin) 6 6 6.
We have to read 3ection 88 to)ether with the other 3ections 0ecause the other 3ection, 3ection 82,
provides for the inter a)enc* co''ittee that is e'powered to process and evaluate all the advertisin)
and pro'otion 'aterials.
6 6 6 6
What A# 200L!82, what it does, it does not prohi0it the sale and 'anufacture, it si'pl* re)ulates the
advertise'ent and the pro'otions of 0reastfeedin) 'il@ su0stitutes.
6 6 6 6
$ow, the prohi0ition on advertisin), ?our .onor, 'ust 0e ta@en to)ether with the provision on the
2nter!A)enc* Co''ittee that processes and evaluates 0ecause there 'a* 0e so'e infor'ation
disse'ination that are strai)ht forward infor'ation disse'ination. What the A# 200L is tr*in) to
prevent is an* 'aterial that will under'ine the practice of 0reastfeedin), ?our .onor.
6 6 6 6
A33#C2A&( +53&2C( 3A$&2A"#-
Mada' 3olicitor "eneral, under the Mil@ Code, which 0od* has authorit* or power to pro'ul)ate
Rules and Re)ulations re)ardin) the Advertisin), Pro'otion and Mar@etin) of ,reast'il@ 3u0stitutesN
3#92C2&#R "($(RA9 1(:A$A1(RA-
?our .onor, please, it is provided that the 2nter!A)enc* Co''ittee, ?our .onor.
6 6 6 6
A33#C2A&( +53&2C( 3A$&2A"#-
6 6 6 1onQt *ou thin@ that the 1epart'ent of .ealth overstepped its rule 'a@in) authorit* when it totall*
0anned advertisin) and pro'otion under 3ection 88 prescri0ed the total effect rule as well as the
content of 'aterials under 3ection 8E and 8J of the rules and re)ulationsN
3#92C2&#R "($(RA9 1(:A$A1(RA-
?our .onor, please, first we would li@e to stress that there is no total a0solute 0an. 3econd, the 2nter!
A)enc* Co''ittee is under the 1epart'ent of .ealth, ?our .onor.
6 6 6 6
800
A33#C2A&( +53&2C( $A;AR2#-
6 6 6 1id 2 hear *ou correctl*, Mada' 3olicitor, that there is no a0solute 0an on advertisin) of
0reast'il@ su0stitutes in the Revised RulesN
3#92C2&#R "($(RA9 1(:A$A1(RA-
?es, *our .onor.
A33#C2A&( +53&2C( $A;AR2#-
,ut, would *ou nevertheless a)ree that there is an a0solute 0an on advertisin) of 0reast'il@
su0stitutes intended for children two (2 *ears old and *oun)erN
3#92C2&#R "($(RA9 1(:A$A1(RA-
2tQs not an a0solute 0an, ?our .onor, 0ecause we have the 2nter!A)enc* Co''ittee that can evaluate
so'e advertisin) and pro'otional 'aterials, su0Dect to the standards that we have stated earlier,
which are! the* should not under'ine 0reastfeedin), ?our .onor.
6 6 6 6
6 6 6 3ection 88, while it is titled Prohi0ition, it 'ust 0e ta@en in relation with the other 3ections,
particularl* 82 and 8E and 8J, ?our .onor, 0ecause it is reco)niAed that the 2nter!A)enc* Co''ittee
has that power to evaluate pro'otional 'aterials, ?our .onor.
A33#C2A&( +53&2C( $A;AR2#-
3o in short, will *ou please clarif* thereQs no a0solute 0an on advertise'ent re)ardin) 'il@ su0stitute
re)ardin) infants two (2 *ears 0elowN
3#92C2&#R "($(RA9 1(:A$A1(RA-
We can proudl* sa* that the )eneral rule is that there is a prohi0ition, however, we ta@e e6ceptions
and standards have 0een set. #ne of which is that, the 2nter!A)enc* Co''ittee can allow if the
advertisin) and pro'otions will not under'ine 0reast'il@ and 0reastfeedin), ?our .onor.
LE

3ections 88 and F(f of the R2RR are clearl* violative of the Mil@ Code.
.owever, althou)h it is the 2AC which is authoriAed to pro'ul)ate rules and re)ulations for the approval or
reDection of advertisin), pro'otional, or other 'ar@etin) 'aterials under 3ection 82(a of the Mil@ Code, said
provision 'ust 0e related to 3ection L thereof which in turn provides that the rules and re)ulations 'ust 0e
4pursuant to the applica0le standards provided for in this Code.4 3aid standards are set forth in 3ections J(0,
8(0, and 80 of the Code, which, at the ris@ of 0ein) repetitious, and for eas* reference, are 7uoted hereunder-
3(C&2#$ J. *nformation and ,ducation D
6 6 6 6
(0 2nfor'ational and educational 'aterials, whether written, audio, or visual, dealin) with the feedin)
of infants and intended to reach pre)nant wo'en and 'others of infants, shall include clear
infor'ation on all the followin) points- (8 the 0enefits and superiorit* of 0reastfeedin)< (2 'aternal
808
nutrition, and the preparation for and 'aintenance of 0reastfeedin)< (E the ne)ative effect on
0reastfeedin) of introducin) partial 0ottlefeedin)< (F the difficult* of reversin) the decision not to
0reastfeed< and (J where needed, the proper use of infant for'ula, whether 'anufactured industriall*
or ho'e!prepared. When such 'aterials contain infor'ation a0out the use of infant for'ula, the* shall
include the social and financial i'plications of its use< the health haAards of inappropriate foods of
feedin) 'ethods< and, in particular, the health haAards of unnecessar* or i'proper use of infant
for'ula and other 0reast'il@ su0stitutes. 3uch 'aterials shall not use an* picture or te6t which 'a*
idealiAe the use of 0reast'il@ su0stitutes.
6 6 6 6
3(C&2#$ 8. Health +or?ers. B
6 6 6 6
(0 2nfor'ation provided 0* 'anufacturers and distri0utors to health professionals re)ardin) products
within the scope of this Code shall 0e restricted to scientific and factual 'atters and such infor'ation
shall not i'pl* or create a 0elief that 0ottle feedin) is e7uivalent or superior to 0reastfeedin). 2t shall
also include the infor'ation specified in 3ection J(0.
6 6 6 6
3(C&2#$ 80. Containers3/abel 3
(a Containers andIor la0els shall 0e desi)ned to provide the necessar* infor'ation a0out the
appropriate use of the products, and in such a wa* as not to discoura)e 0reastfeedin).
(0 (ach container shall have a clear, conspicuous and easil* reada0le and understanda0le 'essa)e
in Pilipino or (n)lish printed on it, or on a la0el, which 'essa)e can not readil* 0eco'e separated
fro' it, and which shall include the followin) points-
(i the words 42'portant $otice4 or their e7uivalent<
(ii a state'ent of the superiorit* of 0reastfeedin)<
(iii a state'ent that the product shall 0e used onl* on the advice of a health wor@er as to the
need for its use and the proper 'ethods of use< and
(iv instructions for appropriate preparation, and a warnin) a)ainst the health haAards of
inappropriate preparation.
3ection 82(0 of the Mil@ Code desi)nates the 1#. as the principal i'ple'entin) a)enc* for the enforce'ent
of the provisions of the Code. 2n relation to such responsi0ilit* of the 1#., 3ection J(a of the Mil@ Code
states that-
3(C&2#$ J. *nformation and ,ducation D
(a &he )overn'ent shall ensure that ob>ec&i0e %$, co$1i1&e$& infor'ation is provided on infant
feedin), for use 0* fa'ilies and those involved in the field of infant nutrition. &his responsi0ilit* shall
cover the plannin), provision, desi)n and disse'ination of infor'ation, and the control thereof, on
infant nutrition. (('phasis supplied
802
&hus, &he DO@ h%1 &he 1i2$iic%$& re1#o$1ibi"i&4 &o &r%$1"%&e i$&o o#er%&io$%" &erm1 &he 1&%$,%r,1 1e&
or&h i$ *ec&io$1 ?, 8, %$, 10 o &he 5i"< Co,e, b4 9hich &he IAC 1h%"" 1cree$ %,0er&i1i$2, #romo&io$%",
or o&her m%r<e&i$2 m%&eri%"1.
2t is pursuant to such responsi0ilit* that the 1#. correctl* provided for 3ection 8E in the R2RR which reads as
follows-
3(C&2#$ 8E. 4#otal ,ffect4 ! Pro'otion of products within the scope of this Code 'ust 0e o0Dective
and should not e7uate or 'a@e the product appear to 0e as )ood or e7ual to 0reast'il@ or
0reastfeedin) in the advertisin) concept. 2t 'ust not in an* case under'ine 0reast'il@ or
0reastfeedin). &he 4total effect4 should not directl* or indirectl* su))est that 0u*in) their product would
produce 0etter individuals, or resultin) in )reater love, intelli)ence, a0ilit*, har'on* or in an* 'anner
0rin) 0etter health to the 0a0* or other such e6a))erated and unsu0stantiated clai'.
3uch standards 0ind the 2AC in for'ulatin) its rules and re)ulations on advertisin), pro'otion, and 'ar@etin).
&hrou)h that sin)le provision, the 1#. e6ercises control over the infor'ation content of advertisin),
pro'otional and 'ar@etin) 'aterials on 0reast'il@ vis5a5vis 0reast'il@ su0stitutes, supple'ents and other
related products. 2t also sets a via0le standard a)ainst which the 2AC 'a* screen such 'aterials 0efore the*
are 'ade pu0lic.
2n ,!ui5Asia Placement, *nc. vs. Department of %oreign Affairs,
LF
the Court held-
6 6 6 G&Hhis Court had, in the past, accepted as sufficient standards the followin)- 4pu0lic interest,4
4Dustice and e7uit*,4 4pu0lic convenience and welfare,4 and 4si'plicit*, econo'* and welfare.4
LJ

2n this case, correct infor'ation as to infant feedin) and nutrition is infused with pu0lic interest and welfare.
F. With re)ard to activities for disse'ination of infor'ation to health professionals, the Court also finds that
there is no inconsistenc* 0etween the provisions of the Mil@ Code and the R2RR. 3ection 7(0
LL
of the Mil@
Code, in relation to 3ection 8(0
L7
of the sa'e Code, allows disse'ination of infor'ation to health
professionals 0ut such i$orm%&io$ i1 re1&ric&e, &o 1cie$&iic %$, %c&+%" m%&&er1.
Contrar* to petitionerQs clai', 3ection 22 of the R2RR does not prohi0it the 2i0i$2 o i$orm%&io$ &o he%"&h
#roe11io$%"1 o$ 1cie$&iic %$, %c&+%" m%&&er1. What it prohi0its is the involve'ent of the 'anufacturer
and distri0utor of the products covered 0* the Code in activities for the pro'otion, education and production of
2nfor'ation, (ducation and Co''unication (2(C 'aterials re)ardin) 0reastfeedin) that are i$&e$,e, or
9ome$ %$, chi",re$. 3aid provision cannot 0e construed to enco'pass even the ,i11emi$%&io$ o
i$orm%&io$ &o he%"&h #roe11io$%"1, %1 re1&ric&e, 0* the Mil@ Code.
J. $e6t, petitioner alle)es that 3ection 8(e
L8
of the Mil@ Code per'its 'il@ 'anufacturers and distri0utors to
e6tend assistance in research and in the continuin) education of health professionals, while 3ections 22 and
E2 of the R2RR a0solutel* for0id the sa'e. Petitioner also assails 3ection F(i
L%
of the R2RR prohi0itin) 'il@
'anufacturersQ and distri0utorsQ participation in an* polic*'a@in) 0od* in relation to the advance'ent of
0reastfeedin).
3ection F(i of the R2RR provides that 'il@ co'panies and their representatives should not for' part of an*
polic*'a@in) 0od* or entit* in relation to the advance'ent of 0reastfeedin). &he Court finds nothin) in said
provisions which contravenes the Mil@ Code. $ote that under 3ection 82(0 of the Mil@ Code, it is &he DO@
9hich 1h%"" be #ri$ci#%""4 re1#o$1ib"e for the i'ple'entation and enforce'ent of the provisions of said
Code. 2t is entirel* up to the 1#. to decide which entities to call upon or allow to 0e part of polic*'a@in)
0odies on 0reastfeedin). &herefore, the R2RRQs prohi0ition on 'il@ co'paniesC participation in an*
polic*'a@in) 0od* in relation to the advance'ent of 0reastfeedin) is in accord with the Mil@ Code.
80E
Petitioner is also 'ista@en in ar)uin) that 3ection 22 of the R2RR prohi0its 'il@ co'panies fro' )ivin)
reasearch assistance and continuin) education to health professionals. *ec&io$ 22
70
o &he RIRR ,oe1 $o&
#er&%i$ &o re1e%rch %11i1&%$ce &o or &he co$&i$+i$2 e,+c%&io$ o he%"&h #roe11io$%"1< rather, it deals
with 0reastfeedin) pro'otion and e,+c%&io$ or 9ome$ %$, chi",re$. $othin) in 3ection 22 of the R2RR
prohi0its 'il@ co'panies fro' )ivin) assistance for research or continuin) education to health professionals<
hence, petitionerQs ar)u'ent a)ainst this particular provision 'ust 0e struc@ down.
2t is 3ections %
78
and 80
72
of the R2RR which )overn research assistance. 3aid sections of the R2RR provide
that re1e%rch %11i1&%$ce or he%"&h 9or<er1 %$, re1e%rcher1 m%4 be %""o9e, +#o$ %##ro0%" o %$
e&hic1 commi&&ee, %$, 9i&h cer&%i$ ,i1c"o1+re reF+ireme$&1 im#o1e, o$ &he mi"< com#%$4 %$, o$ &he
reci#ie$& o &he re1e%rch %9%r,.
&he Mil@ Code endows the 1#. with the power to deter'ine how such research or educational assistance
'a* 0e )iven 0* 'il@ co'panies or under what conditions health wor@ers 'a* accept the assistance. &hus,
3ections % and 80 of the R2RR i'posin) li'itations on the @ind of research done or e6tent of assistance )iven
0* 'il@ co'panies are co'pletel* in accord with the Mil@ Code.
Petitioner co'plains that 3ection E2
7E
of the R2RR prohi0its 'il@ co'panies fro' )ivin) assistance, support,
lo)istics or trainin) to health wor@ers. &his provision is within the prero)ative )iven to the 1#. under 3ection
8(e
7F
of the Mil@ Code, which provides that 'anufacturers and distri0utors of 0reast'il@ su0stitutes 'a*
assist in researches, scholarships and the continuin) education, of health professionals in accordance with
the rules and re)ulations pro'ul)ated 0* the Ministr* of .ealth, now 1#..
L. As to the R2RRQs prohi0ition on donations, said provisions are also consistent with the Mil@ Code. 3ection
L(f of the Mil@ Code provides that donations m%4 0e 'ade 0* 'anufacturers and distri0utors of 0reast'il@
su0stitutes +#o$ &he reF+e1& or 9i&h &he %##ro0%" o &he DO@. &he law does not proscri0e the refusal of
donations. &he Mil@ Code leaves it purel* to the discretion of the 1#. whether to re7uest or accept such
donations. &he 1#. then appropriatel* e6ercised its discretion throu)h 3ection J8
7J
of the R2RR which sets
forth its polic* not to re7uest or approve donations fro' 'anufacturers and distri0utors of 0reast'il@
su0stitutes.
2t was within the discretion of the 1#. when it provided in 3ection J2 of the R2RR that an* donation fro' 'il@
co'panies not covered 0* the Code should 0e coursed throu)h the 2AC which shall deter'ine whether such
donation should 0e accepted or refused. As reasoned out 0* respondents, the 1#. is not 'andated 0* the
Mil@ Code to accept donations. /or that 'atter, no person or entit* can 0e forced to accept a donation. &here
is, therefore, no real inconsistenc* 0etween the R2RR and the law 0ecause the Mil@ Code does not prohi0it
the 1#. fro' refusin) donations.
7. With re)ard to 3ection FL of the R2RR providin) for ad'inistrative sanctions that are not found in the Mil@
Code, the Court upholds petitionerQs o0Dection thereto.
RespondentQs reliance on Civil Aeronautics Board v. Philippine Air /ines, *nc.
7L
is 'isplaced. &he )larin)
difference in said case and the present case 0efore the Court is that, in the Civil Aeronautics Board, the Civil
Aeronautics Ad'inistration (CAA was e;#re11"4 2r%$&e, b4 &he "%9 'R.A. No. AAD( &he #o9er to i'pose
fines and civil penalties, while the Civil Aeronautics ,oard (CA, was )ranted 0* the sa'e law the power to
review on appeal the order or decision of the CAA and to deter'ine whether to i'pose, re'it, 'iti)ate,
increase or co'pro'ise such fine and civil penalties. &hus, the Court upheld the CA,Qs Resolution i'posin)
ad'inistrative fines.
2n a 'ore recent case, PereE v. /P) efillers Association of the Philippines, *nc.,
77
the Court upheld the
1epart'ent of (ner)* (1#( Circular $o. 2000!0L!80 i'ple'entin) Batas Pambansa (,.P. Blg. EE. &he
circular provided for fines for the co''ission of prohi0ited acts. &he Court found that nothin) in the circular
80F
contravened the law 0ecause the 1#( was e6pressl* authoriAed 0* ,.P. Blg. EE and R.A. $o. 7LE8 to i'pose
fines or penalties.
2n the present case, neither the Mil@ Code nor the Revised Ad'inistrative Code )rants the 1#. the authorit*
to fi6 or i'pose ad'inistrative fines. &hus, without an* e6press )rant of power to fi6 or i'pose such fines, the
1#. cannot provide for those fines in the R2RR. 2n this re)ard, the 1#. a)ain e6ceeded its authorit* 0*
providin) for such fines or sanctions in 3ection FL of the R2RR. 3aid provision is, therefore, null and void.
&he 1#. is not left without an* 'eans to enforce its rules and re)ulations. 3ection 82(0 (E of the Mil@ Code
authoriAes the 1#. to 4cause the prosecution of the violators of this Code and other pertinent laws on
products covered 0* this Code.4 3ection 8E of the Mil@ Code provides for the penalties to 0e i'posed on
violators of the provision of the Mil@ Code or the rules and re)ulations issued pursuant to it, to wit-
3(C&2#$ 8E. Sanctions D
(a An* person who violates the provisions of this Code or &he r+"e1 %$, re2+"%&io$1 i11+e, #+r1+%$& &o &hi1
Co,e shall, upon conviction, 0e punished 0* a penalt* of two (2 'onths to one (8 *ear i'prison'ent or a fine
of not less than #ne &housand Pesos (P8,000.00 nor 'ore than &hirt* &housand Pesos (PE0,000.00 or 0oth.
3hould the offense 0e co''itted 0* a Duridical person, the chair'an of the ,oard of 1irectors, the president,
)eneral 'ana)er, or the partners andIor the persons directl* responsi0le therefor, shall 0e penaliAed.
(0 An* license, per'it or authorit* issued 0* an* )overn'ent a)enc* to an* health wor@er, distri0utor,
'anufacturer, or 'ar@etin) fir' or personnel for the practice of their profession or occupation, or for the pursuit
of their 0usiness, 'a*, upon reco''endation of the Ministr* of .ealth, 0e suspended or revo@ed in the event of
repeated violations of this Code, or of the rules and re)ulations issued pursuant to this Code. (('phasis
supplied
8. PetitionerCs clai' that 3ection J7 of the R2RR repeals e6istin) laws that are contrar* to the R2RR is frivolous.
3ection J7 reads-
3(C&2#$ J7. epealing Clause ! All orders, issuances, and rules and re)ulations or parts thereof inconsistent
with these revised rules and i'ple'entin) re)ulations are here0* repealed or 'odified accordin)l*.
3ection J7 of the R2RR does not provide for the repeal of laws 0ut onl* orders, issuances and rules and re)ulations.
&hus, said provision is valid as it is within the 1#.Qs rule!'a@in) power.
An ad'inistrative a)enc* li@e respondent possesses 7uasi!le)islative or rule!'a@in) power or the power to 'a@e rules
and re)ulations which results in dele)ated le)islation that is within the confines of the )rantin) statute and the
Constitution, and su0Dect to the doctrine of non!dele)a0ilit* and separa0ilit* of powers.
78
3uch e6press )rant of rule!
'a@in) power necessaril* includes the power to a'end, revise, alter, or repeal the sa'e.
7%
&his is to allow ad'inistrative
a)encies fle6i0ilit* in for'ulatin) and adDustin) the details and 'anner 0* which the* are to i'ple'ent the provisions of a
law,
80
in order to 'a@e it 'ore responsive to the ti'es. .ence, it is a standard provision in ad'inistrative rules that prior
issuances of ad'inistrative a)encies that are inconsistent therewith are declared repealed or 'odified.
2n fine, onl* 3ections F(f, 88 and FL are ultra vires, 0e*ond the authorit* of the 1#. to pro'ul)ate and in contravention
of the Mil@ Code and, therefore, null and void. &he rest of the provisions of the R2RR are in consonance with the Mil@
Code.
9astl*, petitioner 'a@es a 4catch!all4 alle)ation that-
6 6 6 G&Hhe 7uestioned R2RR sou)ht to 0e i'ple'ented 0* the Respondents is +$$ece11%r4 %$, o##re11i0e,
%$, i1 oe$1i0e &o &he ,+e #roce11 c"%+1e o &he Co$1&i&+&io$, i$1o%r %1 &he 1%me i1 i$ re1&r%i$& o &r%,e
and 0ecause a provision therein is inade7uate to provide the pu0lic with a co'prehensi0le 0asis to deter'ine
whether or not the* have co''itted a violation.
88
(('phasis supplied
80J
Petitioner refers to 3ections F(f,
82
F(i,
8E
J(w,
8F
88,
8J
22,
8L
E2,
87
FL,
88
and J2
8%
as the provisions that suppress the trade of
'il@ and, thus, violate the due process clause of the Constitution.
&he fra'ers of the constitution were well aware that trade 'ust 0e su0Dected to so'e for' of re)ulation for the pu0lic
)ood. Pu0lic interest 'ust 0e upheld over 0usiness interests.
%0
2n Pest (anagement Association of the Philippines v.
%ertiliEer and Pesticide Authority,
%8
it was held thus-
6 6 6 /urther'ore, as held in Association of Philippine Coconut 1esiccators v. Philippine Coconut Authorit*,
,e1#i&e &he %c& &h%& Io+r #re1e$& Co$1&i&+&io$ e$1hri$e1 ree e$&er#ri1e %1 % #o"ic4, i& $o$e&he"e11
re1er0e1 &o &he 2o0er$me$& &he #o9er &o i$&er0e$e 9he$e0er $ece11%r4 &o #romo&e &he 2e$er%" 9e"%re.4
&here can 0e no 7uestion that the unre)ulated use or proliferation of pesticides would 0e haAardous to our
environ'ent. &hus, in the aforecited case, the Court declared that 4ree e$&er#ri1e ,oe1 $o& c%"" or remo0%"
o P#ro&ec&i0e re2+"%&io$1E.4 6 6 6 I& m+1& be c"e%r"4 e;#"%i$e, %$, #ro0e$ b4 com#e&e$& e0i,e$ce >+1&
e;%c&"4 ho9 1+ch #ro&ec&i0e re2+"%&io$ 9o+", re1+"& i$ &he re1&r%i$& o &r%,e. G('phasis and underscorin)
suppliedH
2n this case, petitioner failed to show that the proscription of 'il@ 'anufacturersC participation in an* polic*'a@in) 0od*
(3ection F(i, classes and se'inars for wo'en and children (3ection 22< the )ivin) of assistance, support and lo)istics
or trainin) (3ection E2< and the )ivin) of donations (3ection J2 would unreasona0l* ha'per the trade of 0reast'il@
su0stitutes. Petitioner has not esta0lished that the proscri0ed activities are indispensa0le to the trade of 0reast'il@
su0stitutes. Petitioner failed to de'onstrate that the afore'entioned provisions of the R2RR are unreasona0le and
oppressive for 0ein) in restraint of trade.
Petitioner also failed to convince the Court that 3ection J(w of the R2RR is unreasona0le and oppressive. 3aid section
provides for the definition of the ter' 4'il@ co'pan*,4 to wit-
3(C&2#$ J 6 6 6. (w 4Mil@ Co'pan*4 shall refer to the owner, 'anufacturer, distri0utor of infant for'ula, follow!
up 'il@, 'il@ for'ula, 'il@ supple'ent, 0reast'il@ su0stitute or replace'ent, or 0* an* other description of such
nature, includin) their representatives who pro'ote or otherwise advance their co''ercial interests in 'ar@etin)
those products<
#n the other hand, 3ection F of the Mil@ Code provides-
(d 41istri0utor4 'eans a person, corporation or an* other entit* in the pu0lic or private sector en)a)ed in the
0usiness (whether directl* or indirectl* of 'ar@etin) at the wholesale or retail level a product within the scope of
this Code. A 4pri'ar* distri0utor4 is a 'anufacturerQs sales a)ent, representative, national distri0utor or 0ro@er.
6 6 6 6
(D 4Manufacturer4 'eans a corporation or other entit* in the pu0lic or private sector en)a)ed in the 0usiness or
function (whether directl* or indirectl* or throu)h an a)ent or and entit* controlled 0* or under contract with it of
'anufacturin) a products within the scope of this Code.
$ota0l*, the definition in the R2RR 'erel* 'er)ed to)ether under the ter' 4'il@ co'pan*4 the entities defined separatel*
under the Mil@ Code as 4distri0utor4 and 4'anufacturer.4 &he R2RR also enu'erated in 3ection J(w the products
'anufactured or distri0uted 0* an entit* that would 7ualif* it as a 4'il@ co'pan*,4 whereas in the Mil@ Code, what is used
is the phrase 4products within the scope of this Code.4 &hose are the onl* differences 0etween the definitions )iven in the
Mil@ Code and the definition as re!stated in the R2RR.
3ince all the re)ulator* provisions under the Mil@ Code appl* e7uall* to 0oth 'anufacturers and distri0utors, the Court
sees no har' in the R2RR providin) for Dust one ter' to enco'pass 0oth entities. &he definition of 4'il@ co'pan*4 in the
R2RR and the definitions of 4distri0utor4 and 4'anufacturer4 provided for under the Mil@ Code are practicall* the sa'e.
&he Court is not convinced that the definition of 4'il@ co'pan*4 provided in the R2RR would 0rin) a0out an* chan)e in
the treat'ent or re)ulation of 4distri0utors4 and 4'anufacturers4 of 0reast'il@ su0stitutes, as defined under the Mil@
Code.
80L
(6cept 3ections F(f, 88 and FL, the rest of the provisions of the R2RR are in consonance with the o0Dective, purpose and
intent of the Mil@ Code, constitutin) reasona0le re)ulation of an industr* which affects pu0lic health and welfare and, as
such, the rest of the R2RR do not constitute ille)al restraint of trade nor are the* violative of the due process clause of the
Constitution.
C@ERE8ORE, the petition is !AR.IALL6 GRAN.ED. 3ections F(f, 88 and FL of Ad'inistrative #rder $o. 200L!0082
dated Ma* 82, 200L are declared N-LL and VOID for 0ein) ultra vires. &he 1epart'ent of .ealth and respondents are
!RO@I7I.ED fro' i'ple'entin) said provisions.
&he &e'porar* Restrainin) #rder issued on Au)ust 8J, 200L is LI8.ED insofar as the rest of the provisions of
Ad'inistrative #rder $o. 200L!0082 is concerned. *O ORDERED.
G.R. No. 1?8088 J+"4 D, 200?
*ENA.OR AG-ILINO !I5EN.EL, JR., RE!. E..A RO*ALE*, !@ILI!!INE COALI.ION 8OR .@E
E*.A7LI*@5EN. O8 .@E IN.ERNA.IONAL CRI5INAL CO-R., .A*L 8ORCE DE.AINEE* O8 .@E
!@ILI!!INE*, 8A5ILIE* O8 VIC.I5* O8 INVOL-N.AR6 DI*A!!EARANCE*, 7IANCA @ACIN.@A R.
ROG-E, @ARRI*ON JACO7 R. ROG-E, A@5ED !AGLINACAN, RON !. *ALO,
_
LEAVIDE* G.
DO5INGO, EDGARDO CARLO VI*.AN, NOEL VILLARO5AN, CELE*.E CE57RANO, LIZA A7IERA,
JAI5E ARRO6O, 5ARCIL LLA*O*, CRI*.INA A.ENDIDO, I*RA8EL 8AGELA, %$, RO5EL 7AGARE*,
Petitioners,
vs.
O88ICE O8 .@E EHEC-.IVE *ECRE.AR6, @ON. AL7ER.O RO5-LO, %$, &he DE!AR.5EN. O8
8OREIGN A88AIR*, re#re1e$&e, b4 @ON. 7LA* O!LE, Re1#o$,e$&1.
&his is a petition for mandamus filed 0* petitioners to co'pel the
#ffice of the (6ecutive 3ecretar* and the 1epart'ent of /orei)n Affairs to trans'it the si)ned cop* of the
Ro'e 3tatute of the 2nternational Cri'inal Court to the 3enate of the Philippines for its concurrence in
accordance with 3ection 28, Article :22 of the 8%87 Constitution.
&he Ro'e 3tatute esta0lished the 2nternational Cri'inal Court which 4shall have the power to e6ercise its
Durisdiction over persons for the 'ost serious cri'es of international concern 666 and shall 0e co'ple'entar*
to the national cri'inal Durisdictions.4
8
2ts Durisdiction covers the cri'e of )enocide, cri'es a)ainst hu'anit*,
war cri'es and the cri'e of a))ression as defined in the 3tatute.
2
&he 3tatute was opened for si)nature 0*
all states in Ro'e on +ul* 87, 8%%8 and had re'ained open for si)nature until 1ece'0er E8, 2000 at the
5nited $ations .ead7uarters in $ew ?or@. &he Philippines si)ned the 3tatute on 1ece'0er 28, 2000 throu)h
Charge dF Affairs (nri7ue A. Manalo of the Philippine Mission to the 5nited $ations.
E
2ts provisions, however,
re7uire that it 0e su0Dect to ratification, acceptance or approval of the si)nator* states.
F

Petitioners filed the instant petition to co'pel the respondents U the #ffice of the (6ecutive 3ecretar* and
the 1epart'ent of /orei)n Affairs U to trans'it the si)ned te6t of the treat* to the 3enate of the Philippines
for ratification.
2t is the theor* of the petitioners that ratification of a treat*, under 0oth do'estic law and international law, is a
function of the 3enate. .ence, it is the dut* of the e6ecutive depart'ent to trans'it the si)ned cop* of the
Ro'e 3tatute to the 3enate to allow it to e6ercise its discretion with respect to ratification of treaties.
Moreover, petitioners su0'it that the Philippines has a 'inisterial dut* to ratif* the Ro'e 3tatute under treat*
law and custo'ar* international law. Petitioners invo@e the :ienna Convention on the 9aw of &reaties
enDoinin) the states to refrain fro' acts which would defeat the o0Dect and purpose of a treat* when the* have
si)ned the treat* prior to ratification unless the* have 'ade their intention clear not to 0eco'e parties to the
treat*.
J

&he #ffice of the 3olicitor "eneral, co''entin) for the respondents, 7uestioned the standin) of the
petitioners to file the instant suit. 2t also contended that the petition at 0ar violates the rule on hierarch* of
807
courts. #n the su0stantive issue raised 0* petitioners, respondents ar)ue that the e6ecutive depart'ent has
no dut* to trans'it the Ro'e 3tatute to the 3enate for concurrence.
A petition for mandamus 'a* 0e filed when an* tri0unal, corporation, 0oard, officer or person unlawfull*
ne)lects the perfor'ance of an act which the law specificall* enDoins as a dut* resultin) fro' an office, trust,
or station.
L
We have held that to 0e )iven due course, a petition for mandamus 'ust have 0een instituted 0* a
part* a))rieved 0* the alle)ed inaction of an* tri0unal, corporation, 0oard or person which unlawfull* e6cludes
said part* fro' the enDo*'ent of a le)al ri)ht. &he petitioner in ever* case 'ust therefore 0e an a))rieved
part* in the sense that he possesses a clear le)al ri)ht to 0e enforced and a direct interest in the dut* or act to
0e perfor'ed.
7
&he Court will e6ercise its power of Dudicial review onl* if the case is 0rou)ht 0efore it 0* a
part* who has the le)al standin) to raise the constitutional or le)al 7uestion. 49e)al standin)4 'eans a
personal and su0stantial interest in the case such that the part* has sustained or will sustain direct inDur* as a
result of the )overn'ent act that is 0ein) challen)ed. &he ter' 4interest4 is 'aterial interest, an interest in
issue and to 0e affected 0* the decree, as distin)uished fro' 'ere interest in the 7uestion involved, or a 'ere
incidental interest.
8

&he petition at 0ar was filed 0* 3enator A7uilino Pi'entel, +r. who asserts his le)al standin) to file the suit as
'e'0er of the 3enate< Con)resswo'an 9oretta Ann Rosales, a 'e'0er of the .ouse of Representatives
and Chairperson of its Co''ittee on .u'an Ri)hts< the Philippine Coalition for the (sta0lish'ent of the
2nternational Cri'inal Court which is co'posed of individuals and corporate entities dedicated to the
Philippine ratification of the Ro'e 3tatute< the &as@ /orce 1etainees of the Philippines, a Duridical entit* with
the avowed purpose of pro'otin) the cause of hu'an ri)hts and hu'an ri)hts victi's in the countr*< the
/a'ilies of :icti's of 2nvoluntar* 1isappearances, a Duridical entit* dul* or)aniAed and e6istin) pursuant to
Philippine 9aws with the avowed purpose of pro'otin) the cause of fa'ilies and victi's of hu'an ri)hts
violations in the countr*< ,ianca .acintha Ro7ue and .arrison +aco0 Ro7ue, a)ed two (2 and one (8,
respectivel*, at the ti'e of filin) of the instant petition, and suin) under the doctrine of inter!)enerational ri)hts
enunciated in the case of O#o1% 01. 8%c&or%$, Jr.<
%
and a )roup of fifth *ear wor@in) law students fro' the
5niversit* of the Philippines Colle)e of 9aw who are suin) as ta6pa*ers.
&he 7uestion in standin) is whether a part* has alle)ed such a personal sta@e in the outco'e of the
controvers* as to assure that concrete adverseness which sharpens the presentation of issues upon which
the court so lar)el* depends for illu'ination of difficult constitutional 7uestions.
80

We find that a'on) the petitioners, onl* 3enator Pi'entel has the le)al standin) to file the instant suit. &he
other petitioners 'aintain their standin) as advocates and defenders of hu'an ri)hts, and as citiAens of the
countr*. &he* have not shown, however, that the* have sustained or will sustain a direct inDur* fro' the non!
trans'ittal of the si)ned te6t of the Ro'e 3tatute to the 3enate. &heir contention that the* will 0e deprived of
their re'edies for the protection and enforce'ent of their ri)hts does not persuade. &he Ro'e 3tatute is
intended to co'ple'ent national cri'inal laws and courts. 3ufficient re'edies are availa0le under our
national laws to protect our citiAens a)ainst hu'an ri)hts violations and petitioners can alwa*s see@ redress
for an* a0use in our do'estic courts.
As re)ards 3enator Pi'entel, it has 0een held that 4to the e6tent the powers of Con)ress are i'paired, so is
the power of each 'e'0er thereof, since his office confers a ri)ht to participate in the e6ercise of the powers
of that institution.4
88
&hus, le)islators have the standin) to 'aintain inviolate the prero)atives, powers and
privile)es vested 0* the Constitution in their office and are allowed to sue to 7uestion the validit* of an* official
action which the* clai' infrin)es their prero)atives as le)islators. &he petition at 0ar invo@es the power of the
3enate to )rant or withhold its concurrence to a treat* entered into 0* the e6ecutive 0ranch, in this case, the
Ro'e 3tatute. &he petition see@s to order the e6ecutive 0ranch to trans'it the cop* of the treat* to the
3enate to allow it to e6ercise such authorit*. 3enator Pi'entel, as 'e'0er of the institution, certainl* has the
le)al standin) to assert such authorit* of the 3enate.
We now )o to the su0stantive issue.
808
&he core issue in this petition for mandamus is whether the (6ecutive 3ecretar* and the 1epart'ent of
/orei)n Affairs have a mi$i1&eri%" dut* to trans'it to the 3enate the cop* of the Ro'e 3tatute si)ned 0* a
'e'0er of the Philippine Mission to the 5nited $ations even without the si)nature of the President.
We rule in the ne)ative.
2n our s*ste' of )overn'ent, the President, 0ein) the head of state, is re)arded as the sole or)an and
authorit* in e6ternal relations and is the countr*Cs sole representative with forei)n nations.
82
As the chief
architect of forei)n polic*, the President acts as the countr*Cs 'outhpiece with respect to international affairs.
.ence, the President is vested with the authorit* to deal with forei)n states and )overn'ents, e6tend or
withhold reco)nition, 'aintain diplo'atic relations, enter into treaties, and otherwise transact the 0usiness of
forei)n relations.
8E
2n the real' of treat*!'a@in), the President has the sole authorit* to ne)otiate with other
states.
$onetheless, while the President has the sole authorit* to ne)otiate and enter into treaties, the Constitution
provides a li'itation to his power 0* re7uirin) the concurrence of 2IE of all the 'e'0ers of the 3enate for the
validit* of the treat* entered into 0* hi'. 3ection 28, Article :22 of the 8%87 Constitution provides that 4no
treat* or international a)ree'ent shall 0e valid and effective unless concurred in 0* at least two!thirds of all
the Me'0ers of the 3enate.4 &he 8%EJ and the 8%7E Constitution also re7uired the concurrence 0* the
le)islature to the treaties entered into 0* the e6ecutive. 3ection 80 (7, Article :22 of the 8%EJ Constitution
provided-
3ec. 80. (7 &he President shall have the power, with the concurrence of two!thirds of all the Me'0ers of the
3enate, to 'a@e treaties 666.
3ection 8F (8 Article :222 of the 8%7E Constitution stated-
3ec. 8F. (8 (6cept as otherwise provided in this Constitution, no treat* shall 0e valid and effective unless
concurred in 0* a 'aDorit* of all the Me'0ers of the ,atasan) Pa'0ansa.
&he participation of the le)islative 0ranch in the treat*!'a@in) process was dee'ed essential to provide a
chec@ on the e6ecutive in the field of forei)n relations.
8F
,* re7uirin) the concurrence of the le)islature in the
treaties entered into 0* the President, the Constitution ensures a health* s*ste' of chec@s and 0alance
necessar* in the nationCs pursuit of political 'aturit* and )rowth.
8J
2n filin) this petition, the petitioners interpret 3ection 28, Article :22 of the 8%87 Constitution to 'ean that the
power to ratif* treaties 0elon)s to the 3enate.
We disa)ree.
+ustice 2sa)ani CruA, in his 0oo@ on 2nternational 9aw, descri0es the treat*!'a@in) process in this wise-
&he usual steps in the treat*!'a@in) process are- ne)otiation, si)nature, ratification, and e6chan)e of the
instru'ents of ratification. &he treat* 'a* then 0e su0'itted for re)istration and pu0lication under the 5.$.
Charter, althou)h this step is not essential to the validit* of the a)ree'ent as 0etween the parties.
4egotiation 'a* 0e underta@en directl* 0* the head of state 0ut he now usuall* assi)ns this tas@ to his
authoriAed representatives. &hese representatives are provided with credentials @nown as full powers, which
the* e6hi0it to the other ne)otiators at the start of the for'al discussions. 2t is standard practice for one of the
parties to su0'it a draft of the proposed treat* which, to)ether with the counter!proposals, 0eco'es the 0asis
of the su0se7uent ne)otiations. &he ne)otiations 'a* 0e 0rief or protracted, dependin) on the issues
involved, and 'a* even 4collapse4 in case the parties are una0le to co'e to an a)ree'ent on the points
under consideration.
80%
2f and when the ne)otiators finall* decide on the ter's of the treat*, the sa'e is opened for signature. &his
step is pri'aril* intended as a 'eans of authenticatin) the instru'ent and for the purpose of s*'0oliAin) the
)ood faith of the parties< 0ut, si)nificantl*, i& ,oe1 $o& i$,ic%&e &he i$%" co$1e$& o &he 1&%&e i$ c%1e1
9here r%&iic%&io$ o &he &re%&4 i1 reF+ire,. &he docu'ent is ordinaril* si)ned in accordance with the
alternat, that is, each of the several ne)otiators is allowed to si)n first on the cop* which he will 0rin) ho'e to
his own state.
atification, which is the ne6t step, is the for'al act 0* which a state confir's and accepts the provisions of a
treat* concluded 0* its representatives. .he #+r#o1e o r%&iic%&io$ i1 &o e$%b"e &he co$&r%c&i$2 1&%&e1 &o
e;%mi$e &he &re%&4 more c"o1e"4 %$, &o 2i0e &hem %$ o##or&+$i&4 &o re+1e &o be bo+$, b4 i& 1ho+",
&he4 i$, i& i$imic%" &o &heir i$&ere1&1. I& i1 or &hi1 re%1o$ &h%& mo1& &re%&ie1 %re m%,e 1+b>ec& &o &he
1cr+&i$4 %$, co$1e$& o % ,e#%r&me$& o &he 2o0er$me$& o&her &h%$ &h%& 9hich $e2o&i%&e, &hem.
6 6 6
&he last step in the treat*!'a@in) process is the e2change of the instruments of ratification, which usuall* also
si)nifies the effectivit* of the treat* unless a different date has 0een a)reed upon 0* the parties. Where
ratification is dispensed with and no effectivit* clause is e'0odied in the treat*, the instru'ent is dee'ed
effective upon its si)nature.
8L
Gemphasis suppliedH
PetitionersC ar)u'ents e7uate the si)nin) of the treat* 0* the Philippine representative with ratification. 2t
should 0e underscored that the si)nin) of the treat* and the ratification are two separate and distinct steps in
the treat*!'a@in) process. As earlier discussed, the si)nature is pri'aril* intended as a 'eans of
authenticatin) the instru'ent and as a s*'0ol of the )ood faith of the parties. 2t is usuall* perfor'ed 0* the
stateCs authoriAed representative in the diplo'atic 'ission. Ratification, on the other hand, is the for'al act 0*
which a state confir's and accepts the provisions of a treat* concluded 0* its representative. 2t is )enerall*
held to 0e an e6ecutive act, underta@en 0* the head of the state or of the )overn'ent.
87
&hus, (6ecutive
#rder $o. FJ% issued 0* President /idel :. Ra'os on $ove'0er 2J, 8%%7 provides the )uidelines in the
ne)otiation of international a)ree'ents and its ratification. 2t 'andates that after the treat* has 0een si)ned
0* the Philippine representative, the sa'e shall 0e trans'itted to the 1epart'ent of /orei)n Affairs. &he
1epart'ent of /orei)n Affairs shall then prepare the ratification papers and forward the si)ned cop* of the
treat* to the President for ratification. After the President has ratified the treat*, the 1epart'ent of /orei)n
Affairs shall su0'it the sa'e to the 3enate for concurrence. 5pon receipt of the concurrence of the 3enate,
the 1epart'ent of /orei)n Affairs shall co'pl* with the provisions of the treat* to render it effective. 3ection 7
of (6ecutive #rder $o. FJ% reads-
*ec. A. Dome1&ic ReF+ireme$&1 or &he E$&r4 i$&o 8orce o % .re%&4 or %$ E;ec+&i0e A2reeme$&. Q &he
do'estic re7uire'ents for the entr* into force of a treat* or an e6ecutive a)ree'ent, or an* a'end'ent
thereto, shall 0e as follows-
A. (6ecutive A)ree'ents.
i. All e6ecutive a)ree'ents shall 0e trans'itted to the 1epart'ent of /orei)n Affairs after their si)nin) for the
preparation of the ratification papers. &he trans'ittal shall include the hi)hli)hts of the a)ree'ents and the
0enefits which will accrue to the Philippines arisin) fro' the'.
ii. &he 1epart'ent of /orei)n Affairs, pursuant to the endorse'ent 0* the concerned a)enc*, shall trans'it
the a)ree'ents to the President of the Philippines for his ratification. &he ori)inal si)ned instru'ent of
ratification shall then 0e returned to the 1epart'ent of /orei)n Affairs for appropriate action.
,. &reaties.
880
i. All treaties, re)ardless of their desi)nation, shall co'pl* with the re7uire'ents provided in su0!para)raphGsH
8 and 2, ite' A ((6ecutive A)ree'ents of this 3ection. 2n addition, the 1epart'ent of /orei)n Affairs shall
su0'it the treaties to the 3enate of the Philippines for concurrence in the ratification 0* the President. A
certified true cop* of the treaties, in such nu'0ers as 'a* 0e re7uired 0* the 3enate, to)ether with a certified
true cop* of the ratification instru'ent, shall acco'pan* the su0'ission of the treaties to the 3enate.
ii. 5pon receipt of the concurrence 0* the 3enate, the 1epart'ent of /orei)n Affairs shall co'pl* with the
provision of the treaties in effectin) their entr* into force.
PetitionersC su0'ission that the Philippines is 0ound under treat* law and international law to ratif* the treat*
which it has si)ned is without 0asis. &he si)nature does not si)nif* the final consent of the state to the treat*.
2t is the ratification that 0inds the state to the provisions thereof. 2n fact, the Ro'e 3tatute itself re7uires that
the si)nature of the representatives of the states 0e su0Dect to ratification, acceptance or approval of the
si)nator* states. Ratification is the act 0* which the provisions of a treat* are for'all* confir'ed and
approved 0* a 3tate. ,* ratif*in) a treat* si)ned in its 0ehalf, a state e6presses its willin)ness to 0e 0ound 0*
the provisions of such treat*. After the treat* is si)ned 0* the stateCs representative, the President, 0ein)
accounta0le to the people, is 0urdened with the responsi0ilit* and the dut* to carefull* stud* the contents of
the treat* and ensure that the* are not ini'ical to the interest of the state and its people. &hus, the President
has the discretion even after the si)nin) of the treat* 0* the Philippine representative whether or not to ratif*
the sa'e. &he :ienna Convention on the 9aw of &reaties does not conte'plate to defeat or even restrain this
power of the head of states. 2f that were so, the re7uire'ent of ratification of treaties would 0e pointless and
futile. 2t has 0een held that a state has no le)al or even 'oral dut* to ratif* a treat* which has 0een si)ned 0*
its plenipotentiaries.
88
&here is no le)al o0li)ation to ratif* a treat*, 0ut it )oes without sa*in) that the refusal
'ust 0e 0ased on su0stantial )rounds and not on superficial or whi'sical reasons. #therwise, the other state
would 0e Dustified in ta@in) offense.
8%

2t should 0e e'phasiAed that under our Constitution, the power to ratif* is vested in the President, su0Dect to
the concurrence of the 3enate. &he role of the 3enate, however, is li'ited onl* to )ivin) or withholdin) its
consent, or concurrence, to the ratification.
20
.ence, it is within the authorit* of the President to refuse to
su0'it a treat* to the 3enate or, havin) secured its consent for its ratification, refuse to ratif* it.
28
Althou)h the
refusal of a state to ratif* a treat* which has 0een si)ned in its 0ehalf is a serious step that should not 0e
ta@en li)htl*,
22
such decision is within the co'petence of the President alone, which cannot 0e encroached 0*
this Court via a writ of mandamus. &his Court has no Durisdiction over actions see@in) to enDoin the President
in the perfor'ance of his official duties.
2E
&he Court, therefore, cannot issue the writ of mandamus pra*ed for
0* the petitioners as it is 0e*ond its Durisdiction to co'pel the e6ecutive 0ranch of the )overn'ent to trans'it
the si)ned te6t of Ro'e 3tatute to the 3enate.
IN VIEC C@EREO8, the petition is DI*5I**ED.
*O ORDERED.
888
G.R. No. 138?A0 Oc&ober 10, 2000
7A6AN '7%2o$2 A"4%$1%$2 5%<%b%4%$(, % J-NL V8A 5OVE5EN., 7I*@O! .O5A* 5ILLA5ENA 'I2"e1i%
8i"i#i$% I$,e#e$,ie$&e(, 7I*@O! EL5ER 7OLOCAN '-$i&e, Ch+rch o Chri1& o &he !hi".(, DR. RE6NALDO
LEGA*CA, 5D, LIL-*ANG 5A57-7-LID NG !ILI!INA*, LIL-*ANG 5A6O -NO, GA7RIELA, !ROLA7OR, %$,
&he !-7LIC IN.ERE*. LAC CEN.ER, petitioners,
vs.
EHEC-.IVE *ECRE.AR6 RONALDO ZA5ORA, 8OREIGN A88AIR* *ECRE.AR6 DO5INGO *IAZON, DE8EN*E
*ECRE.AR6 ORLANDO 5ERCADO, 7RIG. GEN. ALEHANDER AG-IRRE, *ENA.E !RE*IDEN. 5ARCELO
8ERNAN, *ENA.OR 8RANLLIN DRILON, *ENA.OR 7LA* O!LE, *ENA.OR RODOL8O 7IAZON, %$, *ENA.OR
8RANCI*CO .A.AD, respondents.
6 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 6
G.R. No. 138?A2 Oc&ober 10, 2000
!@ILI!!INE CON*.I.-.ION A**OCIA.ION, INC.'!@ILCON*A(, EHEG-IEL 7. GARCIA, A5ADOGA. INCIONG,
CA5ILO L. *A7IO, AND RA5ON A. GONZALE*, petitioners,
vs.
@ON. RONALDO 7. ZA5ORA, %1 E;ec+&i0e *ecre&%r4, @ON. ORLANDO 5ERCADO, %1 *ecre&%r4 o N%&io$%"
Dee$1e, %$, @ON. DO5INGO L. *IAZON, JR., %1 *ecre&%r4 o 8orei2$ A%ir1, respondents.
6 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 6
G.R. No. 138?8A Oc&ober 10, 2000
.EO8I*.O .. G-INGONA, JR., RA-L *. ROCO, %$, *ERGIO R. O*5E/A III, petitioners,
vs.
JO*E!@ E. E*.RADA, RONALDO 7. ZA5ORA, DO5INGO L. *IAZON, JR., ORLANDO 7. 5ERCADO, 5ARCELO
7. 8ERNAN, 8RANLLIN 5. DRILON, 7LA* 8. O!LE %$, RODOL8O G. 7IAZON, respondents.
6 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 6
G.R. No. 138D80 Oc&ober 10, 2000
IN.EGRA.ED 7AR O8 .@E !@ILI!!INE*, Re#re1e$&e, b4 i&1 N%&io$%" !re1i,e$&, Jo1e A2+i"% Gr%#i"o$,
petitioners,
vs.
JO*E!@ EJERCI.O E*.RADA, i$ hi1 c%#%ci&4 %1 !re1i,e$&, Re#+b"ic o &he !hi"i##i$e1, %$, @ON. DO5INGO
*IAZON, i$ hi1 c%#%ci&4 %1 *ecre&%r4 o 8orei2$ A%ir1, respondents.
6 ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! ! 6
G.R. No. 138D98 Oc&ober 10, 2000
JOVI.O R. *ALONGA, CIG7ER.O .A/ADA, ZENAIDA G-EZON3AVENCE/A, ROLANDO *I57-LAN, !A7LI.O
V. *ANIDAD, 5A. *OCORRO I. DIOLNO, AGA!I.O A. AG-INO, JOLER !. ARRO6O, 8RANCI*CO C. RIVERA JR.,
882
RENE A.V. *AG-I*AG, LILO*7A6AN, 5OVE5EN. O8 A..ORNE6* 8OR 7RO.@ER@OOD, IN.EGRI.6 AND
NA.IONALI*5, INC. '5A7INI(, petitioners,
vs.
.@E EHEC-.IVE *ECRE.AR6, .@E *ECRE.AR6 O8 8OREIGN A88AIR*, .@E *ECRE.AR6 O8 NA.IONAL
DE8EN*E, *ENA.E !RE*IDEN. 5ARCELO 7. 8ERNAN, *ENA.OR 7LA* 8. O!LE, *ENA.OR RODOL8O G.
7IAZON, AND ALL O.@ER !ER*ON* AC.ING .@EIR CON.ROL, *-!ERVI*ION, DIREC.ION, AND
IN*.R-C.ION IN RELA.ION .O .@E VI*I.ING 8ORCE* AGREE5EN. 'V8A(, respondents.
Confrontin) the Court for resolution in the instant consolidated petitions for certiorari and prohi0ition are
issues relatin) to, and 0orne 0*, an a)ree'ent for)ed in the turn of the last centur* 0etween the Repu0lic of
the Philippines and the 5nited 3tates of A'erica !the :isitin) /orces A)ree'ent.
&he antecedents unfold.
#n March 8F, 8%F7, the Philippines and the 5nited 3tates of A'erica for)ed a Militar* ,ases A)ree'ent
which for'aliAed, a'on) others, the use of installations in the Philippine territor* 0* 5nited 3tates 'ilitar*
personnel. &o further stren)then their defense and securit* relationship, the Philippines and the 5nited 3tates
entered into a Mutual 1efense &reat* on Au)ust E0, 8%J8. 5nder the treat*, the parties a)reed to respond to
an* e6ternal ar'ed attac@ on their territor*, ar'ed forces, pu0lic vessels, and aircraft.
8
2n view of the i'pendin) e6piration of the RP!53 Militar* ,ases A)ree'ent in 8%%8, the Philippines and the
5nited 3tates ne)otiated for a possi0le e6tension of the 'ilitar* 0ases a)ree'ent. #n 3epte'0er 8L, 8%%8,
the Philippine 3enate reDected the proposed RP!53 &reat* of /riendship, Cooperation and 3ecurit* which, in
effect, would have e6tended the presence of 53 'ilitar* 0ases in the Philippines.
2
With the e6piration of the
RP!53 Militar* ,ases A)ree'ent, the periodic 'ilitar* e6ercises conducted 0etween the two countries were
held in a0e*ance. $otwithstandin), the defense and securit* relationship 0etween the Philippines and the
5nited 3tates of A'erica continued pursuant to the Mutual 1efense &reat*.
#n +ul* 88, 8%%7, the 5nited 3tates panel, headed 0* 53 1efense 1eput* Assistant 3ecretar* for Asia Pacific
=urt Ca'p0ell, 'et with the Philippine panel, headed 0* /orei)n Affairs 5ndersecretar* Rodolfo 3everino +r.,
to e6chan)e notes on 4the co'ple'entin) strate)ic interests of the 5nited 3tates and the Philippines in the
Asia!Pacific re)ion.4 ,oth sides discussed, a'on) other thin)s, the possi0le ele'ents of the :isitin) /orces
A)ree'ent (:/A for 0revit*. $e)otiations 0* 0oth panels on the :/A led to a consolidated draft te6t, which in
turn resulted to a final series of conferences and ne)otiations
E
that cul'inated in Manila on +anuar* 82 and
8E, 8%%8. &hereafter, then President /idel :. Ra'os approved the :/A, which was respectivel* si)ned 0*
pu0lic respondent 3ecretar* 3iaAon and 5nites 3tates A'0assador &ho'as .u00ard on /e0ruar* 80, 8%%8.
#n #cto0er J, 8%%8, President +oseph (. (strada, throu)h respondent 3ecretar* of /orei)n Affairs, ratified
the :/A.
F
#n #cto0er L, 8%%8, the President, actin) throu)h respondent (6ecutive 3ecretar* Ronaldo ;a'ora, officiall*
trans'itted to the 3enate of the Philippines,
J
the 2nstru'ent of Ratification, the letter of the President
L
and the
:/A, for concurrence pursuant to 3ection 28, Article :22 of the 8%87 Constitution. &he 3enate, in turn, referred
the :/A to its Co''ittee on /orei)n Relations, chaired 0* 3enator ,las /. #ple, and its Co''ittee on
$ational 1efense and 3ecurit*, chaired 0* 3enator Rodolfo ". ,iaAon, for their Doint consideration and
reco''endation. &hereafter, Doint pu0lic hearin)s were held 0* the two Co''ittees.
7
#n Ma* E, 8%%%, the Co''ittees su0'itted Proposed 3enate Resolution $o. FFE
8
reco''endin) the
concurrence of the 3enate to the :/A and the creation of a 9e)islative #versi)ht Co''ittee to oversee its
i'ple'entation. 1e0ates then ensued.
#n Ma* 27, 8%%%, Proposed 3enate Resolution $o. FFE was approved 0* the 3enate, 0* a two!thirds (2IE
vote
%
of its 'e'0ers. 3enate Resolution $o. FFE was then re!nu'0ered as 3enate Resolution $o. 88.
80
88E
#n +une 8, 8%%%, the :/A officiall* entered into force after an (6chan)e of $otes 0etween respondent
3ecretar* 3iaAon and 5nited 3tates A'0assador .u00ard.
&he :/A, which consists of a Prea'0le and nine (% Articles, provides for the 'echanis' for re)ulatin) the
circu'stances and conditions under which 53 Ar'ed /orces and defense personnel 'a* 0e present in the
Philippines, and is 7uoted in its full te6t, hereunder-
4Article 2 1efinitions
4As used in this A)ree'ent, P5nited 3tates personnelC 'eans 5nited 3tates 'ilitar* and civilian personnel
te'poraril* in the Philippines in connection with activities approved 0* the Philippine "overn'ent.
4Within this definition-
48. &he ter' P'ilitar* personnelC refers to 'ilitar* 'e'0ers of the 5nited 3tates Ar'*, $av*, Marine
Corps, Air /orce, and Coast "uard.
42. &he ter' Pcivilian personnelC refers to individuals who are neither nationals of, nor ordinar*
residents in the Philippines and who are e'plo*ed 0* the 5nited 3tates ar'ed forces or who are
acco'pan*in) the 5nited 3tates ar'ed forces, such as e'plo*ees of the A'erican Red Cross and
the 5nited 3ervices #r)aniAation.
4Article 22 Respect for 9aw
42t is the dut* of the 5nited 3tates personnel to respect the laws of the Repu0lic of the Philippines and to
a0stain fro' an* activit* inconsistent with the spirit of this a)ree'ent, and, in particular, fro' an* political
activit* in the Philippines. &he "overn'ent of the 5nited 3tates shall ta@e all 'easures within its authorit* to
ensure that this is done.
4Article 222 (ntr* and 1eparture
48. &he "overn'ent of the Philippines shall facilitate the ad'ission of 5nited 3tates personnel and
their departure fro' the Philippines in connection with activities covered 0* this a)ree'ent.
42. 5nited 3tates 'ilitar* personnel shall 0e e6e'pt fro' passport and visa re)ulations upon enterin)
and departin) the Philippines.
4E. &he followin) docu'ents onl*, which shall 0e presented on de'and, shall 0e re7uired in respect of
5nited 3tates 'ilitar* personnel who enter the Philippines-
4(a personal identit* card issued 0* the appropriate 5nited 3tates authorit* showin) full na'e,
date of 0irth, ran@ or )rade and service nu'0er (if an*, 0ranch of service and photo)raph<
4(0 individual or collective docu'ent issued 0* the appropriate 5nited 3tates authorit*,
authoriAin) the travel or visit and identif*in) the individual or )roup as 5nited 3tates 'ilitar*
personnel< and
4(c the co''andin) officer of a 'ilitar* aircraft or vessel shall present a declaration of health,
and when re7uired 0* the co)niAant representative of the "overn'ent of the Philippines, shall
conduct a 7uarantine inspection and will certif* that the aircraft or vessel is free fro'
7uarantina0le diseases. An* 7uarantine inspection of 5nited 3tates aircraft or 5nited 3tates
vessels or car)oes thereon shall 0e conducted 0* the 5nited 3tates co''andin) officer in
88F
accordance with the international health re)ulations as pro'ul)ated 0* the World .ealth
#r)aniAation, and 'utuall* a)reed procedures.
4F. 5nited 3tates civilian personnel shall 0e e6e'pt fro' visa re7uire'ents 0ut shall present, upon
de'and, valid passports upon entr* and departure of the Philippines.
4J. 2f the "overn'ent of the Philippines has re7uested the re'oval of an* 5nited 3tates personnel
fro' its territor*, the 5nited 3tates authorities shall 0e responsi0le for receivin) the person concerned
within its own territor* or otherwise disposin) of said person outside of the Philippines.
4Article 2: 1rivin) and :ehicle Re)istration
48. Philippine authorities shall accept as valid, without test or fee, a drivin) per'it or license issued 0*
the appropriate 5nited 3tates authorit* to 5nited 3tates personnel for the operation of 'ilitar* or
official vehicles.
42. :ehicles owned 0* the "overn'ent of the 5nited 3tates need not 0e re)istered, 0ut shall have
appropriate 'ar@in)s.
4Article : Cri'inal +urisdiction
48. 3u0Dect to the provisions of this article-
(a Philippine authorities shall have Durisdiction over 5nited 3tates personnel with respect to offenses
co''itted within the Philippines and punisha0le under the law of the Philippines.
(0 5nited 3tates 'ilitar* authorities shall have the ri)ht to e6ercise within the Philippines all cri'inal
and disciplinar* Durisdiction conferred on the' 0* the 'ilitar* law of the 5nited 3tates over 5nited
3tates personnel in the Philippines.
42. (a Philippine authorities e6ercise e6clusive Durisdiction over 5nited 3tates personnel with respect to
offenses, includin) offenses relatin) to the securit* of the Philippines, punisha0le under the laws of the
Philippines, 0ut not under the laws of the 5nited 3tates.
(0 5nited 3tates authorities e6ercise e6clusive Durisdiction over 5nited 3tates personnel with respect
to offenses, includin) offenses relatin) to the securit* of the 5nited 3tates, punisha0le under the laws
of the 5nited 3tates, 0ut not under the laws of the Philippines.
(c /or the purposes of this para)raph and para)raph E of this article, an offense relatin) to securit*
'eans-
(8 treason<
(2 sa0ota)e, espiona)e or violation of an* law relatin) to national defense.
4E. 2n cases where the ri)ht to e6ercise Durisdiction is concurrent, the followin) rules shall appl*-
(a Philippine authorities shall have the pri'ar* ri)ht to e6ercise Durisdiction over all offenses
co''itted 0* 5nited 3tates personnel, e6cept in cases provided for in para)raphs 8(0, 2 (0, and E
(0 of this Article.
88J
(0 5nited 3tates 'ilitar* authorities shall have the pri'ar* ri)ht to e6ercise Durisdiction over 5nited
3tates personnel su0Dect to the 'ilitar* law of the 5nited 3tates in relation to.
(8 offenses solel* a)ainst the propert* or securit* of the 5nited 3tates or offenses solel*
a)ainst the propert* or person of 5nited 3tates personnel< and
(2 offenses arisin) out of an* act or o'ission done in perfor'ance of official dut*.
(c &he authorities of either )overn'ent 'a* re7uest the authorities of the other )overn'ent to
waive their pri'ar* ri)ht to e6ercise Durisdiction in a particular case.
(d Reco)niAin) the responsi0ilit* of the 5nited 3tates 'ilitar* authorities to 'aintain )ood
order and discipline a'on) their forces, Philippine authorities will, upon re7uest 0* the 5nited
3tates, waive their pri'ar* ri)ht to e6ercise Durisdiction e6cept in cases of particular i'portance
to the Philippines. 2f the "overn'ent of the Philippines deter'ines that the case is of particular
i'portance, it shall co''unicate such deter'ination to the 5nited 3tates authorities within
twent* (20 da*s after the Philippine authorities receive the 5nited 3tates re7uest.
(e When the 5nited 3tates 'ilitar* co''ander deter'ines that an offense char)ed 0*
authorities of the Philippines a)ainst 5nited states personnel arises out of an act or o'ission
done in the perfor'ance of official dut*, the co''ander will issue a certificate settin) forth
such deter'ination. &his certificate will 0e trans'itted to the appropriate authorities of the
Philippines and will constitute sufficient proof of perfor'ance of official dut* for the purposes of
para)raph E(0(2 of this Article. 2n those cases where the "overn'ent of the Philippines
0elieves the circu'stances of the case re7uire a review of the dut* certificate, 5nited 3tates
'ilitar* authorities and Philippine authorities shall consult i''ediatel*. Philippine authorities at
the hi)hest levels 'a* also present an* infor'ation 0earin) on its validit*. 5nited 3tates
'ilitar* authorities shall ta@e full account of the Philippine position. Where appropriate, 5nited
3tates 'ilitar* authorities will ta@e disciplinar* or other action a)ainst offenders in official dut*
cases, and notif* the "overn'ent of the Philippines of the actions ta@en.
(f 2f the )overn'ent havin) the pri'ar* ri)ht does not e6ercise Durisdiction, it shall notif* the
authorities of the other )overn'ent as soon as possi0le.
() &he authorities of the Philippines and the 5nited 3tates shall notif* each other of the
disposition of all cases in which 0oth the authorities of the Philippines and the 5nited 3tates
have the ri)ht to e6ercise Durisdiction.
4F. Within the scope of their le)al co'petence, the authorities of the Philippines and 5nited 3tates shall assist
each other in the arrest of 5nited 3tates personnel in the Philippines and in handlin) the' over to authorities
who are to e6ercise Durisdiction in accordance with the provisions of this article.
4J. 5nited 3tates 'ilitar* authorities shall pro'ptl* notif* Philippine authorities of the arrest or detention of
5nited 3tates personnel who are su0Dect of Philippine pri'ar* or e6clusive Durisdiction. Philippine authorities
shall pro'ptl* notif* 5nited 3tates 'ilitar* authorities of the arrest or detention of an* 5nited 3tates
personnel.
4L. &he custod* of an* 5nited 3tates personnel over who' the Philippines is to e6ercise Durisdiction shall
i''ediatel* reside with 5nited 3tates 'ilitar* authorities, if the* so re7uest, fro' the co''ission of the
offense until co'pletion of all Dudicial proceedin)s. 5nited 3tates 'ilitar* authorities shall, upon for'al
notification 0* the Philippine authorities and without dela*, 'a@e such personnel availa0le to those authorities
in ti'e for an* investi)ative or Dudicial proceedin)s relatin) to the offense with which the person has 0een
char)ed in e6traordinar* cases, the Philippine "overn'ent shall present its position to the 5nited 3tates
88L
"overn'ent re)ardin) custod*, which the 5nited 3tates "overn'ent shall ta@e into full account. 2n the event
Philippine Dudicial proceedin)s are not co'pleted within one *ear, the 5nited 3tates shall 0e relieved of an*
o0li)ations under this para)raph. &he one!*ear period will not include the ti'e necessar* to appeal. Also, the
one!*ear period will not include an* ti'e durin) which scheduled trial procedures are dela*ed 0ecause 5nited
3tates authorities, after ti'el* notification 0* Philippine authorities to arran)e for the presence of the accused,
fail to do so.
47. Within the scope of their le)al authorit*, 5nited 3tates and Philippine authorities shall assist each other in
the carr*in) out of all necessar* investi)ation into offenses and shall cooperate in providin) for the attendance
of witnesses and in the collection and production of evidence, includin) seiAure and, in proper cases, the
deliver* of o0Dects connected with an offense.
48. When 5nited 3tates personnel have 0een tried in accordance with the provisions of this Article and have
0een ac7uitted or have 0een convicted and are servin), or have served their sentence, or have had their
sentence re'itted or suspended, or have 0een pardoned, the* 'a* not 0e tried a)ain for the sa'e offense in
the Philippines. $othin) in this para)raph, however, shall prevent 5nited 3tates 'ilitar* authorities fro' tr*in)
5nited 3tates personnel for an* violation of rules of discipline arisin) fro' the act or o'ission which
constituted an offense for which the* were tried 0* Philippine authorities.
4%. When 5nited 3tates personnel are detained, ta@en into custod*, or prosecuted 0* Philippine authorities,
the* shall 0e accorded all procedural safe)uards esta0lished 0* the law of the Philippines. At the 'ini'u',
5nited 3tates personnel shall 0e entitled-
(a &o a pro'pt and speed* trial<
(0 &o 0e infor'ed in advance of trial of the specific char)e or char)es 'ade a)ainst the' and to have
reasona0le ti'e to prepare a defense<
(c &o 0e confronted with witnesses a)ainst the' and to cross e6a'ine such witnesses<
(d &o present evidence in their defense and to have co'pulsor* process for o0tainin) witnesses<
(e &o have free and assisted le)al representation of their own choice on the sa'e 0asis as nationals
of the Philippines<
(f &o have the service of a co'petent interpreter< and
() &o co''unicate pro'ptl* with and to 0e visited re)ularl* 0* 5nited 3tates authorities, and to have
such authorities present at all Dudicial proceedin)s. &hese proceedin)s shall 0e pu0lic unless the court,
in accordance with Philippine laws, e6cludes persons who have no role in the proceedin)s.
480. &he confine'ent or detention 0* Philippine authorities of 5nited 3tates personnel shall 0e carried out in
facilities a)reed on 0* appropriate Philippine and 5nited 3tates authorities. 5nited 3tates Personnel servin)
sentences in the Philippines shall have the ri)ht to visits and 'aterial assistance.
488. 5nited 3tates personnel shall 0e su0Dect to trial onl* in Philippine courts of ordinar* Durisdiction, and shall
not 0e su0Dect to the Durisdiction of Philippine 'ilitar* or reli)ious courts.
4Article :2 Clai's
48. (6cept for contractual arran)e'ents, includin) 5nited 3tates forei)n 'ilitar* sales letters of offer
and acceptance and leases of 'ilitar* e7uip'ent, 0oth )overn'ents waive an* and all clai's a)ainst
887
each other for da'a)e, loss or destruction to propert* of each otherCs ar'ed forces or for death or
inDur* to their 'ilitar* and civilian personnel arisin) fro' activities to which this a)ree'ent applies.
42. /or clai's a)ainst the 5nited 3tates, other than contractual clai's and those to which para)raph 8
applies, the 5nited 3tates "overn'ent, in accordance with 5nited 3tates law re)ardin) forei)n clai's,
will pa* Dust and reasona0le co'pensation in settle'ent of 'eritorious clai's for da'a)e, loss,
personal inDur* or death, caused 0* acts or o'issions of 5nited 3tates personnel, or otherwise incident
to the non!co'0at activities of the 5nited 3tates forces.
4Article :22 2'portation and (6portation
48. 5nited 3tates "overn'ent e7uip'ent, 'aterials, supplies, and other propert* i'ported into or
ac7uired in the Philippines 0* or on 0ehalf of the 5nited 3tates ar'ed forces in connection with
activities to which this a)ree'ent applies, shall 0e free of all Philippine duties, ta6es and other si'ilar
char)es. &itle to such propert* shall re'ain with the 5nited 3tates, which 'a* re'ove such propert*
fro' the Philippines at an* ti'e, free fro' e6port duties, ta6es, and other si'ilar char)es. &he
e6e'ptions provided in this para)raph shall also e6tend to an* dut*, ta6, or other si'ilar char)es
which would otherwise 0e assessed upon such propert* after i'portation into, or ac7uisition within, the
Philippines. 3uch propert* 'a* 0e re'oved fro' the Philippines, or disposed of therein, provided that
disposition of such propert* in the Philippines to persons or entities not entitled to e6e'ption fro'
applica0le ta6es and duties shall 0e su0Dect to pa*'ent of such ta6es, and duties and prior approval of
the Philippine "overn'ent.
42. Reasona0le 7uantities of personal 0a))a)e, personal effects, and other propert* for the personal
use of 5nited 3tates personnel 'a* 0e i'ported into and used in the Philippines free of all duties,
ta6es and other si'ilar char)es durin) the period of their te'porar* sta* in the Philippines. &ransfers
to persons or entities in the Philippines not entitled to i'port privile)es 'a* onl* 0e 'ade upon prior
approval of the appropriate Philippine authorities includin) pa*'ent 0* the recipient of applica0le
duties and ta6es i'posed in accordance with the laws of the Philippines. &he e6portation of such
propert* and of propert* ac7uired in the Philippines 0* 5nited 3tates personnel shall 0e free of all
Philippine duties, ta6es, and other si'ilar char)es.
4Article :222 Move'ent of :essels and Aircraft
48. Aircraft operated 0* or for the 5nited 3tates ar'ed forces 'a* enter the Philippines upon approval
of the "overn'ent of the Philippines in accordance with procedures stipulated in i'ple'entin)
arran)e'ents.
42. :essels operated 0* or for the 5nited 3tates ar'ed forces 'a* enter the Philippines upon approval
of the "overn'ent of the Philippines. &he 'ove'ent of vessels shall 0e in accordance with
international custo' and practice )overnin) such vessels, and such a)reed i'ple'entin)
arran)e'ents as necessar*.
4E. :ehicles, vessels, and aircraft operated 0* or for the 5nited 3tates ar'ed forces shall not 0e
su0Dect to the pa*'ent of landin) or port fees, navi)ation or over fli)ht char)es, or tolls or other use
char)es, includin) li)ht and har0or dues, while in the Philippines. Aircraft operated 0* or for the 5nited
3tates ar'ed forces shall o0serve local air traffic control re)ulations while in the Philippines. :essels
owned or operated 0* the 5nited 3tates solel* on 5nited 3tates "overn'ent non!co''ercial service
shall not 0e su0Dect to co'pulsor* pilota)e at Philippine ports.
4Article 2> 1uration and &er'ination
888
4&his a)ree'ent shall enter into force on the date on which the parties have notified each other in writin)
throu)h the diplo'atic channel that the* have co'pleted their constitutional re7uire'ents for entr* into force.
&his a)ree'ent shall re'ain in force until the e6piration of 880 da*s fro' the date on which either part* )ives
the other part* notice in writin) that it desires to ter'inate the a)ree'ent.4
Gia these consolidated
88
petitions for certiorari and prohi0ition, petitioners ! as le)islators, non!)overn'ental
or)aniAations, citiAens and ta6pa*ers ! assail the constitutionalit* of the :/A and i'pute to herein
respondents )rave a0use of discretion in ratif*in) the a)ree'ent.
We have si'plified the issues raised 0* the petitioners into the followin)-
2
1o petitioners have le)al standin) as concerned citiAens, ta6pa*ers, or le)islators to 7uestion the
constitutionalit* of the :/AN
22
2s the :/A )overned 0* the provisions of 3ection 28, Article :22 or of 3ection 2J, Article >:222 of the
ConstitutionN
222
1oes the :/A constitute an a0dication of Philippine soverei)nt*N
a. Are Philippine courts deprived of their Durisdiction to hear and tr* offenses co''itted 0* 53 'ilitar*
personnelN
0. 2s the 3upre'e Court deprived of its Durisdiction over offenses punisha0le 0* reclusion perpetua or
hi)herN
2:
1oes the :/A violate-
a. the e7ual protection clause under 3ection 8, Article 222 of the ConstitutionN
0. the Prohi0ition a)ainst nuclear weapons under Article 22, 3ection 8N
c. 3ection 28 (F, Article :2 of the Constitution )rantin) the e6e'ption fro' ta6es and duties for the
e7uip'ent, 'aterials supplies and other properties i'ported into or ac7uired in the Philippines 0*, or
on 0ehalf, of the 53 Ar'ed /orcesN
/'C<S S#A4D*
At the outset, respondents challen)e petitionerCs standin) to sue, on the )round that the latter have not shown
an* interest in the case, and that petitioners failed to su0stantiate that the* have sustained, or will sustain
direct inDur* as a result of the operation of the :/A.
82
Petitioners, on the other hand, counter that the validit* or
invalidit* of the :/A is a 'atter of transcendental i'portance which Dustifies their standin).
8E
A part* 0rin)in) a suit challen)in) the constitutionalit* of a law, act, or statute 'ust show 4not onl* that the
law is invalid, 0ut also that he has sustained or in is in i''ediate, or i''inent dan)er of sustainin) so'e
88%
direct inDur* as a result of its enforce'ent, and not 'erel* that he suffers there0* in so'e indefinite wa*.4 .e
'ust show that he has 0een, or is a0out to 0e, denied so'e ri)ht or privile)e to which he is lawfull* entitled,
or that he is a0out to 0e su0Dected to so'e 0urdens or penalties 0* reason of the statute co'plained of.
8F
2n the case 0efore us, petitioners failed to show, to the satisfaction of this Court, that the* have sustained, or
are in dan)er of sustainin) an* direct inDur* as a result of the enforce'ent of the :/A. As ta6pa*ers,
petitioners have not esta0lished that the :/A involves the e6ercise 0* Con)ress of its ta6in) or spendin)
powers.
8J
#n this point, it 0ears stressin) that a ta6pa*erCs suit refers to a case where the act co'plained of
directl* involves the ille)al dis0urse'ent of pu0lic funds derived fro' ta6ation.
8L
&hus, in 4ugnay 'onst. 5
6evelopment 'orp. vs. Laron
87
we held-
46 6 6 it is e6i)ent that the ta6pa*er!plaintiff sufficientl* show that he would 0e 0enefited or inDured 0* the
Dud)'ent or entitled to the avails of the suit as a real part* in interest. ,efore he can invo@e the power of
Dudicial review, he 'ust specificall* prove that he has sufficient interest in preventin) the ille)al e6penditure of
'one* raised 0* ta6ation and that he will sustain a direct inDur* as a result of the enforce'ent of the
7uestioned statute or contract. 2t is not sufficient that he has 'erel* a )eneral interest co''on to all 'e'0ers
of the pu0lic.4
Clearl*, inas'uch as no pu0lic funds raised 0* ta6ation are involved in this case, and in the a0sence of an*
alle)ation 0* petitioners that pu0lic funds are 0ein) 'isspent or ille)all* e6pended, petitioners, as ta6pa*ers,
have no le)al standin) to assail the le)alit* of the :/A.
3i'ilarl*, Representatives Wi)0erto &aZada, A)apito A7uino and +o@er Arro*o, as petitioners!le)islators, do
not possess the re7uisite locus standi to 'aintain the present suit. While this Court, in )hil. 'onstitution
(ssociation vs. .on. Salvador Enri2ue*
88
sustained the le)al standin) of a 'e'0er of the 3enate and the
.ouse of Representatives to 7uestion the validit* of a presidential veto or a condition i'posed on an ite' in
an appropriation 0ull, we cannot, at this instance, si'ilarl* uphold petitionersC standin) as 'e'0ers of
Con)ress, in the a0sence of a clear showin) of an* direct inDur* to their person or to the institution to which
the* 0elon).
,e*ond this, the alle)ations of i'pair'ent of le)islative power, such as the dele)ation of the power of
Con)ress to )rant ta6 e6e'ptions, are 'ore apparent than real. While it 'a* 0e true that petitioners pointed
to provisions of the :/A which alle)edl* i'pair their le)islative powers, petitioners failed however to
sufficientl* show that the* have in fact suffered direct inDur*.
2n the sa'e vein, petitioner 2nte)rated ,ar of the Philippines (2,P is stripped of standin) in these cases. As
aptl* o0served 0* the 3olicitor "eneral, the 2,P lac@s the le)al capacit* to 0rin) this suit in the a0sence of a
0oard resolution fro' its ,oard of "overnors authoriAin) its $ational President to co''ence the present
action.
8%
$otwithstandin), in view of the para'ount i'portance and the constitutional si)nificance of the issues raised
in the petitions, this Court, in the e6ercise of its sound discretion, 0rushes aside the procedural 0arrier and
ta@es co)niAance of the petitions, as we have done in the earl* Emergency )o!ers 'ases
20
where we had
occasion to rule-
46 6 6 ordinar* citiAens and ta6pa*ers were allowed to 7uestion the constitutionalit* of several e6ecutive
orders issued 0* President Kuirino althou)h the* were involvin) onl* an indirect and )eneral interest shared
in co''on with the pu0lic. &he Court dis'issed the o0Dection that the* were not proper parties and ruled that
P&r%$1ce$,e$&%" im#or&%$ce &o &he #+b"ic o &he1e c%1e1 ,em%$,1 &h%& &he4 be 1e&&"e, #rom#&"4 %$,
,ei$i&e"4, br+1hi$2 %1i,e, i 9e m+1&, &ech$ic%"i&ie1 o #roce,+re.C We have since then applied the
e6ception in 'an* other cases. (Association of 3'all 9andowners in the Philippines, 2nc. v. 3ec. of A)rarian
Refor', 87J 3CRA EFE.4 (5nderscorin) 3upplied
820
&his principle was reiterated in the su0se7uent cases of 7on*ales vs. 'O%ELE',
28
6a*a vs. Singson,
22
and
4asco vs. )hil. (musement and 7aming 'orporation
2E
where we e'phaticall* held-
4Considerin) however the i'portance to the pu0lic of the case at 0ar, and in @eepin) with the CourtCs dut*,
under the 8%87 Constitution, to deter'ine whether or not the other 0ranches of the )overn'ent have @ept
the'selves within the li'its of the Constitution and the laws and that the* have not a0used the discretion
)iven to the', the Court has 0rushed aside technicalities of procedure and has ta@en co)niAance of this
petition. 6 6 64
A)ain, in the 'ore recent case of "ilos,ayan vs. 7uingona 8r.,
2F
thisCourt ruled that in cases of
transcendental i'portance, &he Co+r& m%4 re"%; &he 1&%$,i$2 reF+ireme$&1 %$, %""o9 % 1+i& &o #ro1#er
e0e$ 9here &here i1 $o ,irec& i$>+r4 &o &he #%r&4 c"%imi$2 &he ri2h& o >+,ici%" re0ie9.
Althou)h courts )enerall* avoid havin) to decide a constitutional 7uestion 0ased on the doctrine of separation
of powers, which enDoins upon the depart'ents of the )overn'ent a 0eco'in) respect for each othersC acts,
2J
this Court nevertheless resolves to ta@e co)niAance of the instant petitions.
APP/*CAB/, C'4S#*#<#*'4A/ P'G*S*'4
#ne focal point of in7uir* in this controvers* is the deter'ination of which provision of the Constitution
applies, with re)ard to the e6ercise 0* the senate of its constitutional power to concur with the :/A.
Petitioners ar)ue that 3ection 2J, Article >:222 is applica0le considerin) that the :/A has for its su0Dect the
presence of forei)n 'ilitar* troops in the Philippines. Respondents, on the contrar*, 'aintain that 3ection 28,
Article :22 should appl* inas'uch as the :/A is not a 0asin) arran)e'ent 0ut an a)ree'ent which involves
'erel* the te'porar* visits of 5nited 3tates personnel en)a)ed in Doint 'ilitar* e6ercises.
&he 8%87 Philippine Constitution contains two provisions re7uirin) the concurrence of the 3enate on treaties
or international a)ree'ents. 3ection 28, Article :22, which herein respondents invo@e, reads-
4$o treat* or international a)ree'ent shall 0e valid and effective unless concurred in 0* at least two!thirds of
all the Me'0ers of the 3enate.4
3ection 2J, Article >:222, provides-
4After the e6piration in 8%%8 of the A)ree'ent 0etween the Repu0lic of the Philippines and the 5nited 3tates
of A'erica concernin) Militar* ,ases, forei)n 'ilitar* 0ases, troops, or facilities shall not 0e allowed in the
Philippines e6cept under a treat* dul* concurred in 0* the senate and, when the Con)ress so re7uires, ratified
0* a 'aDorit* of the votes cast 0* the people in a national referendu' held for that purpose, and reco)niAed
as a treat* 0* the other contractin) 3tate.4
3ection 28, Article :22 deals with treatise or international a)ree'ents in )eneral, in which case, the
concurrence of at least two!thirds (2IE of all the Me'0ers of the 3enate is re7uired to 'a@e the su0Dect
treat*, or international a)ree'ent, valid and 0indin) on the part of the Philippines. &his provision la*s down
the )eneral rule on treatise or international a)ree'ents and applies to an* for' of treat* with a wide variet* of
su0Dect 'atter, such as, 0ut not li'ited to, e6tradition or ta6 treatise or those econo'ic in nature. All treaties
or international a)ree'ents entered into 0* the Philippines, re)ardless of su0Dect 'atter, covera)e, or
particular desi)nation or appellation, re7uires the concurrence of the 3enate to 0e valid and effective.
2n contrast, 3ection 2J, Article >:222 is a special provision that applies to treaties which involve the presence
of forei)n 'ilitar* 0ases, troops or facilities in the Philippines. 5nder this provision, the concurrence of the
3enate is onl* one of the re7uisites to render co'pliance with the constitutional re7uire'ents and to consider
the a)ree'ent 0indin) on the Philippines. 3ection 2J, Article >:222 further re7uires that 4forei)n 'ilitar* 0ases,
troops, or facilities4 'a* 0e allowed in the Philippines onl* 0* virtue of a treat* dul* concurred in 0* the
828
3enate, ratified 0* a 'aDorit* of the votes cast in a national referendu' held for that purpose if so re7uired 0*
Con)ress, and reco)niAed as such 0* the other contractin) state.
2t is our considered view that 0oth constitutional provisions, far fro' contradictin) each other, actuall* share
so'e co''on )round. &hese constitutional provisions 0oth e'0od* phrases in the ne)ative and thus, are
dee'ed prohi0itor* in 'andate and character. 2n particular, 3ection 28 opens with the clause 4$o treat* 6 6
6,4 and 3ection 2J contains the phrase 4shall not 0e allowed.4 Additionall*, in 0oth instances, the concurrence
of the 3enate is indispensa0le to render the treat* or international a)ree'ent valid and effective.
&o our 'ind, the fact that the President referred the :/A to the 3enate under 3ection 28, Article :22, and that
the 3enate e6tended its concurrence under the sa'e provision, is i''aterial. /or in either case, whether
under 3ection 28, Article :22 or 3ection 2J, Article >:222, the funda'ental law is cr*stalline that the
concurrence of the 3enate is 'andator* to co'pl* with the strict constitutional re7uire'ents.
#n the whole, the :/A is an a)ree'ent which defines the treat'ent of 5nited 3tates troops and personnel
visitin) the Philippines. 2t provides for the )uidelines to )overn such visits of 'ilitar* personnel, and further
defines the ri)hts of the 5nited 3tates and the Philippine )overn'ent in the 'atter of cri'inal Durisdiction,
'ove'ent of vessel and aircraft, i'portation and e6portation of e7uip'ent, 'aterials and supplies.
5ndou0tedl*, 3ection 2J, Article >:222, which specificall* deals with treaties involvin) forei)n 'ilitar* 0ases,
troops, or facilities, should appl* in the instant case. &o a certain e6tent and in a li'ited sense, however, the
provisions of section 28, Article :22 will find applica0ilit* with re)ard to the issue and for the sole purpose of
deter'inin) the nu'0er of votes re7uired to o0tain the valid concurrence of the 3enate, as will 0e further
discussed hereunder.
2t is a finel*!i'0edded principle in statutor* construction that a special provision or law prevails over a )eneral
one. Lex specialis derogat generali. &hus, where there is in the sa'e statute a particular enact'ent and
also a )eneral one which, in its 'ost co'prehensive sense, would include what is e'0raced in the for'er,
the particular enact'ent 'ust 0e operative, and the )eneral enact'ent 'ust 0e ta@en to affect onl* such
cases within its )eneral lan)ua)e which are not within the provision of the particular enact'ent.
2L
2n Leveri*a vs. Intermediate (ppellate 'ourt,
27
we enunciated-
46 6 6 that another 0asic principle of statutor* construction 'andates that )eneral le)islation 'ust )ive wa* to
a special le)islation on the sa'e su0Dect, and )enerall* 0e so interpreted as to e'0race onl* cases in which
the special provisions are not applica0le (3to. 1o'in)o vs. de los An)eles, %L 3CRA 8E%, that a specific
statute prevails over a )eneral statute (1e +esus vs. People, 820 3CRA 7L0 and that where two statutes are
of e7ual theoretical application to a particular case, the one desi)ned therefor speciall* should prevail (Wil
Wilhensen 2nc. vs. ,alu*ot, 8E 3CRA E8.4
Moreover, it is specious to ar)ue that 3ection 2J, Article >:222 is inapplica0le to 'ere transient a)ree'ents for
the reason that there is no per'anent placin) of structure for the esta0lish'ent of a 'ilitar* 0ase. #n this
score, the Constitution 'a@es no distinction 0etween 4transientC and 4per'anent4. Certainl*, we find nothin) in
3ection 2J, Article >:222 that re7uires foreign troops or facilities to 0e stationed or placed permanently in the
Philippines.
2t is a rudi'ent in le)al her'enuetics that when no distinction is 'ade 0* law, the Court should not
distin)uish! 9,i lex non distinguit nec nos distinguire de,emos.
2n li@e 'anner, we do not su0scri0e to the ar)u'ent that 3ection 2J, Article >:222 is not controllin) since no
forei)n 'ilitar* 0ases, 0ut 'erel* forei)n troops and facilities, are involved in the :/A. $ota0l*, a perusal of
said constitutional provision reveals that the proscription covers 4foreign military bases, troops, or facilities.4
3tated differentl*, this prohi0ition is not li'ited to the entr* of troops and facilities without an* forei)n 0ases
822
0ein) esta0lished. &he clause does not refer to 4foreign military bases, troops, or facilities4 collectivel* 0ut
treats the' as separate and independent su0Dects. &he use of co''a and the disDunctive word 4or4 clearl*
si)nifies disassociation and independence of one thin) fro' the others included in the enu'eration,
28
such
that, the provision conte'plates three different situations ! a 'ilitar* treat* the su0Dect of which could 0e either
(a forei)n 0ases, (0 forei)n troops, or (c forei)n facilities ! an* of the three standin) alone places it under
the covera)e of 3ection 2J, Article >:222.
&o this end, the intention of the fra'ers of the Charter, as 'anifested durin) the deli0erations of the 8%8L
Constitutional Co''ission, is consistent with this interpretation-
4MR. MAAM,#$". 2 Dust want to address a 7uestion or two to Co''issioner ,ernas.
&his for'ulation spea@s of three thin)s- forei)n 'ilitar* 0ases, troops or facilities. M* first 7uestion is- I &he
co+$&r4 ,oe1 e$&er i$&o 1+ch <i$, o % &re%&4, m+1& i& co0er &he &hree3b%1e1, &roo#1 or %ci"i&ie13or
co+", &he &re%&4 e$&ere, i$&o co0er o$"4 o$e or &9oR
/R. ,(R$A3. Dei$i&e"4, i& c%$ co0er o$"4 o$e. Che&her i& co0er1 o$"4 o$e or i& co0er1 &hree, &he
reF+ireme$& 9i"" be &he 1%me.
MR. MAAM,#$". I$ o&her 9or,1, &he !hi"i##i$e 2o0er$me$& c%$ e$&er i$&o % &re%&4 co0eri$2 $o& b%1e1
b+& mere"4 &roo#1R
/R. ,(R$A3. 6e1.
MR. MAAM,#$". 2 cannot find an* reason wh* the )overn'ent can enter into a treat* coverin) onl* troops.
/R. ,(R$A3. Wh* notN Pro0a0l* if we stretch our i'a)ination a little 0it 'ore, we will find so'e. We Dust
want to cover ever*thin).4
2%
(5nderscorin) 3upplied
Moreover, 'ilitar* 0ases esta0lished within the territor* of another state is no lon)er via0le 0ecause of the
alternatives offered 0* new 'eans and weapons of warfare such as nuclear weapons, )uided 'issiles as well
as hu)e sea vessels that can sta* afloat in the sea even for 'onths and *ears without returnin) to their ho'e
countr*. &hese 'ilitar* warships are actuall* used as su0stitutes for a land!ho'e 0ase not onl* of 'ilitar*
aircraft 0ut also of 'ilitar* personnel and facilities. ,esides, vessels are 'o0ile as co'pared to a land!0ased
'ilitar* head7uarters.
At this Duncture, we shall then resolve the issue of whether or not the re7uire'ents of 3ection 2J were
co'plied with when the 3enate )ave its concurrence to the :/A.
3ection 2J, Article >:222 disallows forei)n 'ilitar* 0ases, troops, or facilities in the countr*, unless the
followin) conditions are sufficientl* 'et, viEH (a it 'ust 0e under a &re%&4< (0 the treat* 'ust 0e ,+"4
co$c+rre, i$ b4 &he *e$%&e and, when so re7uired 0* con)ress, ratified 0* a 'aDorit* of the votes cast 0*
the people in a national referendu'< and (c reco2$i:e, %1 % &re%&4 0* the other contractin) state.
&here is no dispute as to the presence of the first two re7uisites in the case of the :/A. &he concurrence
handed 0* the 3enate throu)h Resolution $o. 88 is in accordance with the provisions of the Constitution,
whether under the )eneral re7uire'ent in 3ection 28, Article :22, or the specific 'andate 'entioned in
3ection 2J, Article >:222, the provision in the latter article re7uirin) ratification 0* a 'aDorit* of the votes cast in
a national referendu' 0ein) unnecessar* since Con)ress has not re7uired it.
As to the 'atter of votin), *ec&io$ 21, Ar&ic"e VII particularl* re7uires that a treat* or international a)ree'ent,
to 0e valid and effective, 'ust 0e co$c+rre, i$ b4 %& "e%1& &9o3&hir,1 o %"" &he member1 o &he *e$%&e.
82E
#n the other hand, 3ection 2J, Article >:222 si'pl* provides that the treat* 0e I,+"4 co$c+rre, i$ b4 &he
*e$%&e.I
Appl*in) the fore)oin) constitutional provisions, a two!thirds vote of all the 'e'0ers of the 3enate is clearl*
re7uired so that the concurrence conte'plated 0* law 'a* 0e validl* o0tained and dee'ed present. While it
is true that 3ection 2J, Article >:222 re7uires, a'on) other thin)s, that the treat*!the :/A, in the instant case!
0e 4dul* concurred in 0* the 3enate,4 it is ver* true however that said provision 'ust 0e related and viewed in
li)ht of the clear 'andate e'0odied in 3ection 28, Article :22, which in 'ore specific ter's, re7uires that the
concurrence of a treat*, or international a)ree'ent, 0e 'ade 0* a two !thirds vote of all the 'e'0ers of the
3enate. 2ndeed, 3ection 2J, Article >:222 'ust not 0e treated in isolation to section 28, Article, :22.
As noted, the 4concurrence re7uire'ent4 under 3ection 2J, Article >:222 'ust 0e construed in relation to the
provisions of 3ection 28, Article :22. 2n a 'ore particular lan)ua)e, the concurrence of the 3enate
conte'plated under 3ection 2J, Article >:222 'eans that at least two!thirds of all the 'e'0ers of the 3enate
favora0l* vote to concur with the treat*!the :/A in the instant case.
5nder these circu'stances, the charter provides that the 3enate shall 0e co'posed of twent*!four (2F
3enators.
E0
Without a tin)e of dou0t, two!thirds (2IE of this fi)ure, or not less than si6teen (8L 'e'0ers,
favora0l* actin) on the proposal is an un7uestiona0le co'pliance with the re7uisite nu'0er of votes
'entioned in 3ection 28 of Article :22. &he fact that there were actuall* twent*!three (2E incu'0ent 3enators
at the ti'e the votin) was 'ade,
E8
will not alter in an* si)nificant wa* the circu'stance that 'ore than two!
thirds of the 'e'0ers of the 3enate concurred with the proposed :/A, even if the two!thirds vote re7uire'ent
is 0ased on this fi)ure of actual 'e'0ers (2E. 2n this re)ard, the funda'ental law is clear that two!thirds of
the 2F 3enators, or at least 8L favora0le votes, suffice so as to render co'pliance with the strict constitutional
'andate of )ivin) concurrence to the su0Dect treat*.
.avin) resolved that the first two re7uisites prescri0ed in 3ection 2J, Article >:222 are present, we shall now
pass upon and delve on the re7uire'ent that the :/A should 0e reco)niAed as a treat* 0* the 5nited 3tates
of A'erica.
Petitioners content that the phrase 4reco)niAed as a treat*,4 e'0odied in section 2J, Article >:222, 'eans that
the :/A should have the advice and consent of the 5nited 3tates 3enate pursuant to its own constitutional
process, and that it should not 0e considered 'erel* an e6ecutive a)ree'ent 0* the 5nited 3tates.
2n opposition, respondents ar)ue that the letter of 5nited 3tates A'0assador .u00ard statin) that the :/A is
0indin) on the 5nited 3tates "overn'ent is conclusive, on the point that the :/A is reco)niAed as a treat* 0*
the 5nited 3tates of A'erica. Accordin) to respondents, the :/A, to 0e 0indin), 'ust onl* 0e accepted as a
treat* 0* the 5nited 3tates.
&his Court is of the fir' view that the phrase $recogni*ed as a treaty$ 'eans that the other contractin) part*
accepts or ac&no!ledges the a)ree'ent as a treat*.
E2
&o re7uire the other contractin) state, the 5nited
3tates of A'erica in this case, to su0'it the :/A to the 5nited 3tates 3enate for concurrence pursuant to its
Constitution,
EE
is to accord strict 'eanin) to the phrase.
Well!entrenched is the principle that the words used in the Constitution are to 0e )iven their ordinar* 'eanin)
e6cept where technical ter's are e'plo*ed, in which case the si)nificance thus attached to the' prevails. 2ts
lan)ua)e should 0e understood in the sense the* have in co''on use.
EF
Moreover, it is inconse7uential whether the 5nited 3tates treats the :/A onl* as an e6ecutive a)ree'ent
0ecause, under international law, an e6ecutive a)ree'ent is as 0indin) as a treat*.
EJ
&o 0e sure, as lon) as
the :/A possesses the ele'ents of an a)ree'ent under international law, the said a)ree'ent is to 0e ta@en
e7uall* as a treat*.
82F
A treat*, as defined 0* the :ienna Convention on the 9aw of &reaties, is 4an international instru'ent
concluded 0etween 3tates in written for' and )overned 0* international law, whether e'0odied in a sin)le
instru'ent or in two or 'ore related instru'ents, and whatever its particular desi)nation.4
EL
&here are 'an*
other ter's used for a treat* or international a)ree'ent, so'e of which are- act, protocol, a)ree'ent,
compromis dF arbitrage, concordat, convention, declaration, e6chan)e of notes, pact, statute, charter and
modus vivendi. All writers, fro' .u)o "rotius onward, have pointed out that the na'es or titles of
international a)ree'ents included under the )eneral ter' treaty have little or no le)al si)nificance. Certain
ter's are useful, 0ut the* furnish little 'ore than 'ere description.
E7
Article 2(2 of the :ienna Convention provides that 4the provisions of para)raph 8 re)ardin) the use of ter's
in the present Convention are without preDudice to the use of those ter's, or to the 'eanin)s which 'a* 0e
)iven to the' in the internal law of the 3tate.4
&hus, in international law, there is no difference 0etween treaties and e6ecutive a)ree'ents in their 0indin)
effect upon states concerned, as lon) as the ne)otiatin) functionaries have re'ained within their powers.
E8
2nternational law continues to 'a@e no distinction 0etween treaties and e6ecutive a)ree'ents- the* are
e7uall* 0indin) o0li)ations upon nations.
E%
2n our Durisdiction, we have reco)niAed the 0indin) effect of e6ecutive a)ree'ents even without the
concurrence of the 3enate or Con)ress. 2n 'ommissioner of 'ustoms vs. Eastern Sea #rading
F0
we had
occasion to pronounce-
46 6 6 the ri)ht of the (6ecutive to enter into 0indin) a)ree'ents without the necessit* of su0se7uent
con)ressional approval has 0een confirmed by long usage. /ro' the earliest da*s of our histor* we have
entered into e6ecutive a)ree'ents coverin) such su0Dects as co''ercial and consular relations, 'ost!
favored!nation ri)hts, patent ri)hts, trade'ar@ and cop*ri)ht protection, postal and navi)ation arran)e'ents
and the settle'ent of clai's. #he validity of these has never been seriously !uestioned by our courts.
46 6 6 6 6 6 6 6 6
4/urther'ore, the 5nited 3tates 3upre'e Court has e6pressl* reco)niAed the validit* and constitutionalit* of
e6ecutive a)ree'ents entered into without 3enate approval. '39 Co"+mbi% L%9 Re0ie9, ##. A?33A?4( '*ee,
%"1o, -.*. vs. C+r&i1 Cri2h& E;#or& Cor#or%&io$, 299 -.*. 304, 81 L. e,. 2??) -.*. vs. 7e"mo$&, 301 -.*.
324, 81 L. e,. 1134) -.*. vs. !i$<, 31? -.*. 203, 8D L. e,. A9D) O:%$ic vs. -.*. 188 8. 2,. 288) 6%"e L%9
Jo+r$%", Vo". 1? ##. 190?3190D) C%"ior$i% L%9 Re0ie9, Vo". 2?, ##. DA03DA?) @4,e o$ I$&er$%&io$%" L%9
Mre0i1e, E,i&io$N, Vo". 2, ##. 140?, 141D31418) 9i""o+2hb4 o$ &he -.*. Co$1&i&+&io$ L%9, Vo". I M2, e,.N,
##. ?3A3?40) 5oore, I$&er$%&io$%" L%9 Di2e1&, Vo". V, ##. 2103218) @%c<9or&h, I$&er$%&io$%" L%9 Di2e1&,
Vo". V, ##. 390340A(. 'I&%"ic1 *+##"ie,(I (('phasis #urs
&he deli0erations of the Constitutional Co''ission which drafted the 8%87 Constitution is enli)htenin) and
hi)hl*!instructive-
45R. 5AA57ONG. #f course it )oes without sa*in) that as far as ratification of the other state is concerned,
that is entirel* their concern under their own laws.
8R. 7ERNA*. ?es, 0ut we will accept whatever the* sa*. 2f the* sa* that we have done ever*thin) to 'a@e it
a treat*, then as far as we are concerned, we will accept it as a treat*.4
F8
&he records reveal that the 5nited 3tates "overn'ent, throu)h A'0assador &ho'as C. .u00ard, has stated
that the 5nited 3tates )overn'ent has full* co''itted to livin) up to the ter's of the :/A.
F2
/or as lon) as
the united 3tates of A'erica accepts or ac@nowled)es the :/A as a treat*, and 0inds itself further to co'pl*
with its o0li)ations under the treat*, there is indeed 'ar@ed co'pliance with the 'andate of the Constitution.
82J
Worth stressin) too, is that the ratification, 0* the President, of the :/A and the concurrence of the 3enate
should 0e ta@en as a clear an une7uivocal e6pression of our nationCs consent to 0e 0ound 0* said treat*, with
the conco'itant dut* to uphold the o0li)ations and responsi0ilities e'0odied thereunder.
Ratification is )enerall* held to 0e an e6ecutive act, underta@en 0* the head of the state or of the )overn'ent,
as the case 'a* 0e, throu)h which the for'al acceptance of the treat* is proclai'ed.
FE
A 3tate 'a* provide in
its do'estic le)islation the process of ratification of a treat*. &he consent of the 3tate to 0e 0ound 0* a treat*
is e6pressed 0* ratification when- (a the treat* provides for such ratification, (0 it is otherwise esta0lished
that the ne)otiatin) 3tates a)reed that ratification should 0e re7uired, (c the representative of the 3tate has
si)ned the treat* su0Dect to ratification, or (d the intention of the 3tate to si)n the treat* su0Dect to ratification
appears fro' the full powers of its representative, or was e6pressed durin) the ne)otiation.
FF
2n our Durisdiction, the power to ratif* is vested in the President and not, as co''onl* 0elieved, in the
le)islature. &he role of the 3enate is li'ited onl* to )ivin) or withholdin) its consent, or concurrence, to the
ratification.
FJ
With the ratification of the :/A, which is e7uivalent to final acceptance, and with the e6chan)e of notes
0etween the Philippines and the 5nited 3tates of A'erica, it now 0eco'es o0li)ator* and incu'0ent on our
part, under the principles of international law, to 0e 0ound 0* the ter's of the a)ree'ent. &hus, no less than
3ection 2, Article 22 of the Constitution,
FL
declares that the Philippines adopts the )enerall* accepted principles
of international law as part of the law of the land and adheres to the polic* of peace, e7ualit*, Dustice, freedo',
cooperation and a'it* with all nations.
As a 'e'0er of the fa'il* of nations, the Philippines a)rees to 0e 0ound 0* )enerall* accepted rules for the
conduct of its international relations. While the international o0li)ation devolves upon the state and not upon
an* particular 0ranch, institution, or individual 'e'0er of its )overn'ent, the Philippines is nonetheless
responsi0le for violations co''itted 0* an* 0ranch or su0division of its )overn'ent or an* official thereof. As
an inte)ral part of the co''unit* of nations, we are responsi0le to assure that our )overn'ent, Constitution
and laws will carr* out our international o0li)ation.
F7
.ence, we cannot readil* plead the Constitution as a
convenient e6cuse for non!co'pliance with our o0li)ations, duties and responsi0ilities under international law.
,e*ond this, Article 8E of the 1eclaration of Ri)hts and 1uties of 3tates adopted 0* the 2nternational 9aw
Co''ission in 8%F% provides- I,very State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invo?e provisions in its constitution or its laws
as an e2cuse for failure to perform this duty.I
F8
(7uall* i'portant is Article 2L of the convention which provides that 4(ver* treat* in force is 0indin) upon the
parties to it and 'ust 0e perfor'ed 0* the' in )ood faith.4 &his is @nown as the principle of pacta sunt
servanda which preserves the sanctit* of treaties and have 0een one of the 'ost funda'ental principles of
positive international law, supported 0* the Durisprudence of international tri0unals.
F%
4' )AG, AB<S, '% D*SC,#*'4
2n the instant controvers*, the President, in effect, is heavil* faulted for e6ercisin) a power and perfor'in) a
tas@ conferred upon hi' 0* the Constitution!the power to enter into and ratif* treaties. &hrou)h the
e6pedienc* of Rule LJ of the Rules of Court, petitioners in these consolidated cases i'pute 2r%0e %b+1e o
,i1cre&io$ on the part of the chief (6ecutive in ratif*in) the :/A, and referrin) the sa'e to the 3enate
pursuant to the provisions of 3ection 28, Article :22 of the Constitution.
#n this particular 'atter, )rave a0use of discretion i'plies such capricious and whi'sical e6ercise of
Dud)'ent as is e7uivalent to lac@ of Durisdiction, or, when the power is e6ercised in an ar0itrar* or despotic
'anner 0* reason of passion or personal hostilit*, and it 'ust 0e so patent and )ross as to a'ount to an
evasion of positive dut* enDoined or to act at all in conte'plation of law.
J0
82L
,* constitutional fiat and 0* the intrinsic nature of his office, the President, as head of 3tate, is the sole or)an
and authorit* in the e6ternal affairs of the countr*. 2n 'an* wa*s, the President is the chief architect of the
nationCs forei)n polic*< his 4do'inance in the field of forei)n relations is (then conceded.4
J8
Wieldin) vast
powers an influence, his conduct in the e6ternal affairs of the nation, as +efferson descri0es, is 4e2ecutive
altogether.4
J2
As re)ards the power to enter into treaties or international a)ree'ents, the Constitution vests the sa'e in the
President, su0Dect onl* to the concurrence of at least two!thirds vote of all the 'e'0ers of the 3enate. 2n this
li)ht, the ne)otiation of the :/A and the su0se7uent ratification of the a)ree'ent are e6clusive acts which
pertain solel* to the President, in the lawful e6ercise of his vast e6ecutive and diplo'atic powers )ranted hi'
no less than 0* the funda'ental law itself. *nto the field of negotiation the Senate cannot intrude, and
Congress itself is powerless to invade it.
JE
Conse7uentl*, the acts or Dud)'ent calls of the President involvin)
the :/A!specificall* the acts of ratification and enterin) into a treat* and those necessar* or incidental to the
e6ercise of such principal acts ! s7uarel* fall within the sphere of his constitutional powers and thus, 'a* not
0e validl* struc@ down, 'uch less cali0rated 0* this Court, in the a0sence of clear showin) of )rave a0use of
power or discretion.
2t is the CourtCs considered view that the President, in ratif*in) the :/A and in su0'ittin) the sa'e to the
3enate for concurrence, acted within the confines and li'its of the powers vested in hi' 0* the Constitution. 2t
is of no 'o'ent that the President, in the e6ercise of his wide latitude of discretion and in the honest 0elief
that the :/A falls within the a'0it of 3ection 28, Article :22 of the Constitution, referred the :/A to the 3enate
for concurrence under the afore'entioned provision. Certainl*, no a0use of discretion, 'uch less a )rave,
patent and whi'sical a0use of Dud)'ent, 'a* 0e i'puted to the President in his act of ratif*in) the :/A and
referrin) the sa'e to the 3enate for the purpose of co'pl*in) with the concurrence re7uire'ent e'0odied in
the funda'ental law. 2n doin) so, the President 'erel* perfor'ed a constitutional tas@ and e6ercised a
prero)ative that chiefl* pertains to the functions of his office. (ven if he erred in su0'ittin) the :/A to the
3enate for concurrence under the provisions of 3ection 28 of Article :22, instead of 3ection 2J of Article >:222
of the Constitution, still, the President 'a* not 0e faulted or scarred, 'uch less 0e adDud)ed )uilt* of
co''ittin) an a0use of discretion in so'e patent, )ross, and capricious 'anner.
/or while it is conceded that Article :222, 3ection 8, of the Constitution has 0roadened the scope of Dudicial
in7uir* into areas nor'all* left to the political depart'ents to decide, such as those relatin) to national
securit*, it has not alto)ether done awa* with political 7uestions such as those which arise in the field of
forei)n relations.
JF
&he .i)h &ri0unalCs function, as sanctioned 0* Article :222, 3ection 8, Iis merely $to& chec?
whether or not the governmental branch or agency has gone beyond the constitutional limits of its 1urisdiction,
not that it erred or has a different view. *n the absence of a showingJ $of& grave abuse of discretion
amounting to lac? of 1urisdiction, there is no occasion for the Court to e2ercise its corrective powerJ*t has no
power to loo? into what it thin?s is apparent error.I
JJ
As to the power to concur with treaties, the constitution lod)es the sa'e with the 3enate alone.:Kwphi: &hus,
once the 3enate
JL
perfor's that power, or e6ercises its prero)ative within the 0oundaries prescri0ed 0* the
Constitution, the concurrence cannot, in li@e 'anner, 0e viewed to constitute an a0use of power, 'uch less
)rave a0use thereof. Corollaril*, the 3enate, in the e6ercise of its discretion and actin) within the li'its of
such power, 'a* not 0e si'ilarl* faulted for havin) si'pl* perfor'ed a tas@ conferred and sanctioned 0* no
less than the funda'ental law.
/or the role of the 3enate in relation to treaties is essentiall* le)islative in character<
J7
the 3enate, as an
independent 0od* possessed of its own erudite 'ind, has the prero)ative to either accept or reDect the
proposed a)ree'ent, and whatever action it ta@es in the e6ercise of its wide latitude of discretion, pertains to
the wisdo' rather than the le)alit* of the act. 2n this sense, the 3enate parta@es a principal, *et delicate, role
in @eepin) the principles of separation of powers and of chec?s and balances alive and vi)ilantl* ensures that
these cherished rudi'ents re'ain true to their for' in a de'ocratic )overn'ent such as ours. &he
Constitution thus ani'ates, throu)h this treat*!concurrin) power of the 3enate, a health* s*ste' of chec@s
827
and 0alances indispensa0le toward our nationCs pursuit of political 'aturit* and )rowth. &rue enou)h,
rudi'entar* is the principle that 'atters pertainin) to the wisdo' of a le)islative act are 0e*ond the a'0it and
province of the courts to in7uire.
2n fine, a0sent an* clear showin) of )rave a0use of discretion on the part of respondents, this Court! as the
final ar0iter of le)al controversies and staunch sentinel of the ri)hts of the people ! is then without power to
conduct an incursion and 'eddle with such affairs purel* e6ecutive and le)islative in character and nature.
/or the Constitution no less, 'aps out the distinct 0oundaries and li'its the 'etes and 0ounds within which
each of the three political 0ranches of )overn'ent 'a* e6ercise the powers e6clusivel* and essentiall*
conferred to it 0* law.
C@ERE8ORE, in li)ht of the fore)oin) dis7uisitions, the instant petitions are here0* 123M233(1.
3# #R1(R(1.
G.R. No. 1DA919 8ebr+%r4 14, 200A
!LARIDEL 5. A7A6A, CO55ODORE !LARIDEL C. GARCIA 're&ire,( %$, !5A E?9 8O-NDA.ION, INC.,
re#. b4 i&1 !re1i,e$&, CO55ODORE CARLO* L. AG-*.IN 're&ire,(, Petitioners,
vs.
@ON. *ECRE.AR6 @ER5OGENE* E. E7DANE, JR., i$ hi1 c%#%ci&4 %1 *ecre&%r4 o &he DE!AR.5EN.
O8 !-7LIC CORL* %$, @IG@CA6*, @ON. *ECRE.AR6 E5ILIA .. 7ONCODIN, i$ her c%#%ci&4 %1
*ecre&%r4 o &he DE!AR.5EN. O8 7-DGE. %$, 5ANAGE5EN., @ON. *ECRE.AR6 CE*AR V.
!-RI*I5A, i$ hi1 c%#%ci&4 %1 *ecre&%r4 o &he DE!AR.5EN. O8 8INANCE, @ON. .REA*-RER
NOR5A L. LA*ALA, i$ her c%#%ci&4 %1 .re%1+rer o &he 7+re%+ o .re%1+r4, %$, C@INA ROAD %$,
7RIDGE COR!ORA.ION, Respondents.
,efore the Court is the petition for certiorari and prohi0ition under Rule LJ of the Rules of Court see@in) to set
aside and nullif* Resolution $o. P+.9!A!0F!082 dated Ma* 7, 200F issued 0* the ,ids and Awards
Co''ittee (,AC of the 1epart'ent of Pu0lic Wor@s and .i)hwa*s (1PW. and approved 0* then 1PW.
Actin) 3ecretar* /lorante 3ori7ueA. &he assailed resolution reco''ended the award to private respondent
China Road \ ,rid)e Corporation of the contract for the i'ple'entation of civil wor@s for Contract Pac@a)e
$o. 2 (CP 2, which consists of the i'prove'entIreha0ilitation of the 3an Andres (Codon!:irac!+ct. ,a)o!:i)a
road, with the len)th of 7%.888 @ilo'eters, in the island province of Catanduanes.
&he CP 2 proDect is one of the four pac@a)es co'prisin) the proDect for the i'prove'entIreha0ilitation of the
Catanduanes Circu'ferential Road, coverin) a total len)th of a0out 20F.J8J @ilo'eters, which is the 'ain
hi)hwa* in Catanduanes Province. &he road section (Catanduanes Circu'ferential Road is part of the
Arterial Road 9in@s 1evelop'ent ProDect (Phase 2: funded under 9oan A)ree'ent $o. P.!P20F dated
1ece'0er 28, 8%%% 0etween the +apan ,an@ for 2nternational Cooperation (+,2C and the "overn'ent of the
Repu0lic of the Philippines.
,ac@)round
,ased on the (6chan)e of $otes dated 1ece'0er 27, 8%%%,
8
the "overn'ent of +apan and the "overn'ent
of the Philippines, throu)h their respective representatives, na'el*, Mr. ?oshihisa Ara, A'0assador
(6traordinar* and Plenipotentiar* of +apan to the Repu0lic of the Philippines, and then 3ecretar* of /orei)n
Affairs 1o'in)o 9. 3iaAon, have reached an understandin) concernin) +apanese loans to 0e e6tended to the
828
Philippines. &hese loans were ai'ed at pro'otin) our countr*Cs econo'ic sta0iliAation and develop'ent
efforts.
&he (6chan)e of $otes consisted of two docu'ents- (8 a 9etter fro' the "overn'ent of +apan, si)ned 0*
A'0assador Ara, addressed to then 3ecretar* of /orei)n Affairs 3iaAon, confir'in) the understandin)
reached 0etween the two )overn'ents concernin) the loans to 0e e6tended 0* the "overn'ent of +apan to
the Philippines< and (2 a docu'ent deno'inated as Records of 1iscussion where the salient ter's of the
loans as set forth 0* the "overn'ent of +apan, throu)h the +apanese dele)ation, were reiterated and the said
ter's were accepted 0* the Philippine dele)ation. ,oth A'0assador Ara and then 3ecretar* 3iaAon si)ned
the Records of 1iscussion as representatives of the "overn'ent of +apan and Philippine "overn'ent,
respectivel*.
&he (6chan)e of $otes provided that the loans to 0e e6tended 0* the "overn'ent of +apan to the Philippines
consisted of two loans- 9oan 2 and 9oan 22. &he (6chan)e of $otes stated in part-
2
8. A loan in +apanese *en up to the a'ount of sevent*!nine 0illion ei)ht hundred and si6t*!one 'illion
*en (?7%,8L8,000,000 (hereinafter referred to as 4the 9oan 24 will 0e e6tended, in accordance with
the relevant laws and re)ulations of +apan, to the "overn'ent of the Repu0lic of the Philippines
(hereinafter referred to as 4the ,orrower 24 0* the +apan ,an@ for 2nternational Cooperation
(hereinafter referred to as 4the ,an@4 to i'ple'ent the proDects enu'erated in the 9ist A attached
hereto (hereinafter referred to as 4the 9ist A4 accordin) to the allocation for each proDect as specified
in the 9ist A.
2. (8 &he 9oan 2 will 0e 'ade availa0le 0* loan a)ree'ents to 0e concluded 0etween the ,orrower 2
and the ,an@. &he ter's and conditions of the 9oan 2 as well as the procedure for its utiliAation will 0e
)overned 0* said loan a)ree'ents which will contain, inter alia, the followin) principles-
. . .
(2 (ach of the loan a)ree'ents 'entioned in su0!para)raph (8 a0ove will 0e concluded after
the ,an@ is satisfied of the feasi0ilit*, includin) environ'ental consideration, of the proDect to
which such loan a)ree'ent relates.
E. (8 &he 9oan 2 will 0e 'ade availa0le to cover pa*'ents to 0e 'ade 0* the Philippine e6ecutin)
a)encies to suppliers, contractors andIor consultants of eli)i0le source countries under such contracts
as 'a* 0e entered into 0etween the' for purchases of products andIor services re7uired for the
i'ple'entation of the proDects enu'erated in the 9ist A, provided that such purchases are 'ade in
such eli)i0le source countries for products produced in andIor services supplied fro' those countries.
(2 &he scope of eli)i0le source countries 'entioned in su0!para)raph (8 a0ove will 0e a)reed
upon 0etween the authorities concerned of the two "overn'ents.
(E A part of the 9oan 2 'a* 0e used to cover eli)i0le local currenc* re7uire'ents for the
i'ple'entation of the proDects enu'erated in the 9ist A.
F. With re)ard to the shippin) and 'arine insurance of the products purchased under the 9oan 2, the
"overn'ent of the Repu0lic of the Philippines will refrain fro' i'posin) an* restrictions that 'a*
hinder fair and free co'petition a'on) the shippin) and 'arine insurance co'panies.
6 6 6 6
2
:awphi:.net
82%
Pertinentl*, 9ist A, which specified the proDects to 0e financed under the 9oan 2, includes the Arterial Road
9in@s 1evelop'ent ProDect (Phase 2:, to wit-
923& A
Ma6i'u' a'ount in 'illion *en
8. 3econdar* (ducation 1evelop'ent and 2'prove'ent ProDect 7,280
2. Rural Water 3uppl* ProDect (Phase : %J8
E. ,ohol 2rri)ation ProDect (Phase 22 L,078
F. A)rarian Refor' 2nfrastructure 3upport ProDect (Phase 22 8L,%%0
J. Arterial Road 9in@s 1evelop'ent ProDect (Phase 2: 8J,E8F
L. Cordillera Road 2'prove'ent ProDect J,8J2
7. Philippines!+apan /riendship .i)hwa* Mindanao 3ection Reha0ilitation ProDect (Phase 22 7,FEF
8. Reha0ilitation and Maintenance of ,rid)es Alon) Arterial Roads ProDect (Phase 2: J,0L8
%. Mariti'e 3afet* 2'prove'ent ProDect (Phase C F,78F
80. Pinatu0o .aAard 5r)ent Miti)ation ProDect (Phase 22 %,08E
88. Pasi)!Mari@ina River Channel 2'prove'ent ProDect (Phase 2 8,8L7
&otal 7%,8L8
E

&he (6chan)e of $otes further provided that-
222
6 6 6 6
E. &he "overn'ent of the Repu0lic of the Philippines will ensure that the products andIor services 'entioned
in su0!para)raph (8 of para)raph E of Part 2 and su0!para)raph (8 of para)raph F of Part 22 are procured in
accordance with the )uidelines for procure'ent of the ,an@, which set forth, inter alia, the procedures of
international tenderin) to 0e followed e6cept where such procedures are inapplica0le or inappropriate.
6 6 6 6
F

&he Records of 1iscussion, which for'ed part of the (6chan)e of $otes, also stated in part, thus-
6 6 6 6
8. With reference to su0!para)raph (E of para)raph E of Part 2 of the (6chan)e of $otes concernin) the
financin) of eli)i0le local currenc* re7uire'ents for the i'ple'entation of the proDects 'entioned in the said
su0!para)raph, the representative of the +apanese dele)ation stated that-
8E0
(8 such re7uire'ent of local currenc* as )eneral ad'inistrative e6penses, interest durin)
construction, ta6es and duties, e6penses concernin) office, re'uneration to e'plo*ees of the
e6ecutin) a)encies and housin), not directl* related to the i'ple'entation of the said proDects, as well
as purchase of land properties, co'pensation and the li@e, however, will not 0e considered as eli)i0le
for financin) under the 9oan 2< and
(2 the procure'ent of products andIor services will 0e 'ade in accordance with the procedures of
international co'petitive tenderin) e6cept where such procedures are inapplica0le and inappropriate.
6 6 6 6
J

&hus, in accordance with the a)ree'ent reached 0* the "overn'ent of +apan and the Philippine
"overn'ent, as e6pressed in the (6chan)e of $otes 0etween the representatives of the two )overn'ents,
the Philippines o0tained fro' and was )ranted a loan 0* the +,2C. 9oan A)ree'ent $o. P.!P20F dated
1ece'0er 28, 8%%%, in particular, stated as follows-
9oan A)ree'ent $o. P.!P20F, dated 1ece'0er 28, 8%%%, 0etween +APA$ ,A$= /#R 2$&(R$A&2#$A9
C##P(RA&2#$ and the "#:(R$M($& #/ &.( R(P5,92C #/ &.( P.292PP2$(3.
2n the li)ht of the contents of the (6chan)e of $otes 0etween the "overn'ent of +apan and the "overn'ent
of the Repu0lic of the Philippines dated 1ece'0er 27, 8%%%, concernin) +apanese loans to 0e e6tended with
a view to pro'otin) the econo'ic sta0iliAation and develop'ent efforts of the Repu0lic of the Philippines.
+APA$ ,A$= /#R 2$&(R$A&2#$A9 C##P(RA&2#$ (hereinafter referred to as 4the ,A$=4 and &.(
"#:(R$M($& #/ &.( R(P5,92C #/ &.( P.292PP2$(3 (hereinafter referred to as 4the ,orrower4
herewith conclude the followin) 9oan A)ree'ent (hereinafter referred to as 4the 9oan A)ree'ent4, which
includes all a)ree'ents supple'ental hereto.
6 6 6 6
L

5nder the ter's and conditions of 9oan A)ree'ent $o. P.!P20F, +,2C a)reed to lend the Philippine
"overn'ent an a'ount not e6ceedin) /2/&(($ ,2992#$ &.R(( .5$1R(1 (2".&?!/#5R M2992#$
+apanese ?en (? 8J,E8F,000,000 as principal for the i'ple'entation of the Arterial Road 9in@s 1evelop'ent
ProDect (Phase 2: on the ter's and conditions set forth in the 9oan A)ree'ent and in accordance with the
relevant laws and re)ulations of +apan.
7
&he said a'ount shall 0e used for the purchase of eli)i0le )oods and
services necessar* for the i'ple'entation of the a0ove!'entioned proDect fro' suppliers, contractors or
consultants.
8

/urther, it was provided under the said loan a)ree'ent that other ter's and conditions )enerall* applica0le
thereto shall 0e set forth in the "eneral &er's and Conditions, dated $ove'0er 8%87, issued 0* the
#verseas (cono'ic Cooperation /und (#(C/ and for the purpose, reference to 4the #(C/4 and 4/und4
therein ("eneral &er's and Conditions shall 0e su0stituted 0* 4the +,2C4 and 4,an@,4 respectivel*.
%
3pecificall*, the )uidelines for procure'ent of all )oods and services to 0e financed out of the proceeds of the
said loan shall 0e as stipulated in the "uidelines for Procure'ent under #(C/ 9oans dated 1ece'0er 8%%7
(herein referred to as +,2C Procure'ent "uidelines.
80

As 'entioned earlier, the proceeds of 9oan A)ree'ent $o. P.!P20F was to 0e used to finance the Arterial
Road 9in@s 1evelop'ent ProDect (Phase 2:, of which the Catanduanes Circu'ferential Road was a part.
&his road section, in turn, was divided into four contract pac@a)es (CP-
CP 2- 3an Andres (Codon!:irac!+ct. ,ato! :i)a Road ! 7%.888 @'s
CP 22- :i)a!,a)a'anoc Road ! 80.F0 @'s.
8E8
CP 222- ,a)a'anoc!Pandan Road ! F7.J0 @'s.
CP 2:- Pandan!Cara'oran!Codon Road ! LL.F0 @'s.
88

3u0se7uentl*, the 1PW., as the )overn'ent a)enc* tas@ed to i'ple'ent the proDect, caused the pu0lication
of the 42nvitation to Pre7ualif* and to ,id4 for the i'ple'entation of the CP 2 proDect in two leadin) national
newspapers, na'el*, the Manila &i'es and Manila 3tandard on $ove'0er 22 and 2%, and 1ece'0er J,
2002.
A total of twent*!three (2E forei)n and local contractors responded to the invitation 0* su0'ittin) their
acco'plished pre7ualification docu'ents on +anuar* 2E, 200E. 2n accordance with the esta0lished
pre7ualification criteria, ei)ht contractors were evaluated or considered eli)i0le to 0id as concurred 0* the
+,2C. #ne of the', however, withdrew< thus, onl* seven contractors su0'itted their 0id proposals.
&he 0id docu'ents su0'itted 0* the pre7ualified contractorsI0idders were e6a'ined to deter'ine their
co'pliance with the re7uire'ents as
stipulated in Article L of the 2nstruction to ,idders.
82
After the lapse of the deadline for the su0'ission of 0id
proposals, the openin) of the 0ids co''enced i''ediatel*. Prior to the openin) of the respective 0id
proposals, it was announced that the Approved ,ud)et for the Contract (A,C was in the a'ount of
P7E8,780,JLE.L7.
&he result of the 0iddin) revealed the followin) three lowest 0idders and their respective 0ids vis!V!vis the
A,C-
8E

$a'e of ,idder
#ri)inal ,id As
Read (Pesos
As!Corrected ,id
A'ount (Pesos
:arianc
e
8 China Road And
,rid)e Corporation
P %%E,88E,%0F.%8 P%J2,JLF,828.78 28.%JX
2 Cavite 2deal 2ntCl
Const. 1evt. Corp.
P8,0%%,%2L,J%8.88 P8,0%%,%2L,J%8.88 F8.%0X
E 2talian &hai
1evCt. Pu0lic
Co'pan*, 9td.
P8,82J,022,07J.EF P8,82J,E%2,F7J.EL J2.EJX
&he 0id of private respondent China Road \ ,rid)e Corporation was corrected fro' the ori)inal
P%%E,88E,%0F.%8 (with variance of EF.FJX fro' the A,C to P%J2,JLF,828.78 (with variance of 28.%JX fro'
the A,C 0ased on their letter clarification dated April 28, 200F.
8F

After further evaluation of the 0ids, particularl* those of the lowest three 0idders, Mr. .edifu'e (Aawa, ProDect
Mana)er of the Catanduanes Circu'ferential Road 2'prove'ent ProDect (CCR2P, in his ContractorCs ,id
(valuation Report dated April 200F, reco''ended the award of the contract to private respondent China
Road \ ,rid)e Corporation-
2n accordance with the "uidelines for the Procure'ents under #1A G#fficial 1evelop'ent AssistanceH 9oans,
the Consultant here0* reco''ends the award of the contract for the construction of CP 2, 3an Andres
(Codon B :irac B +ct. ,ato B :i)a 3ection under the Arterial Road 9in@s 1evelop'ent ProDects, Phase 2:,
+,2C 9oan $o. P.!P20F to the 9owest Co'pl*in) ,idder, China Road and ,rid)e Corporation, at its total
corrected 0id a'ount of $ine .undred /ift*!&wo Million /ive .undred 3i6t*!/our &housand (i)ht .undred
&went*!#ne \ 78I800 Pesos.
8J

8E2
&he ,AC of the 1PW., with the approval of then Actin) 3ecretar* 3ori7ueA, issued the assailed Resolution
$o. P+.9!A!0F!082 dated Ma* 7, 200F reco''endin) the award in favor of private respondent China Road \
,rid)e Corporation of the contract for the i'ple'entation of civil wor@s for CP 2, 3an Andres (Codon B :irac
B +ct. ,ato B :i)a Road (Catanduanes Circu'ferential Road 2'prove'ent ProDect of the Arterial Roads 9in@s
1evelop'ent ProDect, Phase 2:, located in Catanduanes Province, under +,2C 9oan A)ree'ent $o. P.!
P20F.
8L
#n 3epte'0er 2%, 200F, a Contract of A)ree'ent was entered into 0* and 0etween the 1PW. and
private respondent China Road \ ,rid)e Corporation for the i'ple'entation of the CP 2 proDect.
&he Parties
Petitioner Plaridel M. A0a*a clai's that he filed the instant petition as a ta6pa*er, for'er law'a@er, and a
/ilipino citiAen. Petitioner Plaridel C. "arcia li@ewise clai's that he filed the suit as a ta6pa*er, for'er 'ilitar*
officer, and a /ilipino citiAen. Petitioner PMA CJ% /oundation, 2nc., on the other hand, is a non!stoc@, non!profit
corporation or)aniAed under the e6istin) Philippine laws. 2t clai's that its 'e'0ers are all ta6pa*ers and
alu'ni of the Philippine Militar* Acade'*. 2t is represented 0* its President, Carlos 9. A)ustin.
$a'ed as pu0lic respondents are the 1PW., as the )overn'ent a)enc* tas@ed with the i'ple'entation of
)overn'ent infrastructure proDects< the 1epart'ent of ,ud)et and Mana)e'ent (1,M as the )overn'ent
a)enc* that authoriAes the release and dis0urse'ent of pu0lic funds for the i'ple'entation of )overn'ent
infrastructure proDects< and the 1epart'ent of /inance (1#/ as the )overn'ent a)enc* that acts as the
custodian and 'ana)er of all financial resources of the )overn'ent. Also na'ed as individual pu0lic
respondents are .er'o)enes (. (0dane, +r., ('ilia &. ,oncodin and Cesar :. Purisi'a in their capacities as
for'er 3ecretaries of the 1PW., 1,M and 1#/, respectivel*. #n the other hand, pu0lic respondent $or'a
9. 9asala was i'pleaded in her capacit* as &reasurer of the ,ureau of &reasur*.
Private respondent China Road \ ,rid)e Corporation is a dul* or)aniAed corporation en)a)ed in the 0usiness
of construction.
&he PetitionersC Case
&he petitioners 'ainl* see@ to nullif* 1PW. Resolution $o. P+.9!A!0F!082 dated Ma* 7, 200F, which
reco''ended the award to private respondent China Road \ ,rid)e Corporation of the contract for the
i'ple'entation of the civil wor@s of CP 2. &he* also see@ to annul the contract of a)ree'ent su0se7uentl*
entered into 0* and 0etween the 1PW. and private respondent China Road \ ,rid)e Corporation pursuant to
the said resolution.
&he* pose the followin) issues for the CourtCs resolution-
2. Whether or not Petitioners have standin) to file the instant Petition.
22. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversin) and settin)
aside 1PW. Resolution $o. P+.9!A!0F!082, reco''endin) the award of the Contract A)ree'ent for
the i'ple'entation of civil wor@s for CP2, 3an Andres (C#1#$!:2RAC!+C& ,A&#!:2"A R#A1
(CA&A$15A$(3 C2RC5M/(R($&2A9 R#A1 2MPR#:(M($& PR#+(C& of the Arterial Road 9in@s
1evelop'ent ProDect, Phase 2:, located in Catanduanes Province, under +,2C 9IA $o. P.!P20F, to
China Road \ ,rid)e Corporation.
222. Whether or not the Contract A)ree'ent e6ecuted 0* and 0etween the Repu0lic of the Philippines,
throu)h the 1epart'ent of Pu0lic Wor@s and .i)hwa*s, and the China Road \ ,rid)e Corporation, for
the i'ple'entation of civil wor@s for CP2, 3an Andres (C#1#$!:2RAC!+C& ,A&#!:2"A R#A1
(CA&A$15A$(3 C2RC5M/(R($&2A9 R#A1 2MPR#:(M($& PR#+(C& of the Arterial Road 9in@s
1evelop'ent ProDect, Phase 2:, located in Catanduanes Province, under +,2C 9IA $o. P.!P20F, is
void a0 initio.
8EE
2:. Whether or not Petitioners are entitled to the issuance of a Writ of Prohi0ition per'anentl*
prohi0itin) the i'ple'entation of 1PW. Resolution $o. P+.9!A!0F!082 and the Contract A)ree'ent
e6ecuted 0* and 0etween the Repu0lic of the Philippines (throu)h the 1epart'ent of Pu0lic Wor@s
and .i)hwa*s and the China Road \ ,rid)e Corporation, and the dis0urse'ent of pu0lic funds 0* the
G1Hepart'ent of G,Hud)et and GMHana)e'ent for such purpose.
:. Whether or not Petitioners are entitled to a Preli'inar* 2nDunction andIor a &e'porar* Restrainin)
#rder i''ediatel* enDoinin) the i'ple'entation of 1PW. Resolution $o. P+.9!A!0F!082 and the
Contract A)ree'ent e6ecuted 0* and 0etween the Repu0lic of the Philippines (throu)h the
1epart'ent of Pu0lic Wor@s and .i)hwa*s and the China Road \ ,rid)e Corporation, and the
dis0urse'ent of pu0lic funds 0* the 1epart'ent of ,ud)et and Mana)e'ent for such purpose, durin)
the pendenc* of this case.
87

Preli'inaril*, the petitioners assert that the* have standin) or locus standi to file the instant petition. &he*
clai' that as ta6pa*ers and concerned citiAens, the* have the ri)ht and dut* to 7uestion the e6penditure of
pu0lic funds on ille)al acts. &he* point out that the Philippine "overn'ent allocates a peso!counterpart for CP
2, which a'ount is appropriated 0* Con)ress in the "eneral Appropriations Act< hence, funds that are 0ein)
utiliAed in the i'ple'entation of the 7uestioned proDect also parta@e of ta6pa*ersC 'one*. &he present action,
as a ta6pa*ersC suit, is thus alle)edl* proper.
&he* li@ewise characteriAe the instant petition as one of transcendental i'portance that warrants the CourtCs
adoption of a li0eral stance on the issue of standin). 2t cited several cases where the Court 0rushed aside
procedural technicalities in order to resolve issues involvin) para'ount pu0lic interest and transcendental
i'portance.
88
/urther, petitioner A0a*a asserts that he possesses the re7uisite standin) as a for'er 'e'0er
of the .ouse of Representatives and one of the principal authors of Repu0lic Act $o. %88F (RA %88F
8%
@nown
as the "overn'ent Procure'ent Refor' Act, the law alle)edl* violated 0* the pu0lic respondents.
#n the su0stantive issues, the petitioners anchor the instant petition on the contention that the award of the
contract to private respondent China Road \ ,rid)e Corporation violates RA %88F, particularl* 3ection E8
thereof which reads-
3(C. E8. Ceilin) for ,id Prices. B &he A,C shall 0e the upper li'it or ceilin) for the ,id prices. ,id prices that
e6ceed this ceilin) shall 0e dis7ualified outri)ht fro' further participatin) in the 0iddin). &here shall 0e no
lower li'it to the a'ount of the award.
2n relation thereto, the petitioners cite the definition of the A,C, thus-
3(C. J. 1efinition of &er's. B
6 6 6
(a Approved ,ud)et for the Contract (A,C. B refers to the 0ud)et for the contract dul* approved 0* the .ead
of the Procurin) (ntit*, as provided for in the "eneral Appropriations Act andIor continuin) appropriations, in
the case of $ational "overn'ent A)encies< the Corporate ,ud)et for the contract approved 0* the )overnin)
,oards, pursuant to (.#. $o. J88, series of 8%7%, in the case of "overn'ent!#wned andIor Controlled
Corporations, "overn'ent /inancial 2nstitutions and 3tate 5niversities and Colle)es< and the ,ud)et for the
contract approved 0* the respective 3an))unian, in the case of 9ocal "overn'ent 5nits.
6 6 6
&he petitioners theoriAe that the fore)oin) provisions show the 'andator* character of ceilin)s or upper li'its
of ever* 0id. 5nder the a0ove!7uoted provisions of RA %88F, all 0ids or awards should not e6ceed the ceilin)s
or upper li'its< otherwise, the contract is dee'ed void and ine6istent.
8EF
Resolution $o. P+.9!A!0F!082 was alle)edl* issued with )rave a0use of discretion 0ecause it reco''ended
the award of the contract to private respondent China Road \ ,rid)e Corporation whose 0id was 'ore than
P200 'illion overpriced 0ased on the A,C. As such, the award is alle)edl* ille)al and unconsciona0le.
2n this connection, the petitioners opine that the contract su0se7uentl* entered into 0* and 0etween the
1PW. and private respondent China Road \ ,rid)e Corporation is void a0 initio for 0ein) prohi0ited 0* RA
%88F. &he* stress that 3ection E8 thereof e6pressl* provides that 40id prices that e6ceed this ceilin) shall 0e
dis7ualified outri)ht fro' participatin) in the 0iddin).4 &he upper li'it or ceilin) is called the A,C and since
the 0id of private respondent China Road \ ,rid)e Corporation e6ceeded the A,C for the CP 2 proDect, it
should have 0een alle)edl* dis7ualified fro' the 0iddin) process and should not, 0* law, have 0een awarded
the said contract. &he* invo@e Article 8F0% of the Civil Code-
AR&. 8F0%. &he followin) contracts are ine6istent and void fro' the 0e)innin)-
(8 &hose whose cause, o0Dect or purpose is contrar* to law, 'orals, )ood custo's, pu0lic order or
pu0lic polic*<
(2 &hose which are a0solutel* si'ulated or fictitious<
(E &hose whose cause or o0Dect did not e6ist at the ti'e of the transaction<
(F &hose whose o0Dect is outside the co''erce of 'en<
(J &hose which conte'plate an i'possi0le service<
(L &hose where the intention of the parties relative to the principal o0Dect of the contract cannot 0e
ascertained<
(7 &hose e6pressl* prohi0ited or declared void 0* law.
/or violatin) the a0ove provision, the contract 0etween the 1PW. and private respondent China Road \
,rid)e Corporation is alle)edl* ine6istent and void a0 initio and can produce no effects whatsoever.
2t is the contention of the petitioners that RA %88F is applica0le to 0oth local! and forei)n!funded procure'ent
contracts. &he* cite the followin) e6cerpt of the deli0erations of the ,ica'eral Conference Co''ittee on the
1isa)reein) Provisions of 3enate ,ill $o. 22F8 and .ouse ,ill $o. F80%-
20

R(P. A,A?A. Mr. Chair'an, can we Dust propose additional a'end'entsN Can we )o 0ac@ to 3ection F, Mr.
Chair'anN
&.( C.A2RMA$ (3($. A$"ARA. 3ectionN 3ection ano, 1el, FN 1efinition B definition of ter's.
R(P. A,A?A. 3a .ouse 0ill, it is sa scope and application.
&.( C.A2RMA$ (3($. A$"ARA. #@a*.
R(P. A,A?A. 2t should read as follows- 4&his Act shall appl* to the procure'ent of )oods, supplies and
'aterials, infrastructure proDects and consultin) services re)ardless of fundin) source whether local or forei)n
0* the )overn'ent.4
&.( C.A2RMA$ (3($. A$"ARA. #@a*, accepted. We accept. &he 3enate accepts it.
28

8EJ
666 666 666
&.( C.A2RMA$ (3($ A$"ARA. +ust ta@e note of that ano. Med*o n)a pro0le'atic P*an eh. $ow, Dust for
the record 1el, can *ou repeat a)ain the Dustification for includin) forei)n funded contracts within the scope
para 'alinaw 0ecause the World ,an@ daw 'i)ht raise so'e o0Dection to it.
R(P. A,A?A. Well, Mr. Chair'an, we should include forei)n funded proDects @asi these are the 0i) proDects.
&o )ive an e6a'ple, if *ou allow 0ids a0ove )overn'ent esti'ate, letCs sa* ta@e the case of J00 'illion
proDect, included in that J00 'illion is the 20 percent profit. 2f *ou allow the' to 0id a0ove )overn'ent
esti'ate, the* will add another sa* 28 percent of (sic E0 percent, E0 percent of J00 'illion is another 8J0
'illion. 2to, this is a rich source of )raft 'one*, are)luhan na lan), 8J0 'illion, five contractors will )ather, 4#
eto 20 'illion, 20 'illion, 20 'illion.4 3o, it is ri))ed. P?un an) practice na nan)*a*ari. 2f we eli'inate that, if
we have a ceilin) then, it will not 0e ver* te'ptin) @asi walan) e6tra 'one* na pweden) i0i)a* sa i0an)
contractor. 3o this pro'ote (sic collusion a'on) 0idders, of course, with the cooperation of irresponsi0le
officials of so'e a)encies. 3o we should have a ceilin) to include forei)n funded proDects.
22

&he petitioners insist that 9oan A)ree'ent $o. P.!P20F 0etween the +,2C and the Philippine "overn'ent is
neither a treat*, an international nor an e6ecutive a)ree'ent that would 0ar the application of RA %88F. &he*
point out that to 0e considered a treat*, an international or an e6ecutive a)ree'ent, the parties 'ust 0e two
soverei)ns or 3tates whereas in the case of 9oan A)ree'ent $o. P.!P20F, the parties are the Philippine
"overn'ent and the +,2C, a 0an@in) a)enc* of +apan, which has a separate Duridical personalit* fro' the
+apanese "overn'ent.
&he* further insist on the applica0ilit* of RA %88F contendin) that while it too@ effect on +anuar* 2L, 200E
2E
and 9oan A)ree'ent $o. P.!P20F was e6ecuted prior thereto or on 1ece'0er 28, 8%%%, the actual
procure'ent or award of the contract to private respondent China Road \ ,rid)e Corporation was done after
the effectivit* of RA %88F. &he said law is alle)edl* specific as to its application, which is on the actual
procure'ent of infrastructure and other proDects onl*, and not on the loan a)ree'ents attached to such
proDects. &hus, the petition onl* pra*s for the annul'ent of Resolution $o. P+.9!A!0F!082 as well as the
contract 0etween the 1PW. and private respondent China Road \ ,rid)e Corporation. &he petitioners clarif*
that the* do not pra* for the annul'ent of 9oan A)ree'ent $o. P.!P20F. 3ince the su0Dect procure'ent and
award of the contract were done after the effectivit* of RA %88F, necessaril*, the procure'ent rules
esta0lished 0* that law alle)edl* appl*, and not Presidential 1ecree $o. 8J%F (P1 8J%F
2F
and (6ecutive
#rder $o. F0 ((# F0, series of 2008,
2J
as contended 0* the respondents. &he latter laws, includin) their
i'ple'entin) rules, have alle)edl* 0een repealed 0* RA %88F. (ven RA F8L0, as a'ended, @nown as the
/orei)n ,orrowin)s Act, the petitioners posit, 'a* have also 0een repealed or 'odified 0* RA %88F insofar as
its provisions are inconsistent with the latter.
&he petitioners also ar)ue that the 42'ple'entin) Rules and Re)ulations (2RR of RA %88F, #therwise =nown
as the "overn'ent Procure'ent Refor' Act, Part A4 (2RR!A cited 0* the respondents is not applica0le as
these rules onl* )overn do'esticall*!funded procure'ent contracts. &he* aver that the i'ple'entin) rules to
)overn forei)n!funded procure'ent, as in the present case, have *et to 0e drafted and in fact, there are
concurrent resolutions drafted 0* 0oth houses of Con)ress for the Reconvenin) of the +oint Con)ressional
#versi)ht Co''ittee for the for'ulation of the 2RR for forei)n!funded procure'ents under RA %88F.
&he petitioners 'aintain that dis0urse'ent of pu0lic funds to i'ple'ent a patentl* void and ille)al contract is
itself ille)al and 'ust 0e enDoined. &he* 0rin) to the CourtCs attention the fact that the wor@s on the CP 2
proDect have alread* co''enced as earl* as #cto0er 200F. &he* thus ur)e the Court to issue a writ of
certiorari to set aside Resolution $o. P+.9!A!0F!082 as well as to declare null and void the contract entered
into 0etween the 1PW. and private respondent China Road \ ,rid)e Corporation. &he* also pra* for the
issuance of a te'porar* restrainin) order and, eventuall*, a writ of prohi0ition to per'anentl* enDoin the
1PW. fro' i'ple'entin) Resolution $o. P+.9!A!0F!082 and its contract with private respondent China
Road \ ,rid)e Corporation as well as the 1,M fro' dis0ursin) funds for the said purpose.
8EL
&he RespondentsC Counter!Ar)u'ents
&he pu0lic respondents, na'el* the 1PW., 1,M and 1#/, and their respective na'ed officials, throu)h the
#ffice of the 3olicitor "eneral, ur)e the Court to dis'iss the petition on )rounds that the petitioners have no
locus standi and, in an* case, Resolution $o. P+.9!A!0F!082 and the contract 0etween the 1PW. and
private respondent China Road \ ,rid)e Corporation are valid.
Accordin) to the pu0lic respondents, a ta6pa*erCs locus standi was reco)niAed in the followin) cases- (a
where a ta6 'easure is assailed as unconstitutional<
2L
(0 where there is a 7uestion of validit* of election
laws<
27
(c where le)islators 7uestioned the validit* of an* official action upon the clai' that it infrin)es on their
prero)atives as le)islators<
28
(d where there is a clai' of ille)al dis0urse'ent or wasta)e of pu0lic funds
throu)h the enforce'ent of an invalid or unconstitutional law<
2%
(e where it involves the ri)ht of 'e'0ers of
the 3enate or .ouse of Representatives to 7uestion the validit* of a presidential veto or condition i'posed on
an ite' in an appropriation 0ill<
E0
or (f where it involves an invalid law, which when enforced will put the
petitioner in i''inent dan)er of sustainin) so'e direct inDur* as a result thereof, or that he has 0een or is
a0out to 0e denied so'e ri)ht or privile)e to which he is lawfull* entitled or that he is a0out to 0e su0Dected to
so'e 0urdens or penalties 0* reason of the statute co'plained of.
E8
$one of the a0ove considerations
alle)edl* o0tains in the present case.
2t is also the view of the pu0lic respondents that the fact that petitioner A0a*a was a for'er law'a@er would
not suffice to confer locus standi on hi'self. Me'0ers of Con)ress 'a* properl* challen)e the validit* of an
official act of an* depart'ent of the )overn'ent onl* upon showin) that the assailed official act affects or
i'pairs their ri)hts and prero)atives as le)islators.
&he pu0lic respondents further assail the standin) of the petitioners to file the instant suit clai'in) that the*
failed to alle)e an* specific inDur* suffered nor an interest that is direct and personal to the'. 2f at all, the
interest or inDuries clai'ed 0* the petitioners are alle)edl* 'erel* of a )eneral interest co''on to all
'e'0ers of the pu0lic. &heir interest is alle)edl* too va)ue, hi)hl* speculative and uncertain to satisf* the
re7uire'ents of locus standi.
&he pu0lic respondents find it noteworth* that the petitioners do not raise issues of constitutionalit* 0ut onl* of
contract law, which the petitioners not 0ein) privies to the a)ree'ent cannot raise. &his is followin) the
principle that a stran)er to a contract cannot sue either or 0oth the contractin) parties to annul and set aside
the sa'e e6cept when he is preDudiced on his ri)hts and can show detri'ent which would positivel* result to
hi' fro' the i'ple'entation of the contract in which he has no intervention. &here 0ein) no particulariAed
interest or ele'ental su0stantial inDur* necessar* to confer locus standi, the pu0lic respondents i'plore the
Court to dis'iss the petition.
#n the 'erits, the pu0lic respondents 'aintain that the i'position of ceilin)s or upper li'its on 0id prices in
RA %88F does not appl* 0ecause the CP 2 proDect and the entire Catanduanes Circu'ferential Road
2'prove'ent ProDect, financed 0* 9oan A)ree'ent $o. P.!P20F e6ecuted 0etween the Philippine
"overn'ent and the +,2C, is )overned 0* the latterCs Procure'ent "uidelines which precludes the i'position
of ceilin)s on 0id prices. 3ection J.0L of the +,2C Procure'ent "uidelines reads-
3ection J.0L. (valuation and Co'parison of ,ids.
6 6 6
(e An* procedure under which 0ids a0ove or 0elow a predeter'ined 0id value assess'ent are auto'aticall*
dis7ualified is not per'itted.
2t was e6plained that other forei)n 0an@s such as the Asian 1evelop'ent ,an@ (A1, and the World ,an@
(W, si'ilarl* prohi0it the 0rac@etin) or i'position of a ceilin) on 0id prices.
8E7
&he pu0lic respondents stress that it was pursuant to 9oan A)ree'ent $o. P.!P20F that the assailed
Resolution $o. P+.9!A!0F!082 and the su0se7uent contract 0etween the 1PW. and private respondent
China Road \ ,rid)e Corporation 'aterialiAed. &he* li@ewise aver that 9oan A)ree'ent $o. P.!P20F is
)overned 0* RA F8L0, as a'ended, or the /orei)n ,orrowin)s Act. 3ection F thereof states-
3(C. F. 2n the contractin) of an* loan, credit or inde0tedness under this Act, the President of the Philippines
'a*, when necessar*, a)ree to waive or 'odif*, the application of an* law )rantin) preferences or i'posin)
restrictions on international co'petitive 0iddin), includin) a'on) others GAct $o. F2E%, Co''onwealth Act
$o. 8E8H, the provisions of GCA JF8H, insofar as such provisions do not pertain to constructions pri'aril* for
national defense or securit* purposes, GRA J88EH< Provided, however, &hat as far as practica0le, utiliAation of
the services of 7ualified do'estic fir's in the prosecution of proDects financed under this Act shall 0e
encoura)ed- Provided, further, &hat in case where international co'petitive 0iddin) shall 0e conducted
preference of at least fifteen per centu' shall 0e )ranted in favor of articles, 'aterials or supplies of the
)rowth, production or 'anufacture of the Philippines- Provided, finall*, &hat the 'ethod and procedure in
co'parison of 0ids shall 0e the su0Dect of a)ree'ent 0etween the Philippine "overn'ent and the lendin)
institution.
1#+ #pinion $o. FL, 3eries of 8%87, is relied upon 0* the pu0lic respondents as it opined that an a)ree'ent
for the e6clusion of forei)n assisted proDects fro' the covera)e of local 0iddin) re)ulations does not
contravene e6istin) le)islations 0ecause the statutor* 0asis for forei)n loan a)ree'ents is RA F8L0, as
a'ended, and under 3ection F thereof, the President is e'powered to waive the application of an* law
i'posin) restrictions on the procure'ent of )oods and services pursuant to such loans.
Me'orandu' Circular $os. 80F and 808, issued 0* the President, to clarif* RA F8L0, as a'ended, and P1
8J%F, relative to the award of forei)n!assisted proDects, are also invo@ed 0* the pu0lic respondents, to wit-
Me'orandu' Circular $o. 80F-
2n view of the provisions of 3ection F of Repu0lic Act $o. F8L0, as a'ended, otherwise @nown as the 4/orei)n
,orrowin)s Act4
6 6 6
2t is here0* clarified that forei)n!assisted infrastructure proDects 'a* 0e e6e'pted fro' the application for the
pertinent provisions of the 2'ple'entin) Rules and Re)ulations (2RR of Presidential 1ecree (P.1. $o. 8J%F
relative to the 'ethod and procedure in the co'parison of 0ids, which 'atter 'a* 0e the su0Dect of
a)ree'ent 0etween the infrastructure a)enc* concerned and the lendin) institution. 2t should 0e 'ade clear
however that pu0lic 0iddin) is still re7uired and can onl* 0e waived pursuant to e6istin) laws.
Me'orandu' Circular $o. 808-
2n view of the provisions of 3ection F of Repu0lic Act $o. F8L0, as a'ended, otherwise @nown as the 4/orei)n
,orrowin)s Act4, it is here0* clarified that, for proDects supported in whole or in part 0* forei)n assistance
awarded throu)h international or local co'petitive 0iddin), the )overn'ent a)enc* concerned 'a* award the
contract to the lowest evaluated 0idder at his 0id price consistent with the provisions of the applica0le
loanI)rant a)ree'ent.
3pecificall*, when the loanI)rant a)ree'ent so stipulates, the )overn'ent a)enc* concerned 'a* award the
contract to the lowest 0idder even if hisIits 0id e6ceeds the approved a)enc* esti'ate.
2t is understood that the concerned )overn'ent a)enc* shall, as far as practica0le, adhere closel* to the
i'ple'entin) rules and re)ulations of Presidential 1ecree $o. 8J%F durin) loanI)rant ne)otiation and the
i'ple'entation of the proDects.
E2

8E8
&he pu0lic respondents characteriAe forei)n loan a)ree'ents, includin) 9oan A)ree'ent $o. P.!P20F, as
e6ecutive a)ree'ents and, as such, should 0e o0served pursuant to the funda'ental principle in international
law of pacta sunt servanda.
EE
&he* cite 3ection 20 of Article :22 of the Constitution as )ivin) the President the
authorit* to contract forei)n loans-
3(C. 20. &he President 'a* contract or )uarantee forei)n loans on 0ehalf of the Repu0lic of the Philippines
with the prior concurrence of the Monetar* ,oard, and su0Dect to such li'itations as 'a* 0e provided 0* law.
&he Monetar* ,oard shall, within thirt* da*s fro' the end of ever* 7uarter of the calendar *ear, su0'it to the
Con)ress a co'plete report of its decisions on applications for loans to 0e contracted or )uaranteed 0* the
"overn'ent or "overn'ent!owned and Controlled Corporations which would have the effect of increasin)
the forei)n de0t, and containin) other 'atters as 'a* 0e provided 0* law.
&he Constitution, the pu0lic respondents e'phasiAe, reco)niAes the enforcea0ilit* of e6ecutive a)ree'ents in
the sa'e wa* that it reco)niAes )enerall* accepted principles of international law as for'in) part of the law of
the land.
EF
&his reco)nition alle)edl* 0uttresses the 0indin) effect of e6ecutive a)ree'ents to which the
Philippine "overn'ent is a si)nator*. 2t is pointed out 0* the pu0lic respondents that e6ecutive a)ree'ents
are essentiall* contracts )overnin) the ri)hts and o0li)ations of the parties. A contract, 0ein) the law 0etween
the parties, 'ust 0e faithfull* adhered to 0* the'. "uided 0* the funda'ental rule of pacta sunt servanda, the
Philippine "overn'ent 0ound itself to perfor' in )ood faith its duties and o0li)ations under 9oan A)ree'ent
$o. P.!P20F.
&he pu0lic respondents further ar)ue a)ainst the applica0ilit* of RA %88F statin) that it was si)ned into law on
+anuar* 80, 200E.
EJ
#n the other hand, 9oan A)ree'ent $o. P.!P20F was e6ecuted on 1ece'0er 28, 8%%%,
where the laws then in force on )overn'ent procure'ents were P1 8J%F and (# F0. &he latter law ((# F0,
in particular, e6cluded fro' its application 4an* e6istin) and future )overn'ent co''it'ents with respect to
the 0iddin) and award of contracts financed partl* or wholl* with funds fro' international financin) institutions
as well as fro' 0ilateral and other si'ilar forei)n sources.4
&he applica0ilit* of (# F0, not RA %88F, is alle)edl* 0olstered 0* the fact that the 42nvitation to Pre7ualif* and
to ,id4 for the i'ple'entation of the CP 2 proDect was pu0lished in two leadin) national newspapers, na'el*,
the Manila &i'es and Manila 3tandard on $ove'0er 22, 2% and 1ece'0er J, 2002, or 0efore the si)nin) into
law of RA %88F on +anuar* 80, 200E. 2n this connection, the pu0lic respondents point to 3ection 77 of 2RR!A,
which reads-
3(C. 77. &ransitor* Clause. B
2n all procure'ent activities, if the advertise'ent or invitation for 0ids was issued prior to the effectivit* of the
Act, the provisions of (# F0 and its 2RR, P1 8J%F and its 2RR, RA 78L0 and its 2RR, or other applica0le laws
as the case 'a* 0e, shall )overn.
2n cases where the advertise'ents or invitations for 0ids were issued after the effectivit* of the Act 0ut 0efore
the effectivit* of this 2RR!A, procurin) entities 'a* continue adoptin) the procure'ent procedures, rules and
re)ulations provided in (# F0 and its 2RR, or other applica0le laws, as the case 'a* 0e.
3ection F of RA %88F is also invo@ed 0* the pu0lic respondents as it provides-
3(C. F. 3cope and Applications. B &his Act shall appl* to the Procure'ent of 2nfrastructure ProDects, "oods
and Consultin) 3ervices, re)ardless of source of funds, whether local or forei)n, 0* all 0ranches and
instru'entalities of )overn'ent, its depart'ents, offices and a)encies, includin) )overn'ent!owned andIor B
controlled corporations and local )overn'ent units, su0Dect to the provisions of Co''onwealth Act $o. 8E8.
An* treat* or international or e6ecutive a)ree'ent affectin) the su0Dect 'atter of this Act to which the
Philippine )overn'ent is a si)nator* shall 0e o0served.
8E%
2t is also the position of the pu0lic respondents that even )rantin) ar)uendo that 9oan A)ree'ent $o. P.!
P20F were an ordinar* loan contract, still, RA %88F is inapplica0le under the non!i'pair'ent clause
EL
of the
Constitution. &he said loan a)ree'ent e6pressl* provided that the procure'ent of )oods and services for the
proDect financed 0* the sa'e shall 0e )overned 0* the "uidelines for Procure'ent under #(C/ 9oans dated
1ece'0er 8%%7. /urther, 3ection J.0L of the +,2C Procure'ent "uidelines cate)oricall* provides that 4GaHn*
procedure under which 0ids a0ove or 0elow a predeter'ined 0id value assess'ent are auto'aticall*
dis7ualified is not per'itted.4
&he pu0lic respondents e6plain that since the contract is the law 0etween the parties and 9oan A)ree'ent
$o. P.!P20F states that the +,2C Procure'ent "uidelines shall )overn the partiesC relationship and further
dictates that there 0e no ceilin) price for the 0iddin), it naturall* follows that an* su0se7uent law passed
contrar* to the letters of the said contract would have no effect with respect to the partiesC ri)hts and
o0li)ations arisin) therefro'.
&o insist on the application of RA %88F on the 0iddin) for the CP 2 proDect would, notwithstandin) the ter's
and conditions of 9oan A)ree'ent $o. P.!P20F, alle)edl* violate the constitutional provision on non!
i'pair'ent of o0li)ations and contracts, and destro* vested ri)hts dul* ac7uired under the said loan
a)ree'ent.
9astl*, the pu0lic respondents den* that there was ille)al dis0urse'ent of pu0lic funds 0* the 1,M. &he*
asseverate that all the releases 'ade 0* the 1,M for the i'ple'entation of the entire Arterial Road 9in@s
ProDect B Phase 2:, which includes the Catanduanes Circu'ferential Road 2'prove'ent ProDect, were
covered 0* the necessar* appropriations 'ade 0* law, specificall* the "eneral Appropriations Act ("AA.
/urther, the re7uire'ents and procedures prescri0ed for the release of the said funds were dul* co'plied
with.
/or its part, private respondent China Road \ ,rid)e Corporation si'ilarl* assails the standin) of the
petitioners, either as ta6pa*ers or, in the case of petitioner A0a*a, as a for'er law'a@er, to file the present
suit. 2n addition, it is also alle)ed that, 0* filin) the petition directl* to this Court, the petitioners failed to
o0serve the hierarch* of courts.
#n the 'erits, private respondent China Road \ ,rid)e Corporation asserts that the applica0le law to )overn
the 0iddin) of the CP 2 proDect was (# F0, not RA %88F, 0ecause the for'er was the law )overnin) the
procure'ent of )overn'ent proDects at the ti'e that it was 0idded out. (# F0 was issued 0* the #ffice of the
President on #cto0er 8, 2008 and 3ection 8 thereof states that-
3(C. 8. 3cope and Application. &his (6ecutive #rder shall appl* to the procure'ent of- (a )oods, supplies,
'aterials and related services< (0 civil wor@s< and (c consultin) services, 0* all $ational "overn'ent
a)encies, includin) 3tate 5niversities and Colle)es (35Cs, "overn'ent!#wned or Controlled Corporations
("#CCs and "overn'ent /inancial 2nstitutions ("/2s, here0* referred to as the PA)encies.C &his (6ecutive
#rder shall cover the procure'ent process fro' the pre!procure'ent conference up to the award of contract.
6 6 6
&he 2nvitation to Pre7ualif* and to ,id was first pu0lished on $ove'0er 22, 2002. #n the other hand, RA %88F
was si)ned into law onl* on +anuar* 80, 200E. 3ince the law in effect at the ti'e the procure'ent process
was initiated was (# F0, private respondent China Road \ ,rid)e Corporation su0'its that it should 0e the
said law which should )overn the entire procure'ent process relative to the CP 2 proDect.
(# F0 e6pressl* reco)niAes as an e6ception fro' the application of the provisions thereof on approved
0ud)et ceilin)s, those proDects financed 0* international financin) institutions (2/2s and forei)n 0ilateral
sources. 3ection 8 thereof, 7uoted in part earlier, further states-
8F0
3(C. 8. 3cope and Application. 6 6 6
$othin) in this #rder shall ne)ate an* e6istin) and future )overn'ent co''it'ents with respect to the
0iddin) and award of contracts financed partl* or wholl* with funds fro' international financin) institutions as
well as fro' 0ilateral and other si'ilar forei)n sources.
3ection 8.2 of the 2'ple'entin) Rules and Re)ulations of (# F0 is li@ewise invo@ed as it provides-
/or procure'ent financed wholl* or partl* fro' #fficial 1evelop'ent Assistance (#1A funds fro'
2nternational /inancin) 2nstitutions (2/2s, as well as fro' 0ilateral and other si'ilar forei)n sources, the
correspondin) loanI)rant a)ree'ent )overnin) said funds as ne)otiated and a)reed upon 0* and 0etween
the "overn'ent and the concerned 2/2 shall 0e o0served.
Private respondent China Road \ ,rid)e Corporation thus postulates that followin) (# F0, the procure'ent
of )oods and services for the CP 2 proDect should 0e )overned 0* the ter's and conditions of 9oan
A)ree'ent $o. P.!P20F entered into 0etween the +,2C and the Philippine "overn'ent. Pertinentl*, 3ection
J.0L of the +,2C Procure'ent "uidelines prohi0its the settin) of ceilin)s on 0id prices.
Private respondent China Road \ ,rid)e Corporation clai's that when it su0'itted its 0id for the CP 2 proDect,
it relied in )ood faith on the provisions of (# F0. 2t was alle)edl* on the 0asis of the said law that the 1PW.
awarded the proDect to private respondent China Road \ ,rid)e Coporation even if its 0id was hi)her than the
A,C. 5nder the circu'stances, RA %88F could not 0e applied retroactivel* for to do so would alle)edl* i'pair
the vested ri)hts of private respondent China Road \ ,rid)e Corporation arisin) fro' its contract with the
1PW..
2t is also contended 0* private respondent China Road \ ,rid)e Corporation that even assu'in) ar)uendo
that RA %88F could 0e applied retroactivel*, it is still the ter's of 9oan A)ree'ent $o. P.!P20F which should
)overn the procure'ent of )oods and services for the CP 2 proDect. 2t supports its theor* 0* characteriAin) the
said loan a)ree'ent, e6ecuted pursuant to the (6chan)e of $otes 0etween the "overn'ent of +apan and the
Philippine "overn'ent, as an e6ecutive a)ree'ent.
Private respondent China Road \ ,rid)e Corporation, li@e the pu0lic respondents, cites RA F8L0 as the 0asis
for the (6chan)e of $otes and 9oan A)ree'ent $o. P.!P20F. As an international or e6ecutive a)ree'ent,
the (6chan)e of $otes and 9oan A)ree'ent $o. P.!P20F alle)edl* created a le)all* 0indin) o0li)ation on
the parties.
&he followin) e6cerpt of the deli0erations of the ,ica'eral Conference Co''ittee on the 1isa)reein)
Provision of 3enate ,ill $o. 22F8 and .ouse ,ill $o. F80% is cited 0* private respondent China Road \ ,rid)e
Corporation to support its contention that it is the intent of the law'a@ers to e6clude fro' the application of
RA %88F those forei)n!funded proDects-
6 6 6
R(P. MARC#3. ?es, Mr. Chair'an, to respond and to put into the record, a Dustification for the inclusion of
forei)n contracts, 'a* we Dust state that forei)n contracts have, of course, 0een 0rou)ht into the a'0it of the
law 0ecause of the /ilipino counterpart for this forei)n proDects, the* are no lon)er strictl* forei)n in nature 0ut
fall under the laws of the Philippine )overn'ent.
&.( C.A2RMA$ (3($. A$"ARA. #@a*. 2 thin@ thatCs prett* clear. 2 thin@ the possi0le concern is that so'e
#1A are with strin)s attached especiall* the +apanese. &he +apanese are 7uite strict a0out that, that the* are
(sic even provide the architect and the desi)n, etcetera, plus, of course, the )oods that will 0e supplied.
8F8
$ow, 2 thin@ weCve alread* provided that this is open to all and we will reco)niAe our international a)ree'ents
so that this 0ill will not also restrict the flow of forei)n fundin), 0ecause so'e countries now 'a@e it a
condition that the* suppl* 0oth services and )oods especiall* the +apanese.
3o 2 thin@ we can put a sentence that we continue to honor our international o0li)ations, di 0a 9auraN
MR. ($CAR$AC2#$. Actuall*, su0Dect to an* treat*.
&.( C.A2RMA$ (3($. A$"ARA. P?un pala eh. &hat should alla* their an6iet* and concern. #@a*, 0uti na
lan) for the record para 'ala'an nila na we are conscious sa #1A.
E7

Private respondent China Road \ ,rid)e Corporation su0'its that 0ased on the provisions of the (6chan)e
of $otes and 9oan A)ree'ent $o. P.!P20F, it was ri)htfull* and le)all* awarded the CP 2 proDect. 2t ur)es the
Court to dis'iss the petition for lac@ of 'erit.
&he CourtCs Rulin)s
Petitioners, as ta6pa*ers, possess locus standi to file the present suit
,riefl* stated, locus standi is 4a ri)ht of appearance in a court of Dustice on a )iven 7uestion.4
E8
More
particularl*, it is a part*Cs personal and su0stantial interest in a case such that he has sustained or will sustain
direct inDur* as a result of the )overn'ental act 0ein) challen)ed. 2t calls for 'ore than Dust a )eneraliAed
)rievance. &he ter' 4interest4 'eans a 'aterial interest, an interest in issue affected 0* the decree, as
distin)uished fro' 'ere interest in the 7uestion involved, or a 'ere incidental interest.
E%
3tandin) or locus
standi is a peculiar concept in constitutional law
F0
and the rationale for re7uirin) a part* who challen)es the
constitutionalit* of a statute to alle)e such a personal sta@e in the outco'e of the controvers* is 4to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so lar)el*
depends for illu'ination of difficult constitutional 7uestions.4
F8

9ocus standi, however, is 'erel* a 'atter of procedure
F2
and it has 0een reco)niAed that in so'e cases, suits
are not 0rou)ht 0* parties who have 0een personall* inDured 0* the operation of a law or an* other
)overn'ent act 0ut 0* concerned citiAens, ta6pa*ers or voters who actuall* sue in the pu0lic interest.
FE
Conse7uentl*, the Court, in a catena of cases,
FF
has invaria0l* adopted a li0eral stance on locus standi,
includin) those cases involvin) ta6pa*ers.
&he prevailin) doctrine in ta6pa*erCs suits is to allow ta6pa*ers to 7uestion contracts entered into 0* the
national )overn'ent or )overn'ent! owned or controlled corporations alle)edl* in contravention of law.
FJ
A
ta6pa*er is allowed to sue where there is a clai' that pu0lic funds are ille)all* dis0ursed, or that pu0lic 'one*
is 0ein) deflected to an* i'proper purpose, or that there is a wasta)e of pu0lic funds throu)h the enforce'ent
of an invalid or unconstitutional law.
FL
3i)nificantl*, a ta6pa*er need not 0e a part* to the contract to challen)e
its validit*.
F7

2n the present case, the petitioners are suin) as ta6pa*ers. &he* have sufficientl* de'onstrated that,
notwithstandin) the fact that the CP 2 proDect is pri'aril* financed fro' loans o0tained 0* the )overn'ent fro'
the +,2C, nonetheless, ta6pa*ersC 'one* would 0e or is 0ein) spent on the proDect considerin) that the
Philippine "overn'ent is re7uired to allocate a peso!counterpart therefor. &he pu0lic respondents the'selves
ad'it that appropriations for these forei)n!assisted proDects in the "AA are co'posed of the loan proceeds
and the peso!counterpart. &he counterpart funds, the 3olicitor "eneral e6plains, refer to the co'ponent of the
proDect cost to 0e financed fro' )overn'ent!appropriated funds, as part of the )overn'entCs co''it'ent in
the i'ple'entation of the proDect.
F8
.ence, the petitioners correctl* asserted their standin) since a part of the
funds 0ein) utiliAed in the i'ple'entation of the CP 2 proDect parta@es of ta6pa*ersC 'one*.
8F2
/urther, the serious le)al 7uestions raised 0* the petitioners, e.)., whether RA %88F applies to the CP 2
proDect, in particular, and to forei)n!funded )overn'ent proDects, in )eneral, and the fact that pu0lic interest is
indu0ita0l* involved considerin) the pu0lic e6penditure of 'illions of pesos, warrant the Court to adopt in the
present case its li0eral polic* on locus standi.
2n an* case, for reasons which will 0e discussed shortl*, the su0stantive ar)u'ents raised 0* the petitioners
fail to persuade the Court as it holds that Resolution $o. P+.9!A!0F!082 is valid. As a corollar*, the
su0se7uent contract entered into 0* and 0etween the 1PW. and private respondent China Road \ ,rid)e
Corporation is li@ewise valid.
.istor* of Philippine Procure'ent 9aws
2t is necessar*, at this point, to )ive a 0rief histor* of Philippine laws pertainin) to procure'ent throu)h pu0lic
0iddin). &he 5nited 3tates Philippine Co''ission introduced the A'erican practice of pu0lic 0iddin) throu)h
Act $o. 22, enacted on #cto0er 8J, 8%00, 0* re7uirin) the Chief (n)ineer, 5nited 3tates Ar'* for the 1ivision
of the Philippine 2slands, actin) as purchasin) a)ent under the control of the then Militar* "overnor, to
advertise and call for a co'petitive 0iddin) for the purchase of the necessar* 'aterials and lands to 0e used
for the construction of hi)hwa*s and 0rid)es in the Philippine 2slands.
F%
Act $o. 7F, enacted on +anuar* 28,
8%08 0* the Philippine Co''ission, re7uired the "eneral 3uperintendent of Pu0lic 2nstruction to purchase
office supplies throu)h co'petitive pu0lic 0iddin).
J0
Act $o. 82, approved on +anuar* E8, 8%08, and Act $o.
8E, approved on /e0ruar* L, 8%08, re7uired the 'unicipal and provincial )overn'ents, respectivel*, to hold
co'petitive pu0lic 0iddin)s in the 'a@in) of contracts for pu0lic wor@s and the purchase of office supplies.
J8

#n +une 28, 8%08, the Philippine Co''ission, throu)h Act $o. 8FL, created the ,ureau of 3uppl* and with its
creation, pu0lic 0iddin) 0eca'e a popular polic* in the purchase of supplies, 'aterials and e7uip'ent for the
use of the national )overn'ent, its su0divisions and instru'entalities.
J2
#n /e0ruar* E, 8%EL, then President
Manuel 9. KueAon issued (6ecutive #rder $o. 8L declarin) as a 'atter of )eneral polic* that )overn'ent
contracts for pu0lic service or for furnishin) supplies, 'aterials and e7uip'ent to the )overn'ent should 0e
su0Dected to pu0lic 0iddin).
JE
&he re7uire'ent of pu0lic 0iddin) was li@ewise i'posed for pu0lic wor@s of
construction or repair pursuant to the Revised Ad'inistrative Code of 8%87.
&hen President 1iosdado Macapa)al, in (6ecutive #rder $o. F0 dated +une 8, 8%LE, reiterated the directive
that no )overn'ent contract for pu0lic service or for furnishin) supplies, 'aterials and e7uip'ent to the
)overn'ent or an* of its 0ranches, a)encies or instru'entalities, should 0e entered into without pu0lic 0iddin)
e6cept for ver* e6traordinar* reasons to 0e deter'ined 0* a Co''ittee constituted thereunder. &hen
President /erdinand Marcos issued P1 8J%F prescri0in) )uidelines for )overn'ent infrastructure proDects
and 3ection F
JF
thereof stated that the* should )enerall* 0e underta@en 0* contract after co'petitive pu0lic
0iddin).
&hen President CoraAon A7uino issued (6ecutive #rder $o. E08 (8%87 prescri0in) )uidelines for
)overn'ent ne)otiated contracts. Pertinentl*, 3ection L2 of the Ad'inistrative Code of 8%87 reiterated the
re7uire'ent of co'petitive pu0lic 0iddin) in )overn'ent proDects. 2n 8%%0, Con)ress passed RA L%J7,
JJ
which authoriAed the financin), construction, operation and 'aintenance of infrastructure 0* the private
sector. RA 78L0 was li@ewise enacted 0* Con)ress in 8%%8 and it contains provisions )overnin) the
procure'ent of )oods and locall*!funded civil wor@s 0* the local )overn'ent units.
&hen President /idel Ra'os issued (6ecutive #rder $o. E02 (8%%L, providin) )uidelines for the procure'ent
of )oods and supplies 0* the national )overn'ent. &hen President +oseph (Dercito (strada issued (6ecutive
#rder $o. 208 (2000, providin) additional )uidelines in the procure'ent of )oods and supplies 0* the
national )overn'ent. &hereafter, he issued (6ecutive #rder $o. 2L2 (2000 a'endin) (# E02 (8%%L and (#
208 (2000.
8FE
#n #cto0er 8, 2008, President "loria Macapa)al!Arro*o issued (# F0, the law 'ainl* relied upon 0* the
respondents, entitled Consolidatin) Procure'ent Rules and Procedures for All $ational "overn'ent
A)encies, "overn'ent!#wned or Controlled Corporations and "overn'ent /inancial 2nstitutions, and
Re7uirin) the 5se of the "overn'ent Procure'ent 3*ste'. 2t accordin)l* repealed, a'ended or 'odified all
e6ecutive issuances, orders, rules and re)ulations or parts thereof inconsistent therewith.
JL

#n +anuar* 80, 200E, President Arro*o si)ned into law RA %88F. 2t too@ effect on +anuar* 2L, 200F, or fifteen
da*s after its pu0lication in two newspapers of )eneral circulation.
J7
2t e6pressl* repealed, a'on) others, (#
F0, (# 2L2 (2000, (# E02(8%%L and P1 8J%F, as a'ended-
3(C. 7L. Repealin) Clause. U&his law repeals (6ecutive #rder $o. F0, series of 2008, entitled
4Consolidatin) Procure'ent Rules and Procedures for All $ational "overn'ent A)encies, "overn'ent
#wned or Controlled Corporations andIor "overn'ent /inancial 2nstitutions, and Re7uirin) the 5se of the
"overn'ent (lectronic Procure'ent 3*ste'4< (6ecutive #rder $o. 2L2, series of 8%%L, entitled 4A'endin)
(6ecutive #rder $o. E02, series of 8%%L, entitled Providin) Policies, "uidelines, Rules and Re)ulations for
the Procure'ent of "oodsI3upplies 0* the $ational "overn'ent4 and 3ection E of (6ecutive #rder $o. 208,
series of 2000, entitled 4Providin) Additional Policies and "uidelines in the Procure'ent of "oodsI3upplies
0* the $ational "overn'ent4< (6ecutive #rder $o. E02, series of 8%%L, entitled 4Providin) Policies,
"uidelines, Rules and Re)ulations for the Procure'ent of "oodsI3upplies 0* the $ational "overn'ent4 and
Presidential 1ecree $o. 8J%F dated +une 88, 8%78, entitled 4Prescri0in) Policies, "uidelines, Rules and
Re)ulations for "overn'ent 2nfrastructure Contracts.4 &his law a'ends &itle 3i6, ,oo@ &wo of Repu0lic Act
$o. 78L0, otherwise @nown as the 49ocal "overn'ent Code of 8%%84< the relevant provisions of (6ecutive
#rder $o. 8LF, series of 8%87, entitled 4Providin) Additional "uidelines in the Processin) and Approval of
Contracts of the $ational "overn'ent4< and the relevant provisions of Repu0lic Act $o. 78%8 dated /e0ruar*
2E, 8%%J, entitled 4An Act Providin) for the ModerniAation of the Ar'ed /orces of the Philippines and for
#ther Purposes.4 An* other law, presidential decree or issuance, e6ecutive order, letter of instruction,
ad'inistrative order, procla'ation, charter, rule or re)ulation andIor parts thereof contrar* to or inconsistent
with the provisions of this Act is here0* repealed, 'odified or a'ended accordin)l*.
2n addition to these laws, RA F8L0, as a'ended, 'ust 0e 'entioned as 3ection F thereof provides that 4GiHn
the contractin) of an* loan, credit or inde0tedness under this Act, the President of the Philippines 'a*, when
necessar*, a)ree to waive or 'odif* the application of an* law )rantin) preferences or i'posin) restrictions
on international co'petitive 0iddin) 6 6 6 Provided, finall*, &hat the 'ethod and procedure in the co'parison
of 0ids shall 0e the su0Dect of a)ree'ent 0etween the Philippine "overn'ent and the lendin) institution.4
(# F0, not RA %88F, is applica0le to the procure'ent
process underta@en for the CP 2 proDect. RA %88F
cannot 0e )iven retroactive application.
2t is not disputed that with respect to the CP 2 proDect, the 2nvitation to Pre7ualif* and to ,id for its
i'ple'entation was pu0lished in two leadin) national newspapers, na'el*, the Manila &i'es and Manila
3tandard on $ove'0er 22, 2% and 1ece'0er J, 2002. At the ti'e, the law in effect was (# F0. #n the other
hand, RA %88F too@ effect two 'onths later or on +anuar* 2L, 200E. /urther, its full i'ple'entation was even
dela*ed as 2RR!A was onl* approved 0* President Arro*o on 3epte'0er 88, 200E and su0se7uentl*
pu0lished on 3epte'0er 2E, 200E in the Manila &i'es and Mala*a newspapers.
J8

&he provisions of (# F0 appl* to the procure'ent process pertainin) to the CP 2 proDect as it is e6plicitl*
provided in 3ection 8 thereof that-
3(C. 8. 3cope and Application. B &his (6ecutive #rder shall appl* to see procure'ent of (a )oods, supplies,
'aterials and related service< (0 civil wor@s< and (c consultin) services, 0* all $ational "overn'ent
8FF
a)encies, includin) 3tate 5niversities and Colle)es (35Cs, "overn'ent!#wned or BControlled Corporations
("#CCs and "overn'ent /inancial 2nstitutions ("/2s, here0* referred to as 4A)encies.4 &his (6ecutive
#rder shall cover the procure'ent process fro' the pre!procure'ent conference up to the award of the
contract.
$othin) in this #rder shall ne)ate an* e6istin) and future )overn'ent co''it'ents with respect to the
0iddin) and award of contracts financed partl* or wholl* with funds fro' international financin) institutions as
well as fro' 0ilateral and si'ilar forei)n sources.
&he procure'ent process 0asicall* involves the followin) steps- (8 pre!procure'ent conference< (2
advertise'ent of the invitation to 0id< (E pre!0id conference< (F eli)i0ilit* chec@ of prospective 0idders< (J
su0'ission and receipt of 0ids< (L 'odification and withdrawal of 0ids< (7 0id openin) and e6a'ination< (8
0id evaluation< (% post 7ualification< (80 award of contract and notice to proceed.
J%
Clearl* then, when the
2nvitation to Pre7ualif* and to ,id for the i'ple'entation of the CP 2 proDect was pu0lished on $ove'0er 22,
2% and 1ece'0er J, 2002, the procure'ent process thereof had alread* co''enced and the application of
(# F0 to the procure'ent process for the CP 2 proDect had alread* attached.
RA %88F cannot 0e applied retroactivel* to )overn the procure'ent process relative to the CP 2 proDect
0ecause it is well settled that a law or re)ulation has no retroactive application unless it e6pressl* provides for
retroactivit*.
L0
2ndeed, Article F of the Civil Code is clear on the 'atter- 4GlHaws shall have no retroactive effect,
unless the contrar* is provided.4 2n the a0sence of such cate)orical provision, RA %88F will not 0e applied
retroactivel* to the CP 2 proDect whose procure'ent process co''enced even 0efore the said law too@ effect.
&hat the le)islators did not intend RA %88F to have retroactive effect could 0e )leaned fro' the 2RR!A
for'ulated 0* the +oint Con)ressional #versi)ht Co''ittee (co'posed of the Chair'an of the 3enate
Co''ittee on Constitutional A'end'ents and Revision of 9aws, and two 'e'0ers thereof appointed 0* the
3enate President and the Chair'an of the .ouse Co''ittee on Appropriations, and two 'e'0ers thereof
appointed 0* the 3pea@er of the .ouse of Representatives and the "overn'ent Procure'ent Polic* ,oard
("PP,. 3ection 77 of the 2RR!A states, thus-
3(C. 77. &ransitor* Clause
2n all procure'ent activities, if the advertise'ent or invitation for 0ids was issued prior to the effectivit* of the
Act, the provisions of (.#. F0 and its 2RR, P.1. 8J%F and its 2RR, R.A. 78L0 and its 2RR, or other applica0le
laws, as the case 'a* 0e, shall )overn.
2n cases where the advertise'ents or invitations for 0ids were issued after the effectivit* of the Act 0ut 0efore
the effectivit* of this 2RR!A, procurin) entities 'a* continue adoptin) the procure'ent procedures, rules and
re)ulations provided in (.#. F0 and its 2RR, P.1. 8J%F and its 2RR, R.A. 78L0 and its 2RR, or other applica0le
laws, as the case 'a* 0e.
2n other words, under 2RR!A, if the advertise'ent of the invitation for 0ids was issued prior to the effectivit* of
RA %88F, such as in the case of the CP 2 proDect, the provisions of (# F0 and its 2RR, and P1 8J%F and its
2RR in the case of national )overn'ent a)encies, and RA 78L0 and its 2RR in the case of local )overn'ent
units, shall )overn.
Ad'ittedl*, 2RR!A covers onl* full* do'esticall*!funded procure'ent activities fro' procure'ent plannin) up
to contract i'ple'entation and that it is e6pressl* stated that 2RR!, for forei)n!funded procure'ent activities
shall 0e su0Dect of a su0se7uent issuance.
L8
$onetheless, there is no reason wh* the polic* 0ehind 3ection 77
of 2RR!A cannot 0e applied to forei)n!funded procure'ent proDects li@e the CP 2 proDect. 3tated differentl*, the
polic* on the prospective or non!retroactive application of RA %88F with respect to do'esticall*!funded
procure'ent proDects cannot 0e an* different with respect to forei)n!funded procure'ent proDects li@e the CP 2
proDect. 2t would 0e incon)ruous, even a0surd, to provide for the prospective application of RA %88F with
8FJ
respect to do'esticall*!funded procure'ent proDects and, on the other hand, as ur)ed 0* the petitioners,
appl* RA %88F retroactivel* with respect to forei)n! funded procure'ent proDects. &o 0e sure, the law'a@ers
could not have intended such an a0surdit*.
&hus, in the li)ht of 3ection 8 of (# F0, 3ection 77 of 2RR!A, as well as the funda'ental rule e'0odied in
Article F of the Civil Code on prospectivit* of laws, the Court holds that the procure'ent process for the
i'ple'entation of the CP 2 proDect is )overned 0* (# F0 and its 2RR, not RA %88F.
5nder (# F0, the award of the contract to private respondent China Road \ ,rid)e Corporation is valid
3ection 2J of (# F0 provides that 4GtHhe approved 0ud)et of the contract shall 0e the upper li'it or ceilin) of
the 0id price. ,id prices which e6ceed this ceilin) shall 0e dis7ualified outri)ht fro' further participatin) in the
0iddin). &here shall 0e no lower li'it to the a'ount of the award. 6 6 64 2t should 0e o0served that this te6t is
al'ost si'ilar to the wordin) of 3ection E8 of RA %88F, relied upon 0* the petitioners in contendin) that since
the 0id price of private respondent China Road \ ,rid)e Corporation e6ceeded the A,C, then it should not
have 0een awarded the contract for the CP 2 proDect.
$onetheless, (# F0 e6pressl* reco)niAes as an e6ception to its scope and application those )overn'ent
co''it'ents with respect to 0iddin) and award of contracts financed partl* or wholl* with funds fro'
international financin) institutions as well as fro' 0ilateral and other si'ilar forei)n sources. &he pertinent
portion of 3ection 8 of (# F0 is 7uoted anew-
3(C. 8. 3cope and Application. B 6 6 6
$othin) in this #rder shall ne)ate an* e6istin) and future )overn'ent co''it'ents with respect to the
0iddin) and award of contracts financed partl* or wholl* with funds fro' international financin) institutions as
well as fro' 0ilateral and si'ilar forei)n sources.
2n relation thereto, 3ection F of RA F8L0, as a'ended, was correctl* cited 0* the respondents as li@ewise
authoriAin) the President, in the contractin) of an* loan, credit or inde0tedness thereunder, 4when necessar*,
a)ree to waive or 'odif* the application of an* law )rantin) preferences or i'posin) restrictions on
international co'petitive 0iddin) 6 6 6.4 &he said provision of law further provides that 4the 'ethod and
procedure in the co'parison of 0ids shall 0e the su0Dect of a)ree'ent 0etween the Philippine "overn'ent
and the lendin) institution.4
Conse7uentl*, in accordance with these applica0le laws, the procure'ent of )oods and services for the CP 2
proDect is )overned 0* the correspondin) loan a)ree'ent entered into 0* the )overn'ent and the +,2C, i.e.,
9oan A)ree'ent $o. P.!P20F. &he said loan a)ree'ent stipulated that the procure'ent of )oods and
services for the Arterial Road 9in@s 1evelop'ent ProDect (Phase 2:, of which CP 2 is a co'ponent, is to 0e
)overned 0* the +,2C Procure'ent "uidelines. 3ection J.0L, Part 22 (2nternational Co'petitive ,iddin)
thereof 7uoted earlier reads-
3ection J.0L. (valuation and Co'parison of ,ids
6 6 6
(e An* procedure under which 0ids a0ove or 0elow a predeter'ined 0id value assess'ent are auto'aticall*
dis7ualified is not per'itted.
L2

2t is clear that the +,2C Procure'ent "uidelines proscri0e the i'position of ceilin)s on 0id prices. #n the
other hand, it enDoins the award of the contract to the 0idder whose 0id has 0een deter'ined to 0e the lowest
evaluated 0id. &he pertinent provision, 7uoted earlier, is reiterated, thus-
8FL
3ection J.0%. Award of Contract
&he contract is to 0e awarded to the 0idder whose 0id has 0een deter'ined to 0e the lowest evaluated 0id
and who 'eets the appropriate standards of capa0ilit* and financial resources. A 0idder shall not 0e re7uired
as a condition of award to underta@e responsi0ilities or wor@ not stipulated in the specifications or to 'odif*
the 0id.
LE

3ince these ter's and conditions are 'ade part of 9oan A)ree'ent $o. P.!P20F, the )overn'ent is o0li)ed
to o0serve and enforce the sa'e in the procure'ent of )oods and services for the CP 2 proDect. As shown
earlier, private respondent China Road \ ,rid)e CorporationCs 0id was the lowest evaluated 0id, al0eit
28.%JX hi)her than the A,C. 2n accordance with the +,2C Procure'ent "uidelines, therefore, it was correctl*
awarded the contract for the CP 2 proDect.
(ven if RA %88F were to 0e applied retroactivel*, the ter's of the (6chan)e of $otes dated 1ece'0er 27,
8%%% and 9oan A)ree'ent $o. P.!P20F would still )overn the procure'ent for the CP 2 proDect
/or clarit*, 3ection F of RA %88F is 7uoted anew, thus-
3(C. F. 3cope and Applications. B &his Act shall appl* to the Procure'ent of 2nfrastructure ProDects, "oods
and Consultin) 3ervices, re)ardless of source of funds, whether local or forei)n, 0* all 0ranches and
instru'entalities of )overn'ent, its depart'ents, offices and a)encies, includin) )overn'ent!owned andIor B
controlled corporations and local )overn'ent units, su0Dect to the provisions of Co''onwealth Act $o. 8E8.
An* treat* or international or e6ecutive a)ree'ent affectin) the su0Dect 'atter of this Act to which the
Philippine )overn'ent is a si)nator* shall 0e o0served.
&he petitioners, in order to place the procure'ent process underta@en for the CP 2 proDect within the a'0it of RA %88F,
vi)orousl* assert that 9oan A)ree'ent $o. P.!P20F is neither a treat*, an international a)ree'ent nor an e6ecutive
a)ree'ent. &he* cite (6ecutive #rder $o. FJ% dated $ove'0er 2J, 8%%7 where the three a)ree'ents are defined in this
wise-
a 2nternational a)ree'ent B shall refer to a contract or understandin), re)ardless of no'enclature, entered into
0etween the Philippines and another )overn'ent in written for' and )overned 0* international law, whether
e'0odied in a sin)le instru'ent or in two or 'ore related instru'ents.
0 &reaties B international a)ree'ents entered into 0* the Philippines which re7uire le)islative concurrence after
e6ecutive ratification. &his ter' 'a* include co'pacts li@e conventions, declarations, covenants and acts.
c (6ecutive a)ree'ents B si'ilar to treaties e6cept that the* do not re7uire le)islative concurrence.
LF

&he petitioners 'ainl* ar)ue that 9oan A)ree'ent $o. P.!P20F does not fall under an* of the three cate)ories 0ecause
to 0e an* of the three, an a)ree'ent had to 0e one where the parties are the Philippines as a 3tate and another 3tate.
&he +,2C, the petitioners 'aintain, is a +apanese 0an@in) a)enc*, which presu'a0l* has a separate Duridical personalit*
fro' the +apanese "overn'ent.
&he petitionersC ar)u'ents fail to persuade. &he Court holds that 9oan A)ree'ent $o. P.!P20F ta@en in conDunction
with the (6chan)e of $otes dated 1ece'0er 27, 8%%% 0etween the +apanese "overn'ent and the Philippine
"overn'ent is an e6ecutive a)ree'ent.
&o recall, 9oan A)ree'ent $o. P.!P20F was e6ecuted 0* and 0etween the +,2C and the Philippine "overn'ent
pursuant to the (6chan)e of $otes e6ecuted 0* and 0etween Mr. ?oshihisa Ara, A'0assador (6traordinar* and
Plenipotentiar* of +apan to the Philippines, and then /orei)n Affairs 3ecretar* 3iaAon, in 0ehalf of their respective
)overn'ents. &he (6chan)e of $otes e6pressed that the two )overn'ents have reached an understandin) concernin)
+apanese loans to 0e e6tended to the Philippines and that these loans were ai'ed at pro'otin) our countr*Cs econo'ic
sta0iliAation and develop'ent efforts.
8F7
9oan A)ree'ent $o. P.!P20F was su0se7uentl* e6ecuted and it declared that it was so entered 0* the parties 4GiHn the
li)ht of the contents of the (6chan)e of $otes 0etween the "overn'ent of +apan and the "overn'ent of the Repu0lic of
the Philippines dated 1ece'0er 27, 8%%%, concernin) +apanese loans to 0e e6tended with a view to pro'otin) the
econo'ic sta0iliAation and develop'ent efforts of the Repu0lic of the Philippines.4
LJ
5nder the circu'stances, the +,2C
'a* well 0e considered an adDunct of the +apanese "overn'ent. /urther, 9oan A)ree'ent $o. P.!P20F is indu0ita0l*
an inte)ral part of the (6chan)e of $otes. 2t for's part of the (6chan)e of $otes such that it cannot 0e properl* ta@en
independent thereof.
2n this connection, it is well to understand the definition of an 4e6chan)e of notes4 under international law. &he ter' is
defined in the 5nited $ations &reat* Collection in this wise-
An 4e6chan)e of notes4 is a record of a routine a)ree'ent that has 'an* si'ilarities with the private law contract. &he
a)ree'ent consists of the e6chan)e of two docu'ents, each of the parties 0ein) in the possession of the one si)ned 0*
the representative of the other. 5nder the usual procedure, the acceptin) 3tate repeats the te6t of the offerin) 3tate to
record its assent. &he si)natories of the letters 'a* 0e )overn'ent Ministers, diplo'ats or depart'ental heads. &he
techni7ue of e6chan)e of notes is fre7uentl* resorted to, either 0ecause of its speed* procedure, or, so'eti'es, to avoid
the process of le)islative approval.
LL

2t is stated that 4treaties, a)ree'ents, conventions, charters, protocols, declarations, 'e'oranda of understandin),
'odus vivendi and e6chan)e of notes4 all refer to 4international instru'ents 0indin) at international law.4
L7
2t is further
e6plained that!
Althou)h these instru'ents differ fro' each other 0* title, the* all have co''on features and international law has
applied 0asicall* the sa'e rules to all these instru'ents. &hese rules are the result of lon) practice a'on) the 3tates,
which have accepted the' as 0indin) nor's in their 'utual relations. &herefore, the* are re)arded as international
custo'ar* law. 3ince there was a )eneral desire to codif* these custo'ar* rules, two international conventions were
ne)otiated. &he 8%L% :ienna Convention on the 9aw of &reaties (48%L% :ienna Convention4, which entered into force on
27 +anuar* 8%80, contains rules for treaties concluded 0etween 3tates. &he 8%8L :ienna Convention on the 9aw of
&reaties 0etween 3tates and 2nternational #r)aniAations (48%8L :ienna Convention4, which has still not entered into
force, added rules for treaties with international or)aniAations as parties. ,oth the 8%L% :ienna Convention and the 8%8L
:ienna Convention do not distin)uish 0etween the different desi)nations of these instru'ents. 2nstead, their rules appl*
to all of those instru'ents as lon) as the* 'eet the co''on re7uire'ents.
L8

3i)nificantl*, an e6chan)e of notes is considered a for' of an e6ecutive a)ree'ent, which 0eco'es 0indin) throu)h
e6ecutive action without the need of a vote 0* the 3enate or Con)ress. &he followin) dis7uisition 0* /rancis ,. 3a*re,
for'er 5nited 3tates .i)h Co''issioner to the Philippines, entitled 4&he Constitutionalit* of &rade A)ree'ent Acts,4
7uoted in Co''issioner of Custo's v. (astern 3ea &radin),
L%
is apropos-
A)ree'ents concluded 0* the President which fall short of treaties are co''onl* referred to as e6ecutive a)ree'ents
and are no less co''on in our sche'e of )overn'ent than are the 'ore for'al instru'ents B treaties and conventions.
&he* so'eti'es ta@e the for' of e6chan)e of notes and at other ti'es that of 'ore for'al docu'ents deno'inated
4a)ree'ents4 or 4protocols4. &he point where ordinar* correspondence 0etween this and other )overn'ents ends and
a)ree'ents B whether deno'inated e6ecutive a)ree'ents or e6chan)e of notes or otherwise B 0e)in, 'a* so'eti'es
0e difficult of read* ascertain'ent. 2t would 0e useless to underta@e to discuss here the lar)e variet* of e6ecutive
a)ree'ents as such, concluded fro' ti'e to ti'e. .undreds of e6ecutive a)ree'ents, other than those entered into
under the trade!a)ree'ents act, have 0een ne)otiated with forei)n )overn'ents. 6 6 6
70

&he (6chan)e of $otes dated 1ece'0er 27, 8%%%, stated, inter alia, that the "overn'ent of +apan would e6tend loans
to the Philippines with a view to pro'otin) its econo'ic sta0iliAation and develop'ent efforts< 9oan 2 in the a'ount of
?7%,8LJ8,000,000 would 0e e6tended 0* the +,2C to the Philippine "overn'ent to i'ple'ent the proDects in the 9ist A
(includin) the Arterial Road 9in@s 1evelop'ent ProDect ! Phase 2:< and that such loan (9oan 2 would 0e used to cover
pa*'ents to 0e 'ade 0* the Philippine e6ecutin) a)encies to suppliers, contractors andIor consultants of eli)i0le source
countries under such contracts as 'a* 0e entered into 0etween the' for purchases of products andIor services re7uired
for the i'ple'entation of the proDects enu'erated in the 9ist A.
78
With respect to the procure'ent of the )oods and
services for the proDects, it 0ears reiteratin) that as stipulated-
E. &he "overn'ent of the Repu0lic of the Philippines will ensure that the products andIor services 'entioned in su0!
para)raph (8 of para)raph E of Part 2 and su0!para)raph (8 of para)raph F of Part 22 are procured in accordance with
8F8
the )uidelines for procure'ent of the ,an@, which set forth, inter alia, the procedures of international tenderin) to 0e
followed e6cept where such procedures are inapplica0le or inappropriate.
72

&he +,2C Procure'ents "uidelines, as 7uoted earlier, for0ids an* procedure under which 0ids a0ove or 0elow a
predeter'ined 0id value assess'ent are auto'aticall* dis7ualified. 3uccinctl* put, it a0solutel* prohi0its the i'position
of ceilin)s on 0ids.
5nder the funda'ental principle of international law of pacta sunt servanda,
7E
which is, in fact, e'0odied in 3ection F of
RA %88F as it provides that 4GaHn* treat* or international or e6ecutive a)ree'ent affectin) the su0Dect 'atter of this Act to
which the Philippine )overn'ent is a si)nator* shall 0e o0served,4 the 1PW., as the e6ecutin) a)enc* of the proDects
financed 0* 9oan A)ree'ent $o. P.!P20F, ri)htfull* awarded the contract for the i'ple'entation of civil wor@s for the
CP 2 proDect to private respondent China Road \ ,rid)e Corporation.
W.(R(/#R(, pre'ises considered, the petition is 123M233(1. 3# #R1(R(1.
G.R. No. 18??A2 8ebr+%r4 A, 2012
C@INA NA.IONAL 5AC@INER6 K EG-I!5EN. COR!. 'GRO-!(, Petitioner,
vs.
@ON. CE*AR D. *AN.A5ARIA, i$ hi1 oici%" c%#%ci&4 %1 !re1i,i$2 J+,2e o 7r%$ch 14?, Re2io$%"
.ri%" Co+r& o 5%<%&i Ci&4, @ER5INIO @ARR6 L. ROG-E, JR., JOEL R. 7-.-6AN, ROGER R. RA6EL,
RO5EL R. 7AGARE*, C@RI*.O!@ER 8RANCI*CO C. 7OLA*.IG, LEAG-E O8 -R7AN !OOR 8OR
AC.ION 'L-!A(, LIL-*AN NG 5ARALI.A *A 5E6CA-A6AN 'L553L-!A C@A!.ER(, DANILO 5.
CALDERON, VICEN.E C. AL7AN, 5ERL6N 5. VAAL, LOLI.A *. G-INONE*, RICARDO D. LANOZO,
JR., CONC@I.A G. GOZO, 5A. .ERE*A D. ZE!EDA, JO*E8INA A. LANOZO, %$, *ERGIO C. LEGA*!I,
JR., LALI!-NAN NG DA5A6ANG 5A@I@IRA! 'LADA5A6(, ED6 CLERIGO, RA55IL DINGAL,
NEL*ON 7. .ERRADO, CAR5EN DE-NIDA, %$, ED-ARDO LEG*ON, Respondents.
&his is a Petition for Review on Certiorari with Pra*er for the 2ssuance of a &e'porar* Restrainin) #rder
(&R# andIor Preli'inar* 2nDunction assailin) the E0 3epte'0er 2008 1ecision and J 1ece'0er 2008
Resolution of the Court of Appeals (CA in CAB".R. 3P $o. 80EEJ8.
8
#n 8F 3epte'0er 2002, petitioner China $ational Machiner* \ (7uip'ent Corp. ("roup (C$M(",
represented 0* its chairperson, Ren .on)0in, entered into a Me'orandu' of 5nderstandin) with the $orth
9uAon Railwa*s Corporation ($orthrail, represented 0* its president, +ose 9. Cortes, +r. for the conduct of a
feasi0ilit* stud* on a possi0le railwa* line fro' Manila to 3an /ernando, 9a 5nion (the $orthrail ProDect.
2
#n E0 Au)ust 200E, the (6port 2'port ,an@ of China ((>2M ,an@ and the 1epart'ent of /inance of the
Philippines (1#/ entered into a Me'orandu' of 5nderstandin) (Au) E0 M#5, wherein China a)reed to
e6tend Preferential ,u*erCs Credit to the Philippine )overn'ent to finance the $orthrail ProDect.
E
&he Chinese
)overn'ent desi)nated (>2M ,an@ as the lender, while the Philippine )overn'ent na'ed the 1#/ as the
0orrower.
F
5nder the Au) E0 M#5, (>2M ,an@ a)reed to e6tend an a'ount not e6ceedin) 531 F00,000,000
in favor of the 1#/, pa*a0le in 20 *ears, with a J!*ear )race period, and at the rate of EX per annu'.
J
#n 8 #cto0er 200E, the Chinese A'0assador to the Philippines, Wan) Chun)ui (A'0. Wan), wrote a letter
to 1#/ 3ecretar* +ose 2sidro Ca'acho (3ec. Ca'acho infor'in) hi' of C$M("Cs desi)nation as the Pri'e
Contractor for the $orthrail ProDect.
L
#n E0 1ece'0er 200E, $orthrail and C$M(" e6ecuted a Contract A)ree'ent for the construction of 3ection
2, Phase 2 of the $orth 9uAon Railwa* 3*ste' fro' Caloocan to Malolos on a turn@e* 0asis (the Contract
A)ree'ent.
7
&he contract price for the $orthrail ProDect was pe))ed at 531 F28,0J0,000.
8
#n 2L /e0ruar* 200F, the Philippine )overn'ent and (>2M ,an@ entered into a counterpart financial
a)ree'ent B ,u*er Credit 9oan A)ree'ent $o. ,9A 0F0JJ (the 9oan A)ree'ent.
%
2n the 9oan A)ree'ent,
8F%
(>2M ,an@ a)reed to e6tend Preferential ,u*erCs Credit in the a'ount of 531 F00,000,000 in favor of the
Philippine )overn'ent in order to finance the construction of Phase 2 of the $orthrail ProDect.
80
#n 8E /e0ruar* 200L, respondents filed a Co'plaint for Annul'ent of Contract and 2nDunction with 5r)ent
Motion for 3u''ar* .earin) to 1eter'ine the (6istence of /acts and Circu'stances +ustif*in) the 2ssuance
of Writs of Preli'inar* Prohi0itor* and Mandator* 2nDunction andIor &R# a)ainst C$M(", the #ffice of the
(6ecutive 3ecretar*, the 1#/, the 1epart'ent of ,ud)et and Mana)e'ent, the $ational (cono'ic
1evelop'ent Authorit* and $orthrail.
88
&he case was doc@eted as Civil Case $o. 0L!20E 0efore the Re)ional
&rial Court, $ational Capital +udicial Re)ion, Ma@ati Cit*, ,ranch 8FJ (R&C ,r. 8FJ. 2n the Co'plaint,
respondents alle)ed that the Contract A)ree'ent and the 9oan A)ree'ent were void for 0ein) contrar* to (a
the Constitution< (0 Repu0lic Act $o. %88F (R.A. $o. %88F, otherwise @nown as the "overn'ent
Procure'ent Refor' Act< (c Presidential 1ecree $o. 8FFJ, otherwise @nown as the "overn'ent Auditin)
Code< and (d (6ecutive #rder $o. 2%2, otherwise @nown as the Ad'inistrative Code.
82
R&C ,r. 8FJ issued an #rder dated 87 March 200L settin) the case for hearin) on the issuance of inDunctive
reliefs.
8E
#n 2% March 200L, C$M(" filed an 5r)ent Motion for Reconsideration of this #rder.
8F
,efore R&C
,r. 8FJ could rule thereon, C$M(" filed a Motion to 1is'iss dated 82 April 200L, ar)uin) that the trial court
did not have Durisdiction over (a its person, as it was an a)ent of the Chinese )overn'ent, 'a@in) it i''une
fro' suit, and (0 the su0Dect 'atter, as the $orthrail ProDect was a product of an e6ecutive a)ree'ent.
8J
#n 8J Ma* 2007, R&C ,r. 8FJ issued an #'ni0us #rder den*in) C$M("Cs Motion to 1is'iss and settin)
the case for su''ar* hearin) to deter'ine whether the inDunctive reliefs pra*ed for should 0e issued.
8L
C$M(" then filed a Motion for Reconsideration,
87
which was denied 0* the trial court in an #rder dated 80
March 2008.
88
&hus, C$M(" filed 0efore the CA a Petition for Certiorari with Pra*er for the 2ssuance of &R#
andIor Writ of Preli'inar* 2nDunction dated F April 2008.
8%
2n the assailed 1ecision dated E0 3epte'0er 2008, the appellate court dis'issed the Petition for Certiorari.
20
3u0se7uentl*, C$M(" filed a Motion for Reconsideration,
28
which was denied 0* the CA in a Resolution
dated J 1ece'0er 2008.
22
&hus, C$M(" filed the instant Petition for Review on Certiorari dated 28 +anuar*
200%, raisin) the followin) issues-
2E
Whether or not petitioner C$M(" is an a)ent of the soverei)n PeopleCs Repu0lic of China.
Whether or not the $orthrail contracts are products of an e6ecutive a)ree'ent 0etween two soverei)n states.
Whether or not the certification fro' the 1epart'ent of /orei)n Affairs is necessar* under the fore)oin)
circu'stances.
Whether or not the act 0ein) underta@en 0* petitioner C$M(" is an act Dure i'perii.
Whether or not the Court of Appeals failed to avoid a procedural li'0o in the lower court.
Whether or not the $orthrail ProDect is su0Dect to co'petitive pu0lic 0iddin).
Whether or not the Court of Appeals i)nored the rulin) of this .onora0le Court in the $eri case.
C$M(" pra*s for the dis'issal of Civil Case $o. 0L!20E 0efore R&C ,r. 8FJ for lac@ of Durisdiction. 2t li@ewise
re7uests this Court for the issuance of a &R# and, later on, a writ of preli'inar* inDunction to restrain pu0lic
respondent fro' proceedin) with the disposition of Civil Case $o. 0L!20E.
&he cru6 of this case 0oils down to two 'ain issues, na'el*-
8J0
8. Whether C$M(" is entitled to i''unit*, precludin) it fro' 0ein) sued 0efore a local court.
2. Whether the Contract A)ree'ent is an e6ecutive a)ree'ent, such that it cannot 0e 7uestioned 0*
or 0efore a local court.
8ir1& i11+eB Che&her CN5EG i1 e$&i&"e, &o imm+$i&4
&his Court e6plained the doctrine of soverei)n i''unit* in Holy See v. osario,
2F
to wit-
&here are two conflictin) concepts of soverei)n i''unit*, each widel* held and fir'l* esta0lished. Accordin)
to the classical or a0solute theor*, % 1o0erei2$ c%$$o&, 9i&ho+& i&1 co$1e$&, be m%,e % re1#o$,e$& i$ &he
co+r&1 o %$o&her 1o0erei2$. Accordin) to the newer or restrictive theor*, &he imm+$i&4 o &he 1o0erei2$
i1 reco2$i:e, o$"4 9i&h re2%r, &o #+b"ic %c&1 or %c&1 -ure imperii o % 1&%&e, b+& $o& 9i&h re2%r, &o
#ri0%&e %c&1 or %c&1 -ure gestionis. (('phasis supplied< citations o'itted.
6 6 6 6 6 6 6 6 6
&he restrictive theor* ca'e a0out 0ecause of the entr* of soverei)n states into purel* co''ercial activities
re'otel* connected with the dischar)e of )overn'ental functions. &his is particularl* true with respect to the
Co''unist states which too@ control of nationaliAed 0usiness activities and international tradin).
2n +53MA" v. $ational 9a0or Relations Co''ission,
2J
this Court affir'ed the PhilippinesC adherence to the
restrictive theor* as follows-
&he doctrine of state i''unit* fro' suit has under)one further 'eta'orphosis. &he view evolved that the
e6istence of a contract does not, per se, 'ean that soverei)n states 'a*, at all ti'es, 0e sued in local courts.
&he co'ple6it* of relationships 0etween soverei)n states, 0rou)ht a0out 0* their increasin) co''ercial
activities, 'othered a 'ore restrictive application of the doctrine.
6 6 6 6 6 6 6 6 6
As it stands now, the application of the doctrine of i''unit* fro' suit has 0een restricted to soverei)n or
)overn'ental activities (1ure imperii. &he 'antle of state i''unit* cannot 0e e6tended to co''ercial, private
and proprietar* acts (1ure gestionis.
2L
(('phasis supplied.
3ince the Philippines adheres to the restrictive theor*, it is crucial to ascertain the le)al nature of the act
involved B whether the entit* clai'in) i''unit* perfor's )overn'ental, as opposed to proprietar*, functions.
As held in 5nited 3tates of A'erica v. RuiA B
27
&he restrictive application of 3tate i''unit* is proper onl* when the proceedin)s arise out of co''ercial
transactions of the forei)n soverei)n, its co''ercial activities or econo'ic affairs. 3tated differentl*, a 3tate
'a* 0e said to have descended to the level of an individual and can thus 0e dee'ed to have tacitl* )iven its
consent to 0e sued onl* when it enters into 0usiness contracts. 2t does not appl* where the contract relates to
the e6ercise of its soverei)n functions.
28
A. C$M(" is en)a)ed in a proprietar* activit*.
A threshold 7uestion that 'ust 0e answered is whether C$M(" perfor's )overn'ental or proprietar*
functions. A thorou)h e6a'ination of the 0asic facts of the case would show that C$M(" is en)a)ed in a
proprietar* activit*.
&he parties e6ecuted the Contract A)ree'ent for the purpose of constructin) the 9uAon Railwa*s, viA-
2%
8J8
W.(R(A3 the ('plo*er ($orthrail desired to construct the railwa*s for' Caloocan to Malolos, section 2,
Phase 2 of Philippine $orth 9uAon Railwa*s ProDect (hereinafter referred to as &.( PR#+(C&<
A$1 W.(R(A3 the Contractor has offered to provide the ProDect on &urn@e* 0asis, includin) desi)n,
'anufacturin), suppl*, construction, co''issionin), and trainin) of the ('plo*erCs personnel<
A$1 W.(R(A3 the 9oan A)ree'ent of the Preferential ,u*erCs Credit 0etween (6port!2'port ,an@ of China
and 1epart'ent of /inance of Repu0lic of the Philippines<
$#W, &.(R(/#R(, the parties a)ree to si)n this Contract for the 2'ple'entation of the ProDect.
&he a0ove!cited portion of the Contract A)ree'ent, however, does not on its own reveal whether the
construction of the 9uAon railwa*s was 'eant to 0e a proprietar* endeavor. 2n order to full* understand the
intention 0ehind and the purpose of the entire underta@in), the Contract A)ree'ent 'ust not 0e read in
isolation. 2nstead, it 'ust 0e construed in conDunction with three other docu'ents e6ecuted in relation to the
$orthrail ProDect, na'el*- (a the Me'orandu' of 5nderstandin) dated 8F 3epte'0er 2002 0etween
$orthrail and C$M("<
E0
(0 the letter of A'0. Wan) dated 8 #cto0er 200E addressed to 3ec. Ca'acho<
E8
and
(c the 9oan A)ree'ent.
E2
8. Me'orandu' of 5nderstandin) dated 8F 3epte'0er 2002
&he Me'orandu' of 5nderstandin) dated 8F 3epte'0er 2002 shows that C$M(" sou)ht the construction
of the 9uAon Railwa*s as a proprietar* venture. &he relevant parts thereof read-
W.(R(A3, C$M(" has the financial capa0ilit*, professional co'petence and technical e6pertise to assess
the state of the GMain 9ine $orth (M9$H and reco''end i'ple'entation plans as well as underta@e its
reha0ilitation andIor 'oderniAation<
W.(R(A3, C$M(" has e6pressed interest in the reha0ilitation andIor 'oderniAation of the M9$ fro' Metro
Manila to 3an /ernando, 9a 5nion passin) throu)h the provinces of ,ulacan, Pa'pan)a, &arlac, Pan)asinan
and 9a 5nion (the PProDectC<
W.(R(A3, the $#R&.RA29 C#RP. welco'es C$M("Cs proposal to underta@e a /easi0ilit* 3tud* (the
43tud*4 at no cost to $#R&.RA29 C#RP.<
W.(R(A3, the $#R&.RA29 C#RP. also welco'es C$M("Cs interest in underta@in) the ProDect with
3upplierCs Credit and intends to e'plo* C$M(" as the Contractor for the ProDect su0Dect to co'pliance with
Philippine and Chinese laws, rules and re)ulations for the selection of a contractor<
W.(R(A3, the $#R&.RA29 C#RP. considers C$M("Cs proposal advanta)eous to the "overn'ent of the
Repu0lic of the Philippines and has therefore a)reed to assist C$M(" in the conduct of the aforesaid 3tud*<
6 6 6 6 6 6 6 6 6
22. APPR#:A9 PR#C(33
2.8 As soon as possi0le after co'pletion and presentation of the 3tud* in accordance with Para)raphs 8.E
and 8.F a0ove and in co'pliance with necessar* )overn'ental laws, rules, re)ulations and procedures
re7uired fro' 0oth parties, the parties shall co''ence the preparation and ne)otiation of the ter's and
conditions of the Contract (the 4Contract4 to 0e entered into 0etween the' on the i'ple'entation of the
ProDect. &he parties shall use their 0est endeavors to for'ulate and finaliAe a Contract with a view to si)nin)
8J2
the Contract within one hundred twent* (820 da*s fro' C$M("Cs presentation of the 3tud*.
EE
(('phasis
supplied
Clearl*, it was C$M(" that initiated the underta@in), and not the Chinese )overn'ent. &he /easi0ilit* 3tud*
was conducted not 0ecause of an* diplo'atic )ratuit* fro' or e6ercise of soverei)n functions 0* the Chinese
)overn'ent, 0ut was plainl* a 0usiness strate)* e'plo*ed 0* C$M(" with a view to securin) this
co''ercial enterprise.
2. 9etter dated 8 #cto0er 200E
&hat C$M(", and not the Chinese )overn'ent, initiated the $orthrail ProDect was confir'ed 0* A'0. Wan)
in his letter dated 8 #cto0er 200E, thus-
8. C$M(" has the proven co'petence and capa0ilit* to underta@e the ProDect as evidenced 0* the
ran@in) of F2 )iven 0* the ($R a'on) 22J )lo0al construction co'panies.
2. C$M(" alread* si)ned an M#5 with the $orth 9uAon Railwa*s Corporation last 3epte'0er 8F,
2000 durin) the visit of Chair'an 9i Pen). 3uch 0ein) the case, the* have alread* esta0lished an
initial wor@in) relationship with *our $orth 9uAon Railwa*s Corporation. &his would cate)oriAe C$M("
as the state corporation within the PeopleCs Repu0lic of China which initiated our "overn'entCs
involve'ent in the ProDect.
E. A'on) the various state corporations of the PeopleCs Repu0lic of China, onl* C$M(" has the
advanta)e of 0ein) full* fa'iliar with the current re7uire'ents of the $orthrail ProDect havin) alread*
acco'plished a /easi0ilit* 3tud* which was used as inputs 0* the $orth 9uAon Railwa*s Corporation
in the approvals (sic process re7uired 0* the Repu0lic of the Philippines.
EF
(('phasis supplied.
&hus, the desire of C$M(" to secure the $orthrail ProDect was in the ordinar* or re)ular course of its
0usiness as a )lo0al construction co'pan*. &he i'ple'entation of the $orthrail ProDect was intended to
)enerate profit for C$M(", with the Contract A)ree'ent placin) a contract price of 531 F28,0J0,000 for the
venture.
EJ
&he use of the ter' 4state corporation4 to refer to C$M(" was onl* descriptive of its nature as a
)overn'ent!owned andIor !controlled corporation, and its assi)n'ent as the Pri'ar* Contractor did not i'pl*
that it was actin) on 0ehalf of China in the perfor'ance of the latterCs soverei)n functions. &o i'pl* otherwise
would result in an a0surd situation, in which all Chinese corporations owned 0* the state would 0e
auto'aticall* considered as perfor'in) )overn'ental activities, even if the* are clearl* en)a)ed in
co''ercial or proprietar* pursuits.
E. &he 9oan A)ree'ent
C$M(" clai's i''unit* on the )round that the Au) E0 M#5 on the financin) of the $orthrail ProDect was
si)ned 0* the Philippine and Chinese )overn'ents, and its assi)n'ent as the Pri'ar* Contractor 'eant that
it was 0ound to perfor' a )overn'ental function on 0ehalf of China. .owever, the 9oan A)ree'ent, which
ori)inated fro' the sa'e Au) E0 M#5, 0elies this reasonin), viA-
Article 88. 666 (D Co''ercial Activit* &he e6ecution and deliver* of this A)ree'ent 0* the ,orrower
constitute, and the ,orrowerCs perfor'ance of and co'pliance with its o0li)ations under this A)ree'ent will
constitute, #ri0%&e %$, commerci%" %c&1 ,o$e %$, #erorme, or commerci%" #+r#o1e1 +$,er &he "%91
o &he Re#+b"ic o &he !hi"i##i$e1 %$, $ei&her &he 7orro9er $or %$4 o i&1 %11e&1 i1 e$&i&"e, &o %$4
imm+$i&4 or #ri0i"e2e '1o0erei2$ or o&her9i1e( rom 1+i&, e;ec+&io$ or %$4 o&her "e2%" #roce11 9i&h
re1#ec& &o i&1 ob"i2%&io$1 +$,er &hi1 A2reeme$&, %1 &he c%1e m%4 be, i$ %$4 >+ri1,ic&io$.
$otwithstandin) the fore)oin), the ,orrower does not waive an* i''unit* with respect of its assets which are
(i used 0* a diplo'atic or consular 'ission of the ,orrower and (ii assets of a 'ilitar* character and under
control of a 'ilitar* authorit* or defense a)enc* and (iii located in the Philippines and dedicated to pu0lic or
8JE
)overn'ental use (as distin)uished fro' patri'onial assets or assets dedicated to co''ercial use.
(('phasis supplied.
(@ Proceedin)s to (nforce A)ree'ent 2n an* proceedin) in the Repu0lic of the Philippines to enforce this
A)ree'ent, the choice of the laws of the PeopleCs Repu0lic of China as the )overnin) law hereof will 0e
reco)niAed and such law will 0e applied. &he waiver of i''unit* 0* the ,orrower, the irrevoca0le su0'issions
of the ,orrower to the non!e6clusive Durisdiction of the courts of the PeopleCs Repu0lic of China and the
appoint'ent of the ,orrowerCs Chinese Process A)ent is le)al, valid, 0indin) and enforcea0le and an*
Dud)'ent o0tained in the PeopleCs Repu0lic of China will 0e if introduced, evidence for enforce'ent in an*
proceedin)s a)ainst the ,orrower and its assets in the Repu0lic of the Philippines provided that (a the court
renderin) Dud)'ent had Durisdiction over the su0Dect 'atter of the action in accordance with its Durisdictional
rules, (0 the Repu0lic had notice of the proceedin)s, (c the Dud)'ent of the court was not o0tained throu)h
collusion or fraud, and (d such Dud)'ent was not 0ased on a clear 'ista@e of fact or law.
EL
/urther, the 9oan A)ree'ent li@ewise contains this e6press waiver of i''unit*-
8J.J Waiver of 2''unit* &he ,orrower irrevoca0l* and unconditionall* waives, an* i''unit* to which it or its
propert* 'a* at an* ti'e 0e or 0eco'e entitled, whether characteriAed as soverei)n i''unit* or otherwise,
fro' an* suit, Dud)'ent, service of process upon it or an* a)ent, e6ecution on Dud)'ent, set!off, attach'ent
prior to Dud)'ent, attach'ent in aid of e6ecution to which it or its assets 'a* 0e entitled in an* le)al action or
proceedin)s with respect to this A)ree'ent or an* of the transactions conte'plated here0* or hereunder.
$otwithstandin) the fore)oin), the ,orrower does not waive an* i''unit* in respect of its assets which are (i
used 0* a diplo'atic or consular 'ission of the ,orrower, (ii assets of a 'ilitar* character and under control
of a 'ilitar* authorit* or defense a)enc* and (iii located in the Philippines and dedicated to a pu0lic or
)overn'ental use (as distin)uished fro' patri'onial assets or assets dedicated to co''ercial use.
E7
&hus, despite petitionerCs clai' that the (>2M ,an@ e6tended financial assistance to $orthrail 0ecause the
0an@ was 'andated 0* the Chinese )overn'ent, and not 0ecause of an* 'otivation to do 0usiness in the
Philippines,
E8
it is clear fro' the fore)oin) provisions that the $orthrail ProDect was a purel* co''ercial
transaction.
Ad'ittedl*, the 9oan A)ree'ent was entered into 0etween (>2M ,an@ and the Philippine )overn'ent, while
the Contract A)ree'ent was 0etween $orthrail and C$M(". Althou)h the Contract A)ree'ent is silent on
the classification of the le)al nature of the transaction, the fore)oin) provisions of the 9oan A)ree'ent, which
is an ine6trica0le part of the entire underta@in), nonetheless reveal the intention of the parties to the $orthrail
ProDect to classif* the whole venture as co''ercial or proprietar* in character.
&hus, piecin) to)ether the content and tenor of the Contract A)ree'ent, the Me'orandu' of 5nderstandin)
dated 8F 3epte'0er 2002, A'0. Wan)Cs letter dated 8 #cto0er 200E, and the 9oan A)ree'ent would reveal
the desire of C$M(" to construct the 9uAon Railwa*s in pursuit of a purel* co''ercial activit* perfor'ed in
the ordinar* course of its 0usiness.
,. C$M(" failed to adduce evidence that it is i''une fro' suit under Chinese law.
(ven assu'in) arguendo that C$M(" perfor's )overn'ental functions, such clai' does not auto'aticall*
vest it with i''unit*. &his view finds support in Malon) v. Philippine $ational Railwa*s, in which this Court
held that 4(i''unit* fro' suit is deter'ined 0* the character of the o0Dects for which the entit* was
or)aniAed.4
E%
2n this re)ard, this CourtCs rulin) in 1eutsche "esellschaft /`r &echnische ;usa''enar0eit ("&; v. CA
F0
'ust 0e e6a'ined. 2n 1eutsche "esellschaft, "er'an* and the Philippines entered into a &echnical
Cooperation A)ree'ent, pursuant to which 0oth si)ned an arran)e'ent pro'otin) the 3ocial .ealth
2nsuranceB$etwor@in) and ('power'ent (3.2$( proDect. &he two )overn'ents na'ed their respective
8JF
i'ple'entin) or)aniAations- the 1epart'ent of .ealth (1#. and the Philippine .ealth 2nsurance Corporation
(P.2C for the Philippines, and "&; for the i'ple'entation of "er'an*Cs contri0utions. 2n rulin) that "&; was
not i''une fro' suit, this Court held-
&he ar)u'ents raised 0* "&; and the G#ffice of the 3olicitor "eneral (#3"H are rooted in several
indisputa0le facts. &he 3.2$( proDect was i'ple'ented pursuant to the 0ilateral a)ree'ents 0etween the
Philippine and "er'an )overn'ents. "&; was tas@ed, under the 8%%8 a)ree'ent, with the i'ple'entation of
the contri0utions of the "er'an )overn'ent. &he activities perfor'ed 0* "&; pertainin) to the 3.2$( proDect
are )overn'ental in nature, related as the* are to the pro'otion of health insurance in the Philippines. &he
fact that "&; entered into e'plo*'ent contracts with the private respondents did not dis7ualif* it fro'
invo@in) i''unit* fro' suit, as held in cases such as .ol* 3ee v. Rosario, +r., which set forth what re'ains
valid doctrine-
Certainl*, the 'ere enterin) into a contract 0* a forei)n state with a private part* cannot 0e the ulti'ate test.
3uch an act can onl* 0e the start of the in7uir*. &he lo)ical 7uestion is whether the forei)n state is en)a)ed in
the activit* in the re)ular course of 0usiness. 2f the forei)n state is not en)a)ed re)ularl* in a 0usiness or
trade, the particular act or transaction 'ust then 0e tested 0* its nature. 2f the act is in pursuit of a soverei)n
activit*, or an incident thereof, then it is an act Dure i'perii, especiall* when it is not underta@en for )ain or
profit.
,e*ond dispute is the tena0ilit* of the co''ent points (sic raised 0* "&; and the #3" that "&; was not
perfor'in) proprietar* functions notwithstandin) its entr* into the particular e'plo*'ent contracts. ?et there
is an e7uall* funda'ental pre'ise which "&; and the #3" fail to address, na'el*- 2s "&;, 0* conception,
a0le to enDo* the /ederal Repu0licCs i''unit* fro' suitN
&he principle of state i''unit* fro' suit, whether a local state or a forei)n state, is reflected in 3ection %,
Article >:2 of the Constitution, which states that 4the 3tate 'a* not 0e sued without its consent.4 Who or what
consists of 4the 3tate4N /or one, the doctrine is availa0le to forei)n 3tates insofar as the* are sou)ht to 0e
sued in the courts of the local 3tate, necessar* as it is to avoid 4undul* ve6in) the peace of nations.4
2f the instant suit had 0een 0rou)ht directl* a)ainst the /ederal Repu0lic of "er'an*, there would 0e no dou0t
that it is a suit 0rou)ht a)ainst a 3tate, and the onl* necessar* in7uir* is whether said 3tate had consented to
0e sued. .owever, the present suit was 0rou)ht a)ainst "&;. 2t is necessar* for us to understand what
precisel* are the para'eters of the le)al personalit* of "&;.
Co+$1e" or G.Z ch%r%c&eri:e1 G.Z %1 I&he im#"eme$&i$2 %2e$c4 o &he Go0er$me$& o &he 8e,er%"
Re#+b"ic o Germ%$4,I a depiction si'ilarl* adopted 0* the #3". Assu'in) that the characteriAation is
correct, i& ,oe1 $o& %+&om%&ic%""4 i$0e1& G.Z 9i&h &he %bi"i&4 &o i$0o<e *&%&e imm+$i&4 rom 1+i&. &he
distinction lies in whether the a)enc* is incorporated or unincorporated.
6 6 6 6 6 6 6 6 6
3tate i''unit* fro' suit 'a* 0e waived 0* )eneral or special law. &he special law can ta@e the for' of the
ori)inal charter of the incorporated )overn'ent a)enc*. +urisprudence is replete with e6a'ples of
incorporated )overn'ent a)encies which were ruled not entitled to invo@e i''unit* fro' suit, owin) to
provisions in their charters 'anifestin) their consent to 0e sued.
6 6 6 6 6 6 6 6 6
2t is useful to note that on the part of the Philippine )overn'ent, it had desi)nated two entities, the
1epart'ent of .ealth and the Philippine .ealth 2nsurance Corporation (P.2C, as the i'ple'entin) a)encies
in 0ehalf of the Philippines. &he P.2C was esta0lished under Repu0lic Act $o. 787J, 3ection 8L () of which
)rants the corporation the power 4to sue and 0e sued in court.4 Appl*in) the previousl* cited Durisprudence,
8JJ
P.2C would not enDo* i''unit* fro' suit even in the perfor'ance of its functions connected with 3.2$(,
however, (sic )overn'ental in nature as (sic the* 'a* 0e.
I1 G.Z %$ i$cor#or%&e, %2e$c4 o &he Germ%$ 2o0er$me$&R .here i1 1ome m41&er4 1+rro+$,i$2 &h%&
F+e1&io$. Nei&her G.Z $or &he O*G 2o be4o$, &he c"%im &h%& #e&i&io$er i1 I&he im#"eme$&i$2 %2e$c4 o
&he Go0er$me$& o &he 8e,er%" Re#+b"ic o Germ%$4.I #n the other hand, private respondents asserted
0efore the 9a0or Ar0iter that "&; was 4a private corporation en)a)ed in the i'ple'entation of develop'ent
proDects.4 &he 9a0or Ar0iter accepted that clai' in his #rder den*in) the Motion to 1is'iss, thou)h he was
silent on that point in his 1ecision. $evertheless, private respondents ar)ue in their Co''ent that the findin)
that "&; was a private corporation 4was never controverted, and is therefore dee'ed ad'itted.4 2n its Repl*,
"&; controverts that findin), sa*in) that it is a 'atter of pu0lic @nowled)e that the status of petitioner "&; is
that of the 4i'ple'entin) a)enc*,4 and not that of a private corporation.
2n truth, private respondents were una0le to adduce an* evidence to su0stantiate their clai' that "&; was a
4private corporation,4 and the 9a0or Ar0iter acted rashl* in acceptin) such clai' without e6planation. ,ut
$ei&her h%1 G.Z 1+##"ie, %$4 e0i,e$ce ,ei$i$2 i&1 "e2%" $%&+re be4o$, &h%& o &he b%re ,e1cri#&i0e
Iim#"eme$&i$2 %2e$c4.I .here i1 $o ,o+b& &h%& &he 1991 A2reeme$& ,e1i2$%&e, G.Z %1 &he
Iim#"eme$&i$2 %2e$c4I i$ beh%" o &he Germ%$ 2o0er$me$&. 6e& &he c%&ch i1 &h%& 1+ch &erm h%1 $o
#reci1e ,ei$i&io$ &h%& i1 re1#o$1i0e &o o+r co$cer$1. I$here$&"4, %$ %2e$& %c&1 i$ beh%" o % #ri$ci#%",
%$, &he G.Z c%$ be 1%i, &o %c& i$ beh%" o &he Germ%$ 1&%&e. 7+& &h%& i1 %1 %r %1 Iim#"eme$&i$2
%2e$c4I co+", &%<e +1. .he &erm b4 i&1e" ,oe1 $o& 1+##"4 9he&her G.Z i1 i$cor#or%&e, or
+$i$cor#or%&e,, 9he&her i& i1 o9$e, b4 &he Germ%$ 1&%&e or b4 #ri0%&e i$&ere1&1, 9he&her i& h%1
>+ri,ic%" #er1o$%"i&4 i$,e#e$,e$& o &he Germ%$ 2o0er$me$& or $o$e %& %"".
6 6 6 6 6 6 6 6 6
A2%i$, 9e %re +$cer&%i$ o &he corre1#o$,i$2 "e2%" im#"ic%&io$1 +$,er Germ%$ "%9 1+rro+$,i$2 I%
#ri0%&e com#%$4 o9$e, b4 &he 8e,er%" Re#+b"ic o Germ%$4.I 6e& &%<i$2 &he ,e1cri#&io$ o$ %ce
0%"+e, &he %##%re$& eF+i0%"e$& +$,er !hi"i##i$e "%9 i1 &h%& o % cor#or%&io$ or2%$i:e, +$,er &he
Cor#or%&io$ Co,e b+& o9$e, b4 &he !hi"i##i$e 2o0er$me$&, or % 2o0er$me$&3o9$e, or co$&ro""e,
cor#or%&io$ 9i&ho+& ori2i$%" ch%r&er. A$, i& be%r1 $o&ice &h%& *ec&io$ 3D o &he Cor#or%&e Co,e 1&%&e1
&h%& IMeN0er4 cor#or%&io$ i$cor#or%&e, +$,er &hi1 Co,e h%1 &he #o9er %$, c%#%ci&4 ; ; ; &o 1+e %$, be
1+e, i$ i&1 cor#or%&e $%me.I
2t is entirel* possi0le that under "er'an law, an entit* such as "&; or particularl* "&; itself has not 0een
vested or has 0een specificall* deprived the power and capacit* to sue andIor 0e sued. ?et in the
proceedin)s 0elow and 0efore this Court, G.Z h%1 %i"e, &o e1&%b"i1h &h%& +$,er Germ%$ "%9, i& h%1 $o&
co$1e$&e, &o be 1+e, ,e1#i&e i& bei$2 o9$e, b4 &he 8e,er%" Re#+b"ic o Germ%$4. Ce %,here &o &he
r+"e &h%& i$ &he %b1e$ce o e0i,e$ce &o &he co$&r%r4, orei2$ "%91 o$ % #%r&ic+"%r 1+b>ec& %re #re1+me,
&o be &he 1%me %1 &ho1e o &he !hi"i##i$e1, %$, o""o9i$2 &he mo1& i$&e""i2e$& %11+m#&io$ 9e c%$
2%&her, G.Z i1 %<i$ &o % 2o0er$me$&%" o9$e, or co$&ro""e, cor#or%&io$ 9i&ho+& ori2i$%" ch%r&er 9hich,
b4 0ir&+e o &he Cor#or%&io$ Co,e, h%1 e;#re11"4 co$1e$&e, &o be 1+e,. At the ver* least, li@e the 9a0or
Ar0iter and the Court of Appeals, this Court has no 0asis in fact to conclude or presu'e that "&; enDo*s
i''unit* fro' suit.
F8
(('phasis supplied.
Appl*in) the fore)oin) rulin) to the case at 0ar, it is readil* apparent that C$M(" cannot clai' i''unit* fro'
suit, even if it contends that it perfor's )overn'ental functions. 2ts desi)nation as the Pri'ar* Contractor
does not auto'aticall* )rant it i''unit*, Dust as the ter' 4i'ple'entin) a)enc*4 has no precise definition for
purposes of ascertainin) whether "&; was i''une fro' suit. Althou)h C$M(" clai's to 0e a )overn'ent!
owned corporation, it failed to adduce evidence that it has not consented to 0e sued under Chinese law. &hus,
followin) this CourtCs rulin) in 1eutsche "esellschaft, in the a0sence of evidence to the contrar*, C$M(" is
to 0e presu'ed to 0e a )overn'ent!owned and !controlled corporation without an ori)inal charter. As a result,
it has the capacit* to sue and 0e sued under 3ection EL of the Corporation Code.
8JL
C. C$M(" failed to present a certification fro' the 1epart'ent of /orei)n Affairs.
2n .ol* 3ee,
F2
this Court reiterated the oft!cited doctrine that the deter'ination 0* the (6ecutive that an entit*
is entitled to soverei)n or diplo'atic i''unit* is a political 7uestion conclusive upon the courts, to wit-
2n Pu0lic 2nternational 9aw, when a state or international a)enc* wishes to plead soverei)n or diplo'atic
i''unit* in a forei)n court, it re7uests the /orei)n #ffice of the state where it is sued to conve* to the court
that said defendant is entitled to i''unit*.
6 6 6 6 6 6 6 6 6
2n the Philippines, the practice is for the forei)n )overn'ent or the international or)aniAation to first secure an
e6ecutive endorse'ent of its clai' of soverei)n or diplo'atic i''unit*. ,ut how the Philippine /orei)n #ffice
conve*s its endorse'ent to the courts varies. 2n *nternational Catholic (igration Commission v. Calle1a, 8%0
3CRA 8E0 (8%%0, the 3ecretar* of /orei)n Affairs Dust sent a letter directl* to the 3ecretar* of 9a0or and
('plo*'ent, infor'in) the latter that the respondent!e'plo*er could not 0e sued 0ecause it enDo*ed
diplo'atic i''unit*. 2n +orld Health 'rganiEation v. A!uino, F8 3CRA 2F2 (8%72, the 3ecretar* of /orei)n
Affairs sent the trial court a tele)ra' to that effect. 2n Baer v. #iEon, J7 3CRA 8 (8%7F, the 5.3. ('0ass*
as@ed the 3ecretar* of /orei)n Affairs to re7uest the 3olicitor "eneral to 'a@e, in 0ehalf of the Co''ander
of the 5nited 3tates $aval ,ase at #lon)apo Cit*, ;a'0ales, a 4su))estion4 to respondent +ud)e. &he
3olicitor "eneral e'0odied the 4su))estion4 in a Manifestation and Me'orandu' as amicus curiae.
2n the case at 0ench, the 1epart'ent of /orei)n Affairs, throu)h the #ffice of 9e)al Affairs 'oved with this
Court to 0e allowed to intervene on the side of petitioner. &he Court allowed the said 1epart'ent to file its
'e'orandu' in support of petitionerCs clai' of soverei)n i''unit*.
2n so'e cases, the defense of soverei)n i''unit* was su0'itted directl* to the local courts 0* the
respondents throu)h their private counsels (Ra7uiAa v. ,radford, 7J Phil. J0 G8%FJH< Mi7uia0as v. Philippine!
R*u@*us Co''and, 80 Phil. 2L2 G8%F8H< 5nited 3tates of A'erica v. "uinto, 882 3CRA LFF G8%%0H and
co'panion cases. 2n cases where the forei)n states 0*pass the /orei)n #ffice, the courts can in7uire into
the facts and 'a@e their own deter'ination as to the nature of the acts and transactions involved.
FE
(('phasis supplied.
&he 7uestion now is whether an* a)enc* of the (6ecutive ,ranch can 'a@e a deter'ination of i''unit* fro'
suit, which 'a* 0e considered as conclusive upon the courts. &his Court, in 1epart'ent of /orei)n Affairs
(1/A v. $ational 9a0or Relations Co''ission ($9RC,
FF
e'phasiAed the 1/ACs co'petence and authorit* to
provide such necessar* deter'ination, to wit-
&he 1/ACs function includes, a'on) its other 'andates, the deter'ination of persons and institutions covered
0* diplo'atic i''unities, a deter'ination which, when challen)e, (sic entitles it to see@ relief fro' the court
so as not to seriousl* i'pair the conduct of the countr*Qs forei)n relations. &he 1/A 'ust 0e allowed to plead
its case whenever necessar* or advisa0le to ena0le it to help @eep the credi0ilit* of the Philippine )overn'ent
0efore the international co''unit*. When international a)ree'ents are concluded, the parties thereto are
dee'ed to have li@ewise accepted the responsi0ilit* of seein) to it that their a)ree'ents are dul* re)arded. 2n
our countr*, this tas@ falls principall* of (sic the 1/A as 0ein) the hi)hest e6ecutive depart'ent with the
co'petence and authorit* to so act in this aspect of the international arena.
FJ
(('phasis supplied.
/urther, the fact that this authorit* is e6clusive to the 1/A was also e'phasiAed in this CourtCs rulin) in
1eutsche "esellschaft-
2t is to 0e recalled that the 9a0or Ar0iter, in 0oth of his rulin)s, noted that it was i'perative for petitioners to
secure fro' the 1epart'ent of /orei)n Affairs 4a certification of respondentsC diplo'atic status and
entitle'ent to diplo'atic privile)es includin) i''unit* fro' suits.4 &he re7uire'ent 'i)ht not necessaril* 0e
8J7
i'perative. .owever, had "&; o0tained such certification fro' the 1/A, it would have provided factual 0asis
for its clai' of i''unit* that would, at the ver* least, esta0lish a disputa0le evidentiar* presu'ption that the
forei)n part* is indeed i''une which the opposin) part* will have to overco'e with its own factual evidence.
We do not see wh* "&; could not have secured such certification or endorse'ent fro' the 1/A for purposes
of this case. Certainl*, it would have 0een hi)hl* prudential for "&; to o0tain the sa'e after the 9a0or Ar0iter
had denied the 'otion to dis'iss. 3till, even at this Duncture, we do not see an* evidence that the 1/A, the
office of the e6ecutive 0ranch in char)e of our diplo'atic relations, has indeed endorsed "&;Cs clai' of
i''unit*. 2t 'a* 0e possi0le that "&; tried, 0ut failed to secure such certification, due to the sa'e concerns
that we have discussed herein.
Would the fact that the 3olicitor "eneral has endorsed "&;Cs clai' of 3tateCs i''unit* fro' suit 0efore this
Court sufficientl* su0stitute for the 1/A certificationN $ote that the rule in pu0lic international law 7uoted in
.ol* 3ee referred to endorse'ent 0* the /orei)n #ffice of the 3tate where the suit is filed, such forei)n office
in the Philippines 0ein) the 1epart'ent of /orei)n Affairs. $owhere in the Co''ent of the #3" is it
'anifested that the 1/A has endorsed "&;Cs clai', or that the #3" had solicited the 1/ACs views on the
issue. &he ar)u'ents raised 0* the #3" are virtuall* the sa'e as the ar)u'ents raised 0* "&; without an*
indication of an* special and distinct perspective 'aintained 0* the Philippine )overn'ent on the issue. &he
Co''ent filed 0* the #3" does not inspire the sa'e de)ree of confidence as a certification fro' the 1/A
would have elicited.
FL
(('phasis supplied.
2n the case at 0ar, C$M(" offers the Certification e6ecuted 0* the (cono'ic and Co''ercial #ffice of the
('0ass* of the PeopleCs Repu0lic of China, statin) that the $orthrail ProDect is in pursuit of a soverei)n
activit*.
F7
3urel*, this is not the @ind of certification that can esta0lish C$M("Cs entitle'ent to i''unit* fro'
suit, as .ol* 3ee une7uivocall* refers to the deter'ination of the 4/orei)n #ffice of the state where it is sued.4
/urther, C$M(" also clai's that its i''unit* fro' suit has the e6ecutive endorse'ent of 0oth the #3" and
the #ffice of the "overn'ent Corporate Counsel (#"CC, which 'ust 0e respected 0* the courts. .owever,
as e6pressl* enunciated in 1eutsche "esellschaft, this deter'ination 0* the #3", or 0* the #"CC for that
'atter, does not inspire the sa'e de)ree of confidence as a 1/A certification. (ven with a 1/A certification,
however, it 'ust 0e re'e'0ered that this Court is not precluded fro' 'a@in) an in7uir* into the intrinsic
correctness of such certification.
1. An a)ree'ent to su0'it an* dispute to ar0itration 'a* 0e construed as an i'plicit waiver of i''unit* fro'
suit.
2n the 5nited 3tates, the /orei)n 3overei)n 2''unities Act of 8%7L provides for a waiver 0* i'plication of
state i''unit*. 2n the said law, the a)ree'ent to su0'it disputes to ar0itration in a forei)n countr* is
construed as an i'plicit waiver of i''unit* fro' suit. Althou)h there is no si'ilar law in the Philippines, there
is reason to appl* the le)al reasonin) 0ehind the waiver in this case.
&he Conditions of Contract,
F8
which is an inte)ral part of the Contract A)ree'ent,
F%
states-
EE. 3(&&9(M($& #/ 123P5&(3 A$1 AR,2&RA&2#$
EE.8. A'ica0le 3ettle'ent
,oth parties shall atte'pt to a'ica0l* settle all disputes or controversies arisin) fro' this Contract 0efore the
co''ence'ent of ar0itration.
EE.2. Ar0itration
All disputes or controversies arisin) fro' this Contract which cannot 0e settled 0etween the ('plo*er and the
Contractor shall 0e su0'itted to ar0itration in accordance with the 5$C2&RA9 Ar0itration Rules at present in
8J8
force and as 'a* 0e a'ended 0* the rest of this Clause. &he appointin) authorit* shall 0e .on) =on)
2nternational Ar0itration Center. &he place of ar0itration shall 0e in .on) =on) at .on) =on) 2nternational
Ar0itration Center (.=2AC.
5nder the a0ove provisions, if an* dispute arises 0etween $orthrail and C$M(", 0oth parties are 0ound to
su0'it the 'atter to the .=2AC for ar0itration. 2n case the .=2AC 'a@es an ar0itral award in favor of
$orthrail, its enforce'ent in the Philippines would 0e su0Dect to the 3pecial Rules on Alternative 1ispute
Resolution (3pecial Rules. Rule 8E thereof provides for the Reco)nition and (nforce'ent of a /orei)n
Ar0itral Award. 5nder Rules 8E.2 and 8E.E of the 3pecial Rules, the part* to ar0itration wishin) to have an
ar0itral award reco)niAed and enforced in the Philippines 'ust petition the proper re)ional trial court (a
where the assets to 0e attached or levied upon is located< (0 where the acts to 0e enDoined are 0ein)
perfor'ed< (c in the principal place of 0usiness in the Philippines of an* of the parties< (d if an* of the parties
is an individual, where an* of those individuals resides< or (e in the $ational Capital +udicial Re)ion.
/ro' all the fore)oin), it is clear that C$M(" has a)reed that it will not 0e afforded i''unit* fro' suit. &hus,
the courts have the co'petence and Durisdiction to ascertain the validit* of the Contract A)ree'ent.
*eco$, i11+eB Che&her &he Co$&r%c& A2reeme$& i1 %$ e;ec+&i0e %2reeme$&
Article 2(8 of the :ienna Convention on the 9aw of &reaties (:ienna Convention defines a treat* as follows-
GAHn international a)ree'ent concluded 0etween 3tates in written for' and )overned 0* international law,
whether e'0odied in a sin)le instru'ent or in two or 'ore related instru'ents and whatever its particular
desi)nation.
2n Bayan (una v. omulo, this Court held that an e6ecutive a)ree'ent is si'ilar to a treat*, e6cept that the for'er (a
does not re7uire le)islative concurrence< (0 is usuall* less for'al< and (c deals with a narrower ran)e of su0Dect
'atters.
J0
1espite these differences, to 0e considered an e6ecutive a)ree'ent, the followin) three re7uisites provided under the
:ienna Convention 'ust nevertheless concur- (a the a)ree'ent 'ust 0e 0etween states< (0 it 'ust 0e written< and (c it
'ust )overned 0* international law. &he first and the third re7uisites do not o0tain in the case at 0ar.
A. C4(,) is neither a government nor a government agency.
&he Contract A)ree'ent was not concluded 0etween the Philippines and China, 0ut 0etween $orthrail and C$M(".
J8
,*
the ter's of the Contract A)ree'ent, $orthrail is a )overn'ent!owned or !controlled corporation, while C$M(" is a
corporation dul* or)aniAed and created under the laws of the PeopleCs Repu0lic of China.
J2
&hus, 0oth $orthrail and
C$M(" entered into the Contract A)ree'ent as entities with personalities distinct and separate fro' the Philippine and
Chinese )overn'ents, respectivel*.
$either can it 0e said that C$M(" acted as a)ent of the Chinese )overn'ent. As previousl* discussed, the fact that
A'0. Wan), in his letter dated 8 #cto0er 200E,
JE
descri0ed C$M(" as a 4state corporation4 and declared its desi)nation
as the Pri'ar* Contractor in the $orthrail ProDect did not 'ean it was to perfor' soverei)n functions on 0ehalf of China.
&hat la0el was onl* descriptive of its nature as a state!owned corporation, and did not preclude it fro' en)a)in) in purel*
co''ercial or proprietar* ventures.
B. #he Contract Agreement is to be governed by Philippine law.
Article 2 of the Conditions of Contract,
JF
which under Article 8.8 of the Contract A)ree'ent is an inte)ral part of the latter,
states-
APP92CA,9( 9AW A$1 "#:(R$2$" 9A$"5A"(
8J%
&he contract shall in all respects 0e read and construed in accordance with the laws of the Philippines.
&he contract shall 0e written in (n)lish lan)ua)e. All correspondence and other docu'ents pertainin) to the Contract
which are e6chan)ed 0* the parties shall 0e written in (n)lish lan)ua)e.
3ince the Contract A)ree'ent e6plicitl* provides that Philippine law shall 0e applica0le, the parties have effectivel*
conceded that their ri)hts and o0li)ations thereunder are not )overned 0* international law.
2t is therefore clear fro' the fore)oin) reasons that the Contract A)ree'ent does not parta@e of the nature of an
e6ecutive a)ree'ent. 2t is 'erel* an ordinar* co''ercial contract that can 0e 7uestioned 0efore the local courts.
W.(R(/#R(, the instant Petition is DENIED. Petitioner China $ational Machiner* \ (7uip'ent Corp. ("roup is not
entitled to i''unit* fro' suit, and the Contract A)ree'ent is not an e6ecutive a)ree'ent. C$M("Cs pra*er for the
issuance of a &R# andIor Writ of Preli'inar* 2nDunction is 1($2(1 for 0ein) 'oot and acade'ic. &his case is
R(MA$1(1 to the Re)ional &rial Court of Ma@ati, ,ranch 8FJ, for further proceedin)s as re)ards the validit* of the
contracts su0Dect of Civil Case $o. 0L!20E.
$o pronounce'ent on costs of suit. 3# #R1(R(1.
G.R. No. 1A?D08 J+$e 8, 200A
DE!AR.5EN. o 7-DGE. %$, 5ANAGE5EN. !ROC-RE5EN. *ERVICE 'D753!*( %$, &he I$&er3
A2e$c4 7i,1 %$, A9%r,1 Commi&&ee 'IA7AC(, petitioners,
vs.
LOLONCEL .RADING, respondent.
6 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6
G.R. No. 1A?D1D J+$e 8, 200A
VI7AL !-7LI*@ING @O-*E, INC., LG K 5 COR!ORA.ION %$, *D !-7LICA.ION*, INC., petitioners,
vs.
LOLONCEL .RADING, respondent.
6 !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!6
G.R. No. 1A?D?9 J+$e 8, 200A
DE!AR.5EN. O8 ED-CA.ION, petitioner,
vs.
LOLONCEL .RADING, respondent.
,efore the Court are these consolidated three (E petitions for review under Rule FJ of the Rules of Court,
with a pra*er for a te'porar* restrainin) order, to nullif* and set aside the Or,er
8
,%&e, December 4, 200D of
the Manila Re)ional &rial Court (R&C, ,ranch 88, in 3P Civil Case $o. 0L!88L080, a special civil action for
certiorari and prohi0ition thereat co''enced 0* herein respondent =olonwel &radin) (=olonwel for short
a)ainst the 1epart'ent of ,ud)et and Mana)e'ent Procure'ent 3ervice (1,M!P3, et al.
At the core of the controvers* are the 0iddin) and the eventual contract awards for the suppl* and deliver* of
so'e 87.J 'illion copies of Ma@a0a*an (social studies te6t0oo@s and teachers 'anuals, a proDect of the
1epart'ent of (ducation (1ep(d.
&he factual antecedents-
8L0
2n the 'iddle of 200J, the 1ep(d re7uested the services of the 1,M!P3 to underta@e the afore'entioned
procure'ent proDect which is to 0e Dointl* funded 0* the World ,an@ (W,, throu)h the 3econd 3ocial
(6penditure Mana)e'ent Pro)ra' (3(MP2 of the Philippines (RP B 2nternational ,an@ for Reconstruction
and 1evelop'ent (2,R1 9oan A)ree'ent $o. 7888!P.
2
(9oan $o. 7888!P., hereinafter dated 3epte'0er
82, 2002< and the Asian 1evelop'ent ,an@ (A1,, throu)h 3(12P 9oan $o. 8LJF!P.2. (arlier, the (6ecutive
1irector of the "overn'ent Procure'ent Polic* ,oard ("PP,, in repl* to a 1ep(d 7uer*, stated that
4procure'entGsH for MA=A,A?A$ Mte6t0oo@s where funds therefore (sic are sourced fro' World ,an@ 9oan
shall 0e )overned 0* the applica0le procure'ent )uidelines of the forei)n lendin) institution. &he 200J Call
for 3u0'ission of &e6t0oo@s and &eacherCs Manuals shall 0e viewed vis!V!vis relevant World ,an@
)uidelines.4
E
#n #cto0er 27, 200J, the 1,M!P3 2nter!A)enc* ,ids and Awards Co''ittee (2A,AC called for a 0iddin) for
the suppl* of the Ma@a0a*an te6t0oo@s and 'anuals, divided into three (E lots, to wit- 9ot 8 for 3i0i@a "rades
8!E< 9ot 2 for .e=a3i "rades F!L and 9ot E for Aralin) Panlipunan ?ears 2!2:. #f the entities, forei)n and
local, which responded and procured the ,iddin) 1ocu'ents,
F
onl* eleven (88 0idders su0'itted, either as
principal or in Doint venture arran)e'ent, proposals for the different lots. A'on) the' were Watana Phanit
Printin) \ Pu0lishin) Co., 9td., of &hailand (Watana, for short, petitioner :i0al Pu0lishin) .ouse, 2nc., (:i0al,
hereinafter, 1aewoo 2nternational Corporation of 3outh =orea (1aewoo, for 0revit* and respondent
=olonwel. =olonwelCs tender appeared to cover all three (E lots.
J
/ollowin) the 0id and the 0oo@ contentI0od* evaluation process, the 2A,AC, via Resolution (Res. $o. 008!
200L
L
dated March %, 200L, resolved 4to reco''end to the GW,H and the GA1,H failure of 0ids for all lots in
view of the a0ove'entioned dis7ualifications, non!co'pliance and reservations of G1ep(dH.4 2ssues of
4Conflict of interest4 with respect to Watana and :i0al, 4failure in cover stoc@ testin)4 for =olonwel and
1ep(dCs 4reservation4 were a'on) the dis7ualif*in) reasons stated in the resolution.
#n March 8J, 200L, the 2A,AC su0'itted to W, for its review and infor'ation Res. $o. 008!200L. Appended
to the coverin) letter was a docu'ent entitled 4,id (valuation Report and Reco''endation for Award of
Contract.4
7
&he followin) events, as recited in the assailed Manila R&C order and as 0orne out 0* the records, then
transpired-
8. 2n a letter
8
dated April 2F, 200L to the 1ep(d and the 1,M!P3 2A,AC Chair'an, the W,, throu)h
its Re)ional 3enior (cono'ist, Ms. Re@ha Menon, disa)reed, for stated reasons, with the 2A,ACCs
findin) of conflict of interest on the part of :i0al and Watana and the reDection of their 0ids. Ms. Menon,
however, upheld the dis7ualification of all the other 0idders. 3he thus as@ed the 2A,AC to review its
evaluation and to provide the W, with the revised ,id (valuation Report (,(R, ta@in) into account
the 1ece'0er E8, 200L RP!2,R1 9oan closin) date.
2. #n Ma* 88, 200L, the 2A,AC infor'ed =olonwel of its or its 0idCs failure to post 7ualif* and of the
)rounds for the failure.
%
2n its repl*!letter of Ma* 88, 200L,
80
=olonwel raised several issues and re7uested that its
dis7ualification 0e reconsidered and set aside. 2n reaction, 2A,AC apprised W, of =olonwelCs
concerns stated in its letter!repl*.
E 3u0se7uentl*, the 2A,AC, a)reein) with W,Cs position articulated in Ms. Menon, issued Res. $o.
008!200L!A effectivel* reco''endin) to W, the contract award to :i0al of 3i0i@a 8 \ E and .e@a3i J<
to Watana of 3i0i@a 2 and .e=a3i F \ J and to 1aewoo of 3i0i@a E. 5pon review, W, offered 4no
o0Dection4 to the reco''ended award.
88
8L8
F &he issuance of notices of award and the e6ecution on 3epte'0er 82, 200L of the correspondin)
Purchaser!3upplier contracts followed.
82
J. #n +une 2E, 200L, the 1,M!P3 2A,AC chair'an infor'ed =olonwel of the denial of its re7uest for
reconsideration and of the W,Cs concurrence with the denial.
8E
&he 2A,AC denied, on 3epte'0er 8,
200L, a second re7uest for reconsideration of =olonwel
8F
after W, found the reasons therefor, as
detailed in P3 2A,AC Res. $o. 008!200L!,
8J
dated +ul* 88, 200L, un'eritorious, particularl* on the
aspect of cover stoc@ testin).
3uch was the state of thin)s when on, #cto0er 82, 200L, =olonwel filed with the R&C of Manila a special civil
action for certiorari and prohi0ition with a pra*er for a te'porar* restrainin) order (&R# andIor writ of
preli'inar* inDunction. 1oc@eted as 3P Civil Case $o. 0L!88L080, and raffled to ,ranch 88 of the court,
8L
the
petition sou)ht to nullif* 2A,AC Res. $os. 008!200L and 008!200L!A and to set aside the contract awards in
favor of :i0al and Watana. 2n support of its &R# application, =olonwel alle)ed, a'on) other thin)s, that the
suppl*!awardees were rushin) with the i'ple'entation of the void suppl* contracts to 0eat the loan closin)!
date deadline.
A wee@ after, the Manila R&C scheduled ! and eventuall* conducted ! a su''ar* hearin) on the &R#
application. 2n an order
87
of #cto0er E8, 200L, as a'ended in another order
88
dated $ove'0er 20, 200L, the
court )ranted a 20!da* &R# enDoinin) the 2A,AC, et al, startin) $ove'0er L, 200L, fro' proceedin) with the
su0Dect 3epte'0er 82, 200L purchase! suppl* contracts. 2n the ori)inal order, the court set the preli'inar*
conference and hearin) for the applied preli'inar* inDunction on $ove'0er 7, and 8, 200L, respectivel*.
2n the 'eanti'e, :i0al filed an ur)ent 'otion to dis'iss
8%
=olonwelCs petition on several )rounds, a'on) the'
want of Durisdiction and lac@ of cause of action, inter alia alle)in) that the latter had pursued Dudicial relief
without first co'pl*in) with the protest procedure prescri0ed 0* Repu0lic Act (R.A. $o. %88F, otherwise
@nown as the 4"overn'ent Procure'ent Refor' Act.4 &he 1ep(d later followed with its own 'otion to
dis'iss, partl* 0ased on the sa'e protest provision. As records show, the trial court did not conduct a hearin)
on either dis'issal 'otions, al0eit it heard the parties on their opposin) clai's respectin) the propriet* of
issuin) a writ of preli'inar* inDunction.
#n 1ece'0er F, 200L, the Manila R&C issued its assailed #rder
20
findin) for =olonwel, as petitioner a 7uo,
disposin) as follows-
W.(R(/#R(, the court )rants the petition for certiorari and prohi0ition. &he 2A,AC Resolution $o. 008!
200L!A dated Ma* E0, 200L is annulled and set aside. 2A,AC Resolution $o. 008!200L is declared validl* and
re)ularl* issued in the a0sence of a showin) of )rave a0use of discretion or e6cess of Durisdiction. All
su0se7uent actions of the respondents resultin) fro' the issuance of 2A,AC Resolution $o. 008!200L!A are
conse7uentl* nullified and set aside. &his court )rants a final inDunction pursuant to 3ec. % of Rule J8 of the
Rules of Court as a'ended, restrainin) respondents 1epart'ent of (ducation and Culture (sic, G1,M!P3H,
G2A,ACH, :i0al Pu0lishin) .ouse, 2nc., 9" \ M Corporation and 31 Pu0lications fro' the co''ission or
continuance of acts, contracts or transactions proceedin) fro' the issuance of 2A,AC Resolution $o. 008!
200L!A.
3# #R1(R(1. (('phasis and words in 0rac@ets supplied
.ence, these three (E petitions which the Court, per its Resolution
28
of +anuar* 8L, 2007, ordered
consolidated. (arlier, the Court issued, in ". R. $o. 87JL8L, a &R#
22
enDoinin) the presidin) Dud)e
2E
of the
R&C of Manila, ,ranch 88, fro' proceedin) with 3P Civil Case $o. 0L!88L080 or i'ple'entin) its assailed
order.
Petitioners ur)e the annul'ent of the assailed R&C Or,er ,%&e, December 4, 200D, on Durisdictional )round,
a'on) others. 2t is their parallel posture that the Manila R&C erred in assu'in) Durisdiction over the case
8L2
despite respondent =olonwelCs failure to o0serve the protest 'echanis' provided under 3ec. JJ in relation to
3ecs. J7 and J8 of R.A. $o. %88F, respectivel* readin) as follows-
3ec. JJ. Protest on 1ecision of the ,AC.! 1ecisions of the ,AC G,ids and Awards Co''itteeH in all sta)es of
procure'ent 'a* 0e protested to the head of the procurin) entit*M. 1ecisions of the ,AC 'a* 0e protested
0* filin) a verified position paper and pa*in) a non!refunda0le protest fee. &he a'ount of the protest fee and
the periods durin) which the protest 'a* 0e filed and resolved shall 0e specific in the 2RR.
3ec. J7. $on!interruption of the ,iddin) Process. 2n no case shall an* process ta@en fro' an* decision
treated in this Article sta* or dela* the 0iddin) process. Protests 'ust first 0e resolved 0efore an* award is
'ade.
3ec. J8. Report to Re)ular Courts< Certiorari.! Court action 'a* 0e resorted to o$"4 %&er &he #ro&e1&1
conte'plated in this Article 1h%"" h%0e bee$ com#"e&e,. Cases that are filed in violation of the process
specified in this article shall 0e dis'issed for lac@ of Durisdiction. &he GR&CH shall have Durisdiction over final
decisions of the head of the procurin) entit*. (('phasis and words in 0rac@et added.
As a counterpoint, the respondent draws attention to its havin) twice as@ed, and havin) 0een twice spurned
0*, the 2A,AC to reconsider its dis7ualification, o0viousl* a)reein) with the Manila R&C that the Dudicial
window was alread* opened under the e6haustion of availa0le ad'inistrative re'edies principle. 2n the sa'e
0reath, however, the respondent would ar)ue, a)ain followin) the R&CCs line, that it was prevented fro' filin)
a protest inas'uch as the )overn'ent had not issued the 2'ple'entin) Rules and Re)ulations (2RR of R.A.
$o. %88F to render the protest 'echanis' of the law operative for forei)n!funded proDects.
&he Court is una0le to lend concurrence to the trial courtCs and respondentCs positions on the interpla* of the
protest and Durisdictional issues. As 'a* 0e noted, the afore7uoted 3ection JJ of R.A. $o. %88F sets three (E
re7uire'ents that 'ust 0e 'et 0* the part* desirin) to protest the decision of the ,ids and Awards Co''ittee
(,AC. &hese are- 8 the protest 'ust 0e in writin), in the for' of a verified position paper< 2 the protest 'ust
0e su0'itted to the head of the procurin) entit*< and E the pa*'ent of a non!refunda0le protest fee. &he
Durisdictional caveat that authoriAes courts to assu'e or, inversel*, precludes courts fro' assu'in),
Durisdiction over suits assailin) the ,ACCs decisions is in turn found in the succeedin) 3ection J8 which
provides that the courts would have Durisdiction over such suits onl* if the protest procedure has alread* 0een
co'pleted.
RespondentCs letters of Ma* 88, 200L
2F
and +une 28, 200L
2J
in which it re7uested reconsideration of its
dis7ualification cannot plausi0l* 0e )iven the status of a protest in the conte6t of the afore7uoted provisions of
R.A. $o. %88F. /or one, neither of the letter!re7uest was addressed to the head of the procurin) entit*, in this
case the 1ep(d 3ecretar* or the head of the 1,M Procure'ent 3ervice, as re7uired 0* law. /or another, the
sa'e letters were unverified. And not to 0e overloo@ed of course is the fact that the third protest!co'pletin)
re7uire'ent, i.e., pa*'ent of protest fee, was not co'plied with.
"iven the a0ove perspective, it cannot reall* 0e said that the respondent availed itself of the protest
procedure prescri0ed under 3ection JJ of R.A. $o. %88F 0efore )oin) to the R&C of Manila via a petition for
certiorari. 3tated a 0it differentl*, respondent sou)ht Dudicial intervention even 0efore dul* co'pletin) the
protest process. .ence, its filin) of SP Civil Case 4o. 6L5::L6:6 was precipitate. #r, as the law itself would
put it, cases that are filed in violation of the protest process 4shall 0e dis'issed for lac@ of Durisdiction.4
Considerin) that the respondentCs petition in R&C Manila was actuall* filed in violation of the protest process
set forth in 3ection JJ of R.A. $o. %88F, that court could not have lawfull* ac7uired Durisdiction over the
su0Dect 'atter of this case. 2n fact, 3ection J8, supra, of R.A. $o. %88F e'phaticall* states that cases filed in
violation of the protest process therein provided 4shall 0e dis'issed for lac@ of Durisdiction.4
8LE
2t is to 0e stressed that the protest 'echanis' adverted to is a 0uilt!in ad'inistrative re'ed* e'0odied in the
law itself. 2t was not prescri0ed 0* an ad'inistrative a)enc* tas@ed with i'ple'entin) a statute throu)h the
'ediu' of interpretative circulars or 0ulletins. 2)norin) thus this ad'inistrative re'ed* would 0e to def* the
law itself.
2t will not avail the respondent an* to ar)ue that the a0sence of an 2RR to 'a@e the protest 'echanis' under
R.A. $o. %88F 0eco'e operative for forei)n!funded proDects was what prevented it fro' co'pl*in) with the
protest procedure. As the last sentence of the afore!7uoted 3ection JJ of R.A. $o. %88F is couched, the
specific office of an 2RR for forei)n!funded proDect, vis!V!vis the 'atter of protest, is li'ited to fi6in) 4the
a'ount of the protest fee and the periods durin) which the protest 'a* 0e filed and resolved.4 3urel*, the
a0sence of provisions on protest fee and re)le'entar* period does not si)nif* the defer'ent of the
i'ple'entation of the protest 'echanis' as a condition sine 7ua non to resort to Dudicial relief. As applied to
the present case, the respondent had to file a protest and pursue it until its co'pletion 0efore )oin) to court.
&here was hardl* an* need to wait for the specific filin) period to 0e prescri0ed 0* the 2RR 0ecause the
protest, as a 'atter of necessit*, has to 0e lod)ed 0efore court action.
$either is it necessar* that the a'ount of protest fee 0e prescri0ed first. Respondent could ver* well have
proceeded with its protest without pa*in) the re7uired protest fee, re'ittin) the proper a'ount once the
appropriate 2RR fi6ed the protest fee.
&here 'a* perhaps 0e roo' for rela6in) the prescription on protest if a 0ona fide atte'pt to co'pl* with le)al
re7uire'ents had 0een 'ade. ,ut the fact alone that the respondent did not even su0'it a verified position
paper 0* wa* of protest ar)ues a)ainst such plausi0ilit*. 3i)nificantl*, none of the reconsideration!see@in)
letters of the respondent advert to the protest procedure under 3ection JJ of R.A. $o. %88F, even 0* wa* of
notin) that it was at a loss as to the inoperativeness of such provision in the li)ht of the a0sence of an 2RR.
2n its petition 0efore the Manila R&C, the respondent verita0l* ad'itted to not co'pl*in) with the protest
re7uire'ent, al0eit with the la'e e6cuse that it was effectivel* 0arred fro' co'pl*in) with the re7uired
ad'inistrative re'edies of protest. $either did the respondent then ar)ue that it was not a0le to co'pl* due to
the a0sence of an 2RR for forei)n! funded proDects.
At an* rate, there is, in fact a set of i'ple'entin) rules and re)ulations, deno'inated as 42RR!A,4 issued on
+ul* 88, 200E 0* the "PP, and the +oint Con)ressional #versi)ht Co''ittee, 3ection JJ.8
2L
of which
provides that prior to a resort to protest, the a))rieved part* 'ust first file a 'otion for reconsideration of the
decision of the ,AC. 2t is onl* after the ,AC itself denies reconsideration that the protest, acco'panied 0* a
fi6ed protest fee, shall 0e filed within the period defined in the 2RR.
2t 'a* 0e that 2RR!A specificall* defines its covera)e to 4all full* do'esticall*!funded procure'ent activities,4
it 0ein) also provided that 4forei)n!funded procure'ent activities shall 0e the su0Dect of a su0se7uent
issuance.4
27
.owever, a si'ilarl* drawn ar)u'ent involvin) 2RR!A was set aside in A0a*a v. (0dane,
28
a
case involvin) 9oan A)ree'ent $o. P.!P20F entered into 0* and 0etween the RP and the +apan ,an@ for
2nternational Cooperation (+,2C for the i'ple'entation 1PW. Contract Pac@a)e $o. 2 (CP 2. Wrote the
Court in A0a*a-
Ad'ittedl*, 2RR!A covers onl* full* do'esticall*!funded procure'ent activities fro' procure'ent plannin) up
to contract i'ple'entation and that it is e6pressl* stated that 2RR!, for forei)n!funded procure'ent activities
shall 0e su0Dect of a su0se7uent issuance. $onetheless, there is no reason wh* the polic* 0ehind 3ection 77
of 2RR!A cannot 0e applied to forei)n!funded procure'ent proDects li@e the CP 2 proDect. 3tated differentl*, the
polic* on the prospective or non!retroactive application of RA %88F with respect to do'esticall*!funded
procure'ent proDects cannot 0e an* different with respect to forei)n!funded procure'ent proDects M. 2t would
0e incon)ruous, even a0surd, to provide for the prospective application of RA %88F with respect to
do'esticall*!funded procure'ent proDects and, on the other hand, as ur)ed 0* the petitioners, appl* RA %88F
8LF
retroactivel* with respect to forei)n!funded procure'ent proDects. &o 0e sure, the law'a@ers could not have
intended such an a0surdit*.
As in A0a*a, there reall* should 0e no reason wh* the polic* 0ehind 3ection JJ.l of 2RR!A on the procedure
for protest cannot 0e applied, even analo)ousl*, to forei)n!funded procure'ent proDects, such as those in this
case. 2ndeed, there is no discerna0le Dustification wh* a different procedure should o0tain with respect to
forei)n!funded procure'ent underta@in)s as opposed to a locall* funded proDect, and certainl* there is no
concrete foundation in R.A. %88F to indicate that Con)ress intended such a variance in the protest procedure.
&he Manila R&C, in )rantin) the petition for certiorari and prohi0ition, stated the o0servation that there was
4su0stantial co'pliance of the re7uire'ent of protest.4
2%
?et, it is not even clear that respondent =olonwel, in
its dealin)s with the 2A,AC, particularl* in see@in) reconsideration of its decision, was even aware of the
protest re7uire'ents. What is 0e*ond dispute, however, is that courts are precluded 0* e6press le)islative
co''and fro' entertainin) protests fro' decisions of the ,AC. What Con)ress conte6tuall* intended under
the pre'ises was that not onl* would there 0e a distinct ad'inistrative )rievance 'echanis' to 0e o0served
in assailin) decisions of the ,AC, 0ut that courts would 0e without Durisdiction over actions i'pu)nin)
decisions of the ,ACs, unless, in the 'eanti'e, the protest procedure 'andated under 3ection JJ of R.A.
$o. %88F is 0rou)ht to its lo)ical co'pletion.
2t is Con)ress 0* law, not the courts 0* discretion, which defines the courtCs Durisdiction not otherwise
conferred 0* the Constitution. &hrou)h the sa'e 'ediu', Con)ress also draws the para'eters in the
e6ercise of the functions of ad'inistrative a)encies. 3ection JJ of R.A. $o. %88F could not 0e an* clearer
when it 'andates the 'anner of protestin) the decision of 0ids and awards co''ittees. 3i'ilarl*, there can
0e no 7ui00lin) that, under 3ection J8 of the sa'e law, courts do not have Durisdiction over decisions of the
,ACs unless the appropriate protest has 0een 'ade and co'pleted. &he a0sence of the 2RR does not detract
fro' the realit* that R.A. $o. %88F re7uires a protest to 0e filed under the for' therein prescri0ed.
"iven the a0ove perspective, the Manila R&C had no Durisdiction over respondent =olonwelCs petition for certiorari and
prohi0ition. Accordin)l*, it ou)ht to have )ranted herein petitionersC 'otion to dis'iss, 0ut it did not. Worse, the court
even added another la*er to its )rievous error when it )ranted the respondentCs 0asic petition for certiorari and prohi0ition
itself.
Co'poundin) the Manila R&CCs error is its havin) proceeded with 3P Civil Case $o. 0L!88L080 even without ac7uirin)
Durisdiction over Watana. As 'a* 0e recalled, the respondent, in its petition 0efore the R&C, i'pleaded Watana as one of
the defendants, the latter havin) 0een awarded 0* the 2A,AC 3i0i@a 2 and .e=a3i F \J. &he records, however, show
that Watana was not served with su''ons. &he 3heriffCs Return dated #cto0er 88, 200L, noted that su''ons was not
served on Watana and another defendant at 4$o. 8288 ". Araneta Avenue cor. Ma. Clara 3treet, KueAon Cit*, on the
)round that said co'panies were not holdin) office thereat accordin) to Mr. Marvin :. Catacutan.4
&here can 0e no dispute that Watana is an indispensa0le part* to the respondentCs petition in 3P Civil Case $o. 0L!
88L080, =olonwel havin) therein assailed and sou)ht to nullif* the contract!award 'ade in its and :i0alCs favor.
2ndispensa0le parties are those with such interest in the controvers* that a final decree would necessaril* affect their
ri)hts so that courts cannot proceed without their presence.
E0
All of the' 'ust 0e included in a suit for an action to
prosper or for a final deter'ination to 0e had.
E8
Watana, to repeat, was never served with su''ons< neither did it
participate in the proceedin)s 0elow. Plainl*, then, the Manila R&C did not ac7uire Durisdiction over one of the
indispensa0le parties, the Doinder of who' is co'pulsor*.
E2
With the fore)oin) dis7uisitions, the Court finds it unnecessar* to even dwell on the other points raised in this
consolidated cases. 2n the li)ht, however, of the Manila R&CCs holdin) that the W, "uidelines on Procure'ent under
2,R1 9oans do not in an* wa* provided superiorit* over local laws on the 'atter,
EE
the Court wishes to state the followin)
o0servation-
As 'a* 0e recalled, all interested 0idders were put on notice that the 1ep(dCs procure'ent proDect was to 0e funded
fro' the proceeds of the RP!2,R1 9oan $o. 7888!P.,
EF
3ection 8, 3chedule F of which stipulates that 4"oods M shall
0e procured in accordance with the provisions of 3ection 8
EJ
of the P"uidelines for Procure'ent under 2,R1 9oans.C4
8LJ
Accordin)l*, the 2A,AC conducted the 0iddin) for the suppl* of te6t0oo@s and 'anuals 0ased on the W, "uidelines,
particularl* the provisions on 2nternational Co'petitive ,iddin) (2C,. 3ection F of R.A. $o. %88F e6pressl* reco)niAed
this particular process, thus-
3ec. F. 3cope and application. ! &his Act shall appl* to the Procure'ent of M "oods and Consultin) 3ervices,
re)ardless of source of funds, whether local or forei)n 0* all 0ranches and instru'entalities of )overn'ent M. An* treat*
or international or e6ecutive a)ree'ent affectin) the su0Dect 'atter of this Act to which the Philippine )overn'ent is a
si)nator* shall 0e o0served. (('phasis added.
&he 7uestion as to whether or not forei)n loan a)ree'ents with international financial institutions, such as 9oan $o.
7888!P., parta@e of an e6ecutive or international a)ree'ent within the purview of the 3ection F of R.A. $o. %88F, has
0een answered 0* the Court in the affir'ative in A0a*a, supra. 3i)nificantl*, A0a*a declared that the RP!+,2C loan
a)ree'ent was to 0e of )overnin) application over the CP 2 proDect and that the +,2C Procure'ent "uidelines, as
stipulated in the loan a)ree'ent, shall pri'aril* )overn the procure'ent of )oods necessar* to i'ple'ent the 'ain
proDect.
5nder the funda'ental international law principle of pacta sunt servanda,
EL
which is in fact e'0odied in the afore!7uoted
3ection F of R.A. $o. %88F, the RP, as 0orrower, 0ound itself to perfor' in )ood faith its duties and o0li)ation under
9oan $o. 7888! P.. Appl*in) this postulate in the concrete to this case, the 2A,AC was le)all* o0li)ed to co'pl* with, or
accord pri'ac* to, the W, "uidelines on the conduct and i'ple'entation of the 0iddin)Iprocure'ent process in
7uestion.
W.(R(/#R(, the instant consolidated petitions are GRAN.ED and the assailed #rder dated 1ece'0er F, 200L of the
Re)ional &rial Court of Manila in its SP Case 4o. 6L5::L6:6 is $5992/2(1 and 3(& A321(.
$o cost. 3# #R1(R(1.
G.R. No. 1A0?1D J+"4 1D, 2008
AL7A6AN CI.IZEN* AC.ION !AR.6 'IAL7A6ANI(, !A57AN*ANG LA.I!-NAN NG 5GA *A5A@AN
*A LANA6-NAN 'I!L*LI(, ALLIANCE O8 !ROGRE**IVE LA7OR 'IA!LI(, VICEN.E A. 8A7E,
ANGELI.O R. 5ENDOZA, 5AN-EL !. G-IA57AO, RO*E 7EA.RIH CR-Z3ANGELE*, CONG.
LORENZO R. .ANADA III, CONG. 5ARIO JO6O AG-JA, CONG. LORE.A ANN !. RO*ALE*, CONG.
ANA .@ERE*IA @ON.IVERO*37ARAG-EL, AND CONG. E55AN-EL JOEL J. VILLAN-EVA,
Petitioners,
vs.
.@O5A* G. AG-INO, i$ hi1 c%#%ci&4 %1 -$,er1ecre&%r4 o &he De#%r&me$& o .r%,e %$, I$,+1&r4 'D.I(
%$, Ch%irm%$ %$, Chie De"e2%&e o &he !hi"i##i$e Coor,i$%&i$2 Commi&&ee '!CC( or &he J%#%$3
!hi"i##i$e1 Eco$omic !%r&$er1hi# A2reeme$&, ED*EL .. C-*.ODIO, i$ hi1 c%#%ci&4 %1
-$,er1ecre&%r4 o &he De#%r&me$& o 8orei2$ A%ir1 'D8A( %$, Co3Ch%ir o &he !CC or &he J!E!A,
EDGARDO A7ON, i$ hi1 c%#%ci&4 %1 Ch%irm%$ o &he .%ri Commi11io$ %$, "e%, $e2o&i%&or or
Com#e&i&io$ !o"ic4 %$, Emer2e$c4 5e%1+re1 o &he J!E!A, 5ARGARI.A *ONGCO, i$ her c%#%ci&4 %1
A11i1&%$& Direc&or3Ge$er%" o &he N%&io$%" Eco$omic De0e"o#me$& A+&hori&4 'NEDA( %$, "e%,
$e2o&i%&or or .r%,e i$ *er0ice1 %$, Coo#er%&io$ o &he J!E!A, 5ALO- 5ON.ERO, i$ her c%#%ci&4 %1
8orei2$ *er0ice Oicer I, Oice o &he -$,er1ecre&%r4 or I$&er$%&io$%" Eco$omic Re"%&io$1 o &he D8A
%$, "e%, $e2o&i%&or or &he Ge$er%" %$, 8i$%" !ro0i1io$1 o &he J!E!A, ERLINDA ARCELLANA, i$ her
c%#%ci&4 %1 Direc&or o &he 7o%r, o I$0e1&me$&1 %$, "e%, $e2o&i%&or or .r%,e i$ Goo,1 'Ge$er%"
R+"e1( o &he J!E!A, RAG-EL EC@AG-E, i$ her c%#%ci&4 %1 "e%, $e2o&i%&or or R+"e1 o Ori2i$ o &he
J!E!A, GALLAN. *ORIANO, i$ hi1 oici%" c%#%ci&4 %1 De#+&4 Commi11io$er o &he 7+re%+ o
C+1&om1 %$, "e%, $e2o&i%&or or C+1&om1 !roce,+re1 %$, !%#er"e11 .r%,i$2 o &he J!E!A, 5A.
L-I*A GIGE..E I5!ERIAL, i$ her c%#%ci&4 %1 Direc&or o &he 7+re%+ o Loc%" Em#"o4me$& o &he
De#%r&me$& o L%bor %$, Em#"o4me$& 'DOLE( %$, "e%, $e2o&i%&or or 5o0eme$& o N%&+r%" !er1o$1 o
&he J!E!A, !A*C-AL DE G-Z5AN, i$ hi1 c%#%ci&4 %1 Direc&or o &he 7o%r, o I$0e1&me$&1 %$, "e%,
$e2o&i%&or or I$0e1&me$& o &he J!E!A, JE*-* 5O.OO5-LL, i$ hi1 c%#%ci&4 %1 Direc&or or &he
7+re%+ o !ro,+c& *&%$,%r,1 o &he D.I %$, "e%, $e2o&i%&or or 5+&+%" Reco2$i&io$ o &he J!E!A,
8LL
LO-IE CALVARIO, i$ hi1 c%#%ci&4 %1 "e%, $e2o&i%&or or I$&e""ec&+%" !ro#er&4 o &he J!E!A, EL5ER @.
DORADO, i$ hi1 c%#%ci&4 %1 Oicer3i$3Ch%r2e o &he Go0er$me$& !roc+reme$& !o"ic4 7o%r, .ech$ic%"
*+##or& Oice, &he 2o0er$me$& %2e$c4 &h%& i1 "e%,i$2 &he $e2o&i%&io$1 o$ Go0er$me$& !roc+reme$&
o &he J!E!A, RICARDO V. !ARA*, i$ hi1 c%#%ci&4 %1 Chie *&%&e Co+$1e" o &he De#%r&me$& o
J+1&ice 'DOJ( %$, "e%, $e2o&i%&or or Di1#+&e A0oi,%$ce %$, *e&&"eme$& o &he J!E!A, ADONI*
*-LI., i$ hi1 c%#%ci&4 %1 "e%, $e2o&i%&or or &he Ge$er%" %$, 8i$%" !ro0i1io$1 o &he J!E!A,
ED-ARDO R. ER5I.A, i$ hi1 c%#%ci&4 %1 E;ec+&i0e *ecre&%r4, %$, AL7ER.O RO5-LO, i$ hi1 c%#%ci&4
%1 *ecre&%r4 o &he D8A,
S
Respondents.
Petitioners B non!)overn'ent or)aniAations, Con)resspersons, citiAens and ta6pa*ers B see@ via the present
petition for 'anda'us and prohi0ition to o0tain fro' respondents the full te6t of the +apan!Philippines
(cono'ic Partnership A)ree'ent (+P(PA includin) the Philippine and +apanese offers su0'itted durin) the
ne)otiation process and all pertinent attach'ents and anne6es thereto.
Petitioners Con)ress'en 9orenAo R. &aZada 222 and Mario +o*o A)uDa filed on +anuar* 2J, 200J .ouse
Resolution $o. JJ8 callin) for an in7uir* into the 0ilateral trade a)ree'ents then 0ein) ne)otiated 0* the
Philippine )overn'ent, particularl* the +P(PA. &he Resolution 0eca'e the 0asis of an in7uir* su0se7uentl*
conducted 0* the .ouse 3pecial Co''ittee on "lo0aliAation (the .ouse Co''ittee into the ne)otiations of
the +P(PA.
2n the course of its in7uir*, the .ouse Co''ittee re7uested herein respondent 5ndersecretar* &o'as A7uino
(5sec. A7uino, Chair'an of the Philippine Coordinatin) Co''ittee created under (6ecutive #rder $o. 28E
(4Creation of A Philippine Coordinatin) Co''ittee to 3tud* the /easi0ilit* of the +apan!Philippines (cono'ic
Partnership A)ree'ent4
8
to stud* and ne)otiate the proposed +P(PA, and to furnish the Co''ittee with a
cop* of the latest draft of the +P(PA. 5sec. A7uino did not heed the re7uest, however.
Con)ress'an A)uDa later re7uested for the sa'e docu'ent, 0ut 5sec. A7uino, 0* letter of $ove'0er 2,
200J, replied that the Con)ress'an shall 0e provided with a cop* thereof 4once the ne)otiations are
co'pleted and as soon as a thorou)h le)al review of the proposed a)ree'ent has 0een conducted.4
2n a separate 'ove, the .ouse Co''ittee, throu)h Con)ress'an .er'inio ". &eves, re7uested (6ecutive
3ecretar* (duardo (r'ita to furnish it with 4all docu'ents on the su0Dect includin) the latest draft of the
proposed a)ree'ent, the re7uests and offers etc.4
2
Actin) on the re7uest, 3ecretar* (r'ita, 0* letter of +une
2E, 200J, wrote Con)ress'an &eves as follows-
2n its letter dated 8J +une 200J (cop* enclosed, GtheH 1Gepart'ent ofH /Gorei)nH AGffairsH e6plains that &he
Commi&&eeE1 reF+e1& &o be +r$i1he, %"" ,oc+me$&1 o$ &he J!E!A m%4 be ,iic+"& &o %ccom#"i1h %&
&hi1 &ime, 1i$ce &he #ro#o1e, A2reeme$& h%1 bee$ % 9or< i$ #ro2re11 or %bo+& &hree 4e%r1. A cop* of
the draft +P(PA will however 0e forwarded to the Co''ittee as soon as the te6t thereof is settled and
co'plete. (('phasis supplied
Con)ress'an A)uDa also re7uested $(1A 1irector!"eneral Ro'ulo $eri and &ariff Co''ission Chair'an
(d)ardo A0on, 0* letter of +ul* 8, 200J, for copies of the latest te6t of the +P(PA.
Chair'an A0on replied, however, 0* letter of +ul* 82, 200J that the &ariff Co''ission does not have a cop*
of the docu'ents 0ein) re7uested, al0eit he was certain that 5sec. A7uino would provide the Con)ress'an
with a cop* 4once the ne)otiation is co'pleted.4 And 0* letter of +ul* 88, 200J, $(1A Assistant 1irector!
"eneral Mar)arita R. 3on)co infor'ed the Con)ress'an that his re7uest addressed to 1irector!"eneral $eri
had 0een forwarded to 5sec. A7uino who would 0e 4in the 0est position to respond4 to the re7uest.
2n its third hearin) conducted on Au)ust E8, 200J, the .ouse Co''ittee resolved to issue a su0poena for the
'ost recent draft of the +P(PA, 0ut the sa'e was not pursued 0ecause 0* Co''ittee Chair'an
Con)ress'an &evesC infor'ation, then .ouse 3pea@er +ose de :enecia had re7uested hi' to hold in
8L7
a0e*ance the issuance of the su0poena until the President )ives her consent to the disclosure of the
docu'ents.
E
A'id speculations that the +P(PA 'i)ht 0e si)ned 0* the Philippine )overn'ent within 1ece'0er 200J, the
present petition was filed on 1ece'0er %, 200J.
F
&he a)ree'ent was to 0e later si)ned on 3epte'0er %,
200L 0* President "loria Macapa)al!Arro*o and +apanese Pri'e Minister +unichiro =oiAu'i in .elsin@i,
/inland, followin) which the President endorsed it to the 3enate for its concurrence pursuant to Article :22,
3ection 28 of the Constitution. &o date, the +P(PA is still 0ein) deli0erated upon 0* the 3enate.
&he +P(PA, which will 0e the first bi"%&er%" free trade a)ree'ent to 0e entered into 0* the Philippines with
another countr* in the event the 3enate )rants its consent to it, covers a 0road ran)e of topics which
respondents enu'erate as follows- trade in )oods, rules of ori)in, custo's procedures, paperless tradin),
trade in services, invest'ent, intellectual propert* ri)hts, )overn'ent procure'ent, 'ove'ent of natural
persons, cooperation, co'petition polic*, 'utual reco)nition, dispute avoidance and settle'ent, i'prove'ent
of the 0usiness environ'ent, and )eneral and final provisions.
J
While the final te6t of the +P(PA has now 0een 'ade accessi0le to the pu0lic since 3epte'0er 88, 200L,
L
respondents do not dispute that, at the ti'e the petition was filed up to the filin) of petitionersC Repl* B when
the +P(PA was still 0ein) ne)otiated B the initial drafts thereof were @ept fro' pu0lic view.
,efore delvin) on the su0stantive )rounds relied upon 0* petitioners in support of the petition, the Court finds
it necessar* to first resolve so'e 'aterial procedural issues.
*&%$,i$2
/or a petition for 'anda'us such as the one at 0ar to 0e )iven due course, it 'ust 0e instituted 0* a part*
a))rieved 0* the alle)ed inaction of an* tri0unal, corporation, 0oard or person which unlawfull* e6cludes said
part* fro' the enDo*'ent of a le)al ri)ht.
7
Respondents den* that petitioners have such standin) to sue. 4G2Hn
the interest of a speed* and definitive resolution of the su0stantive issues raised,4 however, respondents
consider it sufficient to cite a portion of the rulin) in Pimentel v. 'ffice of ,2ecutive Secretary
8
which
e'phasiAes the need for a 4personal sta@e in the outco'e of the controvers*4 on 7uestions of standin).
2n a petition anchored upon the ri)ht of the people to infor'ation on 'atters of pu0lic concern, which is a
pu0lic ri)ht 0* its ver* nature, petitioners need not show that the* have an* le)al or special interest in the
result, it 0ein) sufficient to show that the* are citiAens and, therefore, part of the )eneral pu0lic which
possesses the ri)ht.
%
As the present petition is anchored on the ri)ht to infor'ation and petitioners are all
suin) in their capacit* as citiAens and )roups of citiAens includin) petitioners!'e'0ers of the .ouse of
Representatives who additionall* are suin) in their capacit* as such, the standin) of petitioners to file the
present suit is )rounded in Durisprudence.
5oo&$e11
Considerin), however, that 4GtHhe principal relief petitioners are pra*in) for is the disclosure of the contents of
the +P(PA prior to its finaliAation 0etween the two 3tates parties,4
80
pu0lic disclosure of the te6t of the +P(PA
after its si)nin) 0* the President, durin) the pendenc* of the present petition, has 0een lar)el* rendered 'oot
and acade'ic.
With the 3enate deli0erations on the +P(PA still pendin), the a)ree'ent as it now stands cannot *et 0e
considered as final and 0indin) 0etween the two 3tates. Article 8LF of the +P(PA itself provides that the
a)ree'ent does not ta@e effect i''ediatel* upon the si)nin) thereof. /or it 'ust still )o throu)h the
procedures re7uired 0* the laws of each countr* for its entr* into force, viA-
Article 8LF (ntr* into /orce
8L8
&his A)ree'ent shall enter into force on the thirtieth da* after the date on which the "overn'ents of the
Parties e6chan)e diplo'atic notes infor'in) each other &h%& &heir re1#ec&i0e "e2%" #roce,+re1 $ece11%r4
or e$&r4 i$&o orce o &hi1 A2reeme$& h%0e bee$ com#"e&e,. 2t shall re'ain in force unless ter'inated as
provided for in Article 8LJ.
88
(('phasis supplied
President Arro*oCs endorse'ent of the +P(PA to the 3enate for concurrence is part of the le)al procedures
which 'ust 0e 'et prior to the a)ree'entCs entr* into force.
&he te6t of the +P(PA havin) then 0een 'ade accessi0le to the pu0lic, the petition has 0eco'e 'oot and
acade'ic to the e6tent that it see@s the disclosure of the 4full te6t4 thereof.
&he petition is not entirel* 'oot, however, 0ecause petitioners see@ to o0tain, not 'erel* the te6t of the
+P(PA, 0ut also the Philippine and +apanese offers in the course of the ne)otiations.
82
A discussion of the su0stantive issues, insofar as the* i'pin)e on petitionersC de'and for access to the
Philippine and +apanese offers, is thus in order.
Gro+$,1 re"ie, +#o$ b4 #e&i&io$er1
Petitioners assert, first, that the refusal of the )overn'ent to disclose the docu'ents 0earin) on the +P(PA
ne)otiations violates their ri)ht to infor'ation on 'atters of pu0lic concern
8E
and contravenes other
constitutional provisions on transparenc*, such as that on the polic* of full pu0lic disclosure of all transactions
involvin) pu0lic interest.
8F
3econd, the* contend that non!disclosure of the sa'e docu'ents under'ines their
ri)ht to effective and reasona0le participation in all levels of social, political, and econo'ic decision!'a@in).
8J
9astl*, the* proffer that divul)in) the contents of the +P(PA onl* after the a)ree'ent has 0een concluded will
effectivel* 'a@e the 3enate into a 'ere ru00er sta'p of the (6ecutive, in violation of the principle of
separation of powers.
3i)nificantl*, the )rounds relied upon 0* petitioners for the disclosure of the "%&e1& &e;& of the +P(PA are,
e6cept for the last, the sa'e as those cited for the disclosure of the Philippine and +apanese oer1.
&he first two )rounds relied upon 0* petitioners which 0ear on the 'erits of respondentsC clai' of privile)e
shall 0e discussed. &he last, 0ein) purel* speculator* )iven that the 3enate is still deli0eratin) on the +P(PA,
shall not.
.he J!E!A i1 % m%&&er o #+b"ic co$cer$
&o 0e covered 0* the ri)ht to infor'ation, the infor'ation sou)ht 'ust 'eet the threshold re7uire'ent that it
0e a 'atter of pu0lic concern. Apropos is the teachin) of /egaspi v. Civil Service Commission-
2n deter'inin) whether or not a particular infor'ation is of pu0lic concern there is no ri)id test which can 0e
applied. PPu0lic concernC li@e Ppu0lic interestC is a ter' that eludes e6act definition. ,oth ter's e'0race a
0road spectru' of su0Dects which the pu0lic 'a* want to @now, either 0ecause these directl* affect their lives,
or si'pl* 0ecause such 'atters naturall* arouse the interest of an ordinar* citiAen. 2n the final anal*sis, it is
for the courts to deter'ine on a case 0* case 0asis whether the 'atter at issue is of interest or i'portance, as
it relates to or affects the pu0lic.
8L
(5nderscorin) supplied
/ro' the nature of the +P(PA as an international trade a)ree'ent, it is evident that the Philippine and
+apanese offers su0'itted durin) the ne)otiations towards its e6ecution are 'atters of pu0lic concern. &his,
respondents do not dispute. &he* onl* clai' that diplo'atic ne)otiations are covered 0* the doctrine of
e;ec+&i0e #ri0i"e2e, thus constitutin) an e6ception to the ri)ht to infor'ation and the polic* of full pu0lic
disclosure.
8L%
Re1#o$,e$&1E c"%im o #ri0i"e2e
2t is well!esta0lished in Durisprudence that neither the ri)ht to infor'ation nor the polic* of full pu0lic disclosure
is a0solute, there 0ein) 'atters which, al0eit of pu0lic concern or pu0lic interest, are reco)niAed as privile)ed
in nature. &he t*pes of infor'ation which 'a* 0e considered privile)ed have 0een elucidated in Almonte v.
Gas!ueE,
87
ChaveE v. PC)),
88
ChaveE v. Public ,stateFs Authority,
8%
and 'ost recentl* in Senate v. ,rmita
20
where the Court reaffir'ed the validit* of the doctrine of e6ecutive privile)e in this Durisdiction and dwelt on its
scope.
Whether a clai' of e6ecutive privile)e is valid depends on the )round invo@ed to Dustif* it and the conte6t in
which it is 'ade.
28
2n the present case, the )round for respondentsC clai' of privile)e is set forth in their
Comme$&, viA-
6 6 6 &he cate)ories of infor'ation that 'a* 0e considered privile)ed includes 'atters of diplo'atic character
and under ne)otiation and review. 2n this case, the privile)ed character of the diplo'atic ne)otiations has
0een cate)oricall* invo@ed and clearl* e6plained 0* respondents particularl* respondent 1&2 3enior
5ndersecretar*.
&he docu'ents on the proposed +P(PA as well as the te6t which is su0Dect to ne)otiations and le)al review
0* the parties fall under the e6ceptions to the ri)ht of access to infor'ation on 'atters of pu0lic concern and
polic* of pu0lic disclosure. &he* co'e within the covera)e of e6ecutive privile)e. At the ti'e when the
Co''ittee was re7uestin) for copies of such docu'ents, the ne)otiations were on)oin) as the* are still now
and the te6t of the proposed +P(PA is still uncertain and su0Dect to chan)e. Considerin) the status and nature
of such docu'ents then and now, these are evidentl* covered 0* e6ecutive privile)e consistent with e6istin)
le)al provisions and settled Durisprudence.
Practical and strate)ic considerations li@ewise counsel a)ainst the disclosure of the 4rollin) te6ts4 which 'a*
under)o radical chan)e or portions of which 'a* 0e totall* a0andoned. /urther'ore, the $e2o&i%&io$1 o &he
re#re1e$&%&i0e1 o &he !hi"i##i$e1 %1 9e"" %1 o J%#%$ m+1& be %""o9e, &o e;#"ore %"&er$%&i0e1 i$ &he
co+r1e o &he $e2o&i%&io$1 i$ &he 1%me m%$$er %1 >+,ici%" ,e"iber%&io$1 %$, 9or<i$2 ,r%&1 o o#i$io$1
%re %ccor,e, 1&ric& co$i,e$&i%"i&4.
22
(('phasis and underscorin) supplied
&he )round relied upon 0* respondents is thus not si'pl* that the infor'ation sou)ht involves a diplo'atic
'atter, 0ut that it pertains to diplo'atic ne)otiations then in pro)ress.
!ri0i"e2e, ch%r%c&er o ,i#"om%&ic $e2o&i%&io$1
&he privile)ed character of diplo'atic ne)otiations has 0een reco)niAed in this Durisdiction. 2n discussin) valid
li'itations on the ri)ht to infor'ation, the Court in ChaveE v. PC)) held that 4infor'ation on inter!)overn'ent
e6chan)es prior to the conclusion of treaties and e6ecutive a)ree'ents 'a* 0e su0Dect to reasona0le
safe)uards for the sa@e of national interest.4
2E
(ven earlier, the sa'e privile)e was upheld in PeopleFs
(ovement for Press %reedom $P(P%& v. (anglapus
2F
wherein the Court discussed the reasons for the
privile)e in 'ore precise ter's.
2n P(P% v. (anglapus, the therein petitioners were see@in) infor'ation fro' the PresidentCs representatives
on the state of the then on!)oin) ne)otiations of the RP!53 Militar* ,ases A)ree'ent.
2J
&he Court denied the
petition, stressin) that 41ecrec4 o $e2o&i%&io$1 9i&h orei2$ co+$&rie1 i1 $o& 0io"%&i0e of the constitutional
provisions of freedo' of speech or of the press nor o &he ree,om o %cce11 &o i$orm%&io$.4 &he
Resolution went on to state, thus-
.he $%&+re o ,i#"om%c4 reF+ire1 ce$&r%"i:%&io$ o %+&hori&4 %$, e;#e,i&io$ o ,eci1io$ 9hich %re
i$here$& i$ e;ec+&i0e %c&io$. A$o&her e11e$&i%" ch%r%c&eri1&ic o ,i#"om%c4 i1 i&1 co$i,e$&i%" $%&+re.
Althou)h 'uch has 0een said a0out 4open4 and 4secret4 diplo'ac*, with dispara)e'ent of the latter,
870
3ecretaries of 3tate .u)hes and 3ti'son have clearl* anal*Aed and Dustified the practice. 2n the words of Mr.
3ti'son-
4A com#"ic%&e, $e2o&i%&io$ . . . c%$$o& be c%rrie, &hro+2h 9i&ho+& m%$4, m%$4 #ri0%&e &%"<1 %$,
,i1c+11io$, m%$ &o m%$) m%$4 &e$&%&i0e 1+22e1&io$1 %$, #ro#o1%"1. De"e2%&e1 rom o&her co+$&rie1
come %$, &e"" 4o+ i$ co$i,e$ce o &heir &ro+b"e1 %& home %$, o &heir ,iere$ce1 9i&h o&her co+$&rie1
%$, 9i&h o&her ,e"e2%&e1) &he4 &e"" 4o+ o 9h%& &he4 9o+", ,o +$,er cer&%i$ circ+m1&%$ce1 %$, 9o+",
$o& ,o +$,er o&her circ+m1&%$ce1. . . I &he1e re#or&1 . . . 1ho+", become #+b"ic . . . 9ho 9o+", e0er
&r+1& Americ%$ De"e2%&io$1 i$ %$o&her co$ere$ceR (5nited 3tates 1epart'ent of 3tate, Press Releases,
+une 7, 8%E0, pp. 282!28F..4
6 6 6 6
.here i1 reF+e$& cri&ici1m o &he 1ecrec4 i$ 9hich $e2o&i%&io$ 9i&h orei2$ #o9er1 o$ $e%r"4 %""
1+b>ec&1 i1 co$cer$e,. .hi1, i& i1 c"%ime,, i1 i$com#%&ib"e 9i&h &he 1+b1&%$ce o ,emocr%c4. As
e6pressed 0* one writer, 42t can 0e said that there is no 'ore ri)id s*ste' of silence an*where in the world.4
((.+. ?oun), 9oo@in) ,ehind the Censorship, +. ,. 9ippincott Co., 8%E8 President Wilson in startin) his
efforts for the conclusion of the World War declared that we 'ust have 4open covenants, openl* arrived at.4
.e 7uic@l* a0andoned his thou)ht.
$o one who has studied the 7uestion 0elieves that such a 'ethod of pu0licit* is possi0le. I$ &he mome$& &h%&
$e2o&i%&io$1 %re 1&%r&e,, #re11+re 2ro+#1 %&&em#& &o Im+1c"e i$.I A$ i""3&ime, 1#eech b4 o$e o &he
#%r&ie1 or % r%$< ,ec"%r%&io$ o &he co$ce11io$ 9hich %re e;%c&e, or oere, o$ bo&h 1i,e1 9o+",
F+ic<"4 "e%, &o 9i,e1#re%, #ro#%2%$,% &o b"oc< &he $e2o&i%&io$1. A&er % &re%&4 h%1 bee$ ,r%&e, %$,
i&1 &erm1 %re +""4 #+b"i1he,, &here i1 %m#"e o##or&+$i&4 or ,i1c+11io$ beore i& i1 %##ro0e,. (&he $ew
A'erican "overn'ent and 2ts Wor@s, +a'es &. ?oun), Fth (dition, p. 8%F (('phasis and underscorin)
supplied
3till in PMP/ v. Man)lapus, the Court adopted the doctrine in <.S. v. Curtiss5+right ,2port Corp.
2L
that the
President is the sole or)an of the nation in its ne)otiations with forei)n countries, viA-
46 6 6 2n this vast e6ternal real', with its i'portant, co'plicated, delicate and 'anifold pro0le's, the
President alone has the power to spea@ or listen as a representative of the nation. .e 'a@es treaties with the
advice and consent of the 3enate< 0ut he alone ne)otiates. 2nto the field of ne)otiation the 3enate cannot
intrude< and Con)ress itself is powerless to invade it. As Marshall said in his )reat ar)u'ent of March 7,
8800, in the .ouse of Representatives, I.he !re1i,e$& i1 &he 1o"e or2%$ o &he $%&io$ i$ i&1 e;&er$%"
re"%&io$1, %$, i&1 1o"e re#re1e$&%&i0e 9i&h orei2$ $%&io$1.I Annals, Lth Con)., col. L8E. . . (('phasis
supplied< underscorin) in the ori)inal
Appl*in) the principles adopted in PMP/ v. Man)lapus, it is clear that while the final te6t of the +P(PA 'a*
not 0e @ept perpetuall* confidential B since there should 0e 4a'ple opportunit* for discussion 0efore Ga treat*H
is approved4 B the offers e6chan)ed 0* the parties durin) the ne)otiations continue to 0e privile)ed even after
the +P(PA is pu0lished. 2t is reasona0le to conclude that the +apanese representatives su0'itted their offers
with the understandin) that 4hi1&oric co$i,e$&i%"i&44
27
would )overn the sa'e. 1isclosin) these offers could
i'pair the a0ilit* of the Philippines to deal not onl* with +apan 0ut with other forei)n )overn'ents i$ +&+re
ne)otiations.
A rulin) that Philippine offers in treat* ne)otiations should now 0e open to pu0lic scrutin* would discoura)e
future Philippine representatives fro' fran@l* e6pressin) their views durin) ne)otiations. While, on first
i'pression, it appears wise to deter Philippine representatives fro' enterin) into co'pro'ises, it 0ears notin)
that treat* ne)otiations, or an* ne)otiation for that 'atter, nor'all* involve a process of 7uid pro 7uo, and
o&e$&ime1 $e2o&i%&or1 h%0e &o be 9i""i$2 &o 2r%$& co$ce11io$1 i$ %$ %re% o "e11er im#or&%$ce i$
878
or,er &o ob&%i$ more %0or%b"e &erm1 i$ %$ %re% o 2re%&er $%&io$%" i$&ere1&. Apropos are the followin)
o0servations of ,enDa'in 3. 1uval, +r.-
6 6 6 G&Hhose involved in the practice of ne)otiations appear to 0e in a)ree'ent that pu0licit* leads to
4)randstandin),4 tends to freeAe ne)otiatin) positions, and inhi0its the )ive!and!ta@e essential to successful
ne)otiation. As 3issela ,o@ points out, if 4ne)otiators have 'ore to )ain fro' 0ein) approved 0* their own
sides than 0* 'a@in) a reasoned a)ree'ent with co'petitors or adversaries, then the* are inclined to Qpla* to
the )aller* . . .QQ 2n fact, &he #+b"ic re%c&io$ m%4 "e%0e &hem "i&&"e o#&io$. 2t would 0e a 0rave, or foolish,
Ara0 leader who e6pressed pu0licl* a willin)ness for peace with 2srael that did not involve the return of the
entire West ,an@, or 2sraeli leader who stated pu0licl* a willin)ness to re'ove 2sraelQs e6istin) settle'ents
fro' +udea and 3a'aria in return for peace.
28
(('phasis supplied
2ndeed, 0* ha'perin) the a0ilit* of our representatives to co'pro'ise, we 'a* 0e DeopardiAin) hi)her
national )oals for the sa@e of securin) less critical ones.
1iplo'atic ne)otiations, therefore, are reco)niAed as privile)ed in this Durisdiction, the +P(PA ne)otiations
constitutin) no e6ception. 2t 0ears e'phasis, however, that such privile)e is onl* #re1+m#&i0e. /or as Senate
v. ,rmita holds, reco)niAin) a t*pe of infor'ation as privile)ed does not 'ean that it will 0e considered
privile)ed in all instances. #nl* after a consideration of the conte6t in which the clai' is 'ade 'a* it 0e
deter'ined if there is a pu0lic interest that calls for the disclosure of the desired infor'ation, stron) enou)h to
overco'e its traditionall* privile)ed status.
Whether petitioners have esta0lished the presence of such a pu0lic interest shall 0e discussed later. /or now,
the Court shall first pass upon the ar)u'ents raised 0* petitioners a)ainst the application of P(P% v.
(anglapus to the present case.
Ar2+me$&1 #roere, b4 #e&i&io$er1 %2%i$1& &he %##"ic%&io$ o )%): v. %anglapus
Petitioners ar)ue that P(P% v. (anglapus cannot 0e applied in toto to the present case, there 0ein)
su0stantial factual distinctions 0etween the two.
&o petitioners, the first and 'ost funda'ental distinction lies in the nature of the treat* involved. &he* stress
that P(P% v. (anglapus involved the Militar* ,ases A)ree'ent which necessaril* pertained to 'atters
affectin) national securit*< whereas the present case involves an econo'ic treat* that see@s to re)ulate trade
and co''erce 0etween the Philippines and +apan, 'atters which, unli@e those covered 0* the Militar* ,ases
A)ree'ent, are not so vital to national securit* to disallow their disclosure.
PetitionersC ar)u'ent 0etra*s a fault* assu'ption that infor'ation, to 0e considered privile)ed, 'ust involve
national securit*. &he reco)nition in Senate v. ,rmita
2%
that e6ecutive privile)e has enco'passed clai's of
var*in) @inds, such that it 'a* even 0e 'ore accurate to spea@ of 4e6ecutive privile)es,4 cautions a)ainst
such )eneraliAation.
While there certainl* are privile)es )rounded on the necessit* of safe)uardin) national securit* such as those
involvin) 'ilitar* secrets, not all are founded thereon. #ne e6a'ple is the 4infor'erCs privile)e,4 or the
privile)e of the "overn'ent not to disclose the identit* of a person or persons who furnish infor'ation of
violations of law to officers char)ed with the enforce'ent of that law.
E0
&he suspect involved need not 0e so
notorious as to 0e a threat to national securit* for this privile)e to appl* in an* )iven instance. #therwise, the
privile)e would 0e inapplica0le in all 0ut the 'ost hi)h!profile cases, in which case not onl* would this 0e
contrar* to lon)!standin) practice. 2t would also 0e hi)hl* preDudicial to law enforce'ent efforts in )eneral.
Also illustrative is the privile)e accorded to presidential co''unications, which are presu'ed privile)ed
without distin)uishin) 0etween those which involve 'atters of national securit* and those which do not, the
rationale for the privile)e 0ein) that
872
6 6 6 GaH r%$< e;ch%$2e of e6plorator* ideas and assess'ents, free fro' the )lare of pu0licit* and pressure
0* interested parties, is essential to protect &he i$,e#e$,e$ce o ,eci1io$3m%<i$2 of those tas@ed to
e6ercise Presidential, 9e)islative and +udicial power. 6 6 6
E8
(('phasis supplied
2n the sa'e wa* that the privile)e for Dudicial deli0erations does not depend on the nature of the case
deli0erated upon, so presidential co''unications are privile)ed whether the* involve 'atters of national
securit*.
2t 0ears e'phasis, however, that the privile)e accorded to presidential co''unications is not a0solute, one
si)nificant 7ualification 0ein) that 4the (6ecutive cannot, an* 'ore than the other 0ranches of )overn'ent,
invo@e a )eneral confidentialit* privile)e to shield its officials and e'plo*ees fro' investi)ations 0* the proper
)overn'ental institutions into possi0le cri'inal wron)doin).4
E2
&his 7ualification applies whether the privile)e
is 0ein) invo@ed in the conte6t of a Dudicial trial or a con)ressional investi)ation conducted in aid of
le)islation.
EE
Closel* related to the 4presidential co''unications4 privile)e is the deli0erative process privile)e reco)niAed
in the 5nited 3tates. As discussed 0* the 5.3. 3upre'e Court in 4/B v. Sears, oebuc? - Co,
EF
deli0erative process covers docu'ents reflectin) advisor* opinions, reco''endations and deli0erations
co'prisin) part of a process 0* which )overn'ental decisions and policies are for'ulated. $ota0l*, the
privile)ed status of such docu'ents rests, $o& o$ &he $ee, &o #ro&ec& $%&io$%" 1ec+ri&4 0ut, on the 4o0vious
realiAation that officials will not co''unicate candidl* a'on) the'selves if each re'ar@ is a potential ite' of
discover* and front pa)e news,4 the o0Dective of the privile)e 0ein) to enhance the 7ualit* of a)enc*
decisions.
&he diplo'atic ne)otiations privile)e 0ears a close rese'0lance to the deli0erative process and presidential
co''unications privile)e. 2t 'a* 0e readil* perceived that the rationale for the confidential character of
diplo'atic ne)otiations, deli0erative process, and presidential co''unications is si'ilar, if not identical.
&he earlier discussion on P(P% v. (anglapus
EL
shows that the privile)e for diplo'atic ne)otiations is 'eant
to encoura)e a fran@ e6chan)e of e6plorator* ideas 0etween the ne)otiatin) parties 0* shieldin) such
ne)otiations fro' pu0lic view. 3i'ilar to the privile)e for presidential co''unications, the diplo'atic
ne)otiations privile)e see@s, throu)h the sa'e 'eans, to protect the independence in decision!'a@in) of the
President, particularl* in its capacit* as 4the sole or)an of the nation in its e6ternal relations, and its sole
representative with forei)n nations.4 And, as with the deli0erative process privile)e, the privile)e accorded to
diplo'atic ne)otiations arises, not on account of the content of the infor'ation per se, 0ut 0ecause the
infor'ation is part of a process of deli0eration which, in pursuit of the pu0lic interest, 'ust 0e presu'ed
confidential.
&he decision of the 5.3. 1istrict Court, 1istrict of Colu'0ia in %ulbright - "awors?i v. Department of the
#reasury
E7
enli)htens on the close relation 0etween diplo'atic ne)otiations and deli0erative process
privile)es. &he plaintiffs in that case sou)ht access to notes ta@en 0* a 'e'0er of the 5.3. ne)otiatin) tea'
durin) the 5.3.!/rench &%; &re%&4 ne)otiations. A'on) the points noted therein were the issues to 0e
discussed, positions which the /rench and 5.3. tea's too@ on so'e points, the draft lan)ua)e a)reed on,
and articles which needed to 0e a'ended. 5pholdin) the confidentialit* of those notes, +ud)e "reen ruled,
thus-
Ne2o&i%&io$1 be&9ee$ &9o co+$&rie1 &o ,r%& % &re%&4 re#re1e$& % &r+e e;%m#"e o % ,e"iber%&i0e
#roce11. 5+ch 2i0e3%$,3&%<e m+1& occ+r or &he co+$&rie1 &o re%ch %$ %ccor,. A description of the
ne)otiations at an* one point would not provide an onloo@er a su''ar* of the discussions which could later
0e relied on as law. 2t would not 0e 4wor@in) law4 as the points discussed and positions a)reed on would 0e
su0Dect to chan)e at an* date until the treat* was si)ned 0* the President and ratified 0* the 3enate.
87E
.he #o"icie1 behi$, &he ,e"iber%&i0e #roce11 #ri0i"e2e 1+##or& $o$3,i1c"o1+re. 5+ch h%rm co+",
%ccr+e &o &he $e2o&i%&io$1 #roce11 i &he1e $o&e1 9ere re0e%"e,. E;#o1+re o &he #re3%2reeme$&
#o1i&io$1 o &he 8re$ch $e2o&i%&or1 mi2h& 9e"" oe$, orei2$ 2o0er$me$&1 %$, 9o+", "e%, &o "e11
c%$,or b4 &he -. *. i$ recor,i$2 &he e0e$&1 o &he $e2o&i%&io$1 #roce11. As several 'onths pass in
0etween ne)otiations, this lac@ of record could hinder readil* the 5. 3. ne)otiatin) tea'. /urther disclosure
would reveal pre'aturel* adopted policies. 2f these policies should 0e chan)ed, pu0lic confusion would result
easil*.
8i$%""4, re"e%1i$2 &he1e 1$%#1ho& 0ie91 o &he $e2o&i%&io$1 9o+", be com#%r%b"e &o re"e%1i$2 ,r%&1 o
&he &re%&4, #%r&ic+"%r"4 9he$ &he $o&e1 1&%&e &he &e$&%&i0e #ro0i1io$1 %$, "%$2+%2e %2ree, o$. A1
,r%&1 o re2+"%&io$1 &4#ic%""4 %re #ro&ec&e, b4 &he ,e"iber%&i0e #roce11 #ri0i"e2e, Arthur Andersen \
Co. v. 2nternal Revenue 3ervice, C.A. $o. 80!70J (1.C.Cir., Ma* 28, 8%82, ,r%&1 o &re%&ie1 should be
%ccor,e, &he 1%me #ro&ec&io$. (('phasis and underscorin) supplied
Clearl*, the privile)e accorded to diplo'atic ne)otiations follows as a lo)ical conse7uence fro' the privile)ed
character of the deli0erative process.
&he Court is not unaware that in Center for *nternational ,nvironmental /aw $C*,/&, et al. v. 'ffice of <.S.
#rade epresentative
E8
B where the plaintiffs sou)ht infor'ation relatin) to the Dust!co'pleted ne)otiation of a
5nited 3tates!Chile /ree &rade A)ree'ent B the sa'e district court, this ti'e under +ud)e /ried'an,
consciousl* refrained fro' appl*in) the doctrine in %ulbright and ordered the disclosure of the infor'ation
0ein) sou)ht.
3ince the factual 'ilieu in C*,/ see'ed to call for the strai)ht application of the doctrine in %ulbright, a
discussion of wh* the district court did not appl* the sa'e would help illu'ine this CourtCs own reasons for
decidin) the present case alon) the lines of %ulbright.
2n 0oth %ulbright and C*,/, the 5.3. )overn'ent cited a statutor* 0asis for withholdin) infor'ation, na'el*,
(6e'ption J of the /reedo' of 2nfor'ation Act (/#2A.
E%
2n order to 7ualif* for protection under (6e'ption J,
a docu'ent 'ust satisf* two conditions- (8 it 'ust 0e either i$&er3%2e$c4 or i$&r%3%2e$c4 in nature, and (2
it 'ust 0e 0oth #re3,eci1io$%" %$, #%r& o &he %2e$c4J1 ,e"iber%&i0e or ,eci1io$3m%<i$2 #roce11.
F0
+ud)e /ried'an, in C2(9, hi'self co)niAant of a 4superficial si'ilarit* of conte6t4 0etween the two cases,
0ased his decision on what he perceived to 0e a si)nificant distinction- he found the ne)otiatorCs notes that
were sou)ht in %ulbright to 0e 4clearl* internal,4 whereas the docu'ents 0ein) sou)ht in C*,/ were those
produced 0* or e6chan)ed with an outside part*, i.e. Chile. &he docu'ents su0Dect of /ul0ri)ht 0ein) clearl*
internal in character, the 7uestion of disclosure therein turned not on the threshold re7uire'ent of (6e'ption
J that the docu'ent 0e inter!a)enc*, 0ut on whether the docu'ents were part of the a)enc*Qs pre!decisional
deli0erative process. #n this 0asis, +ud)e /ried'an found that 4+ud)e "reenQs discussion Gin /ul0ri)htH of the
har' that could result fro' disclosure therefore is irrelevant, 1i$ce &he ,oc+me$&1 %& i11+e Mi$ 'IELN %re
$o& i$&er3%2e$c4, %$, &he Co+r& ,oe1 $o& re%ch &he F+e1&io$ o ,e"iber%&i0e #roce11.4 (('phasis
supplied
2n fine, %ulbright was not overturned. &he court in C*,/ 'erel* found the sa'e to 0e irrelevant in li)ht of its
distinct factual settin). Whether this conclusion was valid B a 7uestion on which this Court would not pass B
the rulin) in %ulbright that 4GnHe)otiations 0etween two countries to draft a treat* represent a true e6a'ple of a
deli0erative process4 was left standin), since the C*,/ court e6plicitl* stated that it did not reach the 7uestion
of deli0erative process.
"oin) 0ac@ to the present case, the Court reco)niAes that the infor'ation sou)ht 0* petitioners includes
docu'ents produced and co''unicated 0* a part* e6ternal to the Philippine )overn'ent, na'el*, the
+apanese representatives in the +P(PA ne)otiations, and to that e6tent this case is closer to the factual
circu'stances of C*,/ than those of %ulbright.
87F
$onetheless, for reasons which shall 0e discussed shortl*, this Court echoes the principle articulated in
%ulbright that the pu0lic polic* underl*in) the deli0erative process privile)e re7uires that diplo'atic
ne)otiations should also 0e accorded privile)ed status, even if the docu'ents su0Dect of the present case
cannot 0e descri0ed as purel* internal in character.
2t need not 0e stressed that in C*,/, the court ordered the disclosure of infor'ation 0ased on its findin) that
the first re7uire'ent of /#2A (6e'ption J B that the docu'ents 0e inter!a)enc* B was not 'et. 2n deter'inin)
whether the )overn'ent 'a* validl* refuse disclosure of the e6chan)es 0etween the 5.3. and Chile, it
necessaril* had to deal with this re7uire'ent, it 0ein) laid down 0* a statute 0indin) on the'.
2n this Durisdiction, however, there is no counterpart of the /#2A, nor is there an* statutor* re7uire'ent si'ilar
to /#2A (6e'ption J in particular. .ence, Philippine courts, when assessin) a clai' of privile)e for diplo'atic
ne)otiations, are 'ore free to focus directl* on the issue of whether the privile)e 0ein) clai'ed is indeed
supported 0* pu0lic polic*, without havin) to consider B as the C2(9 court did B if these ne)otiations fulfill a
for'al re7uire'ent of 0ein) 4inter!a)enc*.4 2'portant thou)h that re7uire'ent 'a* 0e in the conte6t of
do'estic ne)otiations, it need not 0e accorded the sa'e si)nificance when dealin) with international
ne)otiations.
&here 0ein) a pu0lic polic* supportin) a privile)e for diplo'atic ne)otiations for the reasons e6plained a0ove,
the Court sees no reason to 'odif*, 'uch less a0andon, the doctrine in P(P% v. (anglapus.
A second point petitioners proffer in their atte'pt to differentiate P(P% v. (anglapus fro' the present case is
the fact that the petitioners therein consisted entirel* of 'e'0ers of the 'ass 'edia, while petitioners in the
present case include 'e'0ers of the .ouse of Representatives who invo@e their ri)ht to infor'ation not Dust
as citiAens 0ut as 'e'0ers of Con)ress.
Petitioners thus conclude that the present case involves the ri)ht of 'e'0ers of Con)ress to de'and
infor'ation on ne)otiations of international trade a)ree'ents fro' the (6ecutive 0ranch, a 'atter which was
not raised in P(P% v. (anglapus.
While indeed the petitioners in P(P% v. (anglapus consisted onl* of 'e'0ers of the 'ass 'edia, it would 0e
incorrect to clai' that the doctrine laid down therein has no 0earin) on a controvers* such as the present,
where the de'and for infor'ation has co'e fro' 'e'0ers of Con)ress, not onl* fro' private citiAens.
.he #ri0i"e2e, ch%r%c&er %ccor,e, &o ,i#"om%&ic $e2o&i%&io$1 ,oe1 $o& i#1o %c&o "o1e %"" orce %$,
eec& 1im#"4 bec%+1e &he 1%me #ri0i"e2e i1 $o9 bei$2 c"%ime, +$,er ,iere$& circ+m1&%$ce1. &he
pro0a0ilit* of the clai' succeedin) in the new conte6t 'i)ht differ, 0ut to sa* that the privile)e, as such, has
no validit* at all in that conte6t is another 'atter alto)ether.
&he CourtCs state'ent in Senate v. ,rmita that 4presidential refusals to furnish infor'ation 'a* 0e actuated 0*
an* of at least three distinct @inds of considerations Gstate secrets privile)e, infor'erCs privile)e, and a )eneric
privile)e for internal deli0erationsH, and 'a* 0e asserted, 9i&h ,ieri$2 ,e2ree1 o 1+cce11, in the conte6t
of either Dudicial or le)islative investi)ations,4
F8
i'plies that a privile)e, once reco)niAed, 'a* 0e invo@ed
under different procedural settin)s. &hat this principle holds true particularl* with respect to diplo'atic
ne)otiations 'a* 0e inferred fro' P(P% v. (anglapus itself, where the Court held that it is the President
alone who ne)otiates treaties, and not even the 3enate or the .ouse of Representatives, unless as@ed, 'a*
intrude upon that process.
Clearl*, the privile)e for diplo'atic ne)otiations 'a* 0e invo@ed not onl* a)ainst citiAensC de'ands for
infor'ation, 0ut also in the conte6t of le)islative investi)ations.
87J
.ence, the reco)nition )ranted in P(P% v. (anglapus to the privile)ed character of diplo'atic ne)otiations
cannot 0e considered irrelevant in resolvin) the present case, the conte6tual differences 0etween the two
cases notwithstandin).
As third and last point raised a)ainst the application of P(P% v. (anglapus in this case , petitioners proffer
that 4the socio!political and historical conte6ts of the two cases are worlds apart.4 &he* clai' that the
constitutional traditions and concepts prevailin) at the ti'e P(P% v. (anglapus ca'e a0out, particularl* the
school of thou)ht that the re7uire'ents of forei)n polic* and the ideals of transparenc* were inco'pati0le
with each other or the 4inco'pati0ilit* h*pothesis,4 while valid when international relations were still )overned
0* power, politics and wars, are no lon)er so in this a)e of international cooperation.
F2
Without delvin) into petitionersC assertions respectin) the 4inco'pati0ilit* h*pothesis,4 the Court notes that the
rulin) in P(P% v. (anglapus is )rounded 'ore on the nature of treat* ne)otiations as such than on a
particular socio!political school of thou)ht. 2f petitioners are su))estin) that the nature of treat* ne)otiations
have so chan)ed that 4GaHn ill!ti'ed speech 0* one of the parties or a fran@ declaration of the concession
which are e6acted or offered on 0oth sides4 no lon)er 4leadGsH to widespread propa)anda to 0loc@ the
ne)otiations,4 or that parties in treat* ne)otiations no lon)er e6pect their co''unications to 0e )overned 0*
historic confidentialit*, the 0urden is on the' to su0stantiate the sa'e. &his petitioners failed to dischar)e.
Che&her &he #ri0i"e2e %##"ie1 o$"4 %& cer&%i$ 1&%2e1 o &he $e2o&i%&io$ #roce11
Petitioners ad'it that 4diplo'atic ne)otiations on the +P(PA are entitled to a reasona0le a'ount of
confidentialit* so as not to DeopardiAe the diplo'atic process.4 &he* ar)ue, however, that the sa'e is
privile)ed 4onl* at certain sta)es of the ne)otiatin) process, after which such infor'ation 'ust necessaril* 0e
revealed to the pu0lic.4
FE
&he* add that the dut* to disclose this infor'ation was vested in the )overn'ent
when the ne)otiations 'oved fro' the for'ulation and e6plorator* sta)e to the fir'in) up of definite
propositions or official reco''endations, citin) ChaveE v. PC))
FF
and ChaveE v. P,A.
FJ
&he followin) state'ent in ChaveE v. P,A, however, suffices to show that the doctrine in 0oth that case and
ChaveE v. PC)) with re)ard to the dut* to disclose 4definite propositions of the )overn'ent4 does not appl*
to diplo'atic ne)otiations-
We rule, therefore, that the constitutional ri)ht to infor'ation includes official infor'ation on on!)oin)
ne)otiations 0efore a final contract. .he i$orm%&io$, ho9e0er, m+1& co$1&i&+&e ,ei$i&e #ro#o1i&io$1 b4
&he 2o0er$me$& %$, 1ho+", $o& co0er reco2$i:e, e;ce#&io$1 "i<e #ri0i"e2e, i$orm%&io$, mi"i&%r4 %$,
,i#"om%&ic 1ecre&1 %$, 1imi"%r m%&&er1 %ec&i$2 $%&io$%" 1ec+ri&4 %$, #+b"ic or,er. 6 6 6
FL
(('phasis
and underscorin) supplied
2t follows fro' this rulin) that even definite propositions of the )overn'ent 'a* not 0e disclosed if the* fall
under 4reco)niAed e6ceptions.4 &he privile)e for diplo'atic ne)otiations is clearl* a'on) the reco)niAed
e6ceptions, for the footnote to the i''ediatel* 7uoted rulin) cites P(P% v. (anglapus itself as an authorit*.
Che&her &here i1 1+icie$& #+b"ic i$&ere1& &o o0ercome &he c"%im o #ri0i"e2e
2t 0ein) esta0lished that diplo'atic ne)otiations enDo* a presu'ptive privile)e a)ainst disclosure, even
a)ainst the de'ands of 'e'0ers of Con)ress for infor'ation, the Court shall now deter'ine whether
petitioners have shown the e6istence of a pu0lic interest sufficient to overco'e the privile)e in this instance.
&o clarif*, there are at least two @inds of pu0lic interest that 'ust 0e ta@en into account. #ne is the presu'ed
pu0lic interest i$ %0or o <ee#i$2 &he 1+b>ec& i$orm%&io$ co$i,e$&i%", which is the reason for the
privile)e in the first place, and the other is the pu0lic interest i$ %0or o ,i1c"o1+re, the e6istence of which
'ust 0e shown 0* the part* as@in) for infor'ation.
F7
87L
&he criteria to 0e e'plo*ed in deter'inin) whether there is a sufficient pu0lic interest in favor of disclosure
'a* 0e )athered fro' cases such as <.S. v. 4i2on,
F8
Senate Select Committee on Presidential Campaign
Activities v. 4i2on,
F%
and *n re Sealed Case.
J0
<.S. v. 4i2on, which involved a clai' of the presidential co''unications privile)e a)ainst the su0poena
duces tecum of a district court in a cri'inal case, e'phasiAed the need to 0alance such clai' of privile)e
a)ainst the constitutional dut* of courts to ensure a fair ad'inistration of cri'inal Dustice.
6 6 6 &he %""o9%$ce o &he #ri0i"e2e to withhold evidence that is de'onstra0l* relevant in a cri'inal trial
9o+", c+& ,ee#"4 i$&o &he 2+%r%$&ee o ,+e #roce11 o "%9 %$, 2r%0e"4 im#%ir &he b%1ic +$c&io$ o &he
co+r&1. A !re1i,e$&E1 %c<$o9"e,2e, $ee, or co$i,e$&i%"i&4 i$ &he comm+$ic%&io$1 o hi1 oice i1
2e$er%" i$ $%&+re, 9here%1 &he co$1&i&+&io$%" $ee, or #ro,+c&io$ o re"e0%$& e0i,e$ce i$ % crimi$%"
#rocee,i$2 i1 1#eciic %$, ce$&r%" &o &he %ir %,>+,ic%&io$ o % #%r&ic+"%r crimi$%" c%1e i$ &he
%,mi$i1&r%&io$ o >+1&ice. Without access to specific facts a cri'inal prosecution 'a* 0e totall* frustrated.
&he PresidentCs 0road interest in confidentialit* of co''unications will not 0e vitiated 0* disclosure of a
li'ited nu'0er of conversations preli'inaril* shown to have so'e 0earin) on the pendin) cri'inal cases.
(('phasis, italics and underscorin) supplied
3i'ilarl*, Senate Select Committee v. 4i2on,
J8
which involved a clai' of the presidential co''unications
privile)e a)ainst the su0poena duces tecum of a 3enate co''ittee, spo@e of the need to 0alance such clai'
with the dut* of Con)ress to perfor' its le)islative functions.
&he sta)ed decisional structure esta0lished in 4i2on v. Sirica was desi)ned to ensure that the President and
those upon who' he directl* relies in the perfor'ance of his duties could continue to wor@ under a )eneral
assurance that their deli0erations would re'ain confidential. 3o lon) as &he #re1+m#&io$ &h%& &he #+b"ic
i$&ere1& %0or1 co$i,e$&i%"i&4 c%$ be ,ee%&e, o$"4 b4 % 1&ro$2 1ho9i$2 o $ee, b4 %$o&her i$1&i&+&io$
o 2o0er$me$&3 % 1ho9i$2 &h%& &he re1#o$1ibi"i&ie1 o &h%& i$1&i&+&io$ c%$$o& re1#o$1ib"4 be +"i""e,
9i&ho+& %cce11 &o recor,1 o &he !re1i,e$&J1 ,e"iber%&io$1! we 0elieved in 4i2on v. Sirica, and continue to
0elieve, that the effective functionin) of the presidential office will not 0e i'paired. 6 6 6
6 6 6 6
.he 1+icie$c4 o &he Commi&&eeJ1 1ho9i$2 o $ee, h%1 come &o ,e#e$,, &hereore, e$&ire"4 o$
9he&her &he 1+b#oe$%e, m%&eri%"1 %re cri&ic%" &o &he #erorm%$ce o i&1 "e2i1"%&i0e +$c&io$1. 6 6 6
(('phasis and underscorin) supplied
*n re Sealed Case
J2
involved a clai' of the deli0erative process and presidential co''unications privile)es
a)ainst a su0poena duces tecum of a )rand Dur*. #n the clai' of deli0erative process privile)e, the court
stated-
&he deli0erative process privile)e is a 7ualified privile)e and c%$ be o0ercome b4 % 1+icie$& 1ho9i$2 o
$ee,. .hi1 $ee, ,e&ermi$%&io$ i1 &o be m%,e "e;ib"4 o$ % c%1e3b43c%1e, %, hoc b%1i1. 4G(Hach ti'e Gthe
deli0erative process privile)eH is asserted the district court 'ust underta@e a fresh 0alancin) of the co'petin)
interests,4 &%<i$2 i$&o %cco+$& %c&or1 1+ch %1 I&he re"e0%$ce o &he e0i,e$ce,I I&he %0%i"%bi"i&4 o o&her
e0i,e$ce,I I&he 1erio+1$e11 o &he "i&i2%&io$,I I&he ro"e o &he 2o0er$me$&,I %$, &he I#o11ibi"i&4 o
+&+re &imi,i&4 b4 2o0er$me$& em#"o4ee1. 6 6 6 (('phasis, italics and underscorin) supplied
Petitioners have failed to present the stron) and 4sufficient showin) of need4 referred to in the i''ediatel*
cited cases. &he ar)u'ents the* proffer to esta0lish their entitle'ent to the su0Dect docu'ents fall short of
this standard.
Petitioners )o on to assert that the non!involve'ent of the /ilipino people in the +P(PA ne)otiation process
effectivel* results in the 0ar)ainin) awa* of their econo'ic and propert* ri)hts without their @nowled)e and
877
participation, in violation of the due process clause of the Constitution. &he* clai', 'oreover, that it is
essential for the people to have access to the initial offers e6chan)ed durin) the ne)otiations since onl*
throu)h such disclosure can their constitutional ri)ht to effectivel* participate in decision!'a@in) 0e 0rou)ht to
life in the conte6t of international trade a)ree'ents.
Whether it can accuratel* 0e said that the /ilipino people were not involved in the +P(PA ne)otiations is a
7uestion of fact which this Court need not resolve. 3uffice it to state that respondents had presented
docu'ents purportin) to show that pu0lic consultations were conducted on the +P(PA. Parentheticall*,
petitioners consider these 4alle)ed consultations4 as 4woefull* selective and inade7uate.4
JE
A& A99 (:($&3, since it is not disputed that the offers e6chan)ed 0* the Philippine and +apanese
representatives have not 0een disclosed to the pu0lic, the Court shall pass upon the issue of whether access
to the docu'ents 0earin) on the' is, as petitioners clai', essential to their ri)ht to participate in decision!
'a@in).
&he case for petitioners has, of course, 0een i''ensel* wea@ened 0* the disclosure of the full te6t of the
+P(PA to the pu0lic since 3epte'0er 88, 200L, even as it is still 0ein) deli0erated upon 0* the 3enate and,
therefore, not *et 0indin) on the Philippines. Were the 3enate to concur with the validit* of the +P(PA at this
'o'ent, there has alread* 0een, in the words of P(P% v. (anglapus, 4a'ple opportunit* for discussion
0efore Gthe treat*H is approved.4
&he te6t of the +P(PA havin) 0een pu0lished, petitioners have failed to convince this Court that the* will not
0e a0le to 'eanin)full* e6ercise their ri)ht to participate in decision!'a@in) unless the initial offers are also
pu0lished.
2t is of pu0lic @nowled)e that various non!)overn'ent sectors and private citiAens have alread* pu0licl*
e6pressed their views on the +P(PA, their co''ents not 0ein) li'ited to )eneral o0servations thereon 0ut on
its specific provisions. $u'erous articles and state'ents critical of the +P(PA have 0een posted on the
2nternet.
JF
"iven these develop'ents, there is no 0asis for petitionersC clai' that access to the Philippine and
+apanese offers is essential to the e6ercise of their ri)ht to participate in decision!'a@in).
Petitioner!'e'0ers of the .ouse of Representatives additionall* anchor their clai' to have a ri)ht to the
su0Dect docu'ents on the 0asis of Con)ressC inherent power to re)ulate co''erce, 0e it do'estic or
international. &he* alle)e that Con)ress cannot 'eanin)full* e6ercise the power to re)ulate international
trade a)ree'ents such as the +P(PA without 0ein) )iven copies of the initial offers e6chan)ed durin) the
ne)otiations thereof. 2n the sa'e vein, the* ar)ue that the President cannot e6clude Con)ress fro' the
+P(PA ne)otiations since whatever power and authorit* the President has to ne)otiate international trade
a)ree'ents is derived onl* 0* dele)ation of Con)ress, pursuant to Article :2, 3ection 28(2 of the Constitution
and 3ections F08 and F02 of Presidential 1ecree $o. 8FLF.
JJ
&he su0Dect of Article :2 3ection 28(2 of the Constitution is not the power to ne)otiate treaties and
international a)ree'ents, 0ut the power to fi6 tariff rates, i'port and e6port 7uotas, and other ta6es. &hus it
provides-
(2 &he Con)ress 'a*, 0* law, authoriAe the President to fi6 within specified li'its, and su0Dect to such
li'itations and restrictions as it 'a* i'pose, tariff rates, i'port and e6port 7uotas, tonna)e and wharfa)e
dues, and other duties or i'posts within the fra'ewor@ of the national develop'ent pro)ra' of the
"overn'ent.
As to the power to ne)otiate treaties, the constitutional 0asis thereof is 3ection 28 of Article :22 B the article on
the (6ecutive 1epart'ent B which states-
878
$o treat* or international a)ree'ent shall 0e valid and effective unless concurred in 0* at least two!thirds of
all the Me'0ers of the 3enate.
&he doctrine in PMP/ v. Man)lapus that the treat*!'a@in) power is e6clusive to the President, 0ein) the sole
or)an of the nation in its e6ternal relations, was echoed in BA;A4 v. ,2ecutive Secretary
JL
where the Court
held-
74 constitutional fiat and 0* the intrinsic nature of his office, the President, as head of 3tate, is the sole or)an
and authorit* in the e6ternal affairs of the countr*. 2n 'an* wa*s, the President is the chief architect of the
nationQs forei)n polic*< his 4do'inance in the field of forei)n relations is (then conceded.4 Wieldin) vast
powers and influence, his conduct in the e6ternal affairs of the nation, as +efferson descri0es, is 4e6ecutive
alto)ether.4
A1 re2%r,1 &he #o9er &o e$&er i$&o &re%&ie1 or i$&er$%&io$%" %2reeme$&1, &he Co$1&i&+&io$ 0e1&1 &he
1%me i$ &he !re1i,e$&, 1+b>ec& o$"4 &o &he co$c+rre$ce o %& "e%1& &9o &hir,1 0o&e o %"" &he member1 o
&he *e$%&e. 2n this li)ht, the ne)otiation of the :/A and the su0se7uent ratification of the a)ree'ent are
e6clusive acts which pertain solel* to the President, in the lawful e6ercise of hi1 0%1& e;ec+&i0e %$,
,i#"om%&ic #o9er1 2r%$&e, him $o "e11 &h%$ b4 &he +$,%me$&%" "%9 i&1e". I$&o &he ie", o $e2o&i%&io$
&he *e$%&e c%$$o& i$&r+,e, %$, Co$2re11 i&1e" i1 #o9er"e11 &o i$0%,e i&. 6 6 6 (2talics in the ori)inal<
e'phasis and underscorin) supplied
&he sa'e doctrine was reiterated even 'ore recentl* in Pimentel v. ,2ecutive Secretary
J7
where the Court
ruled-
2n our s*ste' of )overn'ent, the President, 0ein) the head of state, is re)arded as &he 1o"e or2%$ %$,
%+&hori&4 i$ e;&er$%" re"%&io$1 %$, i1 &he co+$&r4J1 1o"e re#re1e$&%&i0e 9i&h orei2$ $%&io$1. As the chief
architect of forei)n polic*, the President acts as the countr*Qs 'outhpiece with respect to international affairs.
.ence, &he !re1i,e$& i1 0e1&e, 9i&h &he %+&hori&4 &o deal with forei)n states and )overn'ents, e6tend or
withhold reco)nition, 'aintain diplo'atic relations, e$&er i$&o &re%&ie1, and otherwise transact the 0usiness of
forei)n relations. I$ &he re%"m o &re%&43m%<i$2, &he !re1i,e$& h%1 &he 1o"e %+&hori&4 &o $e2o&i%&e 9i&h
o&her 1&%&e1.
No$e&he"e11, 9hi"e &he !re1i,e$& h%1 &he 1o"e %+&hori&4 &o $e2o&i%&e %$, e$&er i$&o &re%&ie1, &he
Co$1&i&+&io$ #ro0i,e1 % "imi&%&io$ &o hi1 #o9er b4 reF+iri$2 &he co$c+rre$ce o 2=3 o %"" &he member1
o &he *e$%&e or &he 0%"i,i&4 o &he &re%&4 e$&ere, i$&o b4 him. 6 6 6 (('phasis and underscorin)
supplied
While the power then to fi6 tariff rates and other ta6es clearl* 0elon)s to Con)ress, and is e6ercised 0* the
President onl* 0* dele)ation of that 0od*, it has lon) 0een reco)niAed that the power to enter into treaties is
vested directl* and e6clusivel* in the President, su0Dect onl* to the concurrence of at least two!thirds of all the
Me'0ers of the 3enate for the validit* of the treat*. 2n this li)ht, the authorit* of the President to enter into
trade a)ree'ents with forei)n nations provided under P.1. 8FLF
J8
'a* 0e interpreted as an ac@nowled)'ent
of a power alread* inherent in its office. 2t 'a* not 0e used as 0asis to hold the President or its
representatives accounta0le to Con)ress for the conduct of treat* ne)otiations.
&his is not to sa*, of course, that the PresidentCs power to enter into treaties is unli'ited 0ut for the
re7uire'ent of 3enate concurrence, since the President 'ust still ensure that all treaties will su0stantivel*
confor' to all the relevant provisions of the Constitution.
2t follows fro' the a0ove discussion that Con)ress, while possessin) vast le)islative powers, 'a* not
interfere in the field of treat* ne)otiations. While Article :22, 3ection 28 provides for 3enate concurrence, such
pertains onl* to the validit* of the treat* under consideration, not to the conduct of ne)otiations attendant to its
87%
conclusion. Moreover, it is not even Con)ress as a whole that has 0een )iven the authorit* to concur as a
'eans of chec@in) the treat*!'a@in) power of the President, 0ut onl* the 3enate.
&hus, as in the case of petitioners suin) in their capacit* as private citiAens, petitioners!'e'0ers of the
.ouse of Representatives fail to present a 4sufficient showin) of need4 that the infor'ation sou)ht is critical to
the perfor'ance of the functions of Con)ress, functions that do not include treat*!ne)otiation.
Re1#o$,e$&1E %""e2e, %i"+re &o &ime"4 c"%im e;ec+&i0e #ri0i"e2e
#n respondentsC invocation of e6ecutive privile)e, petitioners find the sa'e defective, not havin) 0een done
seasona0l* as it was raised onl* in their Co''ent to the present petition and not durin) the .ouse
Co''ittee hearin)s.
&hat respondents invo@ed the privile)e for the first ti'e onl* in their Co''ent to the present petition does not
'ean that the clai' of privile)e should not 0e credited. PetitionersC position presupposes that an assertion of
the privile)e should have 0een 'ade durin) the .ouse Co''ittee investi)ations, failin) which respondents
are dee'ed to have waived it.
When the .ouse Co''ittee and petitioner!Con)ress'an A)uDa re7uested respondents for copies of the
docu'ents su0Dect of this case, respondents replied that the ne)otiations were still on!)oin) and that the draft
of the +P(PA would 0e released once the te6t thereof is settled and co'plete. &here was no inti'ation that
the re7uested copies are confidential in nature 0* reason of pu0lic polic*. &he response 'a* not thus 0e
dee'ed a clai' of privile)e 0* the standards of Senate v. ,rmita, which reco)niAes as clai's of privile)e onl*
those which are acco'panied 0* #reci1e %$, cer&%i$ re%1o$1 for preservin) the co$i,e$&i%"i&4 of the
infor'ation 0ein) sou)ht.
RespondentsC failure to clai' the privile)e durin) the .ouse Co''ittee hearin)s 'a* not, however, 0e
construed as a waiver thereof 0* the (6ecutive 0ranch. As the i''ediatel* precedin) para)raph indicates,
what respondents received fro' the .ouse Co''ittee and petitioner!Con)ress'an A)uDa were 'ere
re7uests for infor'ation. And as priorl* stated, the .ouse Co''ittee itself refrained fro' pursuin) its earlier
resolution to issue a su0poena duces tecu' on account of then 3pea@er +ose de :eneciaCs alle)ed re7uest to
Co''ittee Chairperson Con)ress'an &eves to hold the sa'e in a0e*ance.
While it is a salutar* and no0le practice for Con)ress to refrain fro' issuin) su0poenas to e6ecutive officials B
out of respect for their office B until resort to it 0eco'es necessar*, the fact re'ains that such re7uests are
not a co'pulsor* process. ,ein) 'ere re7uests, the* do not strictl* call for an assertion of e6ecutive privile)e.
&he privile)e is an e6e'ption to Con)ressC power of in7uir*.
J%
3o lon) as Con)ress itself finds no cause to
enforce such power, there is no strict necessit* to assert the privile)e. 2n this li)ht, respondentsC failure to
invo@e the privile)e durin) the .ouse Co''ittee investi)ations did not a'ount to a waiver thereof.
&he Court o0serves, however, that the clai' of privile)e appearin) in respondentsC Co''ent to this petition
fails to satisf* in full the re7uire'ent laid down in 3enate v. (r'ita that the clai' should 0e invo@ed 0* the
President or throu)h the (6ecutive 3ecretar* 40* order of the President.4
L0
RespondentsC clai' of privile)e is
0ein) sustained, however, its flaw notwithstandin), 0ecause of circu'stances peculiar to the case.
&he assertion of e6ecutive privile)e 0* the (6ecutive 3ecretar*, who is one of the respondents herein, without
hi' addin) the phrase 40* order of the President,4 shall 0e considered as partiall* co'pl*in) with the
re7uire'ent laid down in 3enate v. (r'ita. &he re7uire'ent that the phrase 40* order of the President4 should
acco'pan* the (6ecutive 3ecretar*Cs clai' of privile)e is a new rule laid down for the first ti'e in Senate v.
,rmita, which was not *et final and e6ecutor* at the ti'e respondents filed their Co''ent to the petition.
L8
A
strict application of this re7uire'ent would thus 0e unwarranted in this case.
880
Re1#o$1e &o &he Di11e$&i$2 O#i$io$ o &he Chie J+1&ice
We are aware that 0ehind the dissent of the Chief +ustice lies a )enuine Aeal to protect our peopleCs ri)ht to
infor'ation a)ainst an* a0use of e6ecutive privile)e. 2t is a Aeal that We full* share.
&he Court, however, in its endeavor to )uard a)ainst the a0use of e6ecutive privile)e, should 0e careful not to
veer towards the opposite e6tre'e, to the point that it would stri@e down as invalid even a le)iti'ate e6ercise
thereof.
We respond onl* to the salient ar)u'ents of the 1issentin) #pinion which have not *et 0een sufficientl*
addressed a0ove.
8. After its historical discussion on the allocation of power over international trade a)ree'ents in the 5nited
3tates, the dissent concludes that 4it will 0e turnin) so'ersaults with histor* to contend that the President is
the sole or)an for e6ternal relations4 in that Durisdiction. With re)ard to this opinion, We 'a@e onl* the
followin) o0servations-
&here is, at least, a core 'eanin) of the phrase 4sole or)an of the nation in its e6ternal relations4 which is not
0ein) disputed, na'el*, that the power to directl* ne)otiate treaties and international a)ree'ents is vested 0*
our Constitution onl* in the (6ecutive. &hus, the dissent states that 4Con)ress has the power to re)ulate
co''erce with forei)n nations b+& ,oe1 $o& h%0e &he #o9er &o $e2o&i%&e i$&er$%&io$%" %2reeme$&1
,irec&"4.4
L2
What is disputed is how this principle applies to the case at 0ar.
&he dissent opines that petitioner!'e'0ers of the .ouse of Representatives, 0* as@in) for the su0Dect +P(PA
docu'ents, are not see@in) to directl* participate in the ne)otiations of the +P(PA, hence, the* cannot 0e
prevented fro' )ainin) access to these docu'ents.
#n the other hand, We hold that this is one occasion where the followin) rulin) in Agan v. P*A#C'
LE
B and in
other cases 0oth 0efore and since B should 0e applied-
.hi1 Co+r& h%1 "o$2 %$, co$1i1&e$&"4 %,here, &o &he "e2%" m%;im &h%& &ho1e &h%& c%$$o& be ,o$e
,irec&"4 c%$$o& be ,o$e i$,irec&"4. #o declare the P*A#C' contracts valid despite the clear statutory
prohibition against a direct government guarantee would not only ma?e a moc?ery of what the B'# /aw
see?s to prevent 55 which is to e2pose the government to the ris? of incurring a monetary obligation resulting
from a contract of loan between the pro1ect proponent and its lenders and to which the )overnment is not a
party to 55 but would also render the B'# /aw useless for what it see?s to achieve D5 to ma?e use of the
resources of the private sector in the Ifinancing, operation and maintenance of infrastructure and
development pro1ectsI which are necessary for national growth and development but which the government,
unfortunately, could ill5afford to finance at this point in time.
LF
3i'ilarl*, while herein petitioners!'e'0ers of the .ouse of Representatives 'a* not have 0een ai'in) to
participate in the ne)otiations directl*, openin) the +P(PA ne)otiations to their scrutin* B even to the point of
)ivin) the' access to the offers e6chan)ed 0etween the +apanese and Philippine dele)ations B would have
'ade a 'oc@er* of what the Constitution sou)ht to prevent and rendered it useless for what it sou)ht to
achieve when it vested the power of direct ne)otiation solel* with the President.
What the 5.3. Constitution sou)ht to prevent and ai'ed to achieve in definin) the treat*!'a@in) power of the
President, which our Constitution si'ilarl* defines, 'a* 0e )athered fro' .a'iltonCs e6planation of wh* the
5.3. Constitution e6cludes the .ouse of Representatives fro' the treat*!'a@in) process-
888
6 6 6 &he fluctuatin), and ta@in) its future increase into account, the 'ultitudinous co'position of that 0od*,
for0id us to e6pect in it those 7ualities which are essential to the proper e6ecution of such a trust. Accurate
and co'prehensive @nowled)e of forei)n politics< a stead* and s*ste'atic adherence to the sa'e views< a
nice and unifor' sensi0ilit* to national character, decision, secrecy and ,i1#%&ch < are inco'pati0le with a
0od* so varia0le and so nu'erous. &he ver* co'plication of the 0usiness 0* introducin) a necessit* of the
concurrence of so 'an* different 0odies, would of itself afford a solid o0Dection. &he )reater fre7uenc* of the
calls upon the house of representatives, and the )reater len)th of ti'e which it would often 0e necessar* to
@eep the' to)ether when convened, to o0tain their sanction in the pro)ressive sta)es of a treat*, would 0e
source of so )reat inconvenience and e6pense, as alone ou)ht to conde'n the proDect.
LJ
&hese considerations a fortiori appl* in this Durisdiction, since the Philippine Constitution, unli@e that of the
5.3., does not even )rant &he *e$%&e the power to advise the (6ecutive in the 'a@in) of treaties, 0ut onl*
vests in that 0od* the power to concur in the validit* of the treat* after ne)otiations have 0een concluded.
LL
Much less, therefore, should it 0e inferred that the .ouse of Representatives has this power.
3ince allowin) petitioner!'e'0ers of the .ouse of Representatives access to the su0Dect +P(PA docu'ents
would set a precedent for future ne)otiations, leadin) to the contravention of the pu0lic interests articulated
a0ove which the Constitution sou)ht to protect, the su0Dect docu'ents should not 0e disclosed.
2. &he dissent also asserts that respondents can no lon)er clai' the diplo'atic secrets privile)e over the
su0Dect +P(PA docu'ents now that ne)otiations have 0een concluded, since their reasons for nondisclosure
cited in the +une 2E, 200J letter of 3ec. (r'ita, and later in their Co''ent, necessaril* appl* onl* for as lon)
as the ne)otiations were still pendin)<
2n their Co''ent, respondents contend that 4the ne)otiations of the representatives of the Philippines as well
as of +apan 'ust 0e allowed to e6plore alternatives in the course of the ne)otiations in the sa'e 'anner as
Dudicial deli0erations and wor@in) drafts of opinions are accorded strict confidentialit*.4 .h%& re1#o$,e$&1
"i<e$ &he ,oc+me$&1 i$0o"0e, i$ &he J!E!A $e2o&i%&io$1 &o >+,ici%" ,e"iber%&io$1 %$, 9or<i$2 ,r%&1 o
o#i$io$1 e0i$ce1, b4 i&1e", &h%& &he4 9ere c"%imi$2 co$i,e$&i%"i&4 $o& o$"4 +$&i", b+& e0e$ %&er, &he
co$c"+1io$ o &he $e2o&i%&io$1.
+udicial deli0erations do not lose their confidential character once a decision has 0een pro'ul)ated 0* the
courts. &he sa'e holds true with respect to wor@in) drafts of opinions, which are co'para0le to intra!a)enc*
reco''endations. 3uch intra!a)enc* reco''endations are privile)ed even after the position under
consideration 0* the a)enc* has developed into a definite proposition, hence, the rule in this Durisdiction that
a)encies have the dut* to disclose onl* definite propositions, and not the inter!a)enc* and intra!a)enc*
co''unications durin) the sta)e when co''on assertions are still 0ein) for'ulated.
L7
E. &he dissent clai's that petitioner!'e'0ers of the .ouse of Representatives have sufficientl* shown their
need for the sa'e docu'ents to overco'e the privile)e. A)ain, We disa)ree.
&he .ouse Co''ittee that initiated the investi)ations on the +P(PA did not pursue its earlier intention to
su0poena the docu'ents. &his stron)l* under'ines the assertion that access to the sa'e docu'ents 0* the
.ouse Co''ittee is critical to the perfor'ance of its le)islative functions. 2f the docu'ents were indeed
critical, the .ouse Co''ittee should have, at the ver* least, issued a subpoena duces tecum or, li@e what the
3enate did in Senate v. ,rmita, filed the present petition as a le)islative 0od*, rather than leavin) it to the
discretion of individual Con)ress'en whether to pursue an action or not. 3uch acts would have served as
stron) indicia that Con)ress itself finds the su0Dect infor'ation to 0e critical to its le)islative functions.
/urther, )iven that respondents have clai'ed e6ecutive privile)e, petitioner!'e'0ers of the .ouse of
Representatives should have, at least, shown how its lac@ of access to the Philippine and +apanese offers
would hinder the intelli)ent craftin) of le)islation. Mere assertion that the +P(PA covers a su0Dect 'atter over
which Con)ress has the power to le)islate would not suffice. As Senate Select Committee v. 4i2on
L8
held, the
882
showin) re7uired to overco'e the presu'ption favorin) confidentialit* turns, not onl* on the nature and
appropriateness of the function in the perfor'ance of which the 'aterial was sou)ht, 0ut also the de)ree to
which the 'aterial was necessar* to its fulfill'ent. &his petitioners failed to do.
/urther'ore, fro' the ti'e the final te6t of the +P(PA includin) its anne6es and attach'ents was pu0lished,
petitioner!'e'0ers of the .ouse of Representatives have 0een free to use it for an* le)islative purpose the*
'a* see fit. 3ince such pu0lication, petitionersC need, if an*, specificall* for the Philippine and +apanese offers
leadin) to the final version of the +P(PA, has 0eco'e even less apparent.
2n assertin) that the 0alance in this instance tilts in favor of disclosin) the +P(PA docu'ents, the dissent
contends that the (6ecutive has failed to show how disclosin) the' after the conclusion of ne)otiations would
i'pair the perfor'ance of its functions. &he contention, with due respect, 'isplaces the onus pro0andi. While,
in @eepin) with the )eneral presu'ption of transparenc*, the 0urden is initiall* on the (6ecutive to provide
precise and certain reasons for upholdin) its clai' of privile)e, once the (6ecutive is a0le to show that the
docu'ents 0ein) sou)ht are covered 0* a reco)niAed privile)e, the 0urden shifts to the part* see@in)
infor'ation to overco'e the privile)e 0* a stron) showin) of need.
When it was thus esta0lished that the +P(PA docu'ents are covered 0* the privile)e for diplo'atic
ne)otiations pursuant to P(P% v. (anglapus, the presu'ption arose that their disclosure would i'pair the
perfor'ance of e6ecutive functions. 2t was then incu'0ent on petitioner! re7uestin) parties to show that the*
have a stron) need for the infor'ation sufficient to overco'e the privile)e. &he* have not, however.
F. Respectin) the failure of the (6ecutive 3ecretar* to e6plicitl* state that he is clai'in) the privile)e 40* order
of the President,4 the sa'e 'a* not 0e strictl* applied to the privile)e clai' su0Dect of this case.
When the Court in Senate v. ,rmita li'ited the power of invo@in) the privile)e to the President alone, it was
la*in) down a new rule for which there is no counterpart even in the 5nited 3tates fro' which the concept of
e6ecutive privile)e was adopted. As held in the 200F case of "udicial +atch, *nc. v. Department of "ustice,
L%
citin) *n re Sealed Case,
70
4the issue of whether a President 'ust personall* invo@e the Gpresidential
co''unicationsH privile)e re'ains an open 7uestion.4 <.S. v. eynolds,
78
on the other hand, held that 4GtHhere
'ust 0e a for'al clai' of privile)e, lod)ed 0* the head of the depart'ent which has control over the 'atter,
after actual personal consideration 0* that officer.4
&he rule was thus laid down 0* this Court, not in adherence to an* esta0lished precedent, 0ut with the ai' of
preventin) the a0use of the privile)e in li)ht of its hi)hl* e6ceptional nature. &he CourtCs reco)nition that the
(6ecutive 3ecretar* also 0ears the power to invo@e the privile)e, provided he does so 40* order of the
President,4 is 'eant to avoid la*in) down too ri)id a rule, the Court 0ein) aware that it was la*in) down a new
restriction on e6ecutive privile)e. 2t is with the sa'e spirit that the Court should not 0e overl* strict with
appl*in) the sa'e rule in this peculiar instance, where the clai' of e6ecutive privile)e occurred 0efore the
Dud)'ent in Senate v. ,rmita 0eca'e final.
J. &o show that P(P% v. (anglapus 'a* not 0e applied in the present case, the dissent i'plies that the
Court therein erred in citin) <S v. Curtiss +right
72
and the 0oo@ entitled #he 4ew American )overnment and
*ts +or?
7E
since these authorities, so the dissent clai's, 'a* not 0e used to cali0rate the i'portance of the
ri)ht to infor'ation in the Philippine settin).
&he dissent ar)ues that since Curtiss5+right referred to a conflict 0etween the e6ecutive and le)islative
0ranches of )overn'ent, the factual settin) thereof was different fro' that of P(P% v. (anglapus which
involved a collision 0etween )overn'ental power over the conduct of forei)n affairs and the citiAenCs ri)ht to
infor'ation.
&hat the Court could freel* cite Curtiss!Wri)ht B a case that upholds the secrec* of diplo'atic ne)otiations
a)ainst con)ressional de'ands for infor'ation B in the course of la*in) down a rulin) on the pu0lic ri)ht to
88E
infor'ation onl* serves to underscore the principle 'entioned earlier that the privile)ed character accorded to
diplo'atic ne)otiations does not ipso facto lose all force and effect si'pl* 0ecause the sa'e privile)e is now
0ein) clai'ed under different circu'stances.
P(P% v. (anglapus indeed involved a de'and for infor'ation fro' private citiAens and not an e6ecutive!
le)islative conflict, 0ut so did ChaveE v. P,A
7F
which held that 4the Gpu0licCsH ri)ht to infor'ation . . . does not
e6tend to 'atters reco)niAed as privile)ed infor'ation under the separation of powers.4 What counts as
privile)ed infor'ation in an e6ecutive!le)islative conflict is thus also reco)niAed as such in cases involvin) the
pu0licCs ri)ht to infor'ation.
ChaveE v. PC))
7J
also involved the pu0licCs ri)ht to infor'ation, *et the Court reco)niAed as a valid li'itation
to that ri)ht the sa'e privile)ed infor'ation 0ased on separation of powers B closed!door Ca0inet 'eetin)s,
e6ecutive sessions of either house of Con)ress, and the internal deli0erations of the 3upre'e Court.
&hese cases show that the Court has alwa*s re)arded clai's of privile)e, whether in the conte6t of an
e6ecutive!le)islative conflict or a citiAenCs de'and for infor'ation, as closel* intertwined, such that the
principles applica0le to one are also applica0le to the other.
&he reason is o0vious. 2f the validit* of clai's of privile)e were to 0e assessed 0* entirel* different criteria in
each conte6t, this 'a* )ive rise to the a0surd result where Co$2re11 would 0e denied access to a particular
infor'ation 0ecause of a clai' of e6ecutive privile)e, 0ut &he 2e$er%" #+b"ic would have access to the sa'e
infor'ation, the clai' of privile)e notwithstandin).
A0surdit* would 0e the ulti'ate result if, for instance, the Court adopts the 4clear and present dan)er4 test for the
assess'ent of clai's of privile)e a)ainst citiAensC de'ands for infor'ation. 2f e6ecutive infor'ation, when de'anded 0*
a citiAen, is privile)ed onl* when there is a clear and present dan)er of a su0stantive evil that the 3tate has a ri)ht to
prevent, it would 0e ver* difficult for the (6ecutive to esta0lish the validit* of its clai' in each instance. 2n contrast, if the
de'and co'es fro' Con)ress, the (6ecutive 'erel* has to show that the infor'ation is covered 0* a reco)niAed
privile)e in order to shift the 0urden on Con)ress to present a stron) showin) of need. &his would lead to a situation
where it would 0e 'ore difficult for Con)ress to access e6ecutive infor'ation than it would 0e for private citiAens.
We 'aintain then that when the (6ecutive has alread* shown that an infor'ation is covered 0* e6ecutive privile)e, the
part* de'andin) the infor'ation 'ust present a 4stron) showin) of need,4 whether that part* is Con)ress or a private
citiAen.
&he rule that the sa'e 4showin) of need4 test applies in 0oth these conte6ts, however, should not 0e construed as a
denial of the i'portance of anal*Ain) the conte6t in which an e6ecutive privile)e controvers* 'a* happen to 0e placed.
Rather, it affir's it, for it 'eans that the specific need 0ein) shown 0* the part* see@in) infor'ation in ever* particular
instance is hi)hl* si)nificant in deter'inin) whether to uphold a clai' of privile)e. .hi1 I$ee,I i1, #reci1e"4, #%r& o &he
co$&e;& i$ "i2h& o 9hich e0er4 c"%im o #ri0i"e2e 1ho+", be %11e11e,.
3ince, as de'onstrated a0ove, there are co''on principles that should 0e applied to e6ecutive privile)e controversies
across different conte6ts, the Court in P(P% v. (anglapus did not err when it cited the Curtiss5+right case.
&he clai' that the 0oo@ cited in P(P% v. (anglapus entitled #he 4ew American )overnment and *ts +or? could not
have ta@en into account the e6panded statutor* ri)ht to infor'ation in the /#2A assu'es that the o0servations in that
0oo@ in support of the confidentialit* of treat* ne)otiations would 0e different had it 0een written after the /#2A. 3uch
assu'ption is, with due respect, at 0est, speculative.
As to the clai' in the dissent that 4GiHt is 'ore dou0tful if the sa'e 0oo@ 0e used to cali0rate the i'portance of the ri)ht of
access to infor'ation in the Philippine settin) considerin) its elevation as a constitutional ri)ht,4 we su0'it that the
elevation of such ri)ht as a constitutional ri)ht did not set it free fro' the le)iti'ate restrictions of e6ecutive privile)e
which is itself constitutionall*!0ased.
7L
.ence, the co''ents in that 0oo@ which were cited in P(P% v. (anglapus re'ain
valid doctrine.
88F
L. &he dissent further asserts that the Court has never used 4need4 as a test to uphold or allow inroads into ri)hts
)uaranteed under the Constitution. With due respect, we assert otherwise. &he Court has done so 0efore, al0eit without
usin) the ter' 4need.4
2n e6ecutive privile)e controversies, the re7uire'ent that parties present a 4sufficient showin) of need4 onl* 'eans, in
su0stance, that the* should show a pu0lic interest in favor of disclosure sufficient in de)ree to overco'e the clai' of
privile)e.
77
:eril*, the Court in such cases en)a)es in a b%"%$ci$2 o i$&ere1&1. 3uch a 0alancin) of interests is certainl*
not new in constitutional adDudication involvin) funda'ental ri)hts. Secretary of "ustice v. /antion,
78
which was cited in
the dissent, applied Dust such a test.
"iven that the dissent has clarified that it does not see@ to appl* the 4clear and present dan)er4 test to the present
controvers*, 0ut the 0alancin) test, there see's to 0e no su0stantial dispute 0etween the position laid down in this
ponencia and that reflected in the dissent as to what test to appl*. 2t would appear that the onl* disa)ree'ent is on the
results of appl*in) that test in this instance.
&he dissent, nonetheless, 'aintains that 4it suffices that infor'ation is of pu0lic concern for it to 0e covered 0* the ri)ht,
re)ardless of the pu0licCs need for the infor'ation,4 and that the sa'e would hold true even 4if the* si'pl* want to @now
it 0ecause it interests the'.4 As has 0een stated earlier, however, there is no dispute that the infor'ation su0Dect of this
case is a 'atter of pu0lic concern. &he Court has earlier concluded that it is a 'atter of pu0lic concern, not on the 0asis
of an* specific need shown 0* petitioners, 0ut fro' the ver* nature of the +P(PA as an international trade a)ree'ent.
@o9e0er, when the (6ecutive has B as in this case B invo@ed the privile)e, and it has 0een esta0lished that the su0Dect
infor'ation is indeed covered 0* the privile)e 0ein) clai'ed, can a part* overco'e the sa'e 0* 'erel* assertin) that
the infor'ation 0ein) de'anded is a 'atter of pu0lic concern, without an* further showin) re7uiredN Certainl* not, for
that would render the doctrine of e6ecutive privile)e of no force and effect whatsoever as a li'itation on the ri)ht to
infor'ation, 0ecause then the sole test in such controversies would 0e whether an infor'ation is a 'atter of pu0lic
concern.
Moreover, in view of the earlier discussions, we 'ust 0ear in 'ind that, 0* disclosin) the docu'ents of the +P(PA
ne)otiations, the Philippine )overn'ent runs the )rave ris@ of 0etra*in) the trust reposed in it 0* the +apanese
representatives, indeed, 0* the +apanese )overn'ent itself. .ow would the Philippine )overn'ent then e6plain itself
when that happensN 3urel*, it cannot 0ear to sa* that it Dust h%, &o release the infor'ation 0ecause certain persons
si'pl* wanted to @now it 40ecause it interests the'.4
&hus, the Court holds that, in deter'inin) whether an infor'ation is covered 0* the ri)ht to infor'ation, a specific
4showin) of need4 for such infor'ation is not a relevant consideration, 0ut onl* whether the sa'e is a 'atter of pu0lic
concern. When, however, the )overn'ent has clai'ed e6ecutive privile)e, and it has esta0lished that the infor'ation is
indeed covered 0* the sa'e, then the part* de'andin) it, if it is to overco'e the privile)e, 'ust show that that the
infor'ation is vital, not si'pl* for the satisfaction of its curiosit*, 0ut for its a0ilit* to effectivel* and reasona0l* participate
in social, political, and econo'ic decision!'a@in).
7. &he dissent 'aintains that 4GtHhe treat* has thus entered the ulti'ate sta)e where the people can e6ercise their ri2h&
&o #%r&ici#%&e in the discussion whether the 3enate should concur in its ratification or not.4 (('phasis supplied 2t adds
that this ri)ht 4will 0e diluted unless the people can have access to the su0Dect +P(PA docu'ents4. What, to the dissent,
is a dilution of the ri)ht to participate in decision!'a@in) is, to 5s, si'pl* a reco)nition of the 7ualified nature of the
pu0licCs ri)ht to infor'ation. 2t is 0e*ond dispute that the ri)ht to infor'ation is not a0solute and that the doctrine of
e6ecutive privile)e is a reco)niAed li'itation on that ri)ht.
Moreover, contrar* to the su0'ission that the ri)ht to participate in decision!'a@in) would 0e diluted, We reiterate that
our people have 0een e6ercisin) their ri)ht to participate in the discussion on the issue of the +P(PA, and the* have
0een a0le to articulate their different opinions without need of access to the +P(PA ne)otiation docu'ents.
&hus, we hold that the 0alance in this case tilts in favor of e6ecutive privile)e.
8. A)ainst our rulin) that the principles applied in <.S. v. 4i2on, the Senate Select Committee case, and *n re Sealed
Case, are si'ilarl* applica0le to the present controvers*, the dissent cites the caveat in the 4i2on case that the 5.3.
Court was there addressin) onl* the PresidentCs assertion of privile)e in the conte6t of a cri'inal trial, not a civil liti)ation
88J
nor a con)ressional de'and for infor'ation. What this caveat 'eans, however, is onl* that courts 'ust 0e careful not to
hastil* appl* the rulin) therein to other conte6ts. 2t does not, however, a0solutel* 'ean that the principles applied in that
case 'a* never 0e applied in such conte6ts.
.ence, 5.3. courts have cited <.S. v. 4i2on in support of their rulin)s on clai's of e6ecutive privile)e in conte6ts other
than a cri'inal trial, as in the case of 4i2on v. Administrator of )eneral Services
80
B which involved for'er President
$i6onCs invocation of e6ecutive privile)e to challen)e the constitutionalit* of the 4Presidential Recordin)s and Materials
Preservation Act4
88
B and the a0ove!'entioned *n re Sealed Case which involved a clai' of privile)e a)ainst a subpoena
duces tecum issued in a )rand Dur* investi)ation.
2ndeed, in appl*in) to the present case the principles found in <.S. v. 4i2on and in the other cases alread* 'entioned,
We are 'erel* affir'in) what the Chief +ustice stated in his 1issentin) #pinion in 4eri v. Senate Committee on
Accountability B a case involvin) an e6ecutive!le)islative conflict over e6ecutive privile)e. &hat dissentin) opinion stated
that, while 4i2on was not concerned with the 0alance 0etween the PresidentCs )eneraliAed interest in confidentialit* and
con)ressional de'ands for infor'ation, 4M$No$e&he"e11 &he M-.*.N Co+r& "%i, ,o9$ #ri$ci#"e1 %$, #roce,+re1 &h%&
c%$ 1er0e %1 &orch "i2h&1 &o i""+mi$e +1 o$ &he 1co#e %$, +1e o !re1i,e$&i%" comm+$ic%&io$ #ri0i"e2e i$ &he
c%1e %& b%r.4 While the Court was divided in 4eri, this opinion of the Chief +ustice was not a'on) the points of
disa)ree'ent, and We si'ilarl* hold now that the 4i2on case is a useful )uide in the proper resolution of the present
controvers*, notwithstandin) the difference in conte6t.
Veri"4, 9hi"e &he Co+r& 1ho+", 2+%r, %2%i$1& &he %b+1e o e;ec+&i0e #ri0i"e2e, i& 1ho+", %"1o 2i0e +"" reco2$i&io$
&o &he 0%"i,i&4 o &he #ri0i"e2e 9he$e0er i& i1 c"%ime, 9i&hi$ &he #ro#er bo+$,1 o e;ec+&i0e #o9er, %1 i$ &hi1
c%1e. #therwise, the Court would under'ine its own credi0ilit*, for it would 0e perceived as no lon)er ai'in) to stri@e a
0alance, 0ut see@in) 'erel* to water down e6ecutive privile)e to the point of irrelevance.
Co$c"+1io$
&o recapitulate, petitionersC de'and to 0e furnished with a cop* of the full te6t of the +P(PA has 0eco'e 'oot and
acade'ic, it havin) 0een 'ade accessi0le to the pu0lic since 3epte'0er 88, 200L. As for their de'and for copies of the
Philippine and +apanese offers su0'itted durin) the +P(PA ne)otiations, the sa'e 'ust 0e denied, respondentsC clai'
of e6ecutive privile)e 0ein) valid.
1iplo'atic ne)otiations have, since the Court pro'ul)ated its Resolution in PMP/ v. Man)lapus on 3epte'0er 8E, 8%88,
0een reco)niAed as privile)ed in this Durisdiction and the reasons proffered 0* petitioners a)ainst the application of the
rulin) therein to the present case have not persuaded the Court. Moreover, petitioners B 0oth private citiAens and
'e'0ers of the .ouse of Representatives B have failed to present a 4sufficient showin) of need4 to overco'e the clai'
of privile)e in this case.
&hat the privile)e was asserted for the first ti'e in respondentsC Co''ent to the present petition, and not durin) the
hearin)s of the .ouse 3pecial Co''ittee on "lo0aliAation, is of no 'o'ent, since it cannot 0e interpreted as a waiver of
the privile)e on the part of the (6ecutive 0ranch.
/or reasons alread* e6plained, this 1ecision shall not 0e interpreted as departin) fro' the rulin) in Senate v. ,rmita that
e6ecutive privile)e should 0e invo@ed 0* the President or throu)h the (6ecutive 3ecretar* 40* order of the President.4
W.(R(/#R(, the petition is 123M233(1.
*O ORDERED.
G.R. No. 101?38 J+$e 23, 1992
A-G-*.O 7ENEDIC.O *AN.O* III, re#re1e$&e, b4 hi1 %&her %$, "e2%" 2+%r,i%$, A+2+1&o 7e$e,ic&o
*%$&o1, petitioner,
vs.
NOR.@CE*. ORIEN. AIRLINE* %$, CO-R. O8 A!!EAL*, respondents.
88L
&his case involves the Proper interpretation of Article 28(8 of the Warsaw Convention, readin) as follows-
Art. 28. (8 An action for da'a)e 'ust 0e 0rou)ht at the option of the plaintiff, in the territor* of
one of the .i)h Contractin) Parties, either 0efore the court of the do'icile of the carrier or of
his principal place of 0usiness, or where he has a place of 0usiness throu)h which the contract
has 0een 'ade, or 0efore the court at the place of destination.
&he petitioner is a 'inor and a resident of the Philippines. Private respondent $orthwest #rient Airlines ($#A
is a forei)n corporation with principal office in Minnesota, 5.3.A. and licensed to do 0usiness and 'aintain a
0ranch office in the Philippines.
#n #cto0er 28, 8%8L, the petitioner purchased fro' $#A a round!trip tic@et in 3an /rancisco. 5.3.A., for his
fli)ht fro' 3an /rancisco to Manila via &o@*o and 0ac@. &he scheduled departure date fro' &o@*o was
1ece'0er 20, 8%8L. $o date was specified for his return to 3an /rancisco.
1
#n 1ece'0er 8%, 8%8L, the petitioner chec@ed in at the $#A counter in the 3an /rancisco airport for his
scheduled departure to Manila. 1espite a previous confir'ation and re!confir'ation, he was infor'ed that he
had no reservation for his fli)ht fro' &o@*o to Manila. .e therefore had to 0e wait!listed.
#n March 82, 8%87, the petitioner sued $#A for da'a)es in the Re)ional &rial Court of Ma@ati. #n April 8E,
8%87, $#A 'oved to dis'iss the co'plaint on the )round of lac@ of Durisdiction. Citin) the a0ove!7uoted
article, it contended that the co'plaint could 0e instituted onl* in the territor* of one of the .i)h Contractin)
Parties, 0efore-
8. the court of the do'icile of the carrier<
2. the court of its principal place of 0usiness<
E. the court where it has a place of 0usiness throu)h which the contract had 0een 'ade<
F. the court of the place of destination.
&he private respondent contended that the Philippines was not its do'icile nor was this its principal place of
0usiness. $either was the petitionerQs tic@et issued in this countr* nor was his destination Manila 0ut 3an
/rancisco in the 5nited 3tates.
#n /e0ruar* 8, 8%88, the lower court )ranted the 'otion and dis'issed the case.
2
&he petitioner appealed to
the Court of Appeals, which affir'ed the decision of the lower court.
3
#n +une 2L, 8%%8, the petitioner filed a
'otion for reconsideration, 0ut the sa'e was denied.
4
&he petitioner then ca'e to this Court, raisin)
su0stantiall* the sa'e issues it su0'itted in the Court of Appeals.
&he assi)n'ent of errors 'a* 0e )rouped into two 'aDor issues, viEH
(8 the constitutionalit* of Article 28(8 of the Warsaw Convention< and
(2 the Durisdiction of Philippine courts over the case.
&he petitioner also invo@es Article 2F of the Civil Code on the protection of 'inors.
2. &.( 2335( #/ C#$3&2&5&2#$A92&?
887
A. #he petitioner claims that the lower court erred in not ruling that Article 78$:& of the +arsaw
Convention violates the constitutional guarantees of due process and e!ual protection.
&he Repu0lic of the Philippines is a part* to the Convention for the 5nification of Certain Rules Relatin) to
2nternational &ransportation 0* Air, otherwise @nown as the Warsaw Convention. 2t too@ effect on /e0ruar* 8E,
8%EE. &he Convention was concurred in 0* the 3enate, throu)h its Resolution $o. 8%, on Ma* 8L, 8%J0. &he
Philippine instru'ent of accession was si)ned 0* President (lpidio Kuirino on #cto0er 8E, 8%J0, and was
deposited with the Polish )overn'ent on $ove'0er %, 8%J0. &he Convention 0eca'e applica0le to the
Philippines on /e0ruar* %, 8%J8. #n 3epte'0er 2E, 8%JJ, President Ra'on Ma)sa*sa* issued Procla'ation
$o. 208, declarin) our for'al adherence thereto. 4to the end that the sa'e and ever* article and clause
thereof 'a* 0e o0served and fulfilled in )ood faith 0* the Repu0lic of the Philippines and the citiAens thereof.4
?
&he Convention is thus a treat* co''it'ent voluntaril* assu'ed 0* the Philippine )overn'ent and, as such,
has the force and effect of law in this countr*.
&he petitioner contends that Article 28(8 cannot 0e applied in the present case 0ecause it is unconstitutional.
.e ar)ues that there is no su0stantial distinction 0etween a person who purchases a tic@et in Manila and a
person who purchases his tic@et in 3an /rancisco. &he classification of the places in which actions for
da'a)es 'a* 0e 0rou)ht is ar0itrar* and irrational and thus violates the due process and e7ual protection
clauses.
2t is well!settled that courts will assu'e Durisdiction over a constitutional 7uestion onl* if it is shown that t