1

away from an
orientations.1
Province of North Cotabato
183591, October 14, 2008

v.

Government,

Islamic

basis

towards

Marxist-Maoist

GR

DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the
powers of the President in pursuing the peace process.
While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the
Moro Islamic Liberation Front (MILF), the legal issue involved
has a bearing on all areas in the country where there has
been a long-standing armed conflict. Yet again, the Court is
tasked to perform a delicate balancing act. It must
uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do
so in strict adherence to the Constitution, lest its ruling
unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to
pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of
their respective peace negotiating panels, were scheduled to
sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace
of 2001 in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March
1984 when, under the leadership of the late Salamat Hashim,
it splintered from the Moro National Liberation Front (MNLF)
then headed by Nur Misuari, on the ground, among others, of
what Salamat perceived to be the manipulation of the MNLF

The signing of the MOA-AD between the GRP and the MILF
was not to materialize, however, for upon motion of
petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a
Temporary Restraining Order enjoining the GRP from signing
the same.
The MOA-AD was preceded by a long process of negotiation
and the concluding of several prior agreements between the
two parties beginning in 1996, when the GRP-MILF peace
negotiations began. On July 18, 1997, the GRP and MILF
Peace Panels signed the Agreement on General Cessation of
Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents,
summarizes the MOA-AD by stating that the same contained,
among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights,
negotiate with sincerity in the resolution and pacific
settlement of the conflict, and refrain from the use of threat
or force to attain undue advantage while the peace
negotiations on the substantive agenda are on-going. 2
Early on, however, it was evident that there was not going to
be any smooth sailing in the GRP-MILF peace process.
Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March
2000, it took control of the town hall of Kauswagan, Lanao
del Norte.3 In response, then President Joseph Estrada
declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
government sought a resumption of the peace talks. The
MILF, according to a leading MILF member, initially

2
responded with deep reservation, but when President Arroyo
asked the Government of Malaysia through Prime Minister
Mahathir Mohammad to help convince the MILF to return to
the negotiating table, the MILF convened its Central
Committee to seriously discuss the matter and, eventually,
decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the
talks being facilitated by the Malaysian government, the
parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks
Between the GRP and the MILF. The MILF thereafter
suspended all its military actions. 5
Formal peace talks between the parties were held in Tripoli,
Libya from June 20-22, 2001, the outcome of which was the
GRP-MILF Tripoli Agreement on Peace (Tripoli Agreement
2001) containing the basic principles and agenda on the
following aspects of the negotiation: Security Aspect,
Rehabilitation Aspect, and Ancestral Domain Aspect.
With regard to the Ancestral Domain Aspect, the parties in
Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya,
Malaysia on August 5-7, 2001 which ended with the signing
of the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between
the parties. This was followed by the Implementing
Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia.
Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed
away on July 13, 2003 and he was replaced by Al Haj Murad,
who was then the chief peace negotiator of the MILF. Murad's

position as chief peace negotiator was taken over by

Mohagher Iqbal.6
In 2005, several exploratory talks were held between the
parties in Kuala Lumpur, eventually leading to the crafting of
the draft MOA-AD in its final form, which, as mentioned, was
set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious
"consensus" ever embodied in an instrument - the MOA-AD
which is assailed principally by the present petitions bearing
docket numbers 183591, 183752, 183893, 183951 and
183962.
Commonly impleaded as respondents are the GRP Peace
Panel on Ancestral Domain7 and the Presidential Adviser on
the Peace Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato 8 and ViceGovernor Emmanuel Piol filed a petition, docketed as G.R.
No. 183591, for Mandamus and Prohibition with Prayer for
the Issuance of Writ of Preliminary Injunction and Temporary
Restraining Order.9 Invoking the right to information on
matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and
official copies of the MOA-AD including its attachments, and
to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a
public consultation thereon. Supplementarily, petitioners
pray that the MOA-AD be declared unconstitutional. 10
This initial petition was followed by another one, docketed as
G.R. No. 183752, also for Mandamus and Prohibition 11 filed
by the City of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma.
Isabelle Climaco and Rep. Erico Basilio Fabian who likewise
pray for similar injunctive reliefs. Petitioners herein moreover
pray that the City of Zamboanga be excluded from the

3
Bangsamoro Homeland and/or Bangsamoro Juridical Entity
and, in the alternative, that the MOA-AD be declared null and
void.
By Resolution of August 4, 2008, the Court issued a
Temporary Restraining Order commanding and directing
public respondents and their agents to cease and desist from
formally signing the MOA-AD.13 The Court also required the
Solicitor General to submit to the Court and petitioners the
official copy of the final draft of the MOA-AD, 14 to which she
complied.15
Meanwhile, the City of Iligan 16 filed a petition for Injunction
and/or Declaratory Relief, docketed as G.R. No. 183893,
praying that respondents be enjoined from signing the MOAAD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
17

The Province of Zamboanga del Norte, Governor Rolando

Yebes, Vice-Governor Francis Olvis, Rep. Cecilia JalosjosCarreon, Rep. Cesar Jalosjos, and the members 18 of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on
August 15, 2008 a petition for Certiorari, Mandamus and
Prohibition,19 docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without
operative effect, and that respondents be enjoined from
executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and
Aquilino Pimentel III filed a petition for Prohibition, 20 docketed
as G.R. No. 183962, praying for a judgment prohibiting and
permanently enjoining respondents from formally signing and
executing the MOA-AD and or any other agreement derived
therefrom or similar thereto, and nullifying the MOA-AD for
being unconstitutional and illegal. Petitioners herein
additionally implead as respondent the MILF Peace

Negotiating Panel represented by its Chairman Mohagher

Iqbal.
Various parties moved to intervene and were granted leave
of court to file their petitions-/comments-in-intervention.
Petitioners-in-Intervention include Senator Manuel A. Roxas,
former Senate President Franklin Drilon and Atty. Adel
Tamano, the City of Isabela21 and Mayor Cherrylyn SantosAkbar, the Province of Sultan Kudarat22 and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del
Norte,23 Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers
Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag,
Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim MultiSectoral Movement for Peace and Development (MMMPD)
filed their respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the
consolidation of the petitions. Respondents filed Comments
on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19,
2008, stated that the Executive Department shall thoroughly
review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to
dismiss the cases. In the succeeding exchange of pleadings,
respondents' motion was met with vigorous opposition from
petitioners.
The cases were heard on oral argument on August 15, 22 and
29, 2008 that tackled the following principal issues:
1. Whether the petitions have become moot and
academic

4
(i) insofar as the mandamus aspect is
concerned, in view of the disclosure of official
copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving
the Local Government Units is concerned, if it is
considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the
MOA is ripe for adjudication;
3. Whether respondent Government of the Republic of
the Philippines Peace Panel committed grave abuse of
discretion amounting to lack or excess of jurisdiction
when it negotiated and initiated the MOA vis--vis
ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to
information on matters of public concern (1987
Constitution, Article III, Sec. 7) under a state policy of
full disclosure of all its transactions involving public
interest (1987 Constitution, Article II, Sec. 28)
including public consultation under Republic Act No.
7160 (LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under
Rule 65 of the 1997 Rules of Civil Procedure is an
appropriate remedy;
5. Whether by signing the MOA, the Government of the
Republic of the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro
Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not
recognized by law;

b) to revise or amend the Constitution and

existing laws to conform to the MOA;
c) to concede to or recognize the claim of the
Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371
(THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII
(DELINEATION, RECOGNITION OF ANCESTRAL
DOMAINS)[;]
If in the affirmative, whether the Executive Branch has
the authority to so bind the Government of the
Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of
North Cotabato, Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, Lanao del
Norte in/from the areas covered by the projected
Bangsamoro Homeland is a justiciable question; and
7. Whether desistance from signing the MOA derogates
any prior valid commitments of the Government of the
Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their
respective Memoranda. Most of the parties submitted their
memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of
objections raised in the subject five petitions and
petitions-in-intervention against the MOA-AD, as well as
two comments-in-intervention in favor of the MOA-AD,
Court takes an overview of the MOA.

the
six
the
the

The MOA-AD identifies the Parties to it as the GRP and the

MILF.

5
Under the heading "Terms of Reference" (TOR), the MOA-AD
includes not only four earlier agreements between the GRP
and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli
Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the
organic act for the Autonomous Region in Muslim Mindanao
(ARMM)25 and the Indigenous Peoples Rights Act (IPRA), 26 and
several international law instruments - the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in
Independent Countries in relation to the UN Declaration on
the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of
"compact rights entrenchment emanating from the regime of
dar-ul-mua'hada (or territory under compact) and dar-ul-sulh
(or territory under peace agreement) that partakes the
nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists
tended to see the world through a simple dichotomy: there
was the dar-ul-Islam (the Abode of Islam) and dar-ul-harb (the
Abode of War). The first referred to those lands where Islamic
laws held sway, while the second denoted those lands where
Muslims were persecuted or where Muslim laws were
outlawed or ineffective.27 This way of viewing the world,
however, became more complex through the centuries as the
Islamic world became part of the international community of
nations.
As Muslim States entered into treaties with their neighbors,
even
with
distant
States
and
inter-governmental
organizations, the classical division of the world into dar-ulIslam and dar-ul-harb eventually lost its meaning. New terms
were drawn up to describe novel ways of perceiving non-

Muslim territories. For instance, areas like dar-ul-mua'hada

(land of compact) and dar-ul-sulh (land of treaty) referred to
countries which, though under a secular regime, maintained
peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement.
Dar-ul-aman (land of order), on the other hand, referred to
countries which, though not bound by treaty with Muslim
States, maintained freedom of religion for Muslims. 28
It thus appears that the "compact rights entrenchment"
emanating from the regime of dar-ul-mua'hada and dar-ulsulh simply refers to all other agreements between the MILF
and the Philippine government - the Philippines being the
land of compact and peace agreement - that partake of the
nature of a treaty device, "treaty" being broadly defined as
"any solemn agreement in writing that sets out
understandings, obligations, and benefits for both parties
which provides for a framework that elaborates the principles
declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main
body.
The main body of the MOA-AD is divided into four
strands, namely, Concepts and Principles, Territory,
Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright
of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as Bangsamoros.'" It
defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including
Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full
blood, including their spouses.30

6
Thus, the concept of "Bangsamoro," as defined in this strand
of the MOA-AD, includes not only "Moros" as traditionally
understood even by Muslims,31 but all indigenous peoples of
Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected.
What this freedom of choice consists in has not been
specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro
homeland," the ownership of which is vested exclusively in
the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that
ancestral domain does not form part of the public domain.33
The Bangsamoro people are acknowledged as having the
right to self-governance, which right is said to be rooted on
ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or
"karajaan/kadatuan" resembling a body politic endowed with
all the elements of a nation-state in the modern sense. 34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the
sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and,
specifically in the case of the Maranao, by the Pat a
Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans,
none of whom was supreme over the others. 35
The MOA-AD goes on to describe the Bangsamoro people as
"the First Nation' with defined territory and with a system of
government having entered into treaties of amity and
commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known
as Indians. In Canada, each of these indigenous peoples is

equally entitled to be called "First Nation," hence, all of them

are usually described collectively by the plural "First
Nations."36 To that extent, the MOA-AD, by identifying the
Bangsamoro people as "the First Nation" - suggesting its
exclusive entitlement to that designation - departs from the
Canadian usage of the term.
The MOA-AD then mentions for the first time the
"Bangsamoro Juridical Entity" (BJE) to which it grants the
authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as
the land mass as well as the maritime, terrestrial, fluvial and
alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-SuluPalawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan,
and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in
the ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces,
cities, municipalities and barangays, which are grouped into
two categories, Category A and Category B. Each of these
areas is to be subjected to a plebiscite to be held on different
dates, years apart from each other. Thus, Category A areas
are to be subjected to a plebiscite not later than twelve (12)
months following the signing of the MOA-AD. 40 Category B
areas, also called "Special Intervention Areas," on the other
hand, are to be subjected to a plebiscite twenty-five (25)
years from the signing of a separate agreement - the
Comprehensive Compact.41

7
The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its " internal
waters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area; 42 that the BJE shall also have
"territorial waters," which shall stretch beyond the BJE
internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland
Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with
RP) shall exercise joint jurisdiction, authority and
management over all natural resources. 43 Notably, the
jurisdiction over the internal waters is not similarly described
as "joint."
The MOA-AD further provides for the sharing of minerals on
the territorial waters between the Central Government and
the BJE, in favor of the latter, through production sharing and
economic cooperation agreement.44 The activities which the
Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization
of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety
measures.45 There is no similar provision on the sharing of
minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any
economic cooperation and trade relations with foreign
countries and shall have the option to establish trade
missions in those countries. Such relationships and
understandings, however, are not to include aggression
against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and
obligation of the Central Government. The Central
Government is also bound to "take necessary steps to ensure

the BJE's participation in international meetings and events"

like those of the ASEAN and the specialized agencies of the
UN. The BJE is to be entitled to participate in Philippine
official missions and delegations for the negotiation of border
agreements or protocols for environmental protection and
equitable sharing of incomes and revenues involving the
bodies of water adjacent to or between the islands forming
part of the ancestral domain.47
With regard to the right of exploring for, producing, and
obtaining all potential sources of energy, petroleum, fossil
fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control
within its territorial jurisdiction." This right carries the proviso
that, "in times of national emergency, when public interest so
requires," the Central Government may, for a fixed period
and under reasonable terms as may be agreed upon by both
Parties, assume or direct the operation of such resources. 48
The sharing between the Central Government and the BJE of
total production pertaining to natural resources is to be 75:25
in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of
their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged.
Whenever restoration is no longer possible, reparation is to
be in such form as mutually determined by the Parties. 50
The BJE may modify or cancel the forest concessions,
timber
licenses,
contracts
or
agreements,
mining
concessions, Mineral Production and Sharing Agreements
(MPSA), Industrial Forest Management Agreements (IFMA),
and other land tenure instruments granted by the Philippine
Government, including those issued by the present ARMM.51
D. GOVERNANCE

8
The MOA-AD binds the Parties to invite a multinational thirdparty to observe and monitor the implementation of the
Comprehensive Compact. This compact is to embody the
"details for the effective enforcement" and "the mechanisms
and modalities for the actual implementation" of the MOAAD. The MOA-AD explicitly provides that the participation of
the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE. 52
The
"associative"
between
the
Central
and the BJE

relationship
Government

The MOA-AD describes the relationship of the Central

Government and the BJE as "associative," characterized by
shared authority and responsibility. And it states that the
structure of governance is to be based on executive,
legislative, judicial, and administrative institutions with
defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring
"amendments to the existing legal framework" shall take
effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the
non-derogation of prior agreements and within the
stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the
present controversy hangs on the legality of this
provision.
The BJE is granted the power to build, develop and maintain
its own institutions inclusive of civil service, electoral,
financial and banking, education, legislation, legal, economic,
police and internal security force, judicial system and
correctional institutions, the details of which shall be
discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on

August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal,
Chairpersons of the Peace Negotiating Panels of the GRP and
the MILF, respectively. Notably, the penultimate paragraph of
the MOA-AD identifies the signatories as "the representatives
of the Parties," meaning the GRP and MILF themselves, and
not merely of the negotiating panels.53 In addition, the
signature page of the MOA-AD states that it is "WITNESSED
BY" Datuk Othman Bin Abd Razak, Special Adviser to the
Prime Minister of Malaysia, "ENDORSED BY" Ambassador
Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for
Peace Process in Southern Philippines, and SIGNED "IN THE
PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign
Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister
of Foreign Affairs, Malaysia, all of whom were scheduled to
sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities,
and barangays under Categories A and B earlier mentioned
in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or
to resolve hypothetical or feigned problems, or mere
academic questions.55 The limitation of the power of judicial
review to actual cases and controversies defines the role
assigned to the judiciary in a tripartite allocation of power, to
assure that the courts will not intrude into areas committed
to the other branches of government.56
An actual case or controversy involves a conflict of legal
rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or

9
abstract difference or dispute. There must be a contrariety of
legal rights that can be interpreted and enforced on the basis
of existing law and jurisprudence. 57 The Court can decide the
constitutionality of an act or treaty only when a proper case
between opposing parties is submitted for judicial
determination.58
Related to the requirement of an actual case or controversy
is the requirement of ripeness. A question is ripe for
adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. 59 For a case to
be considered ripe for adjudication, it is a prerequisite that
something had then been accomplished or performed by
either branch before a court may come into the picture, 60 and
the petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action.61 He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a
result of the act complained of.62
The Solicitor General argues that there is no justiciable
controversy that is ripe for judicial review in the present
petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus
points subject to further negotiations and legislative
enactments as well as constitutional processes aimed
at attaining a final peaceful agreement. Simply put,
the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and
obligations until the list of operative acts required have
been duly complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this
Honorable Court has no authority to pass upon issues
based on hypothetical or feigned constitutional
problems or interests with no concrete bases.

Considering the preliminary character of the MOA-AD,

there are no concrete acts that could possibly violate
petitioners' and intervenors' rights since the acts
complained of are mere contemplated steps toward
the formulation of a final peace agreement. Plainly,
petitioners and intervenors' perceived injury, if at all, is
merely imaginary and illusory apart from being
unfounded
and
based
on
mere
conjectures.
(Underscoring supplied)
The Solicitor General cites63 the following provisions of the
MOA-AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following
stipulations:
xxxx
d. Without derogating from the requirements of prior
agreements, the Government stipulates to conduct
and deliver, using all possible legal measures, within
twelve (12) months following the signing of the MOAAD, a plebiscite covering the areas as enumerated in
the list and depicted in the map as Category A
attached herein (the "Annex"). The Annex constitutes
an integral part of this framework agreement. Toward
this end, the Parties shall endeavor to complete the
negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months
from the signing of the MOA-AD.
xxxx
GOVERNANCE

10
xxxx
7. The Parties agree that mechanisms and modalities
for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually
take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon the signing of a Comprehensive Compact and
upon effecting the necessary changes to the legal
framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be
contained
in
the
Comprehensive
Compact. 64
(Underscoring supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render
the present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this
Court held:
x x x [B]y the mere enactment of the questioned law
or the approval of the challenged action, the dispute is
said to have ripened into a judicial controversy even
without any other overt act. Indeed, even a singular
violation of the Constitution and/or the law is enough
to awaken judicial duty.
xxxx
By the same token, when an act of the President, who
in our constitutional scheme is a coequal of Congress,
is seriously alleged to have infringed the Constitution
and the laws x x x settling the dispute becomes the
duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United
States Supreme Court held that the challenge to the

constitutionality of the school's policy allowing student-led

prayers and speeches before games was ripe for
adjudication, even if no public prayer had yet been led under
the policy, because the policy was being challenged as
unconstitutional on its face.68
That the law or act in question is not yet effective does not
negate ripeness. For example, in New York v. United States,69
decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was
ripe for adjudication even if the questioned provision was not
to take effect until January 1, 1996, because the parties
agreed that New York had to take immediate action to avoid
the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted
by law when any tribunal, board or officer has acted, in the
case of certiorari, or is proceeding, in the case of prohibition,
without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. 72
Mandamus is a remedy granted by law when any tribunal,
corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or
office to which such other is entitled.73 Certiorari, Mandamus
and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials. 74
The authority of the GRP Negotiating Panel is defined by
Executive Order No. 3 (E.O. No. 3), issued on February 28,
2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the
systematic approach and the administrative structure for
carrying out the comprehensive peace process x x x be
governed by this Executive Order."76

11
The present petitions allege that respondents GRP Panel and
PAPP Esperon drafted the terms of the MOA-AD without
consulting the local government units or communities
affected, nor informing them of the proceedings. As will be
discussed in greater detail later, such omission, by itself,
constitutes a departure by respondents from their mandate
under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the
MOA-AD violate the Constitution. The MOA-AD provides that
"any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework," implying an
amendment of the Constitution to accommodate the MOAAD. This stipulation, in effect, guaranteed to the MILF the
amendment of the Constitution. Such act constitutes another
violation of its authority. Again, these points will be discussed
in more detail later.
As the petitions allege acts or omissions on the part of
respondent that exceed their authority, by violating their
duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for
Certiorari, Prohibition, and Mandamus, and an actual case or
controversy ripe for adjudication exists. When an act of a
branch of government is seriously alleged to have
infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the
dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 78

Because constitutional cases are often public actions in which

the relief sought is likely to affect other persons, a
preliminary question frequently arises as to this interest in
the constitutional question raised.79
When suing as a citizen, the person complaining must allege
that he has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to
be subjected to some burdens or penalties by reason of the
statute or act complained of. 80 When the issue concerns a
public right, it is sufficient that the petitioner is a citizen and
has an interest in the execution of the laws. 81
For a taxpayer, one is allowed to sue where there is an
assertion that public funds are illegally disbursed or deflected
to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or
unconstitutional law.82 The Court retains discretion whether
or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of
the Executive that injures the institution of Congress causes
a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of
Representatives has standing to maintain inviolate the
prerogatives, powers and privileges vested by the
Constitution in his office.84
An organization may be granted standing to assert the rights
of its members,85 but the mere invocation by the Integrated
Bar of the Philippines or any member of the legal profession
of the duty to preserve the rule of law does not suffice to
clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in
order to protect or vindicate an interest of its own, and of the
other LGUs.87

12
Intervenors, meanwhile, may be given legal standing upon
showing of facts that satisfy the requirements of the law
authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. MacapagalArroyo,89 where technicalities of procedure were brushed
aside, the constitutional issues raised being of paramount
public interest or of transcendental importance deserving the
attention of the Court in view of their seriousness, novelty
and weight as precedents. 90 The Court's forbearing stance on
locus standi on issues involving constitutional issues has for
its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under
the Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion
given them, has brushed aside technical rules of procedure. 91
In the petitions at bar, petitioners Province of North
Cotabato (G.R. No. 183591) Province of Zamboanga del
Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893)
and City of Zamboanga (G.R. No. 183752) and petitionersin-intervention Province of Sultan Kudarat, City of
Isabela and Municipality of Linamon have locus standi in
view of the direct and substantial injury that they, as LGUs,
would suffer as their territories, whether in whole or in part,
are to be included in the intended domain of the BJE. These
petitioners allege that they did not vote for their inclusion in
the ARMM which would be expanded to form the BJE territory.
Petitioners' legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar
Binay and Aquilino Pimentel III would have no standing as
citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be

wastage of public funds. The fact that they are a former

Senator, an incumbent mayor of Makati City, and a resident
of Cagayan de Oro, respectively, is of no consequence.
Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants
them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging
their standing as taxpayers, assert that government funds
would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On
that score alone, they can be given legal standing. Their
allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with
added basis for their personality to intervene in these
petitions.
With regard to Senator Manuel Roxas, his standing is
premised on his being a member of the Senate and a citizen
to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as
on a genuine legal interest in the matter in litigation, or in
the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and
a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers;
Marino Ridao, as taxpayer, resident and member of the
Sangguniang Panlungsod of Cotabato City; and Kisin
Buxani, as taxpayer, they failed to allege any proper legal
interest in the present petitions. Just the same, the Court
exercises its discretion to relax the procedural technicality on
locus standi given the paramount public interest in the issues
at hand.
Intervening
respondents
Muslim
Multi-Sectoral
Movement for Peace and Development, an advocacy

13
group for justice and the attainment of peace and prosperity
in Muslim Mindanao; and Muslim Legal Assistance
Foundation Inc., a non-government organization of Muslim
lawyers, allege that they stand to be benefited or prejudiced,
as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the
petitions on the grounds therein stated. Such legal interest
suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been
rendered moot with the satisfaction of all the reliefs prayed
for by petitioners and the subsequent pronouncement of the
Executive Secretary that "[n]o matter what the Supreme
Court ultimately decides[,] the government will not sign the
MOA."92
In lending credence to this policy decision, the Solicitor
General points out that the President had already disbanded
the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the
"moot and academic" principle not being a magical formula
that automatically dissuades courts in resolving a case, it will
decide cases, otherwise moot and academic, if it finds that
(a) there is a grave violation of the Constitution; 95 (b) the
situation is of exceptional character and paramount public
interest is involved;96 (c) the constitutional issue raised
requires formulation of controlling principles to guide the
bench, the bar, and the public; 97 and (d) the case is capable
of repetition yet evading review. 98
Another exclusionary circumstance that may be considered is
where there is a voluntary cessation of the activity
complained of by the defendant or doer. Thus, once a suit is
filed and the doer voluntarily ceases the challenged conduct,
it does not automatically deprive the tribunal of power to
hear and determine the case and does not render the case

moot especially when the plaintiff seeks damages or prays

for injunctive relief against the possible recurrence of the
violation.99
The present petitions fall squarely into these exceptions to
thus thrust them into the domain of judicial review. The
grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in
Province of Batangas v. Romulo100 and Manalo v. Calderon101
where the Court similarly decided them on the merits,
supervening events that would ordinarily have rendered the
same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the nonsigning of the MOA-AD and the eventual dissolution of the
GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push
through due to the Court's issuance of a Temporary
Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be
considered a mere "list of consensus points," especially given
its nomenclature, the need to have it signed or initialed
by all the parties concerned on August 5, 2008, and the farreaching Constitutional implications of these "consensus
points," foremost of which is the creation of the BJE.
In fact, as what will, in the main, be discussed, there is a
commitment on the part of respondents to amend and
effect necessary changes to the existing legal
framework for certain provisions of the MOA-AD to
take effect. Consequently, the present petitions are not
confined to the terms and provisions of the MOA-AD, but to
other on-going and future negotiations and agreements
necessary for its realization. The petitions have not,
therefore, been rendered moot and academic simply by the
public disclosure of the MOA-AD,102 the manifestation that it

14
will not be signed as well as the disbanding of the GRP Panel
not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with
paramount public interest, involving a significant part of the
country's
territory
and
the
wide-ranging
political
modifications of affected LGUs. The assertion that the MOAAD is subject to further legal enactments including
possible Constitutional amendments more than ever
provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the
public and, in this case, the government and its
negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court
did not "pontificat[e] on issues which no longer legitimately
constitute an actual case or controversy [as this] will do more
harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico.
Primarily, in Suplico, what was assailed and eventually
cancelled was a stand-alone government procurement
contract for a national broadband network involving a onetime
contractual
relation
between
two
parties-the
government and a private foreign corporation. As the issues
therein involved specific government procurement policies
and standard principles on contracts, the majority opinion in
Suplico found nothing exceptional therein, the factual
circumstances being peculiar only to the transactions and
parties involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part
of a series of agreements necessary to carry out the
Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the

third such component to be undertaken following the

implementation of the Security Aspect in August 2001 and
the Humanitarian, Rehabilitation and Development Aspect in
May 2002.
Accordingly, even if the Executive Secretary, in his
Memorandum of August 28, 2008 to the Solicitor General,
has stated that "no matter what the Supreme Court
ultimately decides[,] the government will not sign the MOA[AD]," mootness will not set in in light of the terms of the
Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another
one will be drawn up to carry out the Ancestral Domain
Aspect of the Tripoli Agreement 2001, in another or in
any form, which could contain similar or significantly drastic
provisions. While the Court notes the word of the Executive
Secretary that the government "is committed to securing an
agreement that is both constitutional and equitable because
that is the only way that long-lasting peace can be assured,"
it is minded to render a decision on the merits in the present
petitions to formulate controlling principles to guide
the bench, the bar, the public and, most especially,
the government in negotiating with the MILF
regarding Ancestral Domain.
Respondents invite the Court's attention to the separate
opinion of then Chief Justice Artemio Panganiban in Sanlakas
v. Reyes104 in which he stated that the doctrine of "capable of
repetition yet evading review" can override mootness,
"provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct
result of their issuance." They contend that the Court must
have jurisdiction over the subject matter for the doctrine to
be invoked.

15
The present petitions all contain prayers for Prohibition over
which this Court exercises original jurisdiction. While G.R. No.
183893 (City of Iligan v. GRP) is a petition for Injunction and
Declaratory Relief, the Court will treat it as one for Prohibition
as it has far reaching implications and raises questions that
need to be resolved.105 At all events, the Court has
jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the
Court to again apply the doctrine immediately referred to as
what it had done in a number of landmark cases. 106 There is a
reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and
Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela,
and the Municipality of Linamon, will again be subjected to
the same problem in the future as respondents' actions are
capable of repetition, in another or any form.
It is with respect to the prayers for Mandamus that the
petitions have become moot, respondents having, by
Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD
and its annexes. Too, intervenors have been furnished, or
have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention,
there are basically two SUBSTANTIVE issues to be resolved,
one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions,
viz:
1. Did respondents violate constitutional and statutory
provisions on public consultation and the right to information
when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution
and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information
on matters of public concern, as provided in Section 7,
Article III on the Bill of Rights:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen,
subject to such limitations as may be provided by
law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has
recognized the statutory right to examine and inspect public
records, a right which was eventually accorded constitutional
status.
The right of access to public documents, as enshrined in both
the 1973 Constitution and the 1987 Constitution, has been
recognized as a self-executory constitutional right. 109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the
Court ruled that access to public records is predicated on the
right of the people to acquire information on matters of
public concern since, undoubtedly, in a democracy, the pubic
has a legitimate interest in matters of social and political
significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times. As has been aptly observed:

16
"Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since,
if either process is interrupted, the flow inevitably ceases." x
x x111
In the same way that free discussion enables members of
society to cope with the exigencies of their time, access to
information of general interest aids the people in democratic
decision-making by giving them a better perspective of the
vital issues confronting the nation 112 so that they may be
able to criticize and participate in the affairs of the
government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited
exchange of ideas among a well-informed public that a
government remains responsive to the changes desired by
the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present
cases is a matter of public concern 114 faces no serious
challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court
found that the regularity of real estate transactions entered
in the Register of Deeds,116 the need for adequate notice to
the public of the various laws, 117 the civil service eligibility of
a public employee,118 the proper management of GSIS funds
allegedly used to grant loans to public officials, 119 the
recovery of the Marcoses' alleged ill-gotten wealth, 120 and the
identity of party-list nominees,121 among others, are matters
of public concern. Undoubtedly, the MOA-AD subject of
the present cases is of public concern, involving as it
does the sovereignty and territorial integrity of the
State, which directly affects the lives of the public at large.
Matters of public concern covered by the right to information
include steps and negotiations leading to the consummation
of the contract. In not distinguishing as to the executory

nature or commercial character of agreements, the Court has

categorically ruled:
x x x [T]he right to information "contemplates
inclusion of negotiations leading to the
consummation of the transaction." Certainly, a
consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the
people can never exercise the right if no contract is
consummated, and if one is consummated, it may be
too late for the public to expose its defects.
Requiring a consummated contract will keep the public
in the dark until the contract, which may be grossly
disadvantageous to the government or even illegal,
becomes fait accompli. This negates the State policy of
full transparency on matters of public concern, a
situation which the framers of the Constitution could
not have intended. Such a requirement will prevent the
citizenry from participating in the public discussion of
any proposed contract, effectively truncating a basic
right enshrined in the Bill of Rights. We can allow
neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full
disclosure of all its transactions involving public
interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to
information under the Bill of Rights is the policy of public
disclosure under Section 28, Article II of the Constitution
reading:
Sec. 28. Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving
public interest.124
The policy of full public disclosure enunciated in abovequoted Section 28 complements the right of access to

17
information on matters of public concern found in the Bill of
Rights. The right to information guarantees the right of the
people to demand information, while Section 28 recognizes
the duty of officialdom to give information even if nobody
demands.125
The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable
by following such policy.126 These provisions are vital to the
exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people. 127
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this
policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public
ethics immediately but, of course, the implementing
law will have to be enacted by Congress, Mr. Presiding
Officer.128
The following discourse, after Commissioner Hilario Davide,
Jr., sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on
this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing
provision? It would require a legislation by Congress to
implement?
MR. OPLE. Yes. Originally, it was going to be selfexecuting, but I accepted an amendment from
Commissioner Regalado, so that the safeguards on

national interest are modified by the clause "as may

be provided by law"
MR. DAVIDE. But as worded, does it not mean that
this will immediately take effect and Congress
may provide for reasonable safeguards on the
sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I
said earlier that it should immediately influence
the climate of the conduct of public affairs but, of
course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this
principle, which is inconsistent with this policy. 129
(Emphasis supplied)
Indubitably, the effectivity of the policy of public
disclosure need not await the passing of a statute. As
Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and
effective exercise of the right to information necessitates that
its complementary provision on public disclosure derive the
same self-executory nature. Since both provisions go hand-inhand, it is absurd to say that the broader 130 right to
information on matters of public concern is already
enforceable while the correlative duty of the State to disclose
its transactions involving public interest is not enforceable
until there is an enabling law. Respondents cannot thus point
to the absence of an implementing legislation as an excuse in
not effecting such policy.
An essential element of these freedoms is to keep open a
continuing dialogue or process of communication between
the government and the people. It is in the interest of the
State that the channels for free political discussion be
maintained to the end that the government may perceive
and be responsive to the people's will. 131 Envisioned to be
corollary to the twin rights to information and disclosure is
the design for feedback mechanisms.

18
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate?
Will
the
government
provide
feedback
mechanisms so that the people can participate
and can react where the existing media facilities
are
not
able
to
provide
full
feedback
mechanisms to the government? I suppose this
will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected
representatives and that is how these courses take
place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just
make one last sentence?
I think when we talk about the feedback
network, we are not talking about public officials
but also network of private business o[r]
community-based organizations that will be
reacting. As a matter of fact, we will put more
credence or credibility on the private network of
volunteers
and
voluntary
community-based
organizations. So I do not think we are afraid that there
will be another OMA in the making. 132 (Emphasis
supplied)
The imperative of a public consultation, as a species of the
right to information, is evident in the "marching orders" to
respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the
peace agenda and process is manifestly provided by E.O. No.
3.133 The preambulatory clause of E.O. No. 3 declares that
there is a need to further enhance the contribution of civil
society
to
the
comprehensive
peace
process
by
institutionalizing the people's participation.

One of the three underlying principles of the comprehensive

peace process is that it "should be community-based,
reflecting the sentiments, values and principles important to
all Filipinos" and "shall be defined not by the government
alone, nor by the different contending groups only, but by all
Filipinos as one community." 134 Included as a component of
the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing
consultations on both national and local levels to build
consensus for a peace agenda and process, and the
mobilization and facilitation of people's participation in the
peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct
of
a
plebiscite
to
effectuate
"continuing"
consultations, contrary to respondents' position that
plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and
responsibilities of the PAPP, one of which is to "[c]onduct
regular dialogues with the National Peace Forum (NPF) and
other peace partners to seek relevant information,
comments, recommendations as well as to render
appropriate and timely reports on the progress of the
comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the
PAPP to consult with and seek advi[c]e from the peace
advocates, peace partners and concerned sectors of society
on both national and local levels, on the implementation of
the comprehensive peace process, as well as for
government[-]civil society dialogue and consensus-building
on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be
consulted on the peace agenda, as a corollary to the
constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion

19
The PAPP committed grave abuse of discretion when he
failed to carry out the pertinent consultation. The furtive
process by which the MOA-AD was designed and crafted runs
contrary to and in excess of the legal authority, and
amounts to a whimsical, capricious, oppressive, arbitrary and
despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct
the consultation in a particular way or manner. It may,
however, require him to comply with the law and discharge
the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table,
contrary to respondents' retort in justifying the denial of
petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient
provisions of E.O. No. 3 on people's participation. Such
disregard of the express mandate of the President is not
much different from superficial conduct toward token
provisos that border on classic lip service. 140 It illustrates a
gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents' invocation of the doctrine of executive
privilege, it is not tenable under the premises. The argument
defies sound reason when contrasted with E.O. No. 3's
explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even
recognizes the exercise of the public's right even
before the GRP makes its official recommendations or before
the government proffers its definite propositions.141 It bear
emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the
people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense
of executive privilege in view of their unqualified disclosure
of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Court's August 4, 2008

Resolution, without a prayer for the document's disclosure in

camera, or without a manifestation that it was complying
therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC)
of 1991 declares it a State policy to "require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and
people's organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions"142 is well-taken. The LGC
chapter on intergovernmental relations puts flesh into this
avowed policy:
Prior Consultations Required. - No project or program
shall be implemented by government authorities
unless the consultations mentioned in Sections 2 (c)
and 26 hereof are complied with, and prior approval of
the sanggunian concerned is obtained: Provided, That
occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate
relocation sites have been provided, in accordance
with the provisions of the Constitution. 143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Pao,144 the Court held that the abovestated policy and above-quoted provision of the LGU apply
only to national programs or projects which are to be
implemented in a particular local community. Among the
programs and projects covered are those that are critical to
the environment and human ecology including those that
may call for the eviction of a particular group of people
residing in the locality where these will be implemented.145
The
MOA-AD
is
one
peculiar
program
that
unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people,146 which
could pervasively and drastically result to the
diaspora or displacement of a great number of
inhabitants from their total environment.

20
With
respect
to
the
indigenous
cultural
communities/indigenous peoples (ICCs/IPs), whose interests
are represented herein by petitioner Lopez and are adversely
affected by the MOA-AD, the ICCs/IPs have, under the IPRA,
the right to participate fully at all levels of decision-making in
matters which may affect their rights, lives and destinies. 147
The MOA-AD, an instrument recognizing ancestral domain,
failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,148 which entails, among
other things, the observance of the free and prior informed
consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department
or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the
raison d'etre of the MOA-AD, without which all other
stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as
one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it
seems, even the heart of the MOA-AD is still subject to
necessary changes to the legal framework. While paragraph
7 on Governance suspends the effectivity of all provisions
requiring changes to the legal framework, such clause is
itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the
government subject to public scrutiny and available always
to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people
and all government authority emanating from them. 149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no
question that they cannot all be accommodated under the
present Constitution and laws. Respondents have admitted

as much in the oral arguments before this Court, and the

MOA-AD itself recognizes the need to amend the existing
legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOAAD is free of any legal infirmity because any provisions
therein which are inconsistent with the present legal
framework will not be effective until the necessary changes
to that framework are made. The validity of this argument
will be considered later. For now, the Court shall pass upon
how
The MOA-AD is inconsistent with the Constitution and
laws as presently worded.
In general, the objections against the MOA-AD center on the
extent of the powers conceded therein to the BJE. Petitioners
assert that the powers granted to the BJE exceed those
granted to any local government under present laws, and
even go beyond those of the present ARMM. Before assessing
some of the specific powers that would have been vested in
the BJE, however, it would be useful to turn first to a general
idea that serves as a unifying link to the different provisions
of the MOA-AD, namely, the international law concept of
association. Significantly, the MOA-AD explicitly alludes to
this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however,
that the MOA-AD most clearly uses it to describe the
envisioned relationship between the BJE and the Central
Government.
4. The relationship between the Central
Government and the Bangsamoro juridical entity
shall be associative characterized by shared
authority and responsibility with a structure of
governance based on executive, legislative, judicial

21
and administrative institutions with defined powers
and functions in the comprehensive compact. A period
of transition shall be established in a comprehensive
peace compact specifying the relationship between
the Central Government and the BJE. (Emphasis and
underscoring supplied)
The nature of the "associative" relationship may have been
intended to be defined more precisely in the still to be forged
Comprehensive Compact. Nonetheless, given that there is a
concept of "association" in international law, and the MOA-AD
- by its inclusion of international law instruments in its TORplaced itself in an international legal context, that concept of
association may be brought to bear in understanding the use
of the term "associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of
unequal power voluntarily establish durable links. In
the basic model, one state, the associate,
delegates certain responsibilities to the other,
the principal, while maintaining its international
status as a state. Free associations represent a
middle
ground
between
integration
and
independence. x x x150 (Emphasis and underscoring
supplied)
For purposes of illustration, the Republic of the Marshall
Islands and the Federated States of Micronesia (FSM),
formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,151 are associated states of the U.S. pursuant to
a Compact of Free Association. The currency in these
countries is the U.S. dollar, indicating their very close ties
with the U.S., yet they issue their own travel documents,
which is a mark of their statehood. Their international legal
status as states was confirmed by the UN Security Council
and by their admission to UN membership.

According to their compacts of free association, the Marshall

Islands and the FSM generally have the capacity to conduct
foreign affairs in their own name and right, such capacity
extending to matters such as the law of the sea, marine
resources, trade, banking, postal, civil aviation, and cultural
relations. The U.S. government, when conducting its foreign
affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S.
government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands
or the FSM, the U.S. government has the authority and
obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of
establishing and using military areas and facilities within
these associated states and has the right to bar the military
personnel of any third country from having access to these
territories for military purposes.
It bears noting that in U.S. constitutional and international
practice, free association is understood as an international
association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated
nation's national constitution, and each party may terminate
the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated
states to the UN in 1990, the UN recognized that the
American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement
has usually been used as a transitional device of former
colonies on their way to full independence. Examples of
states that have passed through the status of associated
states as a transitional phase are Antigua, St. Kitts-NevisAnguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states. 153

22
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into
economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJE's
participation in meetings and events in the ASEAN and the
specialized UN agencies, and the continuing responsibility of
the Central Government over external defense. Moreover, the
BJE's right to participate in Philippine official missions bearing
on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies
of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted
by the U.S. government on any foreign affairs matter
affecting them.
These provisions of the MOA indicate, among other things,
that the Parties aimed to vest in the BJE the status of an
associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the
present Constitution
No province, city, or municipality, not even the ARMM, is
recognized under our laws as having an "associative"
relationship with the national government. Indeed, the
concept implies powers that go beyond anything ever
granted by the Constitution to any local or regional
government. It also implies the recognition of the associated
entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory
status that aims to prepare any part of Philippine territory for
independence.
Even the mere concept animating many of the MOA-AD's
provisions, therefore, already requires for its validity the

amendment of constitutional provisions, specifically the

following provisions of Article X:
SECTION 1. The territorial and political subdivisions of
the Republic of the Philippines are the provinces,
cities, municipalities, and barangays. There shall
be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous
regions in Muslim Mindanao and in the Cordilleras
consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive
historical and cultural heritage, economic and social
structures, and other relevant characteristics within
the framework of this Constitution and the
national sovereignty as well as territorial
integrity of the Republic of the Philippines.
The
BJE
is
a
far
more
entity
than
the
autonomous
recognized in the Constitution

powerful
region

It is not merely an expanded version of the ARMM, the status

of its relationship with the national government being
fundamentally different from that of the ARMM. Indeed, BJE
is a state in all but name as it meets the criteria of a
state laid down in the Montevideo Convention,154
namely, a permanent population, a defined territory, a
government, and a capacity to enter into relations with other
states.
Even assuming arguendo that the MOA-AD would not
necessarily sever any portion of Philippine territory, the
spirit animating it - which has betrayed itself by its use of
the concept of association - runs counter to the national
sovereignty and territorial integrity of the Republic.

23
The defining concept underlying the relationship
between the national government and the BJE being
itself contrary to the present Constitution, it is not
surprising that many of the specific provisions of the
MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.

SECTION 20. Within its territorial jurisdiction and

subject to the provisions of this Constitution and
national laws, the organic act of autonomous regions
shall provide for legislative powers over:

Article X, Section 18 of the Constitution provides that "[t]he

creation of the autonomous region shall be effective when
approved by a majority of the votes cast by the constituent
units in a plebiscite called for the purpose, provided that
only provinces, cities, and geographic areas voting
favorably in such plebiscite shall be included in the
autonomous region." (Emphasis supplied)

(2) Creation of sources of revenues;

As reflected above, the BJE is more of a state than an

autonomous region. But even assuming that it is covered by
the term "autonomous region" in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it.
Under paragraph 2(c) on TERRITORY in relation to 2(d) and
2(e), the present geographic area of the ARMM and, in
addition, the municipalities of Lanao del Norte which voted
for inclusion in the ARMM during the 2001 plebiscite - Baloi,
Munai, Nunungan, Pantar, Tagoloan and Tangkal - are
automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present
components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however,
does not render another plebiscite unnecessary under the
Constitution, precisely because what these areas voted for
then was their inclusion in the ARMM, not the BJE.

(6) Economic, social, and tourism development;

The
MOA-AD,
moreover,
would
comply
with
Article
X,
Section
20
the Constitution

not
of

since that provision defines the powers of autonomous

regions as follows:

(1) Administrative organization;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;

(7) Educational policies;

(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by law
for the promotion of the general welfare of the people
of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an
amendment that would expand the above-quoted provision.
The mere passage of new legislation pursuant to subparagraph No. 9 of said constitutional provision would not
suffice, since any new law that might vest in the BJE the
powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to
merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on
RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign
countries: provided, however, that such relationships and

24
understandings do not include aggression against the
Government of the Republic of the Philippines x x x." Under
our constitutional system, it is only the President who has
that power. Pimentel v. Executive Secretary155 instructs:

Article X, Section 3 of the Organic Act of the ARMM is

a bar to the adoption of the definition of "Bangsamoro
people" used in the MOA-AD. Paragraph 1 on Concepts and
Principles states:

In our system of government, the President, being the

head of state, is regarded as the sole organ and
authority in external relations and is the
country's sole representative with foreign
nations. As the chief architect of foreign policy, the
President acts as the country's mouthpiece with
respect to international affairs. Hence, the President
is vested with the authority to deal with foreign
states and governments, extend or withhold
recognition, maintain diplomatic relations, enter
into treaties, and otherwise transact the
business of foreign relations. In the realm of
treaty-making, the President has the sole
authority to negotiate with other states.
(Emphasis and underscoring supplied)

1. It is the birthright of all Moros and all Indigenous

peoples of Mindanao to identify themselves and
be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original
inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time
of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants
are classified as Bangsamoro. The freedom of choice of
the Indigenous people shall be respected. (Emphasis
and underscoring supplied)

Article II, Section 22 of the Constitution must also be

amended if the scheme envisioned in the MOA-AD is to
be effected. That constitutional provision states: "The State
recognizes and promotes the rights of indigenous cultural
communities within the framework of national unity and
development." (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties
between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for
independence, is certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOAAD is also inconsistent with prevailing statutory law,
among which are R.A. No. 9054156 or the Organic Act of
the ARMM, and the IPRA.157

This use of the term Bangsamoro sharply contrasts with that

found in the Article X, Section 3 of the Organic Act, which,
rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in
Mindanao, clearly distinguishes between Bangsamoro
people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous
cultural community" refers to Filipino citizens
residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social,
cultural and economic conditions distinguish them
from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are
believers in Islam and who have retained some
or all of their own social, economic, cultural, and
political institutions."
Respecting the IPRA, it lays down the prevailing procedure for
the delineation and recognition of ancestral domains. The

25
MOA-AD's manner of delineating the ancestral domain of the
Bangsamoro people is a clear departure from that procedure.
By paragraph 1 of Territory, the Parties simply agree that,
subject to the delimitations in the agreed Schedules, "[t]he
Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial
domains, and the aerial domain, the atmospheric space
above it, embracing the Mindanao-Sulu-Palawan geographic
region."
Chapter VIII of the IPRA, on the other hand, lays down a
detailed procedure, as illustrated in the following provisions
thereof:
SECTION 52. Delineation Process. - The identification
and delineation of ancestral domains shall be done in
accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating
a specific perimeter may be initiated by the NCIP with
the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a
majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of
ancestral domain boundaries including census of all
community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing
of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the
community concerned and shall at all times include
genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims
shall include the testimony of elders or community
under oath, and other documents directly or indirectly

attesting to the possession or occupation of the area

since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and
traditions;
2) Written accounts of the ICCs/IPs political
structure and institution;
3) Pictures showing long term occupation such
as those of old improvements, burial grounds,
sacred places and old villages;
4) Historical accounts, including pacts and
agreements concerning boundaries entered into
by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive
traditional communal forests
grounds;

histories of
and hunting

9) Pictures and descriptive histories of

traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from
the native dialect of the community.
e) Preparation of Maps. - On the basis of such
investigation and the findings of fact based thereon,
the Ancestral Domains Office of the NCIP shall prepare

26
a perimeter map, complete with technical descriptions,
and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. - A
complete copy of the preliminary census and a report
of investigation, shall be prepared by the Ancestral
Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document,
including a translation in the native language of the
ICCs/IPs concerned shall be posted in a prominent
place therein for at least fifteen (15) days. A copy of
the document shall also be posted at the local,
provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a
week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15)
days from date of such publication: Provided, That in
areas where no such newspaper exists, broadcasting in
a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if
both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from
publication, and of the inspection process, the
Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is
deemed to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral Domains Office
shall require the submission of additional evidence:
Provided, That the Ancestral Domains Office shall
reject any claim that is deemed patently false or
fraudulent after inspection and verification: Provided,
further, That in case of rejection, the Ancestral
Domains Office shall give the applicant due notice,
copy furnished all concerned, containing the grounds
for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are

conflicting claims among ICCs/IPs on the boundaries of

ancestral domain claims, the Ancestral Domains Office
shall cause the contending parties to meet and assist
them in coming up with a preliminary resolution of the
conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOAAD with the present legal system, a discussion of not only the
Constitution and domestic statutes, but also of international
law is in order, for
Article II, Section 2 of the Constitution states that the
Philippines "adopts the generally accepted principles
of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in
Mejoff v. Director of Prisons,158 held that the Universal
Declaration of Human Rights is part of the law of the land on
account of which it ordered the release on bail of a detained
alien of Russian descent whose deportation order had not
been executed even after two years. Similarly, the Court in
Agustin v. Edu159 applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and
Signals.
International law has long recognized the right to selfdetermination of "peoples," understood not merely as the
entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec
had a right to unilaterally secede from Canada, the Canadian
Supreme Court in REFERENCE RE SECESSION OF QUEBEC 160
had occasion to acknowledge that "the right of a people to
self-determination is now so widely recognized in
international conventions that the principle has acquired a
status beyond convention' and is considered a general
principle of international law."

27
Among the conventions referred to are the International
Covenant on Civil and Political Rights 161 and the International
Covenant on Economic, Social and Cultural Rights 162 which
state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-determination, "freely determine
their political status and freely pursue their economic, social,
and cultural development."
The people's right to self-determination should not, however,
be understood as extending to a unilateral right of secession.
A distinction should be made between the right of internal
and external self-determination. REFERENCE RE SECESSION
OF QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law
establish that the right to self-determination of a
people is normally fulfilled through internal selfdetermination - a people's pursuit of its political,
economic, social and cultural development
within the framework of an existing state. A
right to external self-determination (which in
this case potentially takes the form of the
assertion of a right to unilateral secession)
arises in only the most extreme of cases and,
even
then,
under
carefully
defined
circumstances. x x x
External self-determination can be defined as in
the following statement from the Declaration on
Friendly Relations, supra, as
The
establishment
of
a
sovereign
and
independent State, the free association or
integration with an independent State or the
emergence into any other political status freely
determined by a people constitute modes of

implementing the right of self-determination by that

people. (Emphasis added)
127. The international law principle of selfdetermination has evolved within a framework
of respect for the territorial integrity of existing
states. The various international documents that
support the existence of a people's right to selfdetermination also contain parallel statements
supportive of the conclusion that the exercise of such a
right must be sufficiently limited to prevent threats to
an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases
in which the right to external self-determination can arise,
namely, where a people is under colonial rule, is subject to
foreign domination or exploitation outside a colonial context,
and - less definitely but asserted by a number of
commentators - is blocked from the meaningful exercise of
its right to internal self-determination. The Court ultimately
held that the population of Quebec had no right to secession,
as the same is not under colonial rule or foreign domination,
nor is it being deprived of the freedom to make political
choices and pursue economic, social and cultural
development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada,
even occupying prominent positions therein.
The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented to
the Council of the League of Nations the question of whether
the inhabitants of the Aaland Islands should be authorized to
determine by plebiscite if the archipelago should remain
under Finnish sovereignty or be incorporated in the kingdom

28
of Sweden. The Council, before resolving the question,
appointed an International Committee composed of three
jurists to submit an opinion on the preliminary issue of
whether the dispute should, based on international law, be
entirely left to the domestic jurisdiction of Finland. The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in
international treaties, the right of disposing of
national territory is essentially an attribute of
the sovereignty of every State. Positive
International Law does not recognize the right of
national
groups,
as
such,
to
separate
themselves from the State of which they form
part by the simple expression of a wish, any more
than it recognizes the right of other States to claim
such a separation. Generally speaking, the grant
or refusal of the right to a portion of its
population of determining its own political fate
by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of
every State which is definitively constituted. A
dispute between two States concerning such a
question, under normal conditions therefore, bears
upon a question which International Law leaves
entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to
an infringement of sovereign rights of a State and
would involve the risk of creating difficulties and a lack
of stability which would not only be contrary to the
very idea embodied in term "State," but would also
endanger the interests of the international community.
If this right is not possessed by a large or small section
of a nation, neither can it be held by the State to which
the national group wishes to be attached, nor by any
other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland
Islands did not refer to a question which is left by

international law to the domestic jurisdiction of Finland,

thereby applying the exception rather than the rule
elucidated above. Its ground for departing from the general
rule, however, was a very narrow one, namely, the Aaland
Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal
situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions
required for the formation of a sovereign State did not exist.
In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed
by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying
out its duties. The armed camps and the police were divided
into two opposing forces. In light of these circumstances,
Finland was not, during the relevant time period, a
"definitively constituted" sovereign state. The Committee,
therefore, found that Finland did not possess the right to
withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally
have with respect to their own populations.
Turning now to the more specific category of indigenous
peoples, this term has been used, in scholarship as well as
international, regional, and state practices, to refer to groups
with distinct cultures, histories, and connections to land
(spiritual and otherwise) that have been forcibly incorporated
into a larger governing society. These groups are regarded as
"indigenous" since they are the living descendants of preinvasion inhabitants of lands now dominated by others.
Otherwise
stated,
indigenous
peoples,
nations,
or
communities are culturally distinctive groups that find
themselves engulfed by settler societies born of the forces of
empire and conquest.164 Examples of groups who have been
regarded as indigenous peoples are the Maori of New
Zealand and the aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous
peoples situated within states do not have a general right to

29
independence or secession from those states under
international law,165 but they do have rights amounting to
what was discussed above as the right to internal selfdetermination.
In a historic development last September 13, 2007, the UN
General Assembly adopted the United Nations Declaration on
the Rights of Indigenous Peoples (UN DRIP) through General
Assembly Resolution 61/295. The vote was 143 to 4, the
Philippines being included among those in favor, and the four
voting against being Australia, Canada, New Zealand, and
the U.S. The Declaration clearly recognized the right of
indigenous
peoples
to
self-determination,
encompassing the right to autonomy or selfgovernment, to wit:
Article 3
Indigenous peoples have the right to selfdetermination. By virtue of that right they freely
determine their political status and freely pursue their
economic, social and cultural development.
Article 4

Self-government, as used in international legal discourse

pertaining to indigenous peoples, has been understood as
equivalent to "internal self-determination." 166 The extent of
self-determination provided for in the UN DRIP is more
particularly defined in its subsequent articles, some of which
are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right
not to be subjected to forced assimilation or
destruction of their culture.
2. States shall provide effective mechanisms for
prevention of, and redress for:
(a) Any action which has the aim or effect of
depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic
identities;
(b) Any action which has the aim or effect of
dispossessing them of their lands, territories or
resources;

Indigenous peoples, in exercising their right to selfdetermination, have the right to autonomy or selfgovernment in matters relating to their internal
and local affairs, as well as ways and means for
financing their autonomous functions.

(c) Any form of forced population transfer which

has the aim or effect of violating or undermining
any of their rights;

Article 5

(e) Any form of propaganda designed to promote

or incite racial or ethnic discrimination directed
against them.

Indigenous peoples have the right to maintain and

strengthen their distinct political, legal, economic,
social and cultural institutions, while retaining their
right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.

(d) Any form of forced assimilation or integration;

Article 21
1. Indigenous peoples have the right, without
discrimination, to the improvement of their economic

30
and social conditions, including, inter alia, in the areas
of education, employment, vocational training and
retraining, housing, sanitation, health and social
security.
2. States shall take effective measures and, where
appropriate, special measures to ensure continuing
improvement of their economic and social conditions.
Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the
lands, territories and resources which they have
traditionally owned, occupied or otherwise used
or acquired.
2. Indigenous peoples have the right to own, use,
develop and control the lands, territories and
resources that they possess by reason of traditional
ownership or other traditional occupation or use, as
well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to
these lands, territories and resources. Such recognition
shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous
peoples concerned.
Article 30
1. Military activities shall not take place in the lands or
territories of indigenous peoples, unless justified by a
relevant public interest or otherwise freely agreed with
or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with

the
indigenous
peoples
concerned,
through
appropriate procedures and in particular through their
representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and
develop priorities and strategies for the development
or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with
the indigenous peoples concerned through their own
representative institutions in order to obtain their free
and informed consent prior to the approval of any
project affecting their lands or territories and other
resources, particularly in connection with the
development, utilization or exploitation of mineral,
water or other resources.
3. States shall provide effective mechanisms for just
and fair redress for any such activities, and
appropriate measures shall be taken to mitigate
adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the
recognition, observance and enforcement of treaties,
agreements and other constructive arrangements
concluded with States or their successors and to have
States honour and respect such treaties, agreements
and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as
diminishing or eliminating the rights of indigenous

31
peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous
peoples, shall take the appropriate measures,
including legislative measures, to achieve the ends of
this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying
customary international law - a question which the Court
need not definitively resolve here - the obligations
enumerated therein do not strictly require the Republic to
grant the Bangsamoro people, through the instrumentality of
the BJE, the particular rights and powers provided for in the
MOA-AD. Even the more specific provisions of the UN DRIP
are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that
States now guarantee indigenous peoples their own police
and internal security force. Indeed, Article 8 presupposes that
it is the State which will provide protection for indigenous
peoples against acts like the forced dispossession of their
lands - a function that is normally performed by police
officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of
the State, then surely the protection of rights less significant
to them as such peoples would also be the duty of States.
Nor is there in the UN DRIP an acknowledgement of the right
of indigenous peoples to the aerial domain and atmospheric
space. What it upholds, in Article 26 thereof, is the right of
indigenous peoples to the lands, territories and resources
which they have traditionally owned, occupied or otherwise
used or acquired.

Moreover, the UN DRIP, while upholding the right of

indigenous peoples to autonomy, does not obligate States to
grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document
are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted
as implying for any State, people, group or person any
right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or
construed as authorizing or encouraging any
action which would dismember or impair, totally
or in part, the territorial integrity or political
unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the
land pursuant to Article II, Section 2 of the Constitution, it
would not suffice to uphold the validity of the MOA-AD so as
to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains
numerous provisions that cannot be reconciled with
the Constitution and the laws as presently worded.
Respondents proffer, however, that the signing of the MOAAD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They
cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for
convenience:
7. The Parties agree that the mechanisms and
modalities for the actual implementation of this MOAAD shall be spelt out in the Comprehensive Compact
to mutually take such steps to enable it to occur
effectively.

32
Any provisions of the MOA-AD requiring amendments
to the existing legal framework shall come into force
upon signing of a Comprehensive Compact and upon
effecting the necessary changes to the legal
framework with due regard to non derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected.
While the word "Constitution" is not mentioned in the
provision now under consideration or anywhere else in
the MOA-AD, the term "legal framework" is certainly
broad enough to include the Constitution.
Notwithstanding
the
suspensive
clause,
however,
respondents, by their mere act of incorporating in the MOAAD the provisions thereof regarding the associative
relationship between the BJE and the Central Government,
have already violated the Memorandum of Instructions From
The President dated March 1, 2001, which states that the
"negotiations shall be conducted in accordance with x x x the
principles of the sovereignty and territorial integrity of the
Republic of the Philippines." (Emphasis supplied) Establishing
an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a
preparation for independence, or worse, an implicit
acknowledgment of an independent status already
prevailing.
Even apart from the above-mentioned Memorandum,
however, the MOA-AD is defective because the suspensive
clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to
negotiate with the MILF is founded on E.O. No. 3, Section
5(c), which states that there shall be established Government
Peace Negotiating Panels for negotiations with different rebel

groups to be "appointed by the President as her official

emissaries to conduct negotiations, dialogues, and face-toface discussions with rebel groups." These negotiating panels
are to report to the President, through the PAPP on the
conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting
solutions to the Moro Problem through its negotiations with
the MILF, was not restricted by E.O. No. 3 only to those
options available under the laws as they presently stand. One
of the components of a comprehensive peace process, which
E.O. No. 3 collectively refers to as the "Paths to Peace," is the
pursuit of social, economic, and political reforms which may
require new legislation or even constitutional amendments.
Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O.
No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components
of the comprehensive peace process comprise the
processes known as the "Paths to Peace". These
component processes are interrelated and not
mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated
fashion. They shall include, but may not be limited to,
the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous
implementation of various policies, reforms,
programs and projects aimed at addressing the
root causes of internal armed conflicts and
social unrest. This may require administrative
action, new legislation or even constitutional
amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision

33
of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the
box," so to speak. Hence, they negotiated and were set on
signing the MOA-AD that included various social, economic,
and political reforms which cannot, however, all be
accommodated within the present legal framework, and
which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause,"
however, cannot stop here, because it must be asked
whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).

. . . unstated residual powers which are

implied from the grant of executive power
and which are necessary for her to comply
with her duties under the Constitution. The
powers of the President are not limited to
what are expressly enumerated in the
article on the Executive Department and in
scattered provisions of the Constitution.
This is so, notwithstanding the avowed intent of
the members of the Constitutional Commission
of 1986 to limit the powers of the President as a
reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific
powers of the President, particularly those
relating to the commander-in-chief clause, but
not a diminution of the general grant of
executive power.

The President cannot delegate a power that she herself does

not possess. May the President, in the course of peace
negotiations, agree to pursue reforms that would require new
legislation and constitutional amendments, or should the
reforms be restricted only to those solutions which the
present laws allow? The answer to this question requires a
discussion of the extent of the President's power to
conduct peace negotiations.

Thus, the President's authority to declare a state

of rebellion springs in the main from her powers
as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x
x x (Emphasis and underscoring supplied)

That the authority of the President to conduct peace

negotiations with rebel groups is not explicitly mentioned in
the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive Secretary,168 in issue was
the authority of the President to declare a state of rebellion an authority which is not expressly provided for in the
Constitution. The Court held thus:

Similarly, the President's power to conduct peace

negotiations is implicitly included in her powers as Chief
Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public
peace, and as Commander-in-Chief, she has the more specific
duty to prevent and suppress rebellion and lawless
violence.169

"In her ponencia in Marcos v. Manglapus, Justice Cortes

put her thesis into jurisprudence. There, the Court, by
a slim 8-7 margin, upheld the President's power to
forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the
President's

As the experience of nations which have similarly gone

through internal armed conflict will show, however, peace is
rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental
reconfiguration of the nation's constitutional structure is
required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:

34
x x x [T]he fact remains that a successful political and
governance transition must form the core of any postconflict peace-building mission. As we have observed
in Liberia and Haiti over the last ten years, conflict
cessation without modification of the political
environment, even where state-building is undertaken
through technical electoral assistance and institutionor capacity-building, is unlikely to succeed. On
average, more than 50 percent of states emerging
from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or
limited democracies.
The design of a constitution and its constitutionmaking process can play an important role in the
political and governance transition. Constitutionmaking after conflict is an opportunity to create a
common vision of the future of a state and a road map
on how to get there. The constitution can be partly a
peace agreement and partly a framework setting up
the rules by which the new democracy will operate. 170
In the same vein, Professor Christine Bell, in her article on the
nature and legal status of peace agreements, observed that
the typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by
linking them to new constitutional structures addressing
governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace
agreements and constitution-making has been recognized by
no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions 172 is the
framers' intention to implement a particular peace
agreement, namely, the Tripoli Agreement of 1976 between
the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF
Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I

have some more questions, I will reserve my right to
ask them if they are not covered by the other
speakers. I have only two questions.
I heard one of the Commissioners say that local
autonomy already exists in the Muslim region; it
is working very well; it has, in fact, diminished a great
deal of the problems. So, my question is: since that
already exists, why do we have to go into
something new?
MR. OPLE. May I answer that on behalf of Chairman
Nolledo. Commissioner Yusup Abubakar is right that
certain definite steps have been taken to
implement
the
provisions
of
the
Tripoli
Agreement with respect to an autonomous
region in Mindanao. This is a good first step, but
there is no question that this is merely a partial
response to the Tripoli Agreement itself and to
the fuller standard of regional autonomy
contemplated in that agreement, and now by
state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes
enacted pursuant to them have, to the credit of their
drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict
between the Government and the MILF. If the President is to
be expected to find means for bringing this conflict to an end
and to achieve lasting peace in Mindanao, then she must be
given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested
with the power to conduct peace negotiations with rebel
groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may
bring an end to hostilities.

35
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be
prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional
amendment and revision. In particular, Congress would have
the option, pursuant to Article XVII, Sections 1 and 3 of the
Constitution, to propose the recommended amendments or
revision to the people, call a constitutional convention, or
submit to the electorate the question of calling such a
convention.
While the President does not possess constituent powers - as
those powers may be exercised only by Congress, a
Constitutional Convention, or the people through initiative
and referendum - she may submit proposals for constitutional
change to Congress in a manner that does not involve the
arrogation of constituent powers.

implicit in his opinion is a recognition that he would have

upheld the President's action along with the majority had the
President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee
opined:
"Since the Constitution provides for the organization of
the essential departments of government, defines and
delimits the powers of each and prescribes the manner
of the exercise of such powers, and the constituent
power has not been granted to but has been withheld
from the President or Prime Minister, it follows that the
President's questioned decrees proposing and
submitting constitutional amendments directly to the
people (without the intervention of the interim
National Assembly in whom the power is
expressly vested) are devoid of constitutional and
legal basis."176 (Emphasis supplied)

In Sanidad v. COMELEC,174 in issue was the legality of then

President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the
interim National Assembly which was the body vested by the
1973 Constitution with the power to propose such
amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld
the President's act, holding that "the urges of absolute
necessity" compelled the President as the agent of the
people to act as he did, there being no interim National
Assembly to propose constitutional amendments. Against this
ruling, Justices Teehankee and Muoz Palma vigorously
dissented. The Court's concern at present, however, is not
with regard to the point on which it was then divided in that
controversial case, but on that which was not disputed by
either side.

From the foregoing discussion, the principle may be inferred

that the President - in the course of conducting peace
negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she may
not unilaterally implement them without the intervention
of Congress, or act in any way as if the assent of that
body were assumed as a certainty.

Justice Teehankee's dissent,175 in particular, bears noting.

While he disagreed that the President may directly submit
proposed constitutional amendments to a referendum,

These recommendations, however, may amount to nothing

more than the President's suggestions to the people, for any
further involvement in the process of initiative by the Chief

Since, under the present Constitution, the people also have

the power to directly propose amendments through initiative
and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to
be voted on in a plebiscite similar to what President Marcos
did in Sanidad, but for their independent consideration of
whether these recommendations merit being formally
proposed through initiative.

36
Executive may vitiate its character as a genuine "people's
initiative." The only initiative recognized by the Constitution
is that which truly proceeds from the people. As the Court
stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the
people's voice.' However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in
the verification of their petition with the COMELEC,
that ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria MacapagalArroyo for constitutional reforms.' The Lambino Group
thus admits that their people's' initiative is an
unqualified support to the agenda' of the
incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of
people's voice' or sovereign will' in the present
initiative."
It will be observed that the President has authority, as stated
in her oath of office,178 only to preserve and defend the
Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply
to recommend proposed amendments or revision. As long as
she limits herself to recommending these changes and
submits to the proper procedure for constitutional
amendments and revision, her mere recommendation need
not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority
to propose constitutional amendments, since her authority
to propose new legislation is not in controversy. It has been
an accepted practice for Presidents in this jurisdiction to
propose new legislation. One of the more prominent
instances the practice is usually done is in the yearly State of
the Nation Address of the President to Congress. Moreover,
the annual general appropriations bill has always been based
on the budget prepared by the President, which - for all

intents and purposes - is a proposal for new legislation

coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light
of the above-discussed standards
Given the limited nature of the President's authority to
propose constitutional amendments, she cannot guarantee
to any third party that the required amendments will
eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals
as recommendations either to Congress or the people, in
whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however,
that all provisions thereof which cannot be reconciled with
the present Constitution and laws "shall come into force upon
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework." This stipulation
does not bear the marks of a suspensive condition - defined
in civil law as a future and uncertain event - but of a term. It
is not a question of whether the necessary changes to the
legal framework will be effected, but when. That there is no
uncertainty being contemplated is plain from what follows,
for the paragraph goes on to state that the contemplated
changes shall be "with due regard to non derogation of prior
agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for
the GRP to effect the changes to the legal framework
contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears
noting that,
By the time these changes are put in place, the MOAAD itself would be counted among the "prior
agreements" from
which there
could
be
no
derogation.

37
What remains for discussion in the Comprehensive Compact
would merely be the implementing details for these
"consensus points" and, notably, the deadline for effecting
the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is
inconsistent with the limits of the President's
authority to propose constitutional amendments, it
being a virtual guarantee that the Constitution and the laws
of the Republic of the Philippines will certainly be adjusted to
conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOAAD with a similar provision appearing in the 1996 final peace
agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated
that it would be implemented in two phases. Phase I
covered a three-year transitional period involving the putting
up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development
(SZOPAD) and the Southern Philippines Council for Peace and
Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government
through amendment or repeal of R.A. No. 6734, which was
then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements
on the structure of the expanded autonomous region
envisioned by the parties. To that extent, they are similar to
the provisions of the MOA-AD. There is, however, a crucial
difference between the two agreements. While the MOA-AD
virtually guarantees that the "necessary changes to
the legal framework" will be put in place, the GRP-MNLF
final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP

to Congress for incorporation in the amendatory or repealing

law."
Concerns have been raised that the MOA-AD would have
given rise to a binding international law obligation on the part
of the Philippines to change its Constitution in conformity
thereto, on the ground that it may be considered either as a
binding agreement under international law, or a unilateral
declaration of the Philippine government to the international
community that it would grant to the Bangsamoro people all
the concessions therein stated. Neither ground finds
sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof,
would have included foreign dignitaries as signatories. In
addition, representatives of other nations were invited to
witness its signing in Kuala Lumpur. These circumstances
readily lead one to surmise that the MOA-AD would have had
the status of a binding international agreement had it been
signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lom Accord
Amnesty180 (the Lom Accord case) of the Special Court of
Sierra Leone is enlightening. The Lom Accord was a peace
agreement signed on July 7, 1999 between the Government
of Sierra Leone and the Revolutionary United Front (RUF), a
rebel group with which the Sierra Leone Government had
been in armed conflict for around eight years at the time of
signing. There were non-contracting signatories to the
agreement, among which were the Government of the
Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between
the UN Secretary-General and the Sierra Leone Government,
another agreement was entered into by the UN and that
Government whereby the Special Court of Sierra Leone was
established. The sole purpose of the Special Court, an

38
international court, was to try persons who bore the greatest
responsibility for serious violations of international
humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lom Accord was a provision
for the full pardon of the members of the RUF with respect to
anything done by them in pursuit of their objectives as
members of that organization since the conflict began.
In the Lom Accord case, the Defence argued that the Accord
created an internationally binding obligation not to
prosecute the beneficiaries of the amnesty provided therein,
citing, among other things, the participation of foreign
dignitaries and international organizations in the finalization
of that agreement. The Special Court, however, rejected this
argument, ruling that the Lome Accord is not a treaty and
that it can only create binding obligations and rights between
the parties in municipal law, not in international law. Hence,
the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement
of an internal armed conflict it is easy to assume
and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to
have done, that the mere fact that in addition to
the parties to the conflict, the document
formalizing the settlement is signed by foreign
heads of state or their representatives and
representatives of international organizations,
means the agreement of the parties is
internationalized so as to create obligations in
international law.
xxxx
40. Almost every conflict resolution will involve the
parties to the conflict and the mediator or facilitator of

the settlement, or persons or bodies under whose

auspices the settlement took place but who are not at
all parties to the conflict, are not contracting parties
and who do not claim any obligation from the
contracting parties or incur any obligation from the
settlement.
41. In this case, the parties to the conflict are
the lawful authority of the State and the RUF
which has no status of statehood and is to all
intents and purposes a faction within the state.
The non-contracting signatories of the Lom
Agreement were moral guarantors of the
principle that, in the terms of Article XXXIV of
the Agreement, "this peace agreement is
implemented with integrity and in good faith by
both parties". The moral guarantors assumed no
legal obligation. It is recalled that the UN by its
representative appended, presumably for avoidance of
doubt, an understanding of the extent of the
agreement to be implemented as not including certain
international crimes.
42. An international agreement in the nature of a
treaty must create rights and obligations regulated by
international law so that a breach of its terms will be a
breach determined under international law which will
also provide principle means of enforcement. The
Lom Agreement created neither rights nor
obligations capable of being regulated by
international law. An agreement such as the
Lom Agreement which brings to an end an
internal armed conflict no doubt creates a
factual situation of restoration of peace that the
international community acting through the
Security Council may take note of. That,
however, will not convert it to an international
agreement
which
creates
an
obligation
enforceable in international, as distinguished

39
from municipal, law. A breach of the terms of such a
peace agreement resulting in resumption of internal
armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a
reversal of the factual situation of peace to be visited
with possible legal consequences arising from the new
situation of conflict created. Such consequences such
as action by the Security Council pursuant to Chapter
VII arise from the situation and not from the
agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the
breach. A peace agreement which settles an
internal armed conflict cannot be ascribed the
same
status
as
one
which
settles
an
international armed conflict which, essentially,
must be between two or more warring States.
The Lom Agreement cannot be characterised as
an international instrument. x x x" (Emphasis,
italics and underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not
parties to the Agreement would not have sufficed to vest in it
a binding character under international law.
In another vein, concern has been raised that the MOA-AD
would amount to a unilateral declaration of the Philippine
State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it
would have to amend its Constitution accordingly regardless
of the true will of the people. Cited as authority for this view
is Australia v. France,181 also known as the Nuclear Tests
Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ
the legality of France's nuclear tests in the South Pacific.
France refused to appear in the case, but public statements
from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series

of atmospheric tests would be its last, persuaded the ICJ to

dismiss the case.182 Those statements, the ICJ held,
amounted to a legal undertaking addressed to the
international community, which required no acceptance from
other States for it to become effective.
Essential to the ICJ ruling is its finding that the French
government intended to be bound to the international
community in issuing its public statements, viz:
43. It is well recognized that declarations made by way
of unilateral acts, concerning legal or factual
situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often
are, very specific. When it is the intention of the
State making the declaration that it should
become bound according to its terms, that
intention confers on the declaration the
character of a legal undertaking, the State being
thenceforth legally required to follow a course of
conduct consistent with the declaration. An
undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the
context of international negotiations, is binding. In
these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the
declaration, nor even any reply or reaction from other
States, is required for the declaration to take effect,
since such a requirement would be inconsistent with
the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply
obligation; but a State may choose to take up a
certain position in relation to a particular matter
with the intention of being bound-the intention
is to be ascertained by interpretation of the act.
When States make statements by which their freedom

40
of action is to be limited, a restrictive interpretation is
called for.

security of international intercourse. Plainly,

declarations arise only in peculiar circumstances.

xxxx

The limited applicability of the Nuclear Tests Case ruling was

recognized in a later case decided by the ICJ entitled Burkina
Faso v. Mali,183 also known as the Case Concerning the
Frontier Dispute. The public declaration subject of that case
was a statement made by the President of Mali, in an
interview by a foreign press agency, that Mali would abide by
the decision to be issued by a commission of the
Organization of African Unity on a frontier dispute then
pending between Mali and Burkina Faso.

51. In announcing that the 1974 series of

atmospheric tests would be the last, the French
Government conveyed to the world at large,
including the Applicant, its intention effectively
to terminate these tests. It was bound to
assume that other States might take note of
these statements and rely on their being
effective. The validity of these statements and
their legal consequences must be considered
within the general framework of the security of
international intercourse, and the confidence and
trust which are so essential in the relations among
States. It is from the actual substance of these
statements,
and
from
the
circumstances
attending
their
making,
that
the
legal
implications of the unilateral act must be
deduced. The objects of these statements are
clear and they were addressed to the
international community as a whole, and the
Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270
that the President of the Republic, in deciding upon the
effective cessation of atmospheric tests, gave an
undertaking to the international community to which
his words were addressed. x x x (Emphasis and
underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as a
unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the
international community, the state intended to be bound to
that community by its statements, and that not to give legal
effect to those statements would be detrimental to the

unilateral

Unlike in the Nuclear Tests Case, the ICJ held that the
statement of Mali's President was not a unilateral act with
legal implications. It clarified that its ruling in the Nuclear
Tests case rested on the peculiar circumstances surrounding
the French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a
unilateral act, account must be taken of all the factual
circumstances in which the act occurred. For example,
in the Nuclear Tests cases, the Court took the
view that since the applicant States were not
the only ones concerned at the possible
continuance of atmospheric testing by the
French
Government,
that
Government's
unilateral declarations had conveyed to the
world at large, including the Applicant, its
intention effectively to terminate these tests
(I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53).
In the particular circumstances of those cases,
the French Government could not express an
intention to be bound otherwise than by
unilateral declarations. It is difficult to see how
it could have accepted the terms of a negotiated
solution with each of the applicants without
thereby jeopardizing its contention that its
conduct was lawful. The circumstances of the

41
present case are radically different. Here, there
was nothing to hinder the Parties from
manifesting an intention to accept the binding
character of the conclusions of the Organization
of African Unity Mediation Commission by the
normal method: a formal agreement on the basis
of reciprocity. Since no agreement of this kind was
concluded between the Parties, the Chamber finds that
there are no grounds to interpret the declaration made
by Mali's head of State on 11 April 1975 as a unilateral
act with legal implications in regard to the present
case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would
not have amounted to a unilateral declaration on the part of
the Philippine State to the international community. The
Philippine panel did not draft the same with the clear
intention of being bound thereby to the international
community as a whole or to any State, but only to the MILF.
While there were States and international organizations
involved, one way or another, in the negotiation and
projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in
the Lom Accord case, the mere fact that in addition to the
parties to the conflict, the peace settlement is signed by
representatives of states and international organizations
does not mean that the agreement is internationalized so as
to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to
States, not to give legal effect to such commitments would
not be detrimental to the security of international intercourse
- to the trust and confidence essential in the relations among
States.
In one important respect, the circumstances surrounding the
MOA-AD are closer to that of Burkina Faso wherein, as
already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in

that case, there was also nothing to hinder the Philippine

panel, had it really been its intention to be bound to other
States, to manifest that intention by formal agreement. Here,
that formal agreement would have come about by the
inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and
by an equally clear indication that the signatures of the
participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal
agreement would not have resulted in a loss of face for the
Philippine government before the international community,
which was one of the difficulties that prevented the French
Government from entering into a formal agreement with
other countries. That the Philippine panel did not enter into
such a formal agreement suggests that it had no intention to
be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration
under international law.
The MOA-AD not being a document that can bind the
Philippines
under
international
law
notwithstanding,
respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself,
sufficient to constitute grave abuse of discretion. The
grave abuse lies not in the fact that they considered, as a
solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that
Congress and the sovereign Filipino people would give
their imprimatur to their solution. Upholding such an act
would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative,
for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or
interference with that process.
The sovereign people may, if it so desired, go to the extent of
giving up a portion of its own territory to the Moros for the
sake of peace, for it can change the Constitution in any it

42
wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.184 Respondents,
however, may not preempt it in that decision.

The Court, however, finds that the prayers for mandamus

have been rendered moot in view of the respondents' action
in providing the Court and the petitioners with the official
copy of the final draft of the MOA-AD and its annexes.

SUMMARY
The petitions are ripe for adjudication. The failure of
respondents to consult the local government units or
communities affected constitutes a departure by respondents
from their mandate under E.O. No. 3. Moreover, respondents
exceeded their authority by the mere act of guaranteeing
amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter
for judicial review.
As the petitions involve constitutional issues which are of
paramount public interest or of transcendental importance,
the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v.
Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace
Panel mooted the present petitions, the Court finds that the
present petitions provide an exception to the "moot and
academic" principle in view of (a) the grave violation of the
Constitution involved; (b) the exceptional character of the
situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar,
and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on
Peace signed by the government and the MILF back in June
2001. Hence, the present MOA-AD can be renegotiated or
another one drawn up that could contain similar or
significantly dissimilar provisions compared to the original.

The people's right to information on matters of public

concern under Sec. 7, Article III of the Constitution is in
splendid symmetry with the state policy of full public
disclosure of all its transactions involving public interest
under Sec. 28, Article II of the Constitution. The right to
information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands. The
complete and effective exercise of the right to information
necessitates that its complementary provision on public
disclosure derive the same self-executory nature, subject
only to reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In
declaring that the right to information contemplates steps
and negotiations leading to the consummation of the
contract, jurisprudence finds no distinction as to the
executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a
continuing dialogue or process of communication between
the government and the people. Corollary to these twin
rights is the design for feedback mechanisms. The right to
public consultation was envisioned to be a species of these
public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to
be consulted on relevant matters relating to the peace
agenda.

43
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a
principal forum for consensus-building. In fact, it is the duty
of the Presidential Adviser on the Peace Process to conduct
regular dialogues to seek relevant information, comments,
advice, and recommendations from peace partners and
concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of
1991 requires all national offices to conduct consultations
before any project or program critical to the environment and
human ecology including those that may call for the eviction
of a particular group of people residing in such locality, is
implemented therein. The MOA-AD is one peculiar program
that unequivocally and unilaterally vests ownership of a vast
territory to the Bangsamoro people, which could pervasively
and drastically result to the diaspora or displacement of a
great number of inhabitants from their total environment.

out the pertinent consultation process, as mandated by E.O.

No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority,
and amounts to a whimsical, capricious, oppressive, arbitrary
and despotic exercise thereof. It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty
enjoined.
The MOA-AD cannot be reconciled with the present
Constitution and laws. Not only its specific provisions but the
very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are
unconstitutional, for the concept presupposes that the
associated entity is a state and implies that the same is on
its way to independence.

The invocation of the doctrine of executive privilege as a

defense to the general right to information or the specific
right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it
unconditionally disclosed the official copies of the final draft
of the MOA-AD, for judicial compliance and public scrutiny.

While there is a clause in the MOA-AD stating that the

provisions thereof inconsistent with the present legal
framework will not be effective until that framework is
amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative
relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From
The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded,
it virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place.
Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act
would amount to authorizing a usurpation of the constituent
powers vested only in Congress, a Constitutional Convention,
or the people themselves through the process of initiative,
for the only way that the Executive can ensure the outcome
of the amendment process is through an undue influence or
interference with that process.

In sum, the Presidential Adviser on the Peace Process

committed grave abuse of discretion when he failed to carry

While the MOA-AD would not amount to an international

agreement or unilateral declaration binding on the

Three, Republic Act No. 8371 or the Indigenous Peoples

Rights Act of 1997 provides for clear-cut procedure for the
recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and
prior informed consent of the Indigenous Cultural
Communities/Indigenous Peoples. Notably, the statute does
not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral
domain claim by mere agreement or compromise.

44
Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a
constitutional violation that renders the MOA-AD fatally
defective.
WHEREFORE, respondents' motion to dismiss is DENIED.
The main and intervening petitions are GIVEN DUE COURSE
and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is
declared contrary to law and the Constitution.
SO ORDERED.

45
SEPARATE CONCURRING OPINION
PUNO, C.J.:
It is the duty of the government to seek a just,
comprehensive and enduring peace with any rebel group but
the search for peace must always be in accord with the
Constitution. Any search for peace that undercuts the
Constitution must be struck down. Peace in breach of the
Constitution is worse than worthless.

(OIC) officially gave it recognition. During the 5th ICFM, they

strongly urged "the Philippines Government to find a political
and peaceful solution through negotiation with Muslim
leaders, particularly with representatives of the MNLF in
order to arrive at a just solution to the plight of the Filipino
Muslims within the framework of national sovereignty and
territorial integrity of the Philippines"; and recognized "the
problem as an internal problem with the Philippine
Government to ensure the safety of the Filipino Muslims and
the preservation of their liberties in accordance with the
Universal Declaration of Human Rights."5

I. Historical Roots
A historical perspective of our Muslim problem is helpful.
From time immemorial, an enduring peace with our Muslim
brothers and sisters in Mindanao has eluded our grasp. Our
Muslim problem exploded in March of 1968 when Muslim
trainees were massacred by army officers at Corregidor.
About 180 Muslim trainees had been recruited in the previous
year as a part of a covert force named Jabidah,1 allegedly
formed to wrest away Sabah from Malaysia. The trainees
were massacred when they reportedly protested their
unbearable training and demanded the return to their
home.2 The Jabidah Massacre fomented the formation of
Muslim groups clamoring for a separate Islamic state. One of
these groups was the Muslim Independence Movement
(MIM), founded by the then Governor of Cotabato, Datu
Udtog Matalam.3 Another was the Nurul Islam, led by Hashim
Salamat.
On September 21, 1972 Martial Law was declared by
President Ferdinand E. Marcos. Among the reasons cited to
justify martial law were the armed conflict between Muslims
and Christians and the Muslim secessionist movement in the
Southern Philippines.4 The imposition of martial law drove
some of the Muslim secessionist movements to the
underground. One of them was the Moro National Liberation
Front (MNLF) headed by Nur Misuari. In 1974, the MNLF shot
to prominence, when the Organization of Islamic Conference

In December 1976, the Philippine government and the MNLF

under the auspices of the OIC started their peace negotiation
in Tripoli, Libya. It bore its first fruit when on January 20,
1977, the parties signed the Tripoli Agreement in Zamboanga
City in the presence of the OIC Representative.
President Marcos immediately implemented the Tripoli
Agreement. He issued Presidential Proclamation No. 1628,
"Declaring Autonomy in Southern Philippines." A plebiscite
was conducted in the provinces covered under the Tripoli
Agreement to determine the will of the people thereat.
Further, the legislature enacted Batasang Pambansa Blg. 20,
"Providing for the Organization of Sangguniang Pampook
(Regional Legislative Assembly) in Each of Regions IX and
XII." President Marcos then ordered the creation of
Autonomous Region IX and XII.
In the meanwhile, the MNLF continued enhancing its
international status. It was accorded the status of an
observer in Tripoli, Libya during the 8th ICFM. In the 15th
ICFM at Sana'a, Yemen, in 1984, the MNLF's status was
further elevated from a mere 'legitimate representative' to
'sole legitimate representative' of the Bangsamoro people.6
In April 1977, the peace talks between the Government of
the Republic of the Philippines (GRP) and MNLF Talks
collapsed. Schism split the MNLF leadership. The
irreconcilable differences between Nur Misuari and Hashim

46
Salamat led to the formation of the Moro Islamic Liberation
Front (MILF), headed by Hashim Salamat. Thus, the
Maguindanao-led MILF, parted ways with the Tausug-led
MNLF.
In 1986, the People Power Revolution catapulted Corazon C.
Aquino to the Presidency. Forthwith, she ordered the peace
talks with the MNLF to resume. The 1987 Constitution was
ratified by the people. It provided for the creation of the
Autonomous Region of Muslim Mindanao through an act of
Congress. But again the talks with the MNLF floundered in
May 1987.7 Be that as it may, it was during President
Aquino's governance that a culture of peace negotiations
with the rebellious MNLF and MILF was cultivated.8 Thus, the
Autonomous Region of Muslim Mindanao (ARMM) was created
through Republic Act No. 6734. The law took effect on August
1, 1989.
Then came the presidency of President Fidel V. Ramos. He
issued on September 15, 1993, Executive Order No., 125
(E.O. 125) which provided for a comprehensive, integrated
and holistic peace process with the Muslim rebels. E.O. 125
created the Office of the Presidential Adviser on the Peace
Process to give momentum to the peace talks with the MNLF.
In 1996, as the GRP-MNLF peace negotiations were
successfully winding down, the government prepared to deal
with the MILF problem. Formal peace talks started on January
of 1997, towards the end of the Ramos administration. The
Buldon Ceasefire Agreement was signed in July 19979 but
time ran out for the negotiations to be completed.
President Joseph Estrada continued the peace talks with the
MILF. The talks, however, were limited to cessation of
hostilities and did not gain any headway. President Estrada
gave both sides until December 1999 to finish the peace
process.10 They did not meet the deadline. The year 2000
saw the escalation of acts of violence and the threats to the
lives and security of civilians in Southern Mindanao. President

Estrada then declared an "all-out war" against the MILF.11 He

bowed out of office with the "war" unfinished.
Thereafter, President Gloria Macapagal Arroyo assumed
office. Peace negotiations with the MILF were immediately set
for resumption. Executive Order No. 3, was issued "Defining
Policy and Administrative Structure: For Government's
Comprehensive Peace Efforts." On March 24, 2001, a General
Framework for the Resumption of Peace Talks between the
GRP and the MILF was signed. Republic Act No. 905412 was
also enacted on March 31, 2001 and took effect on August
14, 2001 to strengthen and expand the Autonomous Region
of Muslim Mindanao. Through the Organic Act of 2001, six
municipalities in Lanao del Norte voted for inclusion in the
ARMM.
On June 22, 2001, the ancestral domain aspect of the GRPMILF Tripoli Agreement was signed in Libya. Several rounds of
exploratory talks with the MILF followed. Unfortunately, on
April 2, 2003, Davao was twice bombed. Again, the peace
talks were cancelled and fighting with the MILF resumed. On
July 19, 2003 the GRP and the MILF agreed on "mutual
cessation of hostilities" and the parties returned to the
bargaining table. The parties discussed the problem of
ancestral domain, divided into four strands: concept,
territory, resources, and governance.
On February 7, 2006, the 10th round of Exploratory Talks
between the GRP and the MILF ended. The parties issued a
joint statement of the consensus points of the Ancestral
Domain aspect of GRP-MILF Tripoli Agreement on Peace of
June 22, 2001. The Joint Statement provides that:
"Among the consensus points reached were:
Joint determination of the scope of the Bangsamoro
homeland based on the technical maps and data submitted
by both sides;

47
Measures to address the legitimate grievances of the
Bangsamoro people arising from the unjust dispossession
and/or marginalization;
Bangsamoro people's right to utilize and develop their
ancestral domain and ancestral lands;
Economic cooperation arrangements for the benefit of the
entire Bangsamoro people."
On July 27, 2008, a Joint Statement on the Memorandum of
Agreement on Ancestral Domain (MOA-AD) was signed by
Chairperson Rodolfo C. Garcia on behalf of the GRP Peace
Panel, and Mohagher Iqbal on behalf of the MILF Panel. In the
Joint Statement, it was declared that the final draft of the
MOA-AD has already been initialed. It was announced that
"both sides reached a consensus to initial the final draft
pending its official signing by the Chairmen of the two peace
panels in early August 2008, in Putrajaya, Malaysia."13
The Joint Statement triggered the filing of the petitions at bar.
These Petitions, sought among others, to restrain the signing
of the MOA-AD. On August 4, 2008, a day before the intended
signing of the initialed MOA-AD, this Court issued a
Temporary Restraining Order stopping the signing of the
MOA-AD. Several petitions-in-intervention were also filed
praying for the same relief. On August 8, 2008 and
September 1, 2008, the respondents through the Solicitor
General, submitted official copies of the initialed MOA-AD to
the Court and furnished the petitioners and petitioners-inintervention with copies of the same.
All the petitions were heard by the Court in three separate
days of oral arguments. In the course of the arguments, the
Solicitor General informed the Court that the MOA-AD will not
be signed "in its present form or any other form."14
Thereafter, the government Peace Panel was dismantled by
the President.
II. Petitions should be Decided on the Merits

The first threshold issue is whether this Court should exercise

its power of judicial review and decide the petitions at bar on
the merits.
I respectfully submit that the Court should not avoid its
constitutional duty to decide the petitions at bar on their
merit in view of their transcendental importance. The subject
of review in the petitions at bar is the conduct of the peace
process with the MILF which culminated in the MOA-AD. The
constitutionality of the conduct of the entire peace process
and not just the MOA-AD should go under the scalpel of
judicial scrutiny. The review should not be limited to the
initialed MOA-AD for it is merely the product of a
constitutionally flawed process of negotiations with the MILF.
Let us revisit the steps that led to the contested and
controversial MOA-AD. Peace negotiations with the MILF
commenced with the execution of ceasefire agreements. The
watershed event, however, occurred in 2001, with the
issuance of Executive Order No. 315 entitled "Defining Policy
and
Administrative
Structure
for
Government's
Comprehensive
Peace
Efforts."
Government
Peace
Negotiating Panels were immediately constituted to
negotiate peace with rebel groups, which included the MILF.
Significantly, Executive Order No. 3 provides that in the
pursuit of social, economic and political reforms,
administrative action, new legislation or even constitutional
amendments may be required.16 Section 4 of Executive
Order No. 3 states, viz:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known
as the "Paths to Peace". These component processes are
interrelated and not mutually exclusive, and must therefore
be pursued simultaneously in a coordinated and integrated
fashion. They shall include, but may not be limited to, the
following:

48
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS.
This component involves the vigorous implementation of
various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and
social unrest. This may require administrative action, new
legislation or even constitutional amendments.
xxxx
c. PEACEFUL, NEGOTIATED SETTLEMENT WITH THE
DIFFERENT REBEL GROUPS. This component involves the
conduct of face-to-face negotiations to reach peaceful
settlement with the different rebel groups. It also involves the
effective implementation of peace agreements. (Emphasis
supplied)
Executive Order No. 3, was later amended by E.O. No. 555,17
and was followed by the Tripoli Peace Agreement of 2001.
The Tripoli Peace Agreement of 2001 became the basis for
several rounds of exploratory talks between the GRP Peace
Panel and the MILF. These exploratory talks resulted in the
signing of the Joint Statements of the GRP and MILF peace
panels to affirm commitments that implement the Tripoli
Agreement of 2001, including the ancestral domain aspect.
The issuance of the Joint Statements culminated in the
initialing of the MOA-AD.18
It is crystal clear that the initialing of the MOA-AD is but the
evidence of the government peace negotiating panel's assent
to the terms contained therein. If the MOA-AD is
constitutionally infirm, it is because the conduct of the peace
process itself is flawed. It is the constitutional duty of the
Court is to determine whether there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on
the part of the government peace negotiating panel in the
conduct of the peace negotiations with the MILF. The Court
should not restrict its review on the validity of the MOA-AD
which is but the end product of the flawed conduct of the
peace negotiation with the MILF.

Requirements of Ripeness and

Mootness are not bars to review
In contending that this Court should refrain from resolving
the merits of the petitions at bar, two principal defenses were
deployed by the Solicitor General: the issues raised for
resolution are not ripe for adjudication and regardless of their
ripeness, are moot.
With due respect, the defenses cannot be sustained. To
contend that an issue is not ripe for adjudication is to invoke
prematurity;19 that the issue has not reached a state where
judicial intervention is necessary, hence, there is in reality no
actual controversy. On the other hand, to urge that an issue
has become moot concedes that judicial intervention was
once proper but subsequent developments make further
judicial action unnecessary. Together, mootness and ripeness
act as a two-pronged pincer, squeezing the resolution of
controversies within a narrow timeframe.20
First, the issues at bar are ripe for resolution. In Ohio Forestry
Ass'n Inc. v. Sierra Club,21 the following factors were
identified as indicative of the ripeness of a controversy:
1. Whether delayed review would cause hardship to the
plaintiffs;
2. Whether judicial intervention would
interfere with further administrative action;

inappropriately

3. Whether the Court would benefit from further factual

development of the issues presented;
Underlying the use of the foregoing factors is first, the setting
of a threshold for review and second, judicial application of
the threshold to the facts extant in a controversy. I
respectfully submit that where a controversy concerns
fundamental constitutional questions, the threshold must be
adjusted to allow judicial scrutiny, in order that the issues
may be resolved at the earliest stage before anything

49
irreversible is undertaken under cover of an unconstitutional
act. Schwartz cites one vital consideration in determining
ripeness, viz:
In dealing with ripeness, one must distinguish between
statutes and other acts that are self-executing and those that
are not. If a statute is self executing, it is ripe for challenge as
soon as it is enacted. For such a statute to be subject to
judicial review, it is not necessary that it be applied by an
administrator, a prosecutor, or some other enforcement
officer in a concrete case.22
Although Schwartz employs the term "statute," he qualifies
that the principle enunciated applies to other governmental
acts as well.23
Prescinding from these parameters, it is evident that the
Court is confronted with a MOA-AD that is heavily laden with
self-executing components. Far from the representation of
the Solicitor General, the MOA-AD is not a mere collection of
consensus points,24 still bereft of any legal consequence.
The commitments made by the government panel under the
MOA-AD can be divided into (1) those which are selfexecutory or are immediately effective by the terms of the
MOA-AD alone, (2) those with a period or which are to be
effective within a stipulated time, and (3) those that are
conditional or whose effectivity depends on the outcome of a
plebiscite.
Let us cast an eye on the self executory provisions of the
MOA-AD which will demolish the argument of the respondents
that the issues in the petitions at bar are not ripe for
adjudication.
The MOA-AD provides that "the Parties affirm that the core of
the BJE shall constitute the present geographic area of the
ARMM, including the municipalities of Baloi, Munai,
Nunungan, Pantar, Tagoloan and Tangkal in the province of
Lanao del Norte that voted for inclusion in the ARMM during
the 2001 plebiscite."

The MOA-AD then proceeds to enumerate the powers that

the BJE possesses within its area. The BJE is granted powers
of governance which it can exercise without need of
amendments to be made to the Constitution or existing law
or without imposing any condition whatsoever.
The MOA-AD also gives the BJE the unconditional right to
participate in international meetings and events, e.g., ASEAN
meetings and other specialized agencies of the United
Nations.25 It grants BJE the right to participate in Philippine
official missions and delegations that are engaged in the
negotiation of border agreements or protocols for
environmental protection, equitable sharing of incomes and
revenues, in addition to those of fishing rights.26 Again,
these rights are given to the BJE without imposing prior
conditions such as amendments to the Constitution, existing
law or the enactment of new legislation.
Next, let us go to provisions of the MOA-AD with a period
which will further demonstrate the lack of merit of
respondents' posture that the petitions at bar are not ripe for
adjudication. The MOA-AD provides that "without derogating
from the requirements of prior agreements27, the
Government stipulates to conduct and deliver, within twelve
(12) months following the signing of the Memorandum of
Agreement on Ancestral Domain, a plebiscite covering the
areas as enumerated in the list and depicted in the map as
Category A x x x the Parties shall endeavor to complete
negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from
signing of the MOA-AD."28 Once more, it is evident that no
conditions were imposed with respect to the conduct of a
plebiscite within twelve months following the signing of the
MOA-AD. The provision starkly states that within twelve
months, the government will conduct and deliver a plebiscite
covering areas under Category A of the MOA-AD.
We now come to respondents' argument on mootness. In
determining whether a case has been rendered moot, courts

50
look at the development of events to ascertain whether the
petitioner making the constitutional challenge is confronted
with a continuing harm or a substantial potential of harm.
Mootness is sometimes viewed as "the doctrine of standing
set in a time frame: The requisite personal interest must exist
at the commencement of the litigation and must continue
throughout its existence."29 Stated otherwise, an actual
controversy must be extant at all stages of judicial review,
not merely at the time the complaint is filed.30
Respondents insist that the petitions at bar are moot for
three reasons: (1) the petitioners North Cotabato and
Zamboanga have already been furnished copies of the MOAAD; (2) the Executive Secretary has issued a Memorandum
that the government will not sign the MOA-AD and, (3) the
GRP Peace Panel has been dissolved by the President.
These grounds are barren grounds. For one, the press
statements of the Presidential Adviser on the Peace Process,
Gen. Hermogenes Esperon, Jr., are clear that the MOA-AD will
still be used as a major reference in future negotiations.31
For another, the MILF considers the MOA-AD a "done deal,"
32 hence, ready for implementation. On the other hand, the
peace panel may have been temporarily dismantled but the
structures set up by the Executive and their guidelines which
gave rise to the present controversy remain intact. With all
these realities, the petitions at bar fall within that exceptional
class of cases which ought to be decided despite their
mootness because the complained unconstitutional acts are
"capable of repetition yet evading review."33
This well-accepted exception to the non-reviewability of moot
cases was first enunciated in the case of Southern Pacific
Terminal Co. v. ICC.34 The United States Supreme Court held
that a case is not moot where interests of a public character
are asserted under conditions that may be immediately
repeated, merely because the particular order involved has
expired.

In the petitions at bar, one need not butt heads with the
Solicitor General to demonstrate the numerous constitutional
infirmities of the MOA-AD. There is no need to iterate and
reiterate them. Suffice to stress that it is because of these
evident breaches, that the MOA-AD requires the present
Constitution to undergo radical revisions. Yet, the unblushing
threat is made that the MOA-AD which shattered to
smithereens all respect to the Constitution will continue to be
a reference point in future peace negotiations with the MILF.
In fine, the MOA-AD is a constitutional nightmare that will
come and torment us again in the near future. It must be
slain now. It is not moot.
Let us adhere to the orthodox thought that once a
controversy as to the application of a constitutional provision
is raised before this Court, it becomes a legal issue which the
Court is hide-bound to decide.35 Supervening events,
whether contrived or accidental, cannot prevent the Court
from rendering a decision if there is a grave violation of the
Constitution has already been committed or the threat of
being committed again is not a hypothetical fear.36 It is the
function of judicial review to uphold the Constitution at all
cost or we forfeit the faith of the people.
III. The Deviation from the MNLF
Model of Pursuing Peace with
Rebels is Inexplicable
The MNLF model in dealing with rebels which culminated in
the Peace Agreement of 1996, was free from any infirmity
because it respected the metes and bounds of the
Constitution. While the MNLF model is ostensibly based on
the Tripoli Agreement of 1976, its implementation was in
perfect accord with Philippine laws. The implementation of
the Tripoli Agreement of 1976 came in two phases: the first,
under the legislative power of then President Marcos and the
second, under the provisions of Article X of the 1987
Constitution and its implementing legislation, Republic Act
No. 6734.37

51
Under President Marcos, autonomy in the affected provinces
was recognized through Presidential Proclamation No.1628. It
declared autonomy in 13 provinces and constituted a
provisional government for the affected areas. The
proclamation was followed by a plebiscite and the final
framework for the autonomous region was embodied in
Presidential Decree No.1618.
The establishment of the autonomous region under P.D. 1628
was constitutionalized by the commissioners in the 1987
Constitution as shown by the following exchange of views:
MR. ALONTO: Madam President, I have stated from the start
of our consideration of this Article on Local Governments that
the autonomous region exists now in this country. There is a
de facto existence of an autonomous government in what we
call now Regions IX and XII. Region IX is composed of the
provinces of Tawi-Tawi, Sulu, Basilan, Zamboanga City,
Zamboanga del Sur and Zamboanga del Norte, including all
the component cities in the provinces. Region XII is
composed of the Provinces of Lanao del Norte, Lanao del Sur,
Maguindanao, Sultan Kudarat and North Cotabato. This
autonomous
region
has
its
central
governmental
headquarters in Zamboanga City for Region IX and in
Cotabato City for Region XII. In fact, it is stated by
Commissioner Ople that it has an executive commission and
a legislative assembly.

MR. DE CASTRO: Madam President.

THE PRESIDENT: May we please allow Commissioner Alonto
to finish his remarks before any interruption?
MR. DE CASTRO: Yes Madam President.
MR. ALONTO: Madam President, this autonomous region is
recognized by the present regime for the very reason that
the present regime is now in the process of a negotiation
with the Moro National Liberation Front. In a way, what we
are doing is to give constitutional basis for the President of
this country today to proceed with the negotiation with the
Moro National Liberation Front.
THE PRESIDENT: Commissioner Uka is recognized.
MR. UKA: Madam President, not only that. President Corazon
C. Aquino has appointed Mr. Albert Tugum as the Chairman of
Region IX and Mr. Datu Zakaria Candau as chairman of
Region XII. They are doing their work well right now. So there
are two recognized autonomous regions. They have also a
complete regional assembly as the legislative body. So, it is
only a matter of putting this in the Constitution.
THE PRESIDENT: So, what is before the body is the proposed
amendment on Line 11 of Section 1.

MR. DE CASTRO: Madam President.

Commissioner de Castro is recognized.

MR. ALONTO: These two regions have been organized by

virtue of P.D. No. 1618 of President Marcos, as amended by
P.D. No. 1843.

MR. DE CASTRO: Madam President, if there is now an

autonomous region in Mindanao and if, according to the
Honorable Ople, this has the recognition of the central
government, what then is the use of creating autonomous
regions in Muslim Mindanao and going through the process of
a plebiscite and enacting an organic act?

MR. DE CASTRO: Madam President.

MR. ALONTO: If the Gentleman will bear with me, I will
explain to him. That is why there is a de facto autonomous
government existing in Mindanao

My amendment is simply to clarify the term "Muslim

Mindanao." I really did not expect that this will go this far --that it is being placed in the Constitution, that it is a fait

52
accompli and that all we have to do here is say "amen" to the
whole thing and it we do not say "amen," they will still
continue to be autonomous regions. I insist on my
amendment, Madam President.
MR. OPLE: May I provide more information to Commissioner
de Castro on this matter.
First of all, we have to correct the misimpression that the
autonomous regions, such as they now exist in Mindanao, do
not enjoy the recognition of the central government.
Secondly, may I point out that the autonomy existing now in
Regions IX and XII is a very imperfect kind of autonomy. We
are not satisfied with the legal sufficiency of these regions as
autonomous regions and that is the reason the initiative has
been taken in order to guarantee by the Constitution the
right to autonomy of the people embraced in these regions
and not merely on the sufferance of any existing or future
administration. It is a right, moreover, for which they have
waged heroic struggles, not only in this generation but in
previous eras and, therefore, what we seek is constitutional
permanence for this right.
May I also point out, Madam President, that the Tripoli
Agreement was negotiated under the aegis of foreign
powers. No matter how friendly and sympathetic they are to
our country, this is under the aegis of the 42-nation Islamic
Conference. Should our brothers look across the seas to a
conclave of foreign governments so that their rights may be
recognized in the Constitution? Do they have to depend upon
foreign sympathy so that their right can be recognized in
final, constitutional and durable form.

given life by Republic Act No. 6734,39 the Organic Act of the
ARMM. Our executive officials were guided by and did not
stray away from these legal mandates at the negotiation and
execution of the Peace Agreement with the MNLF in 1996.
Without ifs and buts, its Whereas Clauses affirmed our
sovereignty and territorial integrity and completely respected
our Constitution.40
In stark contrast, the peace process with the MILF draws its
mandate principally from Executive Order No. 3. This
executive order provided the basis for the execution of the
Tripoli Agreement of 2001 and thereafter, the MOA-AD.
During the whole process, the government peace negotiators
conducted themselves free from the strictures of the
Constitution. They played fast and loose with the do's and
dont's of the Constitution. They acted as if the grant of
executive power to the President allows them as agents to
make agreements with the MILF in violation of the
Constitution. They acted as if these violations can anyway be
cured by committing that the sovereign people will change
the Constitution to conform with the MOA-AD. They forgot
that the Constitution grants power but also sets some
impotence on power.
IV. The Exercise of Executive Power is
Subject to the Constitution
Clearly, the respondents grossly misunderstood and patently
misapplied the executive powers of the President.

MR. OPLE: Yes.(Emphasis supplied)38

The MILF problem is a problem of rebellion penalized under

the Revised Penal Code.41 The MILF is but a rebel group. It
has not acquired any belligerency status. The rebellion of the
MILF is recognized expressly by E.O. No. 342 as well as by
E.O. No. 555.43 The President's powers in dealing with
rebellion are spelled out in Article VII, section 18 of the
Constitution, viz:

Clearly, the mandate for the creation of the ARMM is derived

principally from the 1987 Constitution. Thereafter, ARRM was

The President shall be the Commander-in-Chief of all armed

forces of the Philippines and whenever it becomes necessary,

THE PRESIDENT: Commissioner Ople, the consensus here is

to grant autonomy to the Muslim areas of Mindanao?

53
he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such
proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by
the Congress, if the invasion or rebellion shall persist and
public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene in
accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus or the extension thereof, and
must promulgate its decision thereon within thirty days from
its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts
or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians
where civil courts are able to function, nor automatically
suspend the privilege of the writ of habeas corpus.
The suspension of the privilege of the writ of habeas corpus
shall apply only to persons judicially charged for rebellion or
offenses inherent in, or directly connected with, invasion.

During the suspension of the privilege of the writ of habeas

corpus, any person thus arrested or detained shall be
judicially charged within three days, otherwise he shall be
released.
These are the well crafted commander-in-chief powers of the
President. They enumerate with exactitude the powers which
the President should use in dealing with rebellion. They are
graduated in degrees. The strongest of these powers is the
power to declare martial law and worthy to note, its exercise
is subject to restraints. But more important, all these
commander-in-chief powers can only be used to quell the
rebellion. They cannot be utilized to dismember the State or
to create a state within our State and hand it over to the MILF
rebels.
In dealing with the MILF rebellion, the President may,
however, opt not to use force but negotiate peace with the
MILF. Undoubtedly, the President as Chief Executive can
negotiate peace with rebels, like the MILF. Article VII, section
1 of the Constitution vests in the President the entire panoply
of executive power, to reach peace with rebels. But
undoubtedly too, the exercise of executive power to secure
peace with rebels is limited by the Constitution.
All these are due to the preeminent principle that our
government is fundamentally one of limited and enumerated
powers. As well stated in Angara v. Electoral Commission,44
viz:
But in the main, the Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the
government. The overlapping and interlacing of functions
and duties between the several departments, however,
sometimes makes it hard to say just where the one leaves off
and the other begins. In times of social disquietude or
political excitement, the great landmarks of the Constitution
are apt to be forgotten or marred, if not entirely obliterated.
In cases of conflict, the judicial department is the only

54
constitutional organ which can be called upon to determine
the proper allocation of powers between the several
departments and among the integral or constituent units
thereof.
In fine, there is no power in the Constitution that can run riot.
There is no power in the Constitution that is unbounded.
There is no power in the Constitution that can be exercised if
it will destroy the Constitution. For all powers in the
Constitution are designed to preserve the Constitution.
In other words, the President as Chief Executive can
negotiate peace with the MILF but it is peace that will insure
that our laws are faithfully executed. The President can seek
peace with the MILF but without crossing the parameters of
powers marked in the Constitution to separate the other
branches of government to preserve our democracy. For even
in times of war, our system of checks and balances cannot be
infringed.45 More so in times where the only danger that
faces the State is the lesser danger of rebellion.
Needless to stress, the power of the President to negotiate
peace with the MILF is not plenary. While a considerable
degree of flexibility and breadth is accorded to the peace
negotiating panel, the latitude has its limits - the
Constitution. The Constitution was ordained by the sovereign
people and its postulates may not be employed as bargaining
chips without their prior consent.
V. The Constitution as Compact of the People
The question may be asked: In the process of negotiating
peace with the MILF, why cannot the Executive commit to do
acts which are prohibited by the Constitution and seek their
ratification later by its amendment or revision?
Many philosophical perspectives have been advanced in
reply to this question. Yet, no theory has been as influential,
nor has been as authoritative, as the social contract
theory,46 articulated by John Locke, viz:

For when any number of men have, by the consent of every

individual, made a community, they have thereby made that
community one body, with a power to act as one body, which
is only by the will and determination of the majority: for that
which acts any community, being only the consent of the
individuals of it, and it being necessary to that which is one
body to move one way; it is necessary the body should move
that way whither the greater force carries it, which is the
consent of the majority: or else it is impossible it should act
or continue one body, one community, which the consent of
every individual that united into it, agreed that it should; and
so every one is bound by that consent to be concluded by the
majority. And therefore we see, that in assemblies,
empowered to act by positive laws, where no number is set
by that positive law which empowers them, the act of the
majority passes for the act of the whole, and of course
determines, as having, by the law of nature and reason, the
power of the whole.47
The French philosopher, Jean Jacques Rosseau stressed the
non-derogability of this social contract, viz:
But the body politic or sovereign, deriving its existence only
from the sanctity of the contract, can never bind itself, even
to others, in anything that derogates from the original act,
such as alienation of some portion of itself, or submission to
another sovereign. To violate the act by which it exists would
be to annihilate itself; and what is nothing produces
nothing.48
Dean Vicente Sinco of the U.P. College of Law articulated
these precepts in his seminal work, Philippine Political Law,
viz:
As adopted in our system of jurisprudence a constitution is a
written instrument which serves as the fundamental law of
the state. In theory, it is the creation of the will of the people,
who are deemed the source of all political powers. It provides
for the organization of the essential departments of

55
government, determines and limits their powers, and
prescribes guarantees to the basic rights of the individual.49
xxxx
Some authorities have also considered the constitution as a
compact, an "agreement of the people, in their individual
capacities, reduced to writing, establishing and fixing certain
principles for the government of themselves." This notion
expresses the old theory of the social contract obligatory on
all parties and revocable by no one individual or group less
than the majority of the people; otherwise it will not have the
attribute of law.50 (Emphasis supplied)
In sum, there is no power nor is there any right to violate the
Constitution on the part of any official of government. No one
can claim he has a blank check to violate the Constitution in
advance and the privilege to cure the violation later through
amendment of its provisions. Respondents' thesis of violate
now, validate later makes a burlesque of the Constitution.

56
Francisco v. House of Rep, GR. 160261, November 10,
2013
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict,
no matter how passionate and seemingly irreconcilable it
may appear to be, over the determination by the
independent branches of government of the nature, scope
and extent of their respective constitutional powers where
the Constitution itself provides for the means and bases for
its resolution.
Our nation's history is replete with vivid illustrations of the
often frictional, at times turbulent, dynamics of the
relationship among these co-equal branches. This Court is
confronted with one such today involving the legislature and
the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent
cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization
that the present controversy subject of the instant petitions
whether the filing of the second impeachment complaint
against Chief Justice Hilario G. Davide, Jr. with the House of
Representatives falls within the one year bar provided in the
Constitution, and whether the resolution thereof is a political
question has resulted in a political crisis. Perhaps even
more truth to the view that it was brought upon by a political
crisis of conscience.
In any event, it is with the absolute certainty that our
Constitution is sufficient to address all the issues which this
controversy
spawns
that
this
Court
unequivocally
pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither
necessary nor legally permissible. Both its resolution and
protection of the public interest lie in adherence to, not
departure from, the Constitution.

In passing over the complex issues arising from the

controversy, this Court is ever mindful of the essential truth
that the inviolate doctrine of separation of powers among the
legislative, executive or judicial branches of government by
no means prescribes for absolute autonomy in the discharge
by each of that part of the governmental power assigned to it
by the sovereign people.
At the same time, the corollary doctrine of checks and
balances which has been carefully calibrated by the
Constitution to temper the official acts of each of these three
branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of
republican government, intended as they are to insure that
governmental power is wielded only for the good of the
people, mandate a relationship of interdependence and
coordination among these branches where the delicate
functions of enacting, interpreting and enforcing laws are
harmonized to achieve a unity of governance, guided only by
what is in the greater interest and well-being of the people.
Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest
lives.
SECTION 2. The President, the Vice-President, the Members of
the Supreme Court, the Members of the Constitutional
Commissions, and the Ombudsman may be removed from
office, on impeachment for, and conviction of, culpable

57
violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All
other public officers and employees may be removed from
office as provided by law, but not by impeachment.
SECTION 3. (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.

convicted without the concurrence of two-thirds of all the

Members of the Senate.
(7) Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to hold
any office under the Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject to
prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment
to effectively carry out the purpose of this section. (Emphasis
and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the
Constitution, the 12th Congress of the House of
Representatives adopted and approved the Rules of
Procedure in Impeachment Proceedings (House Impeachment
Rules) on November 28, 2001, superseding the previous
House Impeachment Rules1 approved by the 11th Congress.
The relevant distinctions between these two Congresses'
House Impeachment Rules are shown in the following
tabulation:
11TH CONGRESS RULES

(4) In case the verified complaint or resolution of

impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith
proceed.

12TH CONGRESS NEW RULES

(5) No impeachment proceedings shall be initiated against

the same official more than once within a period of one year.

Section 2. Mode of Initiating Impeachment. Impeachment

shall be initiated only by a verified complaint for
impeachment filed by any Member of the House of
Representatives or by any citizen upon a resolution of
endorsement by any Member thereof or by a verified
complaint or resolution of impeachment filed by at least onethird (1/3) of all the Members of the House.

(6) The Senate shall have the sole power to try and decide all
cases of impeachment. When sitting for that purpose, the
Senators shall be on oath or affirmation. When the President
of the Philippines is on trial, the Chief Justice of the Supreme
Court shall preside, but shall not vote. No person shall be

RULE II
INITIATING IMPEACHMENT

58

RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 16. Impeachment Proceedings Deemed Initiated.
In cases where a Member of the House files a verified
complaint of impeachment or a citizen files a verified
complaint that is endorsed by a Member of the House
through a resolution of endorsement against an impeachable
officer, impeachment proceedings against such official are
deemed initiated on the day the Committee on Justice finds
that the verified complaint and/or resolution against such
official, as the case may be, is sufficient in substance, or on
the date the House votes to overturn or affirm the finding of
the said Committee that the verified complaint and/or
resolution, as the case may be, is not sufficient in substance.
In cases where a verified complaint or a resolution of
impeachment is filed or endorsed, as the case may be, by at
least one-third (1/3) of the Members of the House,
impeachment proceedings are deemed initiated at the time
of the filing of such verified complaint or resolution of
impeachment with the Secretary General.

RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. No impeachment proceedings
shall be initiated against the same official more than once
within the period of one (1) year.

Section 17. Bar Against Initiation Of Impeachment

Proceedings. Within a period of one (1) year from the date
impeachment proceedings are deemed initiated as provided
in Section 16 hereof, no impeachment proceedings, as such,
can be initiated against the same official. (Italics in the
original; emphasis and underscoring supplied)
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D.
Fuentebella, which directed the Committee on Justice "to
conduct an investigation, in aid of legislation, on the manner
of disbursements and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an
impeachment complaint4 (first impeachment complaint)
against Chief Justice Hilario G. Davide Jr. and seven Associate
Justices5 of this Court for "culpable violation of the
Constitution, betrayal of the public trust and other high
crimes."6 The complaint was endorsed by Representatives
Rolex T. Suplico, Ronaldo B. Zamora and Didagen Piang
Dilangalen,7 and was referred to the House Committee on
Justice on August 5, 20038 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be calendared
for consideration by the House within ten session days from
receipt thereof.
The House Committee on Justice ruled on October 13, 2003
that the first impeachment complaint was "sufficient in

59
form,"9 but voted to dismiss the same on October 22, 2003
for being insufficient in substance.10 To date, the Committee
Report to this effect has not yet been sent to the House in
plenary in accordance with the said Section 3(2) of Article XI
of the Constitution.
Four months and three weeks since the filing on June 2, 2003
of the first complaint or on October 23, 2003, a day after the
House Committee on Justice voted to dismiss it, the second
impeachment complaint11 was filed with the Secretary
General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B.
Fuentebella (Third District, Camarines Sur) against Chief
Justice Hilario G. Davide, Jr., founded on the alleged results of
the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was
accompanied
by
a
"Resolution
of
Endorsement/Impeachment" signed by at least one-third
(1/3) of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of
Representatives, et. al., most of which petitions contend that
the filing of the second impeachment complaint is
unconstitutional as it violates the provision of Section 5 of
Article XI of the Constitution that "[n]o impeachment
proceedings shall be initiated against the same official more
than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
alleging that he has a duty as a member of the Integrated
Bar of the Philippines to use all available legal remedies to
stop an unconstitutional impeachment, that the issues raised
in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim
of the capricious and arbitrary changes in the Rules of
Procedure in Impeachment Proceedings introduced by the
12th Congress,"14 posits that his right to bring an
impeachment complaint against then Ombudsman Aniano
Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted

and approved on November 28, 2001 by the House of

Representatives and prays that (1) Rule V, Sections 16 and
17 and Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared
unconstitutional; (2) this Court issue a writ of mandamus
directing respondents House of Representatives et. al. to
comply with Article IX, Section 3 (2), (3) and (5) of the
Constitution, to return the second impeachment complaint
and/or strike it off the records of the House of
Representatives, and to promulgate rules which are
consistent with the Constitution; and (3) this Court
permanently enjoin respondent House of Representatives
from proceeding with the second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al.,
as citizens and taxpayers, alleging that the issues of the case
are of transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with
the Senate; and for the issuance of a writ "perpetually"
prohibiting respondents Senate and Senate President Franklin
Drilon from accepting any Articles of Impeachment against
the Chief Justice or, in the event that the Senate has
accepted the same, from proceeding with the impeachment
trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and
Soledad Cagampang, as citizens, taxpayers, lawyers and
members of the Integrated Bar of the Philippines, alleging
that their petition for Prohibition involves public interest as it
involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint,
pray for the issuance of a writ of prohibition enjoining
Congress from conducting further proceedings on said
second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging
that this Court has recognized that he has locus standi to
bring petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development

60
Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as
taxpayers and members of the legal profession, pray in their
petition for Prohibition for an order prohibiting respondent
House of Representatives from drafting, adopting, approving
and transmitting to the Senate the second impeachment
complaint, and respondents De Venecia and Nazareno from
transmitting the Articles of Impeachment to the Senate.
In G.R. No. 160295, petitioners Representatives Salacnib F.
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that,
as members of the House of Representatives, they have a
legal interest in ensuring that only constitutional
impeachment proceedings are initiated, pray in their petition
for Certiorari/Prohibition that the second impeachment
complaint and any act proceeding therefrom be declared null
and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al.,
claiming that they have a right to be protected against all
forms of senseless spending of taxpayers' money and that
they have an obligation to protect the Supreme Court, the
Chief Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a
class suit" and pray that (1) the House Resolution endorsing
the second impeachment complaint as well as all issuances
emanating therefrom be declared null and void; and (2) this
Court enjoin the Senate and the Senate President from taking
cognizance of, hearing, trying and deciding the second
impeachment complaint, and issue a writ of prohibition
commanding the Senate, its prosecutors and agents to desist
from conducting any proceedings or to act on the
impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc.,
whose members are citizens and taxpayers, and its copetitioner Crispin T. Reyes, a citizen, taxpayer and a member
of the Philippine Bar, both allege in their petition, which does

not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest
and pray that Sections 16 and 17 of the House Impeachment
Rules and the second impeachment complaint/Articles of
Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a
citizen and a member of the Philippine Bar Association and of
the Integrated Bar of the Philippines, and petitioner Engr.
Maximo N. Menez, Jr., as a taxpayer, pray in their petition for
the issuance of a Temporary Restraining Order and
Permanent Injunction to enjoin the House of Representatives
from proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the
Philippines, alleging that it is mandated by the Code of
Professional Responsibility to uphold the Constitution, prays
in its petition for Certiorari and Prohibition that Sections 16
and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the
House Impeachment Rules be declared unconstitutional and
that the House of Representatives be permanently enjoined
from proceeding with the second impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores
prays in his petition for Certiorari and Prohibition that the
House Impeachment Rules be declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu
Foundation Inc., et. al., in their petition for Prohibition and
Injunction which they claim is a class suit filed in behalf of all
citizens, citing Oposa v. Factoran17 which was filed in behalf
of succeeding generations of Filipinos, pray for the issuance
of a writ prohibiting respondents House of Representatives
and the Senate from conducting further proceedings on the
second impeachment complaint and that this Court declare
as unconstitutional the second impeachment complaint and
the acts of respondent House of Representatives in
interfering with the fiscal matters of the Judiciary.

61
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance
and that as an official of the Philippine Judicial Academy, he
has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in
discharging their duties in accordance with the Constitution,
prays for the issuance of a writ prohibiting the House of
Representatives
from
transmitting
the
Articles
of
Impeachment to the Senate and the Senate from receiving
the same or giving the impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a
taxpayer, alleges in his petition for Prohibition that
respondents Fuentebella and Teodoro at the time they filed
the second impeachment complaint, were "absolutely
without any legal power to do so, as they acted without
jurisdiction as far as the Articles of Impeachment assail the
alleged abuse of powers of the Chief Justice to disburse the
(JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores
and Hector L. Hofilea, alleging that as professors of law they
have an abiding interest in the subject matter of their
petition for Certiorari and Prohibition as it pertains to a
constitutional issue "which they are trying to inculcate in the
minds of their students," pray that the House of
Representatives be enjoined from endorsing and the Senate
from trying the Articles of Impeachment and that the second
impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether
or not the Judicial Development Fund (JDF) was spent in
accordance with law and that the House of Representatives
does not have exclusive jurisdiction in the examination and
audit thereof, prays in his petition "To Declare Complaint Null
and Void for Lack of Cause of Action and Jurisdiction" that the
second impeachment complaint be declared null and void.

In G.R. No. 160403, petitioner Philippine Bar Association,

alleging that the issues raised in the filing of the second
impeachment complaint involve matters of transcendental
importance, prays in its petition for Certiorari/Prohibition that
(1) the second impeachment complaint and all proceedings
arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the
Articles of Impeachment to the Senate; and (3) respondent
Senate be prohibited from accepting the Articles of
Impeachment and from conducting any proceedings thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al.,
as citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment
complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives
be declared null and void and (2) respondents Senate and
Senate President Franklin Drilon be prohibited from accepting
any Articles of Impeachment against the Chief Justice or, in
the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262
and 160263, the first three of the eighteen which were filed
before this Court,18 prayed for the issuance of a Temporary
Restraining Order and/or preliminary injunction to prevent
the House of Representatives from transmitting the Articles
of Impeachment arising from the second impeachment
complaint to the Senate. Petition bearing docket number G.R.
No. 160261 likewise prayed for the declaration of the
November 28, 2001 House Impeachment Rules as null and
void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292
and 160295, which were filed on October 28, 2003, sought
similar relief. In addition, petition bearing docket number G.R.
No. 160292 alleged that House Resolution No. 260 (calling for
a legislative inquiry into the administration by the Chief
Justice of the JDF) infringes on the constitutional doctrine of

62
separation of powers and is a direct violation of the
constitutional principle of fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the
House of Representatives, a motion was put forth that the
second impeachment complaint be formally transmitted to
the Senate, but it was not carried because the House of
Representatives adjourned for lack of quorum,19 and as
reflected above, to date, the Articles of Impeachment have
yet to be forwarded to the Senate.
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which
were filed on or before October 28, 2003, Justices Puno and
Vitug offered to recuse themselves, but the Court rejected
their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this
Court in its Resolution of October 28, 2003, resolved to (a)
consolidate the petitions; (b) require respondent House of
Representatives and the Senate, as well as the Solicitor
General, to comment on the petitions not later than 4:30
p.m. of November 3, 2003; (c) set the petitions for oral
arguments on November 5, 2003, at 10:00 a.m.; and (d)
appointed distinguished legal experts as amici curiae.20 In
addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others
acting for and in their behalf to refrain from committing acts
that would render the petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr.
and/or its co-respondents, by way of special appearance,
submitted a Manifestation asserting that this Court has no
jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal
branch of government under the Constitution, from the
performance of its constitutionally mandated duty to initiate
impeachment cases. On even date, Senator Aquilino Q.

Pimentel, Jr., in his own behalf, filed a Motion to Intervene (Ex

Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of
the Court over the issues affecting the impeachment
proceedings and that the sole power, authority and
jurisdiction of the Senate as the impeachment court to try
and decide impeachment cases, including the one where the
Chief Justice is the respondent, be recognized and upheld
pursuant to the provisions of Article XI of the Constitution."22
Acting on the other petitions which were subsequently filed,
this Court resolved to (a) consolidate them with the earlier
consolidated petitions; (b) require respondents to file their
comment not later than 4:30 p.m. of November 3, 2003; and
(c) include them for oral arguments on November 5, 2003.
On October 29, 2003, the Senate of the Philippines, through
Senate President Franklin M. Drilon, filed a Manifestation
stating that insofar as it is concerned, the petitions are
plainly premature and have no basis in law or in fact, adding
that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty
to constitute itself as an impeachment court commences only
upon its receipt of the Articles of Impeachment, which it had
not, and (2) the principal issues raised by the petitions
pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263,
160277, 160292, and 160295, questioning the status quo
Resolution issued by this Court on October 28, 2003 on the
ground that it would unnecessarily put Congress and this
Court in a "constitutional deadlock" and praying for the
dismissal of all the petitions as the matter in question is not
yet ripe for judicial determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and
Pete Quirino Quadra filed in G.R. No. 160262 a "Motion for

63
Leave of Court to Intervene and to Admit the Herein
Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga
Manananggol ng mga Manggagawang Pilipino, Inc. filed a
Motion for Intervention in G.R. No. 160261. On November 5,
2003, World War II Veterans Legionnaires of the Philippines,
Inc. also filed a "Petition-in-Intervention with Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277,
160292, 160295, and 160310.
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's
Petition in Intervention were admitted.
On November 5-6, 2003, this Court heard the views of the
amici curiae and the arguments of petitioners, intervenors
Senator Pimentel and Attorney Makalintal, and Solicitor
General Alfredo Benipayo on the principal issues outlined in
an Advisory issued by this Court on November 3, 2003, to
wit:
Whether the certiorari jurisdiction of the Supreme Court may
be invoked; who can invoke it; on what issues and at what
time; and whether it should be exercised by this Court at this
time.

f) constitutionality of the House Rules on Impeachment vis-avis Section 3(5) of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and
substantive issues arising from the instant petitions as well
as the myriad arguments and opinions presented for and
against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the
threshold and novel issue of whether or not the power of
judicial review extends to those arising from impeachment
proceedings; (2) whether or not the essential pre-requisites
for the exercise of the power of judicial review have been
fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to
exercise the power of judicial review to determine the validity
of the second impeachment complaint.
This Court's power of judicial review is conferred on the
judicial branch of the government in Section 1, Article VIII of
our present 1987 Constitution:

In discussing these issues, the following may be taken up:

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

a) locus standi of petitioners;

b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive"
impeachment;

power

to

initiate

all

cases

of

e) Senate's "sole" power to try and decide all cases of

impeachment;

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)

64
Such power of judicial review was early on exhaustively
expounded upon by Justice Jose P. Laurel in the definitive
1936 case of Angara v. Electoral Commission23 after the
effectivity of the 1935 Constitution whose provisions, unlike
the present Constitution, did not contain the present
provision in Article VIII, Section 1, par. 2 on what judicial
power includes. Thus, Justice Laurel discoursed:
x x x In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of
conflict, the judicial department is the only constitutional
organ which can be called upon to determine the proper
allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and
limitations upon governmental powers and agencies. If these
restrictions and limitations are transcended it would be
inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government
along constitutional channels, for then the distribution of
powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution are
real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the
courts, not to speak of its historical origin and development
there, has been set at rest by popular acquiescence for a

period of more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government.
Who is to determine the nature, scope and extent of such
powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when
the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act
of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This
is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial
review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties,
and limited further to the constitutional question raised or
the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because
the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual
cases and controversies must reflect the wisdom and justice
of the people as expressed through their representatives in
the executive and legislative departments of the
government.24 (Italics in the original; emphasis and
underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of

65
government along constitutional channels" is inherent in all
courts25 as a necessary consequence of the judicial power
itself, which is "the power of the court to settle actual
controversies involving rights which are legally demandable
and enforceable."26
Thus, even in the United States where the power of judicial
review is not explicitly conferred upon the courts by its
Constitution, such power has "been set at rest by popular
acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of
Marbury v. Madison27 that the power of judicial review was
first articulated by Chief Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of the
United States generally, but those only which shall be made
in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the
United States confirms and strengthens the principle,
supposed to be essential to all written constitutions, that a
law repugnant to the constitution is void; and that courts, as
well as other departments, are bound by that instrument.28
(Italics in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate
constitutionally infirm acts.29 And as pointed out by noted
political law professor and former Supreme Court Justice
Vicente V. Mendoza,30 the executive and legislative branches
of our government in fact effectively acknowledged this
power of judicial review in Article 7 of the Civil Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.

When the courts declare a law to be inconsistent with the

Constitution, the former shall be void and the latter shall
govern.
Administrative or executive acts, orders and regulations shall
be valid only when they are not contrary to the laws or the
Constitution. (Emphasis supplied)
As indicated in Angara v. Electoral Commission,31 judicial
review is indeed an integral component of the delicate
system of checks and balances which, together with the
corollary principle of separation of powers, forms the bedrock
of our republican form of government and insures that its
vast powers are utilized only for the benefit of the people for
which it serves.
The separation of powers is a fundamental principle in our
system of government. It obtains not through express
provision but by actual division in our Constitution. Each
department of the government has exclusive cognizance of
matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the
Constitution intended them to be absolutely unrestrained and
independent of each other. The Constitution has provided for
an elaborate system of checks and balances to secure
coordination in the workings of the various departments of
the government. x x x And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine
the law, and hence to declare executive and legislative acts
void if violative of the Constitution.32 (Emphasis and
underscoring supplied)
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers
and the balancing of powers among the three great
departments of government through the definition and
maintenance of the boundaries of authority and control

66
between them."33 To him, "[j]udicial review is the chief,
indeed the only, medium of participation or instrument of
intervention of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb
grave abuse of discretion by "any branch or instrumentalities
of government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into
block letter law the so-called "expanded certiorari
jurisdiction" of this Court, the nature of and rationale for
which are mirrored in the following excerpt from the
sponsorship speech of its proponent, former Chief Justice
Constitutional Commissioner Roberto Concepcion:

solicitor general set up the defense of political questions and

got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of
martial law failed because the government set up the
defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during the
martial law regime. x x x

xxx

xxx

The first section starts with a sentence copied from former

Constitutions. It says:

Briefly stated, courts of justice determine the limits of power

of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.

The judicial power shall be vested in one Supreme Court and

in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read
it first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part or instrumentality of
the government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably
by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the

This is the background of paragraph 2 of Section 1, which

means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.35 (Italics in the original;
emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant
petitions, this Court must necessarily turn to the Constitution
itself which employs the well-settled principles of
constitutional construction.
First, verba legis, that is, wherever possible, the words used
in the Constitution must be given their ordinary meaning
except where technical terms are employed. Thus, in J.M.

67
Tuason & Co., Inc. v. Land Tenure Administration,36 this
Court, speaking through Chief Justice Enrique Fernando,
declared:

construe the whole as to make the words consonant to that

reason and calculated to effect that purpose.39 (Emphasis
and underscoring supplied)

We look to the language of the document itself in our search

for its meaning. We do not of course stop there, but that is
where we begin. It is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. They are to be given their ordinary
meaning except where technical terms are employed in
which case the significance thus attached to them prevails.
As the Constitution is not primarily a lawyer's document, it
being essential for the rule of law to obtain that it should
ever be present in the people's consciousness, its language
as much as possible should be understood in the sense they
have in common use. What it says according to the text of
the provision to be construed compels acceptance and
negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they
say. Thus these are the cases where the need for
construction is reduced to a minimum.37 (Emphasis and
underscoring supplied)

As it did in Nitafan v. Commissioner on Internal Revenue40

where, speaking through Madame Justice Amuerfina A.
Melencio-Herrera, it declared:

Second, where there is ambiguity, ratio legis est anima. The

words of the Constitution should be interpreted in accordance
with the intent of its framers. And so did this Court apply this
principle in Civil Liberties Union v. Executive Secretary38 in
this wise:

x x x [T]he members of the Constitutional Convention could

not have dedicated a provision of our Constitution merely for
the benefit of one person without considering that it could
also affect others. When they adopted subsection 2, they
permitted, if not willed, that said provision should function to
the full extent of its substance and its terms, not by itself
alone, but in conjunction with all other provisions of that
great document.43 (Emphasis and underscoring supplied)

A foolproof yardstick in constitutional construction is the

intention underlying the provision under consideration. Thus,
it has been held that the Court in construing a Constitution
should bear in mind the object sought to be accomplished by
its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light
of the history of the times, and the condition and
circumstances under which the Constitution was framed. The
object is to ascertain the reason which induced the framers
of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to

x x x The ascertainment of that intent is but in keeping with

the fundamental principle of constitutional construction that
the intent of the framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also be
safely assumed that the people in ratifying the Constitution
were guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to
be interpreted as a whole. Thus, in Chiongbian v. De Leon,42
this Court, through Chief Justice Manuel Moran declared:

Likewise, still in Civil Liberties

Secretary,44 this Court affirmed that:

Union

v.

Executive

It is a well-established rule in constitutional construction that

no one provision of the Constitution is to be separated from
all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate

68
the great purposes of the instrument. Sections bearing on a
particular subject should be considered and interpreted
together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be
made to stand together.
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which may
make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be
clear, resort to other aids is available. In still the same case
of Civil Liberties Union v. Executive Secretary, this Court
expounded:
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention in
order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other
guides fail as said proceedings are powerless to vary the
terms of the Constitution when the meaning is clear. Debates
in the constitutional convention "are of value as showing the
views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face."
The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the
framers's
understanding
thereof.46
(Emphasis
and
underscoring supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of
judicial review that respondents Speaker De Venecia, et. al.
and intervenor Senator Pimentel raise the novel argument

that the Constitution has excluded impeachment proceedings

from the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De
Venecia et. al. that impeachment is a political action which
cannot assume a judicial character. Hence, any question,
issue or incident arising at any stage of the impeachment
proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the
Senate's "sole power to try" impeachment cases48 (1)
entirely excludes the application of judicial review over it;
and (2) necessarily includes the Senate's power to determine
constitutional
questions
relative
to
impeachment
proceedings.49
In furthering their arguments on the proposition that
impeachment proceedings are outside the scope of judicial
review, respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel rely heavily on American
authorities, principally the majority opinion in the case of
Nixon v. United States.50 Thus, they contend that the
exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and
to try crimes; it disturbs the system of checks and balances,
under which impeachment is the only legislative check on the
judiciary; and it would create a lack of finality and difficulty in
fashioning
relief.51
Respondents
likewise
point
to
deliberations on the US Constitution to show the intent to
isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that
the Senate's "sole power to try and decide impeachment
cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional
commitment of all issues pertaining to impeachment to the
legislature, to the total exclusion of the power of judicial

69
review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the
interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional
questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the
American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional
law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this
Court] should not be beguiled by foreign jurisprudence some
of which are hardly applicable because they have been
dictated by different constitutional settings and needs."53
Indeed, although the Philippine Constitution can trace its
origins to that of the United States, their paths of
development have long since diverged. In the colorful words
of Father Bernas, "[w]e have cut the umbilical cord."
The major difference between the judicial power of the
Philippine Supreme Court and that of the U.S. Supreme Court
is that while the power of judicial review is only impliedly
granted to the U.S. Supreme Court and is discretionary in
nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is
not just a power but also a duty, and it was given an
expanded definition to include the power to correct any
grave abuse of discretion on the part of any government
branch or instrumentality.
There are also glaring distinctions between the U.S.
Constitution and the Philippine Constitution with respect to
the power of the House of Representatives over
impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of
Representatives without limitation,54 our Constitution,
though vesting in the House of Representatives the exclusive
power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in

Section 3(2), (3), (4) and (5), Article XI thereof. These

limitations include the manner of filing, required vote to
impeach, and the one year bar on the impeachment of one
and the same official.
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call
upon this Court to exercise judicial statesmanship on the
principle that "whenever possible, the Court should defer to
the judgment of the people expressed legislatively,
recognizing full well the perils of judicial willfulness and
pride."56
But did not the people also express their will when they
instituted
the
above-mentioned
safeguards
in
the
Constitution? This shows that the Constitution did not intend
to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits,
or in the language of Baker v. Carr,57 "judicially discoverable
standards" for determining the validity of the exercise of such
discretion, through the power of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v.
Quezon,59 cited by respondents in support of the argument
that the impeachment power is beyond the scope of judicial
review, are not in point. These cases concern the denial of
petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise
of the power of judicial review.
There is indeed a plethora of cases in which this Court
exercised the power of judicial review over congressional
action. Thus, in Santiago v. Guingona, Jr.,60 this Court ruled
that it is well within the power and jurisdiction of the Court to
inquire whether the Senate or its officials committed a
violation of the Constitution or grave abuse of discretion in
the exercise of their functions and prerogatives. In Tanada v.
Angara,61 in seeking to nullify an act of the Philippine Senate
on the ground that it contravened the Constitution, it held

70
that the petition raises a justiciable controversy and that
when an action of the legislative branch is seriously alleged
to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute.
In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the
nomination, and rescinding the election, of a congressman as
a member of the House Electoral Tribunal for being violative
of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House
representation in the Commission on Appointments was
based on proportional representation of the political parties
as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that
the act of the House of Representatives in removing the
petitioner from the Commission on Appointments is subject
to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is
vested exclusively in Congress, this does not detract from the
power of the courts to pass upon the constitutionality of acts
of Congress. In Angara v. Electoral Commission,66 it ruled
that confirmation by the National Assembly of the election of
any member, irrespective of whether his election is
contested, is not essential before such member-elect may
discharge the duties and enjoy the privileges of a member of
the National Assembly.
Finally, there exists no constitutional basis for the contention
that the exercise of judicial review over impeachment
proceedings would upset the system of checks and balances.
Verily, the Constitution is to be interpreted as a whole and
"one section is not to be allowed to defeat another."67 Both
are integral components of the calibrated system of
independence and interdependence that insures that no
branch of government act beyond the powers assigned to it
by the Constitution.
Essential Requisites for Judicial Review

As clearly stated in Angara v. Electoral Commission, the

courts' power of judicial review, like almost all powers
conferred by the Constitution, is subject to several
limitations, namely: (1) an actual case or controversy calling
for the exercise of judicial power; (2) the person challenging
the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be
raised at the earliest possible opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.
x x x Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota
presented. Any attempt at abstraction could only lead to
dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its function
is in this manner, the judiciary does not pass upon questions
of wisdom, justice or expediency of legislation. More than
that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is
presumed to abide by the Constitution but also because the
judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the
executive and legislative departments of the government.68
(Italics in the original)
Standing
Locus standi or legal standing or has been defined as a
personal and substantial interest in the case such that the
party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged. The gist of
the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation

71
of issues upon which the court depends for illumination of
difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the
petitions, contends that petitioners do not have standing
since only the Chief Justice has sustained and will sustain
direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that
petitioners have standing since this Court had, in the past,
accorded standing to taxpayers, voters, concerned citizens,
legislators in cases involving paramount public interest70
and transcendental importance,71 and that procedural
matters are subordinate to the need to determine whether or
not the other branches of the government have kept
themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to
them.72 Amicus curiae Dean Raul Pangalangan of the U.P.
College of Law is of the same opinion, citing transcendental
importance and the well-entrenched rule exception that,
when the real party in interest is unable to vindicate his
rights by seeking the same remedies, as in the case of the
Chief Justice who, for ethical reasons, cannot himself invoke
the jurisdiction of this Court, the courts will grant petitioners
standing.
There is, however, a difference between the rule on realparty-in-interest and the rule on standing, for the former is a
concept of civil procedure73 while the latter has
constitutional underpinnings.74 In view of the arguments set
forth regarding standing, it behooves the Court to reiterate
the ruling in Kilosbayan, Inc. v. Morato75 to clarify what is
meant by locus standi and to distinguish it from real party-ininterest.
The difference between the rule on standing and real party in
interest has been noted by authorities thus: "It is important
to note . . . that standing because of its constitutional and
public policy underpinnings, is very different from questions

relating to whether a particular plaintiff is the real party in

interest or has capacity to sue. Although all three
requirements are directed towards ensuring that only certain
parties can maintain an action, standing restrictions require a
partial consideration of the merits, as well as broader policy
concerns relating to the proper role of the judiciary in certain
areas.
Standing is a special concern in constitutional law because in
some cases suits are brought not by parties who have been
personally injured by the operation of a law or by official
action taken, but by concerned citizens, taxpayers or voters
who actually sue in the public interest. Hence the question in
standing is whether such parties have "alleged such a
personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for
illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest"
is whether he is "the party who would be benefited or injured
by the judgment, or the 'party entitled to the avails of the
suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been
injured by the alleged unconstitutional acts of the House of
Representatives, none of the petitioners before us asserts a
violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own
rights as taxpayers; members of Congress; citizens,
individually or in a class suit; and members of the bar and of
the legal profession which were supposedly violated by the
alleged
unconstitutional
acts
of
the
House
of
Representatives.
In a long line of cases, however, concerned citizens,
taxpayers and legislators when specific requirements have
been met have been given standing by this Court.

72
When suing as a citizen, the interest of the petitioner
assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or
any government act is invalid, but also that he sustained or is
in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers
thereby in some indefinite way. It must appear that the
person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when
the proceeding involves the assertion of a public right,78 the
mere fact that he is a citizen satisfies the requirement of
personal interest.
In the case of a taxpayer, he is allowed to sue where there is
a claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that
there is a wastage of public funds through the enforcement
of an invalid or unconstitutional law.79 Before he can invoke
the power of judicial review, however, he must specifically
prove that he has sufficient interest in preventing the illegal
expenditure of money raised by taxation and that he would
sustain a direct injury as a result of the enforcement of the
questioned statute or contract. It is not sufficient that he has
merely a general interest common to all members of the
public.80
At all events, courts are vested with discretion as to whether
or not a taxpayer's suit should be entertained.81 This Court
opts to grant standing to most of the petitioners, given their
allegation that any impending transmittal to the Senate of
the Articles of Impeachment and the ensuing trial of the Chief
Justice will necessarily involve the expenditure of public
funds.
As for a legislator, he is allowed to sue to question the
validity of any official action which he claims infringes his
prerogatives as a legislator.82 Indeed, a member of the

House of Representatives has standing to maintain inviolate

the prerogatives, powers and privileges vested by the
Constitution in his office.83
While an association has legal personality to represent its
members,84 especially when it is composed of substantial
taxpayers and the outcome will affect their vital interests,85
the mere invocation by the Integrated Bar of the Philippines
or any member of the legal profession of the duty to preserve
the rule of law and nothing more, although undoubtedly true,
does not suffice to clothe it with standing. Its interest is too
general. It is shared by other groups and the whole citizenry.
However, a reading of the petitions shows that it has
advanced constitutional issues which deserve the attention
of this Court in view of their seriousness, novelty and weight
as precedents.86 It, therefore, behooves this Court to relax
the rules on standing and to resolve the issues presented by
it.
In the same vein, when dealing with class suits filed in behalf
of all citizens, persons intervening must be sufficiently
numerous to fully protect the interests of all concerned87 to
enable the court to deal properly with all interests involved in
the suit,88 for a judgment in a class suit, whether favorable
or unfavorable to the class, is, under the res judicata
principle, binding on all members of the class whether or not
they were before the court.89 Where it clearly appears that
not all interests can be sufficiently represented as shown by
the divergent issues raised in the numerous petitions before
this Court, G.R. No. 160365 as a class suit ought to fail. Since
petitioners additionally allege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes
the sole ground of transcendental importance, while Atty.
Dioscoro U. Vallejos, in G.R. No. 160397, is mum on his
standing.
There being
importance,

no doctrinal definition of transcendental

the
following
instructive
determinants

73
formulated by former Supreme Court Justice Florentino P.
Feliciano are instructive: (1) the character of the funds or
other assets involved in the case; (2) the presence of a clear
case of disregard of a constitutional or statutory prohibition
by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party with a more
direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied
that the issues raised herein are indeed of transcendental
importance.

Motion for Leave of Court to Intervene and Petition-inIntervention.

In not a few cases, this Court has in fact adopted a liberal

attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental
significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does
not, however, mean that the requirement that a party should
have an interest in the matter is totally eliminated. A party
must, at the very least, still plead the existence of such
interest, it not being one of which courts can take judicial
notice. In petitioner Vallejos' case, he failed to allege any
interest in the case. He does not thus have standing.

Alleging that the issues raised in the petitions in G.R. Nos.

160261, 160262, 160263, 160277, 160292, 160295, and
160310 were of transcendental importance, World War II
Veterans Legionnaires of the Philippines, Inc. filed a "Petitionin-Intervention with Leave to Intervene" to raise the
additional issue of whether or not the second impeachment
complaint against the Chief Justice is valid and based on any
of the grounds prescribed by the Constitution.

With respect to the motions for intervention, Rule 19, Section

2 of the Rules of Court requires an intervenor to possess a
legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an
officer thereof. While intervention is not a matter of right, it
may be permitted by the courts when the applicant shows
facts which satisfy the requirements of the law authorizing
intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino
Quadra's case, they seek to join petitioners Candelaria, et. al.
in G.R. No. 160262. Since, save for one additional issue, they
raise the same issues and the same standing, and no
objection on the part of petitioners Candelaria, et. al. has
been interposed, this Court as earlier stated, granted the

Nagmamalasakit
na
mga
Manananggol
ng
mga
Manggagawang Pilipino, Inc., et. al. sought to join petitioner
Francisco in G.R. No. 160261. Invoking their right as citizens
to intervene, alleging that "they will suffer if this insidious
scheme of the minority members of the House of
Representatives is successful," this Court found the requisites
for intervention had been complied with.

Finding that Nagmamalasakit na mga Manananggol ng mga

Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in
the matter in litigation the respective motions to intervene
were hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to
intervene for the limited purpose of making of record and
arguing a point of view that differs with Senate President
Drilon's. He alleges that submitting to this Court's jurisdiction
as the Senate President does will undermine the
independence of the Senate which will sit as an
impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the
herein petitions are directed. For this reason, and to fully
ventilate all substantial issues relating to the matter at hand,
his Motion to Intervene was granted and he was, as earlier
stated, allowed to argue.

74
Lastly, as to Jaime N. Soriano's motion to intervene, the same
must be denied for, while he asserts an interest as a
taxpayer, he failed to meet the standing requirement for
bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the
expenditure of public moneys, nowhere in their Petition do
said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional
protection against abuses of legislative power," or that there
is a misapplication of such funds by respondent COMELEC, or
that public money is being deflected to any improper
purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an
invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed
even to allege that the act of petitioners will result in illegal
disbursement of public funds or in public money being
deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe
him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice
Fernando, held that for a case to be considered ripe for
adjudication, "it is a prerequisite that something had by then
been accomplished or performed by either branch before a
court may come into the picture."96 Only then may the
courts pass on the validity of what was done, if and when the
latter is challenged in an appropriate legal proceeding.
The instant petitions raise in the main the issue of the
validity of the filing of the second impeachment complaint
against the Chief Justice in accordance with the House
Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts

having been carried out, i.e., the second impeachment

complaint had been filed with the House of Representatives
and the 2001 Rules have already been already promulgated
and
enforced,
the
prerequisite
that
the
alleged
unconstitutional act should be accomplished and performed
before suit, as Tan v. Macapagal holds, has been complied
with.
Related to the issue of ripeness is the question of whether
the instant petitions are premature. Amicus curiae former
Senate President Jovito R. Salonga opines that there may be
no urgent need for this Court to render a decision at this
time, it being the final arbiter on questions of
constitutionality anyway. He thus recommends that all
remedies in the House and Senate should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P.
College of Law who suggests to this Court to take judicial
notice of on-going attempts to encourage signatories to the
second impeachment complaint to withdraw their signatures
and opines that the House Impeachment Rules provide for an
opportunity for members to raise constitutional questions
themselves when the Articles of Impeachment are presented
on a motion to transmit to the same to the Senate. The dean
maintains that even assuming that the Articles are
transmitted to the Senate, the Chief Justice can raise the
issue of their constitutional infirmity by way of a motion to
dismiss.
The dean's position does not persuade. First, the withdrawal
by the Representatives of their signatures would not, by
itself, cure the House Impeachment Rules of their
constitutional infirmity. Neither would such a withdrawal, by
itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of
Sections 3(2) and (3) of Article XI of the Constitution97 and,
therefore, petitioners would continue to suffer their injuries.
Second and most importantly, the futility of seeking remedies
from either or both Houses of Congress before coming to this

75
Court is shown by the fact that, as previously discussed,
neither the House of Representatives nor the Senate is
clothed with the power to rule with definitiveness on the
issue of constitutionality, whether concerning impeachment
proceedings or otherwise, as said power is exclusively vested
in the judiciary by the earlier quoted Section I, Article VIII of
the Constitution. Remedy cannot be sought from a body
which is bereft of power to grant it.

by the people of a Constitution is a political question, it being

a question decided by the people in their sovereign capacity.
The frequency with which this Court invoked the political
question doctrine to refuse to take jurisdiction over certain
cases during the Marcos regime motivated Chief Justice
Concepcion, when he became a Constitutional Commissioner,
to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:

Justiciability
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
In the leading case of Tanada v. Cuenco,98 Chief Justice
Roberto Concepcion defined the term "political question," viz:
[T]he term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the Government." It is concerned with issues
dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and
seemingly without any rhyme or reason, this Court vacillated
on its stance of taking cognizance of cases which involved
political questions. In some cases, this Court hid behind the
cover of the political question doctrine and refused to
exercise its power of judicial review.100 In other cases,
however, despite the seeming political nature of the therein
issues involved, this Court assumed jurisdiction whenever it
found constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark
1988 case of Javellana v. Executive Secretary102 which
raised the issue of whether the 1973 Constitution was
ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification

I will speak on the judiciary. Practically, everybody has made,

I suppose, the usual comment that the judiciary is the
weakest among the three major branches of the service.
Since the legislature holds the purse and the executive the
sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and
appeal to conscience which, after all, reflects the will of God,
and is the most powerful of all other powers without
exception. x x x And so, with the body's indulgence, I will
proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read
it first and explain.
Judicial power includes the duty of courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable and to determine whether or
not there has been a grave abuse of discretion amounting to

76
lack or excess of jurisdiction on the part or instrumentality of
the government.
Fellow Members of this Commission, this is actually a product
of our experience during martial law. As a matter of fact, it
has some antecedents in the past, but the role of the
judiciary during the deposed regime was marred considerably
by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the
solicitor general set up the defense of political questions and
got away with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus, that is, the
authority of courts to order the release of political detainees,
and other matters related to the operation and effect of
martial law failed because the government set up the
defense of political question. And the Supreme Court said:
"Well, since it is political, we have no authority to pass upon
it." The Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not merely
request an encroachment upon the rights of the people, but
it, in effect, encouraged further violations thereof during the
martial law regime. I am sure the members of the Bar are
familiar with this situation. But for the benefit of the
Members of the Commission who are not lawyers, allow me
to explain. I will start with a decision of the Supreme Court in
1973 on the case of Javellana vs. the Secretary of Justice, if I
am not mistaken. Martial law was announced on September
22, although the proclamation was dated September 21. The
obvious reason for the delay in its publication was that the
administration had apprehended and detained prominent
newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published
anything about it. In fact, the media could not publish any
story not only because our main writers were already
incarcerated, but also because those who succeeded them in
their jobs were under mortal threat of being the object of
wrath of the ruling party. The 1971 Constitutional Convention
had begun on June 1, 1971 and by September 21 or 22 had
not finished the Constitution; it had barely agreed in the
fundamentals of the Constitution. I forgot to say that upon

the proclamation of martial law, some delegates to that 1971

Constitutional Convention, dozens of them, were picked up.
One of them was our very own colleague, Commissioner
Calderon. So, the unfinished draft of the Constitution was
taken over by representatives of Malacaang. In 17 days,
they finished what the delegates to the 1971 Constitutional
Convention had been unable to accomplish for about 14
months. The draft of the 1973 Constitution was presented to
the President around December 1, 1972, whereupon the
President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial
law decree which prohibited discussions, much less public
discussions of certain matters of public concern. The purpose
was presumably to allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held sometime
in January 1973. If I may use a word famous by our colleague,
Commissioner Ople, during the interregnum, however, the
draft of the Constitution was analyzed and criticized with
such a telling effect that Malacaang felt the danger of its
approval. So, the President suspended indefinitely the
holding of the plebiscite and announced that he would
consult the people in a referendum to be held from January
10 to January 15. But the questions to be submitted in the
referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of
the Commission on Elections, but of what was then
designated as "citizens assemblies or barangays." Thus the
barangays came into existence. The questions to be
propounded were released with proposed answers thereto,
suggesting that it was unnecessary to hold a plebiscite
because the answers given in the referendum should be
regarded as the votes cast in the plebiscite. Thereupon, a
motion was filed with the Supreme Court praying that the
holding of the referendum be suspended. When the motion
was being heard before the Supreme Court, the Minister of
Justice delivered to the Court a proclamation of the President
declaring that the new Constitution was already in force
because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the
departure of the Minister of Justice, I proceeded to the

77
session room where the case was being heard. I then
informed the Court and the parties the presidential
proclamation declaring that the 1973 Constitution had been
ratified by the people and is now in force.
A number of other cases were filed to declare the presidential
proclamation null and void. The main defense put up by the
government was that the issue was a political question and
that the court had no jurisdiction to entertain the case.
xxx
The government said that in a referendum held from January
10 to January 15, the vast majority ratified the draft of the
Constitution. Note that all members of the Supreme Court
were residents of Manila, but none of them had been notified
of any referendum in their respective places of residence,
much less did they participate in the alleged referendum.
None of them saw any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So,
a majority of the members of the Court felt that there had
been no referendum.
Second, a referendum cannot substitute for a plebiscite.
There is a big difference between a referendum and a
plebiscite. But another group of justices upheld the defense
that the issue was a political question. Whereupon, they
dismissed the case. This is not the only major case in which
the plea of "political question" was set up. There have been a
number of other cases in the past.
x x x The defense of the political question was rejected
because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to
perform its functions, it faced the following questions: What
is judicial power? What is a political question?

The Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced
by a judiciary party. In a decided case, a husband complained
that his wife was unwilling to perform her duties as a wife.
The Court said: "We can tell your wife what her duties as
such are and that she is bound to comply with them, but we
cannot force her physically to discharge her main marital
duty to her husband. There are some rights guaranteed by
law, but they are so personal that to enforce them by actual
compulsion would be highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I
provides that:
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally demandable
or enforceable . . .
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of
government, the Supreme Court has, also another important
function. The powers of government are generally considered
divided into three branches: the Legislative, the Executive
and the Judiciary. Each one is supreme within its own sphere
and independent of the others. Because of that supremacy
power to determine whether a given law is valid or not is
vested in courts of justice.
Briefly stated, courts of justice determine the limits of power
of the agencies and offices of the government as well as
those of its officers. In other words, the judiciary is the final
arbiter on the question whether or not a branch of
government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not only a judicial
power but a duty to pass judgment on matters of this nature.

78
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the duty to
settle matters of this nature, by claiming that such matters
constitute a political question.
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
During the deliberations of the Constitutional Commission,
Chief Justice Concepcion further clarified the concept of
judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power"
but judicial power is not vested in the Supreme Court alone
but also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional
questions. But there is a difference.

FR. BERNAS. Ultimately, therefore, it will always have to be

decided by the Supreme Court according to the new
numerical need for votes.
On another point, is it the intention of Section 1 to do away
with the political question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse
of discretion, amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not
intended to do away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define
what is judicial power. But the Gentleman will notice it says,
"judicial power includes" and the reason being that the
definition that we might make may not cover all possible
areas.
FR. BERNAS. So, this is not an attempt to solve the problems
arising from the political question doctrine.

MR. NOLLEDO. Because of the expression "judicial power"?

MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether
the government had authority or had abused its authority to
the extent of lacking jurisdiction or excess of jurisdiction, that
is not a political question. Therefore, the court has the duty
to decide.
xxx

MR. CONCEPCION. It definitely does not eliminate the fact

that truly political questions are beyond the pale of judicial
power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986
Constitutional Commission, it is clear that judicial power is
not only a power; it is also a duty, a duty which cannot be
abdicated by the mere specter of this creature called the
political question doctrine. Chief Justice Concepcion hastened
to clarify, however, that Section 1, Article VIII was not
intended to do away with "truly political questions." From this
clarification it is gathered that there are two species of

79
political questions: (1) "truly political questions" and (2)
those which "are not truly political questions."
Truly political questions are thus beyond judicial review, the
reason for respect of the doctrine of separation of powers to
be maintained. On the other hand, by virtue of Section 1,
Article VIII of the Constitution, courts can review questions
which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin
of the UP College of Law, this Court has in fact in a number of
cases taken jurisdiction over questions which are not truly
political following the effectivity of the present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through
Madame Justice Irene Cortes, held:
The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas
which the Court, under previous constitutions, would have
normally left to the political departments to decide.106 x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through
Justice Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that
this Court must perform under the Constitution. Moreover, as
held in a recent case, "(t)he political question doctrine
neither interposes an obstacle to judicial determination of the
rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate
that obligation mandated by the 1987 Constitution, although
said provision by no means does away with the applicability
of the principle in appropriate cases."108 (Emphasis and
underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani
Cruz, this Court ruled:

In the case now before us, the jurisdictional objection

becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from
resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political
question.110 x x x (Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are
justiciable political questions and non-justiciable political
questions, however. Identification of these two species of
political questions may be problematic. There has been no
clear standard. The American case of Baker v. Carr111
attempts to provide some:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's
undertaking
independent
resolution
without
expressing lack of the respect due coordinate branches of
government; or an unusual need for questioning adherence
to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by
various departments on one question.112 (Underscoring
supplied)
Of these standards, the more reliable have been the first
three:
(1)
a
textually
demonstrable
constitutional
commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and
manageable standards for resolving it; and (3) the
impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion.
These standards are not separate and distinct concepts but
are interrelated to each in that the presence of one
strengthens the conclusion that the others are also present.

80
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from
our current concept, for Section 1, Article VIII of the
Constitution provides our courts with far less discretion in
determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political
question from a non-justiciable political question lies in the
answer to the question of whether there are constitutionally
imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the
government properly acted within such limits. This Court
shall thus now apply this standard to the present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment
complaint constitute valid impeachable offenses under the
Constitution.

The first issue goes into the merits of the second

impeachment complaint over which this Court has no
jurisdiction. More importantly, any discussion of this issue
would require this Court to make a determination of what
constitutes an impeachable offense. Such a determination is
a purely political question which the Constitution has left to
the sound discretion of the legislation. Such an intent is clear
from the deliberations of the Constitutional Commission.113
Although Section 2 of Article XI of the Constitution
enumerates six grounds for impeachment, two of these,
namely, other high crimes and betrayal of public trust, elude
a precise definition. In fact, an examination of the records of
the 1986 Constitutional Commission shows that the framers
could find no better way to approximate the boundaries of
betrayal of public trust and other high crimes than by
alluding to both positive and negative examples of both,
without arriving at their clear cut definition or even a
standard therefor.114 Clearly, the issue calls upon this court
to decide a non-justiciable political question which is beyond
the scope of its judicial power under Section 1, Article VIII.
Lis Mota

II. Whether the second impeachment complaint was filed in

accordance with Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee
on Justice into the Judicial Development Fund is an
unconstitutional
infringement
of
the
constitutionally
mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3,
Article XI of the Constitution.
V. Whether the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.

It is a well-settled maxim of adjudication that an issue

assailing the constitutionality of a governmental act should
be avoided whenever possible. Thus, in the case of Sotto v.
Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass
upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by
the parties and that when it is raised, if the record also
presents some other ground upon which the court may rest
its judgment, that course will be adopted and the
constitutional question will be left for consideration until a
case arises in which a decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]

81
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13
and 32 of Republic Act No. 6657 for being confiscatory and
violative of due process, to wit:
It has been established that this Court will assume
jurisdiction over a constitutional question only if it is shown
that the essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an actual
case or controversy involving a conflict of legal rights
susceptible of judicial determination, the constitutional
question must have been opportunely raised by the proper
party, and the resolution of the question is unavoidably
necessary to the decision of the case itself.118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of
constitutionality unless it is truly unavoidable and is the very
lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all
seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest.
In determining whether one, some or all of the remaining
substantial issues should be passed upon, this Court is
guided by the related cannon of adjudication that "the court
should not form a rule of constitutional law broader than is
required by the precise facts to which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue
that, among other reasons, the second impeachment
complaint is invalid since it directly resulted from a
Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to
likewise be unconstitutional for being: (a) a violation of the
rules and jurisprudence on investigations in aid of legislation;
(b) an open breach of the doctrine of separation of powers;
(c) a violation of the constitutionally mandated fiscal

autonomy of the judiciary; and (d) an assault on the

independence of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s
claims, it is the studied opinion of this Court that the issue of
the constitutionality of the said Resolution and resulting
legislative inquiry is too far removed from the issue of the
validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require
it to form a rule of constitutional law touching on the
separate and distinct matter of legislative inquiries in
general, which would thus be broader than is required by the
facts of these consolidated cases. This opinion is further
strengthened by the fact that said petitioners have raised
other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct
of legislative inquiries has already been enunciated by this
Court in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122
viz:
The 1987 Constitution expressly recognizes the power of
both houses of Congress to conduct inquiries in aid of
legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of
respective committees may conduct inquiries in aid
legislation in accordance with its duly published rules
procedure. The rights of persons appearing in or affected
such inquiries shall be respected.

its
of
of
by

The power of both houses of Congress to conduct inquiries in

aid of legislation is not, therefore absolute or unlimited. Its
exercise is circumscribed by the afore-quoted provision of the
Constitution. Thus, as provided therein, the investigation
must be "in aid of legislation in accordance with its duly
published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be
respected." It follows then that the right rights of persons

82
under the Bill of Rights must be respected, including the right
to due process and the right not be compelled to testify
against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and
Pete Quirino Quadra, while joining the original petition of
petitioners Candelaria, et. al., introduce the new argument
that since the second impeachment complaint was verified
and filed only by Representatives Gilberto Teodoro, Jr. and
Felix William Fuentebella, the same does not fall under the
provisions of Section 3 (4), Article XI of the Constitution
which reads:
Section 3(4) In case the verified complaint
impeachment is filed by at least one-third of
of the House, the same shall constitute
Impeachment, and trial by the Senate
proceed.

or resolution of
all the Members
the Articles of
shall forthwith

They assert that while at least 81 members of the House of

Representatives
signed
a
Resolution
of
Endorsement/Impeachment, the same did not satisfy the
requisites for the application of the afore-mentioned section
in that the "verified complaint or resolution of impeachment"
was not filed "by at least one-third of all the Members of the
House." With the exception of Representatives Teodoro and
Fuentebella, the signatories to said Resolution are alleged to
have verified the same merely as a "Resolution of
Endorsement." Intervenors point to the "Verification" of the
Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what
the Constitution requires in order for said second
impeachment complaint to automatically become the Articles
of Impeachment and for trial in the Senate to begin

"forthwith," is that the verified complaint be "filed," not

merely endorsed, by at least one-third of the Members of the
House of Representatives. Not having complied with this
requirement, they concede that the second impeachment
complaint should have been calendared and referred to the
House Committee on Justice under Section 3(2), Article XI of
the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be calendared
for consideration by the House within ten session days from
receipt thereof.
Intervenors' foregoing position is echoed by Justice
Maambong who opined that for Section 3 (4), Article XI of the
Constitution to apply, there should be 76 or more
representatives who signed and verified the second
impeachment complaint as complainants, signed and verified
the signatories to a resolution of impeachment. Justice
Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of
the members of the House of Representatives as endorsers is
not the resolution of impeachment contemplated by the
Constitution, such resolution of endorsement being
necessary only from at least one Member whenever a citizen
files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors
Macalintal and Quadra, does indeed limit the scope of the
constitutional issues to the provisions on impeachment, more
compelling considerations militate against its adoption as the
lis mota or crux of the present controversy. Chief among this

83
is the fact that only Attorneys Macalintal and Quadra,
intervenors in G.R. No. 160262, have raised this issue as a
ground for invalidating the second impeachment complaint.
Thus, to adopt this additional ground as the basis for
deciding the instant consolidated petitions would not only
render for naught the efforts of the original petitioners in G.R.
No. 160262, but the efforts presented by the other
petitioners as well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is
made easier by the fact that said intervenors Macalintal and
Quadra have joined in the petition of Candelaria, et. al.,
adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's
decision.
In sum, this Court holds that the two remaining issues,
inextricably linked as they are, constitute the very lis mota of
the instant controversy: (1) whether Sections 15 and 16 of
Rule V of the House Impeachment Rules adopted by the 12th
Congress are unconstitutional for violating the provisions of
Section 3, Article XI of the Constitution; and (2) whether, as a
result thereof, the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial
restraint on the ground that the Senate, sitting as an
impeachment court, has the sole power to try and decide all
cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over
justiciable issues in impeachment proceedings.
On the other hand, respondents Speaker De Venecia et. al.
argue that "[t]here is a moral compulsion for the Court to not
assume jurisdiction over the impeachment because all the
Members thereof are subject to impeachment."125 But this
argument is very much like saying the Legislature has a

moral compulsion not to pass laws with penalty clauses

because Members of the House of Representatives are
subject to them.
The exercise of judicial restraint over justiciable issues is not
an option before this Court. Adjudication may not be
declined, because this Court is not legally disqualified. Nor
can jurisdiction be renounced as there is no other tribunal to
which the controversy may be referred."126 Otherwise, this
Court would be shirking from its duty vested under Art. VIII,
Sec. 1(2) of the Constitution. More than being clothed with
authority thus, this Court is duty-bound to take cognizance of
the instant petitions.127 In the august words of amicus
curiae Father Bernas, "jurisdiction is not just a power; it is a
solemn duty which may not be renounced. To renounce it,
even if it is vexatious, would be a dereliction of duty."
Even in cases where it is an interested party, the Court under
our system of government cannot inhibit itself and must rule
upon the challenge because no other office has the authority
to do so.128 On the occasion that this Court had been an
interested party to the controversy before it, it has acted
upon the matter "not with officiousness but in the discharge
of an unavoidable duty and, as always, with detachment and
fairness."129 After all, "by [his] appointment to the office, the
public has laid on [a member of the judiciary] their
confidence that [he] is mentally and morally fit to pass upon
the merits of their varied contentions. For this reason, they
expect [him] to be fearless in [his] pursuit to render justice,
to be unafraid to displease any person, interest or power and
to be equipped with a moral fiber strong enough to resist the
temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of
interest had already been settled in the case of Abbas v.
Senate Electoral Tribunal.131 In that case, the petitioners
filed with the respondent Senate Electoral Tribunal a Motion
for Disqualification or Inhibition of the Senators-Members
thereof from the hearing and resolution of SET Case No. 00287 on the ground that all of them were interested parties to

84
said case as respondents therein. This would have reduced
the Tribunal's membership to only its three Justices-Members
whose disqualification was not sought, leaving them to
decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of
his other colleagues in the Senate without inviting the same
objections to the substitute's competence, the proposed
mass disqualification, if sanctioned and ordered, would leave
the Tribunal no alternative but to abandon a duty that no
other court or body can perform, but which it cannot lawfully
discharge if shorn of the participation of its entire
membership of Senators.
To our mind, this is the overriding consideration that the
Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which is
in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that
the framers of the Constitution could not have been unaware
of the possibility of an election contest that would involve all
Senatorselect, six of whom would inevitably have to sit in
judgment thereon. Indeed, such possibility might surface
again in the wake of the 1992 elections when once more, but
for the last time, all 24 seats in the Senate will be at stake.
Yet the Constitution provides no scheme or mode for settling
such unusual situations or for the substitution of Senators
designated to the Tribunal whose disqualification may be
sought. Litigants in such situations must simply place their
trust and hopes of vindication in the fairness and sense of
justice of the Members of the Tribunal. Justices and Senators,
singly and collectively.
Let us not be misunderstood as saying that no SenatorMember of the Senate Electoral Tribunal may inhibit or
disqualify himself from sitting in judgment on any case before
said Tribunal. Every Member of the Tribunal may, as his

conscience dictates, refrain from participating in the

resolution of a case where he sincerely feels that his personal
interests or biases would stand in the way of an objective and
impartial judgment. What we are merely saying is that in the
light of the Constitution, the Senate Electoral Tribunal cannot
legally function as such, absent its entire membership of
Senators and that no amendment of its Rules can confer on
the three Justices-Members alone the power of valid
adjudication of a senatorial election contest.
More recently in the case of Estrada v. Desierto,132 it was
held that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro tanto
depriving the Court itself of its jurisdiction as established by
the fundamental law. Disqualification of a judge is a
deprivation of his judicial power. And if that judge is the one
designated by the Constitution to exercise the jurisdiction of
his court, as is the case with the Justices of this Court, the
deprivation of his or their judicial power is equivalent to the
deprivation of the judicial power of the court itself. It affects
the very heart of judicial independence. The proposed mass
disqualification, if sanctioned and ordered, would leave the
Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by
the Court when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo
Fernan cited the "seven pillars" of limitations of the power of
judicial review, enunciated by US Supreme Court Justice
Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary proceeding, declining
because to decide such questions 'is legitimate only in the
last resort, and as a necessity in the determination of real,

85
earnest and vital controversy between individuals. It never
was the thought that, by means of a friendly suit, a party
beaten in the legislature could transfer to the courts an
inquiry as to the constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it.' . . . 'It is not
the habit of the Court to decide questions of a constitutional
nature unless absolutely necessary to a decision of the case.'
3. The Court will not 'formulate a rule of constitutional law
broader than is required by the precise facts to which it is to
be applied.'
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of. This rule has found most varied application.
Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of
statutory construction or general law, the Court will decide
only the latter. Appeals from the highest court of a state
challenging its decision of a question under the Federal
Constitution are frequently dismissed because the judgment
can be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its
operation. Among the many applications of this rule, none is
more striking than the denial of the right of challenge to one
who lacks a personal or property right. Thus, the challenge
by a public official interested only in the performance of his
official duty will not be entertained . . . In Fairchild v. Hughes,
the Court affirmed the dismissal of a suit brought by a citizen
who sought to have the Nineteenth Amendment declared
unconstitutional. In Massachusetts v. Mellon, the challenge of
the federal Maternity Act was not entertained although made
by the Commonwealth on behalf of all its citizens.

6. The Court will not pass upon the constitutionality of a

statute at the instance of one who has availed himself of its
benefits.
7. When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly
possible by which the question may be avoided (citations
omitted).
The foregoing "pillars" of limitation of judicial review,
summarized in Ashwander v. TVA from different decisions of
the United States Supreme Court, can be encapsulated into
the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as
required by the facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by
reason of the operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted
by this Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of
judicial power
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest
in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement

86
3. the question of constitutionality must be raised at the
earliest possible opportunity
4. the issue of constitutionality must be the very lis mota of
the case.136
Respondents Speaker de Venecia, et. al. raise another
argument for judicial restraint the possibility that "judicial
review of impeachments might also lead to embarrassing
conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or
conflicts of interest in judicial hearings, and the scenario that
it would be confusing and humiliating and risk serious
political instability at home and abroad if the judiciary
countermanded the vote of Congress to remove an
impeachable official.137 Intervenor Soriano echoes this
argument by alleging that failure of this Court to enforce its
Resolution against Congress would result in the diminution of
its judicial authority and erode public confidence and faith in
the judiciary.
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this
Court to refrain from upholding the Constitution in all
impeachment cases. Justices cannot abandon their
constitutional duties just because their action may start, if
not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court
refuses to act.
x x x Frequently, the fight over a controversial legislative or
executive act is not regarded as settled until the Supreme
Court has passed upon the constitutionality of the act
involved, the judgment has not only juridical effects but also
political consequences. Those political consequences may
follow even where the Court fails to grant the petitioner's
prayer to nullify an act for lack of the necessary number of

votes. Frequently, failure to act explicitly, one way or the

other, itself constitutes a decision for the respondent and
validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court
was split and "in the end there were not enough votes either
to grant the petitions, or to sustain respondent's claims,"140
the pre-existing constitutional order was disrupted which
paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also
presumes that the coordinate branches of the government
would behave in a lawless manner and not do their duty
under the law to uphold the Constitution and obey the laws
of the land. Yet there is no reason to believe that any of the
branches of government will behave in a precipitate manner
and risk social upheaval, violence, chaos and anarchy by
encouraging disrespect for the fundamental law of the land.
Substituting the word public officers for judges, this Court is
well guided by the doctrine in People v. Veneracion, to
wit:141
Obedience to the rule of law forms the bedrock of our system
of justice. If [public officers], under the guise of religious or
political beliefs were allowed to roam unrestricted beyond
boundaries within which they are required by law to exercise
the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of
broad discretionary powers by those acting under its
authority. Under this system, [public officers] are guided by
the Rule of Law, and ought "to protect and enforce it without
fear or favor," resist encroachments by governments,
political parties, or even the interference of their own
personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress

87
Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the
House Impeachment Rules do not violate Section 3 (5) of
Article XI of our present Constitution, contending that the
term "initiate" does not mean "to file;" that Section 3 (1) is
clear in that it is the House of Representatives, as a collective
body, which has the exclusive power to initiate all cases of
impeachment; that initiate could not possibly mean "to file"
because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit:
(1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least
1/3 of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting
the initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment
complaint against Chief Justice Davide and seven Associate
Justices had not been initiated as the House of
Representatives, acting as the collective body, has yet to act
on it.
The resolution of this issue thus hinges on the interpretation
of the term "initiate." Resort to statutory construction is,
therefore, in order.
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who eventually
became an Associate Justice of this Court, agreed on the
meaning of "initiate" as "to file," as proffered and explained
by Constitutional Commissioner Maambong during the
Constitutional
Commission
proceedings,
which
he
(Commissioner Regalado) as amicus curiae affirmed during
the oral arguments on the instant petitions held on
November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word
"initiate" as it twice appears in Article XI (3) and (5) of the

Constitution means to file the complaint and take initial

action on it.
"Initiate" of course is understood by ordinary men to mean,
as dictionaries do, to begin, to commence, or set going. As
Webster's Third New International Dictionary of the English
Language concisely puts it, it means "to perform or facilitate
the first action," which jibes with Justice Regalado's position,
and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in
this wise:
Briefly then, an impeachment proceeding is not a single act.
It is a comlexus of acts consisting of a beginning, a middle
and an end. The end is the transmittal of the articles of
impeachment to the Senate. The middle consists of those
deliberative moments leading to the formulation of the
articles of impeachment. The beginning or the initiation is the
filing of the complaint and its referral to the Committee on
Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the House
reverses a contrary vote of the Committee. Note that the
Rule does not say "impeachment proceedings" are initiated
but rather are "deemed initiated." The language is
recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after
actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the
Constitution is looking into the intent of the law. Fortunately,
the intent of the framers of the 1987 Constitution can be
pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the
procedure and the substantive provisions on impeachment, I

88
understand there have been many proposals and, I think,
these would need some time for Committee action.
However, I would just like to indicate that I submitted to the
Committee a resolution on impeachment proceedings, copies
of which have been furnished the Members of this body. This
is borne out of my experience as a member of the Committee
on Justice, Human Rights and Good Government which took
charge of the last impeachment resolution filed before the
First Batasang Pambansa. For the information of the
Committee, the resolution covers several steps in the
impeachment proceedings starting with initiation, action of
the Speaker committee action, calendaring of report, voting
on the report, transmittal referral to the Senate, trial and
judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted
by Commissioner Regalado, but I will just make of record my
thinking that we do not really initiate the filing of the Articles
of Impeachment on the floor. The procedure, as I have
pointed out earlier, was that the initiation starts with the
filing of the complaint. And what is actually done on the floor
is that the committee resolution containing the Articles of
Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by the
Committee on Style, it appears that the initiation starts on
the floor. If we only have time, I could cite examples in the
case of the impeachment proceedings of President Richard
Nixon wherein the Committee on the Judiciary submitted the
recommendation, the resolution, and the Articles of
Impeachment to the body, and it was the body who approved
the resolution. It is not the body which initiates it. It only
approves or disapproves the resolution. So, on that score,
probably the Committee on Style could help in rearranging
these words because we have to be very technical about this.
I have been bringing with me The Rules of the House of

Representatives of the U.S. Congress. The Senate Rules are

with me. The proceedings on the case of Richard Nixon are
with me. I have submitted my proposal, but the Committee
has already decided. Nevertheless, I just want to indicate this
on record.
xxx
MR. MAAMBONG. I would just like to move for a
reconsideration of the approval of Section 3 (3). My
reconsideration will not at all affect the substance, but it is
only in keeping with the exact formulation of the Rules of the
House of Representatives of the United States regarding
impeachment.
I am proposing, Madam President, without doing damage to
any of this provision, that on page 2, Section 3 (3), from lines
17 to 18, we delete the words which read: "to initiate
impeachment proceedings" and the comma (,) and insert on
line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in "impeachment"
and replace the word "by" with OF, so that the whole section
will now read: "A vote of at least one-third of all the Members
of the House shall be necessary either to affirm a resolution
WITH THE ARTICLES of Impeachment OF the Committee or to
override its contrary resolution. The vote of each Member
shall be recorded."
I already mentioned earlier yesterday that the initiation, as
far as the House of Representatives of the United States is
concerned, really starts from the filing of the verified
complaint and every resolution to impeach always carries
with it the Articles of Impeachment. As a matter of fact, the
words "Articles of Impeachment" are mentioned on line 25 in
the case of the direct filing of a verified compliant of onethird of all the Members of the House. I will mention again,
Madam President, that my amendment will not vary the
substance in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United

89
States Congress. Thank you, Madam President.143 (Italics in
the original; emphasis and udnerscoring supplied)

refers
to
two
objects,
"impeachment proceeding."

This amendment proposed by Commissioner Maambong was

clarified and accepted by the Committee on the
Accountability of Public Officers.144

Father Bernas explains that in these two provisions, the

common verb is "to initiate." The object in the first sentence
is "impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of
reddendo singuala sinuilis, the term "cases" must be
distinguished from the term "proceedings." An impeachment
case is the legal controversy that must be decided by the
Senate. Above-quoted first provision provides that the House,
by a vote of one-third of all its members, can bring a case to
the Senate. It is in that sense that the House has "exclusive
power" to initiate all cases of impeachment. No other body
can do it. However, before a decision is made to initiate a
case in the Senate, a "proceeding" must be followed to arrive
at a conclusion. A proceeding must be "initiated." To initiate,
which comes from the Latin word initium, means to begin. On
the other hand, proceeding is a progressive noun. It has a
beginning, a middle, and an end. It takes place not in the
Senate but in the House and consists of several steps: (1)
there is the filing of a verified complaint either by a Member
of the House of Representatives or by a private citizen
endorsed by a Member of the House of the Representatives;
(2) there is the processing of this complaint by the proper
Committee which may either reject the complaint or uphold
it; (3) whether the resolution of the Committee rejects or
upholds the complaint, the resolution must be forwarded to
the House for further processing; and (4) there is the
processing of the same complaint by the House of
Representatives which either affirms a favorable resolution of
the Committee or overrides a contrary resolution by a vote of
one-third of all the members. If at least one third of all the
Members upholds the complaint, Articles of Impeachment are
prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this
point that an impeachable public official is successfully
impeached. That is, he or she is successfully charged with an
impeachment "case" before the Senate as impeachment
court.

It is thus clear that the framers intended "initiation" to start

with the filing of the complaint. In his amicus curiae brief,
Commissioner Maambong explained that "the obvious reason
in deleting the phrase "to initiate impeachment proceedings"
as contained in the text of the provision of Section 3 (3) was
to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of
the complaint, and the vote of one-third of the House in a
resolution
of
impeachment
does
not
initiate
the
impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2),
Article XI of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of
the same view as is Father Bernas, who was also a member
of the 1986 Constitutional Commission, that the word
"initiate" as used in Article XI, Section 3(5) means to file,
both adding, however, that the filing must be accompanied
by an action to set the complaint moving.
During the oral arguments before this Court, Father Bernas
clarified that the word "initiate," appearing in the
constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against
the same official more than once within a period of one year,
(Emphasis supplied)

"impeachment

case"

and

90
Father Bernas further explains: The "impeachment
proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of
the House proceeding and the beginning of another
proceeding, namely the trial. Neither is the "impeachment
proceeding" initiated when the House deliberates on the
resolution passed on to it by the Committee, because
something prior to that has already been done. The action of
the House is already a further step in the proceeding, not its
initiation or beginning. Rather, the proceeding is initiated or
begins, when a verified complaint is filed and referred to the
Committee on Justice for action. This is the initiating step
which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in
its ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the
Members of the House shall be necessary to initiate
impeachment proceedings," this was met by a proposal to
delete the line on the ground that the vote of the House does
not initiate impeachment proceeding but rather the filing of a
complaint does.146 Thus the line was deleted and is not
found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same
official more than once within a period of one year," it means
that no second verified complaint may be accepted and
referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common
understanding of the meaning of "to initiate" which means to
begin. He reminds that the Constitution is ratified by the
people, both ordinary and sophisticated, as they understand
it; and that ordinary people read ordinary meaning into
ordinary words and not abstruse meaning, they ratify words
as they understand it and not as sophisticated lawyers
confuse it.

To the argument that only the House of Representatives as a

body can initiate impeachment proceedings because Section
3 (1) says "The House of Representatives shall have the
exclusive power to initiate all cases of impeachment," This is
a misreading of said provision and is contrary to the principle
of reddendo singula singulis by equating "impeachment
cases" with "impeachment proceeding."
From the records of the Constitutional Commission, to the
amicus curiae briefs of two former Constitutional
Commissioners, it is without a doubt that the term "to
initiate" refers to the filing of the impeachment complaint
coupled with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of
filing and referral or endorsement of the impeachment
complaint to the House Committee on Justice or, by the filing
by at least one-third of the members of the House of
Representatives with the Secretary General of the House, the
meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated, another
impeachment complaint may not be filed against the same
official within a one year period.
Under Sections 16 and 17 of Rule V of the House
Impeachment Rules, impeachment proceedings are deemed
initiated (1) if there is a finding by the House Committee on
Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or
overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in
substance or (3) by the filing or endorsement before the
Secretary-General of the House of Representatives of a
verified complaint or a resolution of impeachment by at least
1/3 of the members of the House. These rules clearly
contravene Section 3 (5) of Article XI since the rules give the
term "initiate" a meaning different meaning from filing and
referral.

91
In his amicus curiae brief, Justice Hugo Gutierrez posits that
this Court could not use contemporaneous construction as an
aid in the interpretation of Sec.3 (5) of Article XI, citing Vera
v. Avelino147 wherein this Court stated that "their personal
opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed
during this Court's our deliberations stand on a different
footing from the properly recorded utterances of debates and
proceedings." Further citing said case, he states that this
Court likened the former members of the Constitutional
Convention to actors who are so absorbed in their emotional
roles that intelligent spectators may know more about the
real meaning because of the latter's balanced perspectives
and disinterestedness.148
Justice Gutierrez's statements have no application in the
present petitions. There are at present only two members of
this Court who participated in the 1986 Constitutional
Commission Chief Justice Davide and Justice Adolf Azcuna.
Chief Justice Davide has not taken part in these proceedings
for obvious reasons. Moreover, this Court has not simply
relied on the personal opinions now given by members of the
Constitutional Commission, but has examined the records of
the deliberations and proceedings thereof.
Respondent House of Representatives counters that under
Section 3 (8) of Article XI, it is clear and unequivocal that it
and only it has the power to make and interpret its rules
governing impeachment. Its argument is premised on the
assumption that Congress has absolute power to promulgate
its rules. This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out
the purpose of this section." Clearly, its power to promulgate
its rules on impeachment is limited by the phrase "to
effectively carry out the purpose of this section." Hence,
these rules cannot contravene the very purpose of the
Constitution which said rules were intended to effectively

carry out. Moreover, Section 3 of Article XI clearly provides

for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen
upon a resolution of endorsement by any Member thereof,
which shall be included in the Order of Business within ten
session days, and referred to the proper Committee within
three session days thereafter. The Committee, after hearing,
and by a majority vote of all its Members, shall submit its
report to the House within sixty session days from such
referral, together with the corresponding resolution. The
resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary to either affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the Members
of the House, the same shall constitute the Articles of
Impeachment, and trial by the Senate shall forthwith
proceed.
(5) No impeachment proceedings shall be initiated against
the same official more than once within a period of one year.
It is basic that all rules must not contravene the Constitution
which is the fundamental law. If as alleged Congress had
absolute rule making power, then it would by necessary
implication have the power to alter or amend the meaning of
the Constitution without need of referendum.
In Osmea v. Pendatun,149 this Court held that it is within
the province of either House of Congress to interpret its rules

92
and that it was the best judge of what constituted "disorderly
behavior" of its members. However, in Paceta v. Secretary of
the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and
quoting Justice Brandeis in United States v. Smith,151
declared that where the construction to be given to a rule
affects persons other than members of the Legislature, the
question becomes judicial in nature. In Arroyo v. De
Venecia,152 quoting United States v. Ballin, Joseph & Co.,153
Justice Vicente Mendoza, speaking for this Court, held that
while the Constitution empowers each house to determine its
rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and
further that there should be a reasonable relation between
the mode or method of proceeding established by the rule
and the result which is sought to be attained. It is only within
these limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo
v. De Venecia, Justice Reynato S. Puno, in his Concurring and
Dissenting Opinion, was even more emphatic as he stressed
that in the Philippine setting there is even more reason for
courts to inquire into the validity of the Rules of Congress,
viz:
With due respect, I do not agree that the issues posed by the
petitioner are non-justiciable. Nor do I agree that we will
trivialize the principle of separation of power if we assume
jurisdiction over he case at bar. Even in the United States,
the principle of separation of power is no longer an
impregnable impediment against the interposition of judicial
power on cases involving breach of rules of procedure by
legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144
US 1) as a window to view the issues before the Court. It is in
Ballin where the US Supreme Court first defined the
boundaries of the power of the judiciary to review
congressional rules. It held:
"x x x

"The Constitution, in the same section, provides, that each

house may determine the rules of its proceedings." It
appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the
Speaker, the names of members sufficient to make a quorum
in the hall of the House who do not vote shall be noted by the
clerk and recorded in the journal, and reported to the
Speaker with the names of the members voting, and be
counted and announced in determining the presence of a
quorum to do business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The
question, therefore, is as to the validity of this rule, and not
what methods the Speaker may of his own motion resort to
for determining the presence of a quorum, nor what matters
the Speaker or clerk may of their own volition place upon the
journal. Neither do the advantages or disadvantages, the
wisdom or folly, of such a rule present any matters for
judicial consideration. With the courts the question is only
one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the mode
or method of proceedings established by the rule and the
result which is sought to be attained. But within these
limitations all matters of method are open to the
determination of the House, and it is no impeachment of the
rule to say that some other way would be better, more
accurate, or even more just. It is no objection to the validity
of a rule that a different one has been prescribed and in force
for a length of time. The power to make rules is not one
which once exercised is exhausted. It is a continuous power,
always subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge of
any other body or tribunal."

93
Ballin, clearly confirmed the jurisdiction of courts to pass
upon the validity of congressional rules, i.e, whether they are
constitutional. Rule XV was examined by the Court and it was
found to satisfy the test: (1) that it did not ignore any
constitutional restraint; (2) it did not violate any fundamental
right; and (3) its method had a reasonable relationship with
the result sought to be attained. By examining Rule XV, the
Court did not allow its jurisdiction to be defeated by the mere
invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason
for courts to categorically reject the political question
defense when its interposition will cover up abuse of power.
For section 1, Article VIII of our Constitution was intentionally
cobbled to empower courts "x x x to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new and
was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US
Constitution or any foreign state constitution. The CONCOM
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of
state power were shielded from judicial scrutiny by the
misuse of the political question doctrine. Led by the eminent
former Chief Justice Roberto Concepcion, the CONCOM
expanded and sharpened the checking powers of the
judiciary vis--vis the Executive and the Legislative
departments of government.155
xxx
The Constitution cannot be any clearer. What it granted to
this Court is not a mere power which it can decline to
exercise. Precisely to deter this disinclination, the
Constitution imposed it as a duty of this Court to strike down
any act of a branch or instrumentality of government or any

of its officials done with grave abuse of discretion amounting

to lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this Court
against the other branches of government despite their more
democratic character, the President and the legislators being
elected by the people.156
xxx
The provision defining judicial power as including the 'duty of
the courts of justice. . . to determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government' constitutes the capstone
of the efforts of the Constitutional Commission to upgrade
the powers of this court vis--vis the other branches of
government. This provision was dictated by our experience
under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in
government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to
annul acts of government committed with grave abuse of
discretion, the new Constitution transformed this Court from
passivity to activism. This transformation, dictated by our
distinct experience as nation, is not merely evolutionary but
revolutionary. Under the 1935 and the 1973 Constitutions,
this Court approached constitutional violations by initially
determining what it cannot do; under the 1987 Constitution,
there is a shift in stress this Court is mandated to approach
constitutional violations not by finding out what it should not
do but what it must do. The Court must discharge this solemn
duty by not resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious
consideration to this new constitutional provision as the case
at bar once more calls us to define the parameters of our
power to review violations of the rules of the House. We will

94
not be true to our trust as the last bulwark against
government abuses if we refuse to exercise this new power
or if we wield it with timidity. To be sure, it is this exceeding
timidity to unsheathe the judicial sword that has increasingly
emboldened other branches of government to denigrate, if
not defy, orders of our courts. In Tolentino, I endorsed the
view of former Senator Salonga that this novel provision
stretching the latitude of judicial power is distinctly Filipino
and its interpretation should not be depreciated by undue
reliance on inapplicable foreign jurisprudence. In resolving
the case at bar, the lessons of our own history should provide
us the light and not the experience of foreigners.157 (Italics
in the original emphasis and underscoring supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to
the instant petitions. Here, the third parties alleging the
violation of private rights and the Constitution are involved.
Neither may respondent House of Representatives' rely on
Nixon v. US158 as basis for arguing that this Court may not
decide on the constitutionality of Sections 16 and 17 of the
House Impeachment Rules. As already observed, the U.S.
Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment."
It adds nothing more. It gives no clue whatsoever as to how
this "sole power" is to be exercised. No limitation whatsoever
is given. Thus, the US Supreme Court concluded that there
was a textually demonstrable constitutional commitment of a
constitutional power to the House of Representatives. This
reasoning does not hold with regard to impeachment power
of the Philippine House of Representatives since our
Constitution, as earlier enumerated, furnishes several
provisions articulating how that "exclusive power" is to be
exercised.
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment
proceedings are deemed initiated (1) if there is a finding by
the House Committee on Justice that the verified complaint
and/or resolution is sufficient in substance, or (2) once the

House itself affirms or overturns the finding of the Committee

on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives
of a verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House thus clearly
contravene Section 3 (5) of Article XI as they give the term
"initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of
filing of the impeachment complaint and referral to the
House Committee on Justice, the initial action taken thereon,
the meaning of Section 3 (5) of Article XI becomes clear.
Once an impeachment complaint has been initiated in the
foregoing manner, another may not be filed against the same
official within a one year period following Article XI, Section
3(5) of the Constitution.
In fine, considering that the first impeachment complaint,
was filed by former President Estrada against Chief Justice
Hilario G. Davide, Jr., along with seven associate justices of
this Court, on June 2, 2003 and referred to the House
Committee on Justice on August 5, 2003, the second
impeachment complaint filed by Representatives Gilberto C.
Teodoro, Jr. and Felix William Fuentebella against the Chief
Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year
period.
Conclusion
If there is anything constant about this country, it is that
there is always a phenomenon that takes the center stage of
our individual and collective consciousness as a people with
our characteristic flair for human drama, conflict or tragedy.
Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us,

95
the past two weeks have proven to be an exasperating,
mentally and emotionally exhausting experience. Both sides
have fought bitterly a dialectical struggle to articulate what
they respectively believe to be the correct position or view on
the issues involved. Passions had ran high as demonstrators,
whether for or against the impeachment of the Chief Justice,
took to the streets armed with their familiar slogans and
chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe
and denominations of faith offered suggestions for a return
to a state of normalcy in the official relations of the
governmental branches affected to obviate any perceived
resulting instability upon areas of national life.
Through all these and as early as the time when the Articles
of Impeachment had been constituted, this Court was
specifically asked, told, urged and argued to take no action of
any kind and form with respect to the prosecution by the
House of Representatives of the impeachment complaint
against the subject respondent public official. When the
present petitions were knocking so to speak at the doorsteps
of this Court, the same clamor for non-interference was made
through what are now the arguments of "lack of jurisdiction,"
"non-justiciability," and "judicial self-restraint" aimed at
halting the Court from any move that may have a bearing on
the impeachment proceedings.
This Court did not heed the call to adopt a hands-off stance
as far as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is
concerned. To reiterate what has been already explained, the
Court found the existence in full of all the requisite conditions
for its exercise of its constitutionally vested power and duty
of judicial review over an issue whose resolution precisely
called for the construction or interpretation of a provision of
the fundamental law of the land. What lies in here is an issue
of a genuine constitutional material which only this Court can
properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our
system of government. Face-to-face thus with a matter or

problem that squarely falls under the Court's jurisdiction, no

other course of action can be had but for it to pass upon that
problem head on.
The claim, therefore, that this Court by judicially entangling
itself with the process of impeachment has effectively set up
a regime of judicial supremacy, is patently without basis in
fact and in law.
This Court in the present petitions subjected to judicial
scrutiny and resolved on the merits only the main issue of
whether the impeachment proceedings initiated against the
Chief Justice transgressed the constitutionally imposed oneyear time bar rule. Beyond this, it did not go about assuming
jurisdiction where it had none, nor indiscriminately turn
justiciable issues out of decidedly political questions.
Because it is not at all the business of this Court to assert
judicial dominance over the other two great branches of the
government. Rather, the raison d'etre of the judiciary is to
complement the discharge by the executive and legislative of
their own powers to bring about ultimately the beneficent
effects of having founded and ordered our society upon the
rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the
Chief Justice, the members of this Court have actually closed
ranks to protect a brethren. That the members' interests in
ruling on said issue is as much at stake as is that of the Chief
Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all
other courts has long held and been entrusted with the
judicial power to resolve conflicting legal rights regardless of
the personalities involved in the suits or actions. This Court
has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by
whatever imputations or speculations could be made to it, so
long as it rendered judgment according to the law and the
facts. Why can it not now be trusted to wield judicial power in

96
these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact
that the fundamental issue is not him but the validity of a
government branch's official act as tested by the limits set by
the Constitution? Of course, there are rules on the inhibition
of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution
now from the suit at bar is to regard the Supreme Court as
likely incapable of impartiality when one of its members is a
party to a case, which is simply a non sequitur.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of

Procedure in Impeachment Proceedings which were approved
by the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment
complaint against Chief Justice Hilario G. Davide, Jr. which
was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary
General of the House of Representatives on October 23, 2003
is barred under paragraph 5, section 3 of Article XI of the
Constitution.

No one is above the law or the Constitution. This is a basic

precept in any legal system which recognizes equality of all
men before the law as essential to the law's moral authority
and that of its agents to secure respect for and obedience to
its commands. Perhaps, there is no other government branch
or instrumentality that is most zealous in protecting that
principle of legal equality other than the Supreme Court
which has discerned its real meaning and ramifications
through its application to numerous cases especially of the
high-profile kind in the annals of jurisprudence. The Chief
Justice is not above the law and neither is any other member
of this Court. But just because he is the Chief Justice does not
imply that he gets to have less in law than anybody else. The
law is solicitous of every individual's rights irrespective of his
station in life.

SO ORDERED.

The Filipino nation and its democratic institutions have no

doubt been put to test once again by this impeachment case
against Chief Justice Hilario Davide. Accordingly, this Court
has resorted to no other than the Constitution in search for a
solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for
this Court to have found answers in our bedrock of legal
principles, it is equally important that it went through this
crucible of a democratic process, if only to discover that it
can resolve differences without the use of force and
aggression upon each other.

97
Vinuya v. Romulo, GR. 162230, April 28, 2010
DECISION

and Exchange Commission, established for the purpose of

providing aid to the victims of rape by Japanese military
forces in the Philippines during the Second World
War.ten.lihpwal

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners and
countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free
society and in a more peaceful world services the debt.1
There is a broad range of vitally important areas that must be
regularly decided by the Executive Department without
either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would
be strange indeed if the courts and the executive spoke with
different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of,
we make no attempt to lay down general guidelines covering
other situations not involved here, and confine the opinion
only to the very questions necessary to reach a decision on
this matter.

Petitioners narrate that during the Second World War, the

Japanese army attacked villages and systematically raped
the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and
held them in houses or cells, where they were repeatedly
raped, beaten, and abused by Japanese soldiers. As a result
of the actions of their Japanese tormentors, the petitioners
have spent their lives in misery, having endured physical
injuries, pain and disability, and mental and emotional
suffering.2
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the establishment
of the "comfort women" stations in the Philippines. However,
officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of
the comfort women for compensation had already been fully
satisfied by Japans compliance with the Peace Treaty
between the Philippines and Japan.

Factual Antecedents

Issues

This is an original Petition for Certiorari under Rule 65 of the

Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the
Executive Secretary, the Secretary of the Department of
Foreign Affairs (DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor General (OSG).

Hence, this petition where petitioners pray for this court to

(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other international
tribunals.

Petitioners are all members of the MALAYA LOLAS, a nonstock, non-profit organization registered with the Securities

98
Petitioners arguments
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with Japan is
void. They claim that the comfort women system established
by Japan, and the brutal rape and enslavement of petitioners
constituted a crime against humanity,3 sexual slavery,4 and
torture.5 They allege that the prohibition against these
international crimes is jus cogens norms from which no
derogation is possible; as such, in waiving the claims of
Filipina comfort women and failing to espouse their
complaints against Japan, the Philippine government is in
breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the
Philippine governments acceptance of the "apologies" made
by Japan as well as funds from the Asian Womens Fund
(AWF) were contrary to international law.

Powers, other claims of the Allied Powers and their nationals

arising out of any actions taken by Japan and its nationals in
the course of the prosecution of the war, and claims of the
Allied Powers for direct military costs of occupation.
In addition, respondents argue that the apologies made by
Japan8 have been satisfactory, and that Japan had addressed
the individual claims of the women through the atonement
money paid by the Asian Womens Fund.1avvphi1
Historical Background
The comfort women system was the tragic legacy of the
Rape of Nanking. In December 1937, Japanese military forces
captured the city of Nanking in China and began a "barbaric
campaign of terror" known as the Rape of Nanking, which
included the rapes and murders of an estimated 20,000 to
80,000 Chinese women, including young girls, pregnant
mothers, and elderly women.9 Document1zzF24331552898

Respondents Arguments
Respondents maintain that all claims of the Philippines and
its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the
Allied Powers for the damage and suffering caused by it
during the war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for
all such damage and suffering and at the present time meet
its other obligations.
b) Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied

In reaction to international outcry over the incident, the

Japanese government sought ways to end international
condemnation10 by establishing the "comfort women"
system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers'
activities within a regulated environment.11 Comfort stations
would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of
occupied territories.12
Daily life as a comfort woman was "unmitigated misery."13
The military forced victims into barracks-style stations
divided into tiny cubicles where they were forced to live,
sleep, and have sex with as many 30 soldiers per day.14 The
30 minutes allotted for sexual relations with each soldier
were 30-minute increments of unimaginable horror for the
women.15 Disease was rampant.16 Military doctors regularly
examined the women, but these checks were carried out to
prevent the spread of venereal diseases; little notice was
taken of the frequent cigarette burns, bruises, bayonet stabs

99
and even broken bones inflicted on the women by soldiers.
Document1zzF48331552898
Fewer than 30% of the women survived the war.17 Their
agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of
shame, never returned home.18

the Japanese government in a US federal district court.25 On

October 4, 2001, the district court dismissed the lawsuit due
to lack of jurisdiction over Japan, stating that "[t]here is no
question that this court is not the appropriate forum in which
plaintiffs may seek to reopen x x x discussions nearly half a
century later x x x [E]ven if Japan did not enjoy sovereign
immunity, plaintiffs' claims are non-justiciable and must be
dismissed."

The most prominent attempts to compel the Japanese

government to accept legal responsibility and pay
compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations
(UN), resolutions by various nations, and the Womens
International Criminal Tribunal. The Japanese government, in
turn, responded through a series of public apologies and the
creation of the AWF.19

The District of Columbia Court of Appeals affirmed the lower

court's dismissal of the case.26 On appeal, the US Supreme
Court granted the womens petition for writ of certiorari,
vacated the judgment of the District of Columbia Court of
Appeals, and remanded the case.27 On remand, the Court of
Appeals affirmed its prior decision, noting that "much as we
may feel for the plight of the appellants, the courts of the US
simply are not authorized to hear their case."28 The women
again brought their case to the US Supreme Court which
denied their petition for writ of certiorari on February 21,
2006.

Lawsuits

Efforts at the United Nations

In December 1991, Kim Hak-Sun and two other survivors filed

the first lawsuit in Japan by former comfort women against
the Japanese government. The Tokyo District Court however
dismissed their case.20 Other suits followed,21 but the
Japanese government has, thus far, successfully caused the
dismissal of every case.22

In 1992, the Korean Council for the Women Drafted for

Military Sexual Slavery by Japan (KCWS), submitted a petition
to the UN Human Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by Japan
against Korean women and seeking reparations for former
comfort women.29 The UNHRC placed the issue on its
agenda and appointed Radhika Coomaraswamy as the
issue's special investigator. In 1996, Coomaraswamy issued a
Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made
the following recommendations:

Efforts to Secure Reparation

Undoubtedly frustrated by the failure of litigation before

Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of Columbia23
"seeking money damages for [allegedly] having been
subjected to sexual slavery and torture before and during
World War II," in violation of "both positive and customary
international law." The case was filed pursuant to the Alien
Tort Claims Act ("ATCA"),24 which allowed the plaintiffs to sue

A. At the national level

137. The Government of Japan should:

100
(a) Acknowledge that the system of comfort stations set up
by the Japanese Imperial Army during the Second World War
was a violation of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese
military sexual slavery according to principles outlined by the
Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the right to
restitution, compensation and rehabilitation for victims of
grave violations of human rights and fundamental freedoms.
A special administrative tribunal for this purpose should be
set up with a limited time-frame since many of the victims
are of a very advanced age;
(c) Make a full disclosure of documents and materials in its
possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second
World War;
(d) Make a public apology in writing to individual women who
have come forward and can be substantiated as women
victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational
curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators
involved in the recruitment and institutionalization of comfort
stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN SubCommission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on
June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices
During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government
of Japan for 'Comfort Women Stations' established during the
Second World War,30 which contained the following findings:

68. The present report concludes that the Japanese

Government remains liable for grave violations of human
rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese
Governments arguments to the contrary, including
arguments that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first raised
before the Nuremberg war crimes tribunal more than 50
years ago. In addition, the Japanese Governments argument
that Japan has already settled all claims from the Second
World War through peace treaties and reparations
agreements following the war remains equally unpersuasive.
This is due, in large part, to the failure until very recently of
the Japanese Government to admit the extent of the
Japanese militarys direct involvement in the establishment
and maintenance of these rape centres. The Japanese
Governments silence on this point during the period in which
peace and reparations agreements between Japan and other
Asian Governments were being negotiated following the end
of the war must, as a matter of law and justice, preclude
Japan from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than half a
century after the cessation of hostilities is a testament to the
degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual
nature committed on a massive scale during the Second
World War has added to the level of impunity with which
similar crimes are committed today. The Government of
Japan has taken some steps to apologize and atone for the
rape and enslavement of over 200,000 women and girls who
were brutalized in "comfort stations" during the Second
World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and
the consequences that flow from such liability is wholly
inadequate. It must now fall to the Government of Japan to
take the necessary final steps to provide adequate redress.

101
The UN, since then, has not taken any official action directing
Japan to provide the reparations sought.
Women's International War Crimes
Tribunal
The Women's International War Crimes Tribunal (WIWCT) was
a "people's tribunal" established by a number of Asian
women and human rights organizations, supported by an
international coalition of non-governmental organizations.31
First proposed in 1998, the WIWCT convened in Tokyo in 2000
in order to "adjudicate Japan's military sexual violence, in
particular the enslavement of comfort women, to bring those
responsible for it to justice, and to end the ongoing cycle of
impunity for wartime sexual violence against women."
After examining the evidence for more than a year, the
"tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of
women.32 It bears stressing, however, that although the
tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of
California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July
30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the
Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion

of young women into sexual slavery, known to the world as

"comfort women", during its colonial and wartime occupation
of Asia and the Pacific Islands from the 1930s through the
duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements if
the Prime Minister of Japan were to make such an apology as
a public statement in his official capacity; (3) should clearly
and publicly refute any claims that the sexual enslavement
and trafficking of the "comfort women" for the Japanese
Imperial Army never occurred; and (4) should educate
current and future generations about this horrible crime while
following the recommendations of the international
community with respect to the "comfort women."34
In December 2007, the European Parliament, the governing
body of the European Union, drafted a resolution similar to
House Resolution 121.35 Entitled, "Justice for Comfort
Women,"
the
resolution
demanded: (1) a formal
acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past. The
resolution also stressed the urgency with which Japan should
act on these issues, stating: "the right of individuals to claim
reparations against the government should be expressly
recognized in national law, and cases for reparations for the
survivors of sexual slavery, as a crime under international
law, should be prioritized, taking into account the age of the
survivors."
The Canadian and Dutch parliaments have each followed suit
in drafting resolutions against Japan. Canada's resolution
demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced
hundreds of thousands of women into sexual slavery, and to
restore references in Japanese textbooks to its war crimes.36
The Dutch parliament's resolution calls for the Japanese
government to uphold the 1993 declaration of remorse made
by Chief Cabinet Secretary Yohei Kono.

102
The Foreign Affairs Committee of the United Kingdoms
Parliament also produced a report in November, 2008
entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue
of comfort women in order to ensure cooperation between
Japan and Korea.
Statements of Remorse made by representatives of the
Japanese government
Various officials of the Government of Japan have issued the
following public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in
1993:
The Government of Japan has been conducting a study on
the issue of wartime "comfort women" since December 1991.
I wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort stations
were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the
request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The
Government study has revealed that in many cases they
were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived in
misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were
transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those days,

and their recruitment, transfer, control, etc., were conducted

generally against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the
military authorities of the day, that severely injured the honor
and dignity of many women. The Government of Japan would
like to take this opportunity once again to extend its sincere
apologies and remorse to all those, irrespective of place of
origin, who suffered immeasurable pain and incurable
physical and psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to
continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above
instead of evading them, and take them to heart as lessons
of history. We hereby reiterated our firm determination never
to repeat the same mistake by forever engraving such issues
in our memories through the study and teaching of history.
As actions have been brought to court in Japan and interests
have been shown in this issue outside Japan, the Government
of Japan shall continue to pay full attention to this matter,
including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime "comfort women", which seriously
stained the honor and dignity of many women, I would like to
take this opportunity once again to express my profound and
sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual
Comfort Women
The issue of comfort women, with the involvement of the
Japanese military authorities at that time, was a grave affront
to the honor and dignity of a large number of women.

103
As Prime Minister of Japan, I thus extend anew my most
sincere apologies and remorse to all the women who endured
immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse, should
face up squarely to its past history and accurately convey it
to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995
and 2005
Solemnly reflecting upon the many instances of colonial rule
and acts of aggression that occurred in modern world history,
and recognizing that Japan carried out such acts in the past
and inflicted suffering on the people of other countries,
especially in Asia, the Members of this House hereby express
deep remorse. (Resolution of the House of Representatives
adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister
Shinzo Abe
I have talked about this matter in the Diet sessions last year,
and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort women. I
would like to be clear that I carry the same feeling. This has
not changed even slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March 11, 2007).
I am apologizing here and now. I am apologizing as the Prime
Minister and it is as stated in the statement by the Chief
Cabinet Secretary Kono. (Excerpt from Remarks by Prime

Minister Abe at the Budget Committee, the House of

Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for
the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime
Minister Abe to President George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to
those people who were taken as wartime comfort women. As
a human being, I would like to express my sympathies, and
also as prime minister of Japan I need to apologize to them.
My administration has been saying all along that we continue
to stand by the Kono Statement. We feel responsible for
having forced these women to go through that hardship and
pain as comfort women under the circumstances at the time.
(Excerpt from an interview article "A Conversation with
Shinzo Abe" by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my
heart goes out in sympathy to all those who suffered extreme
hardships as comfort women; and I expressed my apologies
for the fact that they were forced to endure such extreme
and harsh conditions. Human rights are violated in many
parts of the world during the 20th Century; therefore we
must work to make the 21st Century a wonderful century in
which no human rights are violated. And the Government of
Japan and I wish to make significant contributions to that
end. (Excerpt from Prime Minister Abe's remarks at the Joint
Press Availability after the summit meeting at Camp David
between Prime Minister Abe and President Bush, April 27,
2007).
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF
represented the government's concrete attempt to address
its moral responsibility by offering monetary compensation to
victims of the comfort women system.37 The purpose of the

104
AWF was to show atonement of the Japanese people through
expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate
Japans strong respect for women.38
The AWF announced three programs for former comfort
women who applied for assistance: (1) an atonement fund
paying 2 million (approximately $20,000) to each woman;
(2) medical and welfare support programs, paying 2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter of
apology from the Japanese Prime Minister to each woman.
Funding for the program came from the Japanese
government and private donations from the Japanese people.
As of March 2006, the AWF provided 700 million
(approximately $7 million) for these programs in South Korea,
Taiwan, and the Philippines; 380 million (approximately $3.8
million) in Indonesia; and 242 million (approximately $2.4
million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government
signed a Memorandum of Understanding for medical and
welfare support programs for former comfort women. Over
the next five years, these were implemented by the
Department of Social Welfare and Development.

Baker v. Carr39 remains the starting point for analysis under

the political question doctrine. There the US Supreme Court
explained that:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of
deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court's
undertaking
independent
resolution
without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality
of
embarrassment
from
multifarious
pronouncements by various departments on question.
In Taada v. Cuenco,40 we held that political questions refer
"to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."

Our Ruling
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse
of discretion in not espousing petitioners claims for official
apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive Department
has the exclusive prerogative to determine whether to
espouse petitioners claims against Japan.

Certain types of cases often have been found to present

political questions.41 One such category involves questions
of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by
the Constitution to the executive and legislative--'the
political'--departments of the government, and the propriety
of what may be done in the exercise of this political power is
not subject to judicial inquiry or decision."42 The US Supreme
Court has further cautioned that decisions relating to foreign
policy
are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they

105
advance or imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility.43
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority
to
construe
or
invalidate
treaties
and
executive
agreements.44 However, the question whether the Philippine
government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In
this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of
its nationals for reparations against Japan in the Treaty of
Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the
said determination by the Executive Department via the
instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45
the US Supreme Court held that "[t]he President is the sole
organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our
international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims
achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the
international field must often accord to the President a
degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in foreign
countries, and especially is this true in time of war. He has
his confidential sources of information. He has his agents in
the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary46 and Pimentel v.

Executive Secretary;47 its overreaching principle was,

perhaps, best articulated in (now Chief) Justice Punos dissent
in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of complexities
and consequences, sometimes with life and death
significance to the nation especially in times of war. It can
only be entrusted to that department of government which
can act on the basis of the best available information and can
decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential
information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all
over the world. He has also unlimited access to ultrasensitive military intelligence data. In fine, the presidential
role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the
conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence,
national embarrassment and a plethora of other problems
with equally undesirable consequences.
The Executive Department has determined that taking up
petitioners cause would be inimical to our countrys foreign
policy interests, and could disrupt our relations with Japan,
thereby creating serious implications for stability in this
region. For us to overturn the Executive Departments
determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally
committed.
In any event, it cannot reasonably be maintained that the
Philippine government was without authority to negotiate the
Treaty of Peace with Japan. And it is equally true that, since
time immemorial, when negotiating peace accords and
settling international claims:

106
x x x [g]overnments have dealt with x x x private claims as
their own, treating them as national assets, and as counters,
`chips', in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts
with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be set
off against concessions in the other, or against larger political
considerations unrelated to debts.49
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying
private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a British
subject to recover a debt confiscated by the Commonwealth
of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the
war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the government,
or people of either, during the war, are buried in oblivion; and
all those things are implied by the very treaty of peace; and
therefore not necessary to be expressed. Hence it follows,
that the restitution of, or compensation for, British property
confiscated, or extinguished, during the war, by any of the
United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the
treaty, by the British government, much less by her subjects
in courts of justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is
certainly nothing new. For instance, in Dames & Moore v.
Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding
claims by nationals of one country against the government of
another country are "sources of friction" between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.

552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties,

nations have often entered into agreements settling the
claims of their respective nationals. As one treatise writer
puts it, international agreements settling claims by nationals
of one state against the government of another "are
established international practice reflecting traditional
international theory." L. Henkin, Foreign Affairs and the
Constitution 262 (1972). Consistent with that principle, the
United States has repeatedly exercised its sovereign
authority to settle the claims of its nationals against foreign
countries. x x x Under such agreements, the President has
agreed to renounce or extinguish claims of United States
nationals against foreign governments in return for lump-sum
payments or the establishment of arbitration procedures. To
be sure, many of these settlements were encouraged by the
United States claimants themselves, since a claimant's only
hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf.
But it is also undisputed that the "United States has
sometimes disposed of the claims of its citizens without their
consent, or even without consultation with them, usually
without exclusive regard for their interests, as distinguished
from those of the nation as a whole." Henkin, supra, at 262263. Accord, Restatement (Second) of Foreign Relations Law
of the United States 213 (1965) (President "may waive or
settle a claim against a foreign state x x x [even] without the
consent of the [injured] national"). It is clear that the practice
of settling claims continues today.
Respondents explain that the Allied Powers concluded the
Peace Treaty with Japan not necessarily for the complete
atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations,
but for security purposes. The treaty sought to prevent the
spread of communism in Japan, which occupied a strategic
position in the Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American
victims of Japanese slave labor during the war.52 In a

107
consolidated case in the Northern District of California,53 the
court dismissed the lawsuits filed, relying on the 1951 peace
treaty with Japan,54 because of the following policy
considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the possibility
of future claims would be an unacceptable impediment to a
lasting peace:
Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just. Japan's
aggression caused tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a
Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the raw
materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. It soon
became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as a
bulwark to communism in the region increased. At the end of
1948, MacArthur expressed the view that "[t]he use of
reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all

possible means" and "recommended that the reparations

issue be settled finally and without delay."
That this policy was embodied in the treaty is clear not only
from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval
of the treaty by the Senate. The committee noted, for
example:
Obviously insistence upon the payment of reparations in any
proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy,
dissipate any credit that it may possess at present, destroy
the initiative of its people, and create misery and chaos in
which the seeds of discontent and communism would
flourish. In short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that
certiorari will not lie. As a general principle and particularly
here, where such an extraordinary length of time has lapsed
between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the
foreign policy considerations of espousing a claim against
Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that
basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is not under any international obligation to
espouse petitioners claims.
In the international sphere, traditionally, the only means
available for individuals to bring a claim within the
international legal system has been when the individual is
able to persuade a government to bring a claim on the
individuals behalf.55 Even then, it is not the individuals
rights that are being asserted, but rather, the states own
rights. Nowhere is this position more clearly reflected than in

108
the dictum of the Permanent Court of International Justice
(PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to
ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the
present dispute originates in an injury to a private interest,
which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is
sole claimant.56
Since the exercise of diplomatic protection is the right of the
State, reliance on the right is within the absolute discretion of
states, and the decision whether to exercise the discretion
may invariably be influenced by political considerations other
than the legal merits of the particular claim.57 As clearly
stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose behalf
it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a
view to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the
national a right to demand the performance of that
obligation, and clothe the right with corresponding
sanctions.1awwphi1 However, all these questions remain
within the province of municipal law and do not affect the
position internationally.58 (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its

protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the
particular case.
The International Law Commissions (ILCs) Draft Articles on
Diplomatic Protection fully support this traditional view. They
(i) state that "the right of diplomatic protection belongs to or
vests in the State,"59 (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a "sovereign
prerogative" of the State;60 and (iii) stress that the state
"has the right to exercise diplomatic protection
on behalf of a national. It is under no duty or obligation to do
so."61
It has been argued, as petitioners argue now, that the State
has a duty to protect its nationals and act on his/her behalf
when rights are injured.62 However, at present, there is no
sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their
own nationals abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction.
If it is a duty internationally, it is only a moral and not a legal
duty, and there is no means of enforcing its
fulfillment.641avvphi1
We fully agree that rape, sexual slavery, torture, and sexual
violence are morally reprehensible as well as legally
prohibited under contemporary international law.65 However,
petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is
under a non-derogable obligation to prosecute international
crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover
monetary reparations from the state of Japan. Absent the
consent of states, an applicable treaty regime, or a directive

109
by the Security Council, there is no non-derogable duty to
institute proceedings against Japan. Indeed, precisely
because of states reluctance to directly prosecute claims
against another state, recent developments support the
modern trend to empower individuals to directly participate
in suits against perpetrators of international crimes.66
Nonetheless, notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes against
humanity and the strong policy arguments warranting such a
rule, the practice of states does not yet support the present
existence of an obligation to prosecute international
crimes.67 Of course a customary duty of prosecution is ideal,
but we cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is
widespread, it is in the practice of granting amnesties,
immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity."68
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. The concept was recognized by the ICJ in
Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as
a whole, and those arising vis--vis another State in the field
of diplomatic protection. By their very nature, the former are
the concern of all States. In view of the importance of the

rights involved, all States can be held to have a legal interest

in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the
corresponding rights of protection have entered into the body
of general international law others are conferred by
international instruments of a universal or quasi-universal
character.
The Latin phrase, erga omnes, has since become one of the
rallying cries of those sharing a belief in the emergence of a
value-based international public order. However, as is so
often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal
concept, its full potential remains to be realized in
practice.69
The term is closely connected with the international law
concept of jus cogens. In international law, the term "jus
cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority.70
Early strains of the jus cogens doctrine have existed since
the 1700s,71 but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in
International Law.72 The recognition of jus cogens gained
even more force in the 1950s and 1960s with the ILCs
preparation of the Vienna Convention on the Law of Treaties
(VCLT).73 Though there was a consensus that certain
international norms had attained the status of jus cogens,74

110
the ILC was unable to reach a consensus on the proper
criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus
cogens, the ILC concluded ruefully in 1963 that "there is not
as yet any generally accepted criterion by which to identify a
general rule of international law as having the character of
jus cogens."75 In a commentary accompanying the draft
convention, the ILC indicated that "the prudent course seems
to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international
tribunals."76 Thus, while the existence of jus cogens in
international law is undisputed, no consensus exists on its
substance,77 beyond a tiny core of principles and rules.78
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law, the
petitioners appear to be without a remedy to challenge those
that have offended them before appropriate fora. Needless to
say, our government should take the lead in protecting its
citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive
Department to take up the petitioners cause. Ours is only
the power to urge and exhort the Executive Department to
take up petitioners cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

111
G.R. No. 173034

October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE

PHILIPPINES, petitioner,
vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER
SECRETARIES DR. ETHELYN P. NIETO, DR. MARGARITA M.
GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL
MUNDO; and ASSISTANT SECRETARIES DR. MARIO C.
VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T.
GAKO, respondents.

Executive Order No. 51 (Milk Code) was issued by President

Corazon Aquino on October 28, 1986 by virtue of the
legislative powers granted to the president under the
Freedom Constitution. One of the preambular clauses of the
Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk
Substitutes (ICMBS), a code adopted by the World Health
Assembly (WHA) in 1981. From 1982 to 2006, the WHA
adopted several Resolutions to the effect that breastfeeding
should be supported, promoted and protected, hence, it
should be ensured that nutrition and health claims are not
permitted for breastmilk substitutes.

DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the
best nourishment for an infant is mother's milk. There is
nothing greater than for a mother to nurture her beloved
child straight from her bosom. The ideal is, of course, for
each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of
the Rules of Court, seeking to nullify Administrative Order
(A.O.) No. 2006-0012 entitled, Revised Implementing Rules
and Regulations of Executive Order No. 51, Otherwise Known
as The "Milk Code," Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains
provisions that are not constitutional and go beyond the law
it is supposed to implement.
Named as respondents are the Health Secretary,
Undersecretaries,
and
Assistant
Secretaries
of
the
Department of Health (DOH). For purposes of herein petition,
the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as
officials of said executive agency.1

In 1990, the Philippines ratified the International Convention

on the Rights of the Child. Article 24 of said instrument
provides that State Parties should take appropriate measures
to diminish infant and child mortality, and ensure that all
segments of society, specially parents and children, are
informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which
was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its
members that are manufacturers of breastmilk substitutes,
filed the present Petition for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order
(TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents
officers of the DOH acted without or in excess of jurisdiction,
or with grave abuse of discretion amounting to lack or excess
of jurisdiction, and in violation of the provisions of the
Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a
TRO enjoining respondents from implementing the
questioned RIRR.

112
After the Comment and Reply had been filed, the Court set
the case for oral arguments on June 19, 2007. The Court
issued an Advisory (Guidance for Oral Arguments) dated June
5, 2007, to wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the
Revised Implementing Rules and Regulations (RIRR) issued
by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of
Executive Order No. 51 (Milk Code);

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute
this case as the real party-in-interest, the Court adopts the
view enunciated in Executive Secretary v. Court of Appeals,4
to wit:
The modern view is that an association has standing to
complain of injuries to its members. This view fuses the legal
identity of an association with that of its members. An
association has standing to file suit for its workers despite its
lack of direct interest if its members are affected by the
action. An organization has standing to assert the concerns
of its constituents.
xxxx

2.2 Whether pertinent international agreements1 entered

into by the Philippines are part of the law of the land and
may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the
international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR
violate the due process clause and are in restraint of trade;
and
2.4 Whether Section 13 of the RIRR on Total Effect provides
sufficient standards.

x x x We note that, under its Articles of Incorporation, the

respondent was organized x x x to act as the representative
of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to
perform other acts and activities necessary to accomplish the
purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members,
because it and its members are in every practical sense
identical. x x x The respondent [association] is but the
medium through which its individual members seek to make
more effective the expression of their voices and the redress
of their grievances. 5 (Emphasis supplied)

_____________
1 (1) United Nations Convention on the Rights of the Child;
(2) the WHO and Unicef "2002 Global Strategy on Infant and
Young Child Feeding;" and (3) various World Health Assembly
(WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.

which was reasserted in Purok Bagong Silang Association,

Inc. v. Yuipco,6 where the Court ruled that an association has
the legal personality to represent its members because the
results of the case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation
contains a similar provision just like in Executive Secretary,
that the association is formed "to represent directly or
through approved representatives the pharmaceutical and
health care industry before the Philippine Government and

113
any of its agencies, the medical professions and the general
public."8 Thus, as an organization, petitioner definitely has
an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care
industry. Petitioner is duly authorized9 to take the
appropriate course of action to bring to the attention of
government agencies and the courts any grievance suffered
by its members which are directly affected by the RIRR.
Petitioner, which is mandated by its Amended Articles of
Incorporation to represent the entire industry, would be
remiss in its duties if it fails to act on governmental action
that would affect any of its industry members, no matter how
few or numerous they are. Hence, petitioner, whose legal
identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be
benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international
instruments adverted to by respondents are part of the law of
the land.
Petitioner assails the RIRR for allegedly going beyond the
provisions of the Milk Code, thereby amending and
expanding the coverage of said law. The defense of the DOH
is that the RIRR implements not only the Milk Code but also
various international instruments10 regarding infant and
young child nutrition. It is respondents' position that said
international instruments are deemed part of the law of the
land and therefore the DOH may implement them through
the RIRR.
The Court notes that the following international instruments
invoked by respondents, namely: (1) The United Nations
Convention on the Rights of the Child; (2) The International
Covenant on Economic, Social and Cultural Rights; and (3)
the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms
that steps must be taken by State Parties to diminish infant

and child mortality and inform society of the advantages of

breastfeeding, ensure the health and well-being of families,
and ensure that women are provided with services and
nutrition in connection with pregnancy and lactation. Said
instruments do not contain specific provisions regarding the
use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions
regarding breastmilk substitutes are the ICMBS and various
WHA Resolutions.
Under the 1987 Constitution, international law can become
part of the sphere of domestic law either by transformation
or incorporation.11 The transformation method requires that
an international law be transformed into a domestic law
through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere
constitutional declaration, international law is deemed to
have the force of domestic law.12
Treaties become part of the law of the land through
transformation pursuant to Article VII, Section 21 of the
Constitution which provides that "[n]o treaty or international
agreement shall be valid and effective unless concurred in by
at least two-thirds of all the members of the Senate." Thus,
treaties or conventional international law must go through a
process prescribed by the Constitution for it to be
transformed into municipal law that can be applied to
domestic conflicts.13
The ICMBS and WHA Resolutions are not treaties as they
have not been concurred in by at least two-thirds of all
members of the Senate as required under Section 21, Article
VII of the 1987 Constitution.
However, the ICMBS which was adopted by the WHA in 1981
had been transformed into domestic law through local
legislation, the Milk Code. Consequently, it is the Milk Code
that has the force and effect of law in this jurisdiction and not
the ICMBS per se.

114
The Milk Code is almost a verbatim reproduction of the
ICMBS, but it is well to emphasize at this point that the Code
did not adopt the provision in the ICMBS absolutely
prohibiting advertising or other forms of promotion to the
general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising,
promotion, or other marketing materials may be allowed if
such materials are duly authorized and approved by the
Inter-Agency Committee (IAC).
On the other hand, Section 2, Article II of the 1987
Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument
of national policy, adopts the generally accepted principles of
international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation
and amity with all nations. (Emphasis supplied)

instrument of national policy, the principle of sovereign

immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The
concept of "generally accepted principles of law" has also
been depicted in this wise:
Some legal scholars and judges look upon certain "general
principles of law" as a primary source of international law
because they have the "character of jus rationale" and are
"valid through all kinds of human societies." (Judge Tanaka in
his dissenting opinion in the 1966 South West Africa Case,
1966 I.C.J. 296). O'Connell holds that certain priniciples are
part of international law because they are "basic to legal
systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of
reasoning based on the common identity of all legal systems.
If there should be doubt or disagreement, one must look to
state practice and determine whether the municipal law
principle provides a just and acceptable solution. x x x 21
(Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue
of the incorporation clause of the Constitution, form part of
the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law
sees those customary rules accepted as binding result from
the combination [of] two elements: the established,
widespread, and consistent practice on the part of States;
and a psychological element known as the opinion juris sive
necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is
rendered obligatory by the existence of a rule of law
requiring it.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to
norms of general or customary international law which are
binding on all states,17 i.e., renunciation of war as an

Fr. Joaquin G. Bernas defines customary international law as

follows:
Custom or customary international law means "a general and
consistent practice of states followed by them from a sense
of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the
material factor, that is, how states behave, and the
psychological or subjective factor, that is, why they behave
the way they do.
xxxx
The initial factor for determining the existence of custom is
the actual behavior of states. This includes several elements:
duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x

115
xxxx
Duration therefore is not the most important element. More
important is the consistency and the generality of the
practice. x x x
xxxx
Once the existence of state practice has been established, it
becomes necessary to determine why states behave the way
they do. Do states behave the way they do because they
consider it obligatory to behave thus or do they do it only as
a matter of courtesy? Opinio juris, or the belief that a certain
form of behavior is obligatory, is what makes practice an
international rule. Without it, practice is not law.22
(Underscoring and Emphasis supplied)
Clearly, customary international law is deemed incorporated
into our domestic system.23
WHA Resolutions have not been embodied in any local
legislation. Have they attained the status of customary law
and should they then be deemed incorporated as part of the
law of the land?
The World Health Organization (WHO) is one of the
international specialized agencies allied with the United
Nations (UN) by virtue of Article 57,24 in relation to Article
6325 of the UN Charter. Under the 1946 WHO Constitution, it
is the WHA which determines the policies of the WHO,26 and
has the power to adopt regulations concerning "advertising
and labeling of biological, pharmaceutical and similar
products moving in international commerce,"27 and to "make
recommendations to members with respect to any matter
within the competence of the Organization."28 The legal
effect of its regulations, as opposed to recommendations, is
quite different.

Regulations, along with conventions and agreements, duly

adopted by the WHA bind member states thus:
Article 19. The Health Assembly shall have authority to adopt
conventions or agreements with respect to any matter within
the competence of the Organization. A two-thirds vote of the
Health Assembly shall be required for the adoption of such
conventions or agreements, which shall come into force for
each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within
eighteen months after the adoption by the Health Assembly
of a convention or agreement, take action relative to the
acceptance of such convention or agreement. Each Member
shall notify the Director-General of the action taken, and if it
does not accept such convention or agreement within the
time limit, it will furnish a statement of the reasons for nonacceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance
with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt
regulations concerning: (a) sanitary and quarantine
requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with
respect to diseases, causes of death and public health
practices; (c) standards with respect to diagnostic procedures
for international use; (d) standards with respect to the safety,
purity and potency of biological, pharmaceutical and similar
products moving in international commerce; (e) advertising
and labeling of biological, pharmaceutical and similar
products moving in international commerce.
Article 22. Regulations adopted pursuant to Article 21 shall
come into force for all Members after due notice has been
given of their adoption by the Health Assembly except for
such Members as may notify the Director-General of rejection
or reservations within the period stated in the notice.
(Emphasis supplied)

116
On the other hand, under Article 23, recommendations of the
WHA do not come into force for members, in the same way
that conventions or agreements under Article 19 and
regulations under Article 21 come into force. Article 23 of the
WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make
recommendations to Members with respect to any matter
within the competence of the Organization. (Emphasis
supplied)
The absence of a provision in Article 23 of any mechanism by
which the recommendation would come into force for
member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber,
stated that WHA recommendations are generally not binding,
but they "carry moral and political weight, as they constitute
the judgment on a health issue of the collective membership
of the highest international body in the field of health."29
Even the ICMBS itself was adopted as a mere
recommendation, as WHA Resolution No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the
sense of Article 23 of the Constitution, the International Code
of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health
Organization at its sixty-seventh session, considered the
fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the
text of a resolution by which it would adopt the code in the
form of a recommendation rather than a regulation. x x x
(Emphasis supplied)

The legal value of WHA Resolutions as recommendations is

summarized in Article 62 of the WHO Constitution, to wit:
Art. 62. Each member shall report annually on the action
taken with respect to recommendations made to it by the
Organization, and with respect to conventions, agreements
and regulations.
Apparently, the WHA Resolution adopting the ICMBS and
subsequent WHA Resolutions urging member states to
implement the ICMBS are merely recommendatory and
legally non-binding. Thus, unlike what has been done with
the ICMBS whereby the legislature enacted most of the
provisions into law which is the Milk Code, the subsequent
WHA Resolutions,30 specifically providing for exclusive
breastfeeding from 0-6 months, continued breastfeeding up
to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted
as a domestic law.
It is propounded that WHA Resolutions may constitute "soft
law" or non-binding norms, principles and practices that
influence state behavior.31
"Soft law" does not fall into any of the categories of
international law set forth in Article 38, Chapter III of the
1946 Statute of the International Court of Justice.32 It is,
however, an expression of non-binding norms, principles, and
practices
that
influence
state
behavior.33
Certain
declarations and resolutions of the UN General Assembly fall
under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced
in various cases, specifically, Government of Hongkong
Special Administrative Region v. Olalia,35 Mejoff v. Director of
Prisons,36 Mijares v. Raada37 and Shangri-la International
Hotel Management, Ltd. v. Developers Group of Companies,
Inc..38
The World Intellectual Property Organization (WIPO), a
specialized agency attached to the UN with the mandate to

117
promote and protect intellectual property worldwide, has
resorted to soft law as a rapid means of norm creation, in
order "to reflect and respond to the changing needs and
demands of its constituents."39 Other international
organizations which have resorted to soft law include the
International Labor Organization and the Food and
Agriculture Organization (in the form of the Codex
Alimentarius).40
WHO has resorted to soft law. This was most evident at the
time of the Severe Acute Respiratory Syndrome (SARS) and
Avian flu outbreaks.
Although the IHR Resolution does not create new
international law binding on WHO member states, it provides
an excellent example of the power of "soft law" in
international relations. International lawyers typically
distinguish binding rules of international law-"hard law"-from
non-binding norms, principles, and practices that influence
state behavior-"soft law." WHO has during its existence
generated many soft law norms, creating a "soft law regime"
in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant
steps in laying the political groundwork for improved
international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative
duty to cooperate fully with other countries and with WHO in
connection with infectious disease surveillance and response
to outbreaks.
This duty is neither binding nor enforceable, but, in the wake
of the SARS epidemic, the duty is powerful politically for two
reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on
infectious disease controls is in a country's self-interest x x x
if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and
consistent state practice on infectious disease surveillance
and outbreak response, perhaps crystallizing eventually into

customary international law on infectious disease prevention

and control.41
In the Philippines, the executive department implemented
certain measures recommended by WHO to address the
outbreaks of SARS and Avian flu by issuing Executive Order
(E.O.) No. 201 on April 26, 2003 and E.O. No. 280 on February
2, 2004, delegating to various departments broad powers to
close
down
schools/establishments,
conduct
health
surveillance and monitoring, and ban importation of poultry
and agricultural products.
It must be emphasized that even under such an international
emergency, the duty of a state to implement the IHR
Resolution was still considered not binding or enforceable,
although said resolutions had great political influence.
As previously discussed, for an international rule to be
considered as customary law, it must be established that
such rule is being followed by states because they consider it
obligatory to comply with such rules (opinio juris).
Respondents have not presented any evidence to prove that
the WHA Resolutions, although signed by most of the
member states, were in fact enforced or practiced by at least
a majority of the member states; neither have respondents
proven that any compliance by member states with said WHA
Resolutions was obligatory in nature.
Respondents failed to establish that the provisions of
pertinent WHA Resolutions are customary international law
that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the
provisions of the WHA Resolutions into domestic law. The
provisions of the WHA Resolutions cannot be considered as
part of the law of the land that can be implemented by
executive agencies without the need of a law enacted by the
legislature.

118
Second, the Court will determine whether the DOH may
implement the provisions of the WHA Resolutions by virtue of
its powers and functions under the Revised Administrative
Code even in the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative
Code of 1987 provides that the DOH shall define the national
health policy and implement a national health plan within the
framework of the government's general policies and plans,
and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on
advertising and other forms of promotion of breastmilk
substitutes provided in some WHA Resolutions has been
adopted as part of the national health policy.
Respondents submit that the national policy on infant and
young child feeding is embodied in A.O. No. 2005-0014,
dated May 23, 2005. Basically, the Administrative Order
declared the following policy guidelines: (1) ideal
breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six
months, extended breastfeeding up to two years and beyond;
(2) appropriate complementary feeding, which is to start at
age six months; (3) micronutrient supplementation; (4)
universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult
circumstances. Indeed, the primacy of breastfeeding for
children is emphasized as a national health policy. However,
nowhere in A.O. No. 2005-0014 is it declared that as part of
such health policy, the advertisement or promotion of
breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of
breastfeeding cannot automatically be equated with a total
ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not
contain a total ban on the advertising and promotion of

breastmilk substitutes, but instead, specifically creates an

IAC which will regulate said advertising and promotion, it
follows that a total ban policy could be implemented only
pursuant to a law amending the Milk Code passed by the
constitutionally authorized branch of government, the
legislature.
Thus, only the provisions of the Milk Code, but not those of
subsequent WHA Resolutions, can be validly implemented by
the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of
the RIRR are in accordance with those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the
Milk Code, petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months
old, but the RIRR extended its coverage to "young children"
or those from ages two years old and beyond:
MILK CODE
RIRR
WHEREAS, in order to ensure that safe and adequate
nutrition for infants is provided, there is a need to protect
and promote breastfeeding and to inform the public about
the proper use of breastmilk substitutes and supplements
and related products through adequate, consistent and
objective information and appropriate regulation of the
marketing and distribution of the said substitutes,
supplements and related products;
SECTION 4(e). "Infant" means a person falling within the age
bracket of 0-12 months.

119
Section 2. Purpose These Revised Rules and Regulations are
hereby promulgated to ensure the provision of safe and
adequate nutrition for infants and young children by the
promotion, protection and support of breastfeeding and by
ensuring the proper use of breastmilk substitutes, breastmilk
supplements and related products when these are medically
indicated and only when necessary, on the basis of adequate
information and through appropriate marketing and
distribution.
Section 5(ff). "Young Child" means a person from the age of
more than twelve (12) months up to the age of three (3)
years (36 months).
2. The Milk Code recognizes that infant formula may be a
proper and possible substitute for breastmilk in certain
instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no
substitute nor replacement for breastmilk":
MILK CODE
RIRR
WHEREAS, in order to ensure that safe and adequate
nutrition for infants is provided, there is a need to protect
and promote breastfeeding and to inform the public about
the proper use of breastmilk substitutes and supplements
and related products through adequate, consistent and
objective information and appropriate regulation of the
marketing and distribution of the said substitutes,
supplements and related products;

a. Exclusive breastfeeding is for infants from 0 to six (6)

months.
b. There is no substitute or replacement for breastmilk.
3. The Milk Code only regulates and does not impose
unreasonable requirements for advertising and promotion;
RIRR imposes an absolute ban on such activities for
breastmilk substitutes intended for infants from 0-24 months
old or beyond, and forbids the use of health and nutritional
claims. Section 13 of the RIRR, which provides for a "total
effect" in the promotion of products within the scope of the
Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials,
whether written, audio or visual, for products within the
scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly
authorized and approved by an inter-agency committee
created herein pursuant to the applicable standards provided
for in this Code.
Section 4. Declaration of Principles The following are the
underlying principles from which the revised rules and
regulations are premised upon:
xxxx

Section 4. Declaration of Principles The following are the

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

f. Advertising, promotions, or sponsor-ships of infant formula,

breastmilk substitutes and other related products are
prohibited.

120
Section 11. Prohibition No advertising, promotions,
sponsorships, or marketing materials and activities for
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or
otherwise
exaggerate
breastmilk
substitutes
and/or
replacements, as well as related products covered within the
scope of this Code.

Section 16. All health and nutrition claims for products within
the scope of the Code are absolutely prohibited. For this
purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child
and other like phrases shall not be allowed.
4. The RIRR imposes additional labeling requirements not
found in the Milk Code:
MILK CODE

Section 13. "Total Effect" - Promotion of products within the

scope of this Code must be objective and should not equate
or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It
must not in any case undermine breastmilk or breastfeeding.
The "total effect" should not directly or indirectly suggest
that buying their product would produce better individuals, or
resulting in greater love, intelligence, ability, harmony or in
any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Section 15. Content of Materials. - The following shall not be
included in advertising, promotional and marketing materials:
a. Texts, pictures, illustrations or information which
discourage or tend to undermine the benefits or superiority
of breastfeeding or which idealize the use of breastmilk
substitutes and milk supplements. In this connection, no
pictures of babies and children together with their mothers,
fathers, siblings, grandparents, other relatives or caregivers
(or yayas) shall be used in any advertisements for infant
formula and breastmilk supplements;
b. The term "humanized," "maternalized," "close to mother's
milk" or similar words in describing breastmilk substitutes or
milk supplements;
c. Pictures or texts that idealize the use of infant and milk
formula.

RIRR
SECTION 10. Containers/Label.
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily
become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.

121
Section 26. Content Each container/label shall contain such
message, in both Filipino and English languages, and which
message cannot be readily separated therefrom, relative the
following points:
(a) The words or phrase "Important Notice" or "Government
Warning" or their equivalent;
(b) A statement of the superiority of breastfeeding;
(c) A statement that there is no substitute for breastmilk;
(d) A statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use;
(e) Instructions for appropriate prepara-tion, and a warning
against the health hazards of inappropriate preparation; and
(f) The health hazards of unnecessary or improper use of
infant formula and other related products including
information that powdered infant formula may contain
pathogenic microorganisms and must be prepared and used
appropriately.
5. The Milk Code allows dissemination of information on
infant formula to health professionals; the RIRR totally
prohibits such activity:

the scope of this Code. This Code does not, however,

preclude the dissemination of information to health
professionals as provided in Section 8(b).
SECTION 8. Health Workers. (b) Information provided by manufacturers and distributors to
health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters
and such information shall not imply or create a belief that
bottle-feeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
Section 22. No manufacturer, distributor, or representatives
of products covered by the Code shall be allowed to conduct
or be involved in any activity on breastfeeding promotion,
education and production of Information, Education and
Communication (IEC) materials on breastfeeding, holding of
or participating as speakers in classes or seminars for women
and children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 16. All health and nutrition claims for products
within the scope of the Code are absolutely prohibited. For
this purpose, any phrase or words that connotes to increase
emotional, intellectual abilities of the infant and young child
and other like phrases shall not be allowed.

MILK CODE

6. The Milk Code permits milk manufacturers and distributors

to extend assistance in research and continuing education of
health professionals; RIRR absolutely forbids the same.

RIRR

MILK CODE

SECTION 7. Health Care System.

(b) No facility of the health care system shall be used for the
purpose of promoting infant formula or other products within

RIRR
SECTION 8. Health Workers

122
(e) Manufacturers and distributors of products within the
scope of this Code may assist in the research, scholarships
and continuing education, of health professionals, in
accordance with the rules and regulations promulgated by
the Ministry of Health.
Section 4. Declaration of Principles
The following are the underlying principles from which the
revised rules and regulations are premised upon:
i. Milk companies, and their representatives, should not form
part of any policymaking body or entity in relation to the
advancement of breasfeeding.
SECTION 22. No manufacturer, distributor, or representatives
of products covered by the Code shall be allowed to conduct
or be involved in any activity on breastfeeding promotion,
education and production of Information, Education and
Communication (IEC) materials on breastfeeding, holding of
or participating as speakers in classes or seminars for women
and children activities and to avoid the use of these venues
to market their brands or company names.
SECTION 32. Primary Responsibility of Health Workers - It is
the primary responsibility of the health workers to promote,
protect and support breastfeeding and appropriate infant and
young child feeding. Part of this responsibility is to
continuously update their knowledge and skills on
breastfeeding. No assistance, support, logistics or training
from milk companies shall be permitted.

RIRR
SECTION 6. The General Public and Mothers.
(f) Nothing herein contained shall prevent donations from
manufacturers and distributors of products within the scope
of this Code upon request by or with the approval of the
Ministry of Health.
Section 51. Donations Within the Scope of This Code Donations of products, materials, defined and covered under
the Milk Code and these implementing rules and regulations,
shall be strictly prohibited.
Section 52. Other Donations By Milk Companies Not Covered
by this Code. - Donations of products, equipments, and the
like, not otherwise falling within the scope of this Code or
these Rules, given by milk companies and their agents,
representatives, whether in kind or in cash, may only be
coursed through the Inter Agency Committee (IAC), which
shall determine whether such donation be accepted or
otherwise.
8. The RIRR provides for administrative sanctions not
imposed by the Milk Code.
MILK CODE
RIRR

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

absolutely prohibits it.
MILK CODE

Section 46. Administrative Sanctions. The following

administrative sanctions shall be imposed upon any person,

123
juridical or natural, found to have violated the provisions of
the Code and its implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a minimum of Ten
Thousand (P10,000.00) to Fifty Thousand (P50,000.00) Pesos,
depending on the gravity and extent of the violation,
including the recall of the offending product;
c) 3rd violation Administrative Fine of a minimum of Sixty
Thousand (P60,000.00) to One Hundred Fifty Thousand
(P150,000.00) Pesos, depending on the gravity and extent of
the violation, and in addition thereto, the recall of the
offending product, and suspension of the Certificate of
Product Registration (CPR);
d) 4th violation Administrative Fine of a minimum of Two
Hundred
Thousand
(P200,000.00) to
Five
Hundred
(P500,000.00) Thousand Pesos, depending on the gravity and
extent of the violation; and in addition thereto, the recall of
the product, revocation of the CPR, suspension of the License
to Operate (LTO) for one year;
e) 5th and succeeding repeated violations Administrative
Fine of One Million (P1,000,000.00) Pesos, the recall of the
offending product, cancellation of the CPR, revocation of the
License to Operate (LTO) of the company concerned,
including the blacklisting of the company to be furnished the
Department of Budget and Management (DBM) and the
Department of Trade and Industry (DTI);
f) An additional penalty of Two Thou-sand Five Hundred
(P2,500.00) Pesos per day shall be made for every day the
violation continues after having received the order from the
IAC or other such appropriate body, notifying and penalizing
the company for the infraction.
For purposes of determining whether or not there is
"repeated" violation, each product violation belonging or

owned by a company, including those of their subsidiaries,

are deemed to be violations of the concerned milk company
and shall not be based on the specific violating product
alone.
9. The RIRR provides for repeal of existing laws to the
contrary.
The Court shall resolve the merits of the allegations of
petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's
coverage is limited only to children 0-12 months old. Section
3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the
marketing, and practices related thereto, of the following
products: breastmilk substitutes, including infant formula;
other milk products, foods and beverages, including bottlefed complementary foods, when marketed or otherwise
represented to be suitable, with or without modification, for
use as a partial or total replacement of breastmilk; feeding
bottles and teats. It also applies to their quality and
availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on
the age of the child but on the kind of product being
marketed to the public. The law treats infant formula, bottlefed complementary food, and breastmilk substitute as
separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a
breastmilk substitute x x x to satisfy the normal nutritional
requirements of infants up to between four to six months of
age, and adapted to their physiological characteristics"; while
under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared,
suitable as a complement to breastmilk or infant formula,
when either becomes insufficient to satisfy the nutritional
requirements of the infant." An infant under Section 4(e) is a

124
person falling within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the
Milk Code.
But there is another target group. Breastmilk substitute is
defined under Section 4(a) as "any food being marketed or
otherwise presented as a partial or total replacement for
breastmilk, whether or not suitable for that purpose." This
section conspicuously lacks reference to any particular agegroup of children. Hence, the provision of the Milk Code
cannot be considered exclusive for children aged 0-12
months. In other words, breastmilk substitutes may also be
intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of
children more than 12 months old.
Evidently, as long as what is being marketed falls within the
scope of the Milk Code as provided in Section 3, then it can
be subject to regulation pursuant to said law, even if the
product is to be used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242
and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike
the Milk Code, does not recognize that breastmilk substitutes
may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions
thereof, must be considered and construed together. As held
in De Luna v. Pascual,44 "[t]he particular words, clauses and
phrases in the Rule should not be studied as detached and
isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts
and in order to produce a harmonious whole."
Section 7 of the RIRR provides that "when medically
indicated and only when necessary, the use of breastmilk

substitutes is proper if based on complete and updated

information." Section 8 of the RIRR also states that
information and educational materials should include
information on the proper use of infant formula when the use
thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that
in certain cases, the use of breastmilk substitutes may be
proper.
3. The Court shall ascertain the merits of allegations 345 and
446 together as they are interlinked with each other.
To resolve the question of whether the labeling requirements
and advertising regulations under the RIRR are valid, it is
important to deal first with the nature, purpose, and depth of
the regulatory powers of the DOH, as defined in general
under the 1987 Administrative Code,47 and as delegated in
particular under the Milk Code.
Health is a legitimate subject matter for regulation by the
DOH (and certain other administrative agencies) in exercise
of police powers delegated to it. The sheer span of
jurisprudence on that matter precludes the need to further
discuss it..48 However, health information, particularly
advertising materials on apparently non-toxic products like
breastmilk substitutes and supplements, is a relatively new
area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the
Philippine Islands,50 health information was already within
the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to
protect the health of the people, and vested it with such
powers as "(g) the dissemination of hygienic information
among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods
of preventing and combating dangerous communicable
diseases."

125
Seventy years later, the 1987 Administrative Code tasked
respondent DOH to carry out the state policy pronounced
under Section 15, Article II of the 1987 Constitution, which is
"to protect and promote the right to health of the people and
instill health consciousness among them."52 To that end, it
was granted under Section 3 of the Administrative Code the
power to "(6) propagate health information and educate the
population on important health, medical and environmental
matters which have health implications."53
When it comes to information regarding nutrition of infants
and young children, however, the Milk Code specifically
delegated to the Ministry of Health (hereinafter referred to as
DOH) the power to ensure that there is adequate, consistent
and objective information on breastfeeding and use of
breastmilk substitutes, supplements and related products;
and the power to control such information. These are
expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for
the implementation and enforcement of the provisions of this
Code. For this purpose, the Ministry of Health shall have the
following powers and functions:
(1) To promulgate such rules and regulations as are
necessary or proper for the implementation of this Code and
the accomplishment of its purposes and objectives.
xxxx

(a) The government shall ensure that objective and

consistent information is provided on infant feeding, for use
by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the
content of any information on breastmilk vis--vis breastmilk
substitutes, supplement and related products, in the
following manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula,
they shall include the social and financial implications of its
use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes.

(4) To exercise such other powers and functions as may be

necessary for or incidental to the attainment of the purposes
and objectives of this Code.

SECTION 8. Health Workers

SECTION 5. Information and Education

(b) Information provided by manufacturers and distributors to

health professionals regarding products within the scope of

xxxx

126
this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the
necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms
shall not be used. (Emphasis supplied)
The DOH is also authorized to control the purpose of the
information and to whom such information may be
disseminated under Sections 6 through 9 of the Milk Code54
to ensure that the information that would reach pregnant
women, mothers of infants, and health professionals and
workers in the health care system is restricted to scientific
and factual matters and shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the
Milk Code to control information regarding breastmilk vis-avis breastmilk substitutes is not absolute as the power to
control does not encompass the power to absolutely prohibit
the advertising, marketing, and promotion of breastmilk
substitutes.
The following are the provisions of the Milk Code that
unequivocally indicate that the control over information given
to the DOH is not absolute and that absolute prohibition is
not contemplated by the Code:

a) Section 2 which requires adequate information and

appropriate marketing and distribution of breastmilk
substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to
contribute to the provision of safe and adequate nutrition for
infants by the protection and promotion of breastfeeding and
by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the
basis of adequate information and through appropriate
marketing and distribution.
b) Section 3 which specifically states that the Code applies to
the marketing of and practices related to breastmilk
substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall
ensure that objective and consistent information is provided
on infant feeding;
d) Section 5(b) which provides that written, audio or visual
informational and educational materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes and should include information on the health
hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and
empowers the IAC to review and examine advertising,
promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide
information to health professionals but such information
should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding; and
g) Section 10 which provides that containers or labels should
not contain information that would discourage breastfeeding
and idealize the use of infant formula.

127
It is in this context that the Court now examines the assailed
provisions of the RIRR regarding labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the
RIRR contain some labeling requirements, specifically: a) that
there be a statement that there is no substitute to
breastmilk; and b) that there be a statement that powdered
infant formula may contain pathogenic microorganisms and
must be prepared and used appropriately. Section 1657 of
the RIRR prohibits all health and nutrition claims for products
within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant
and young child.
These requirements and limitations are consistent with the
provisions of Section 8 of the Milk Code, to wit:
SECTION 8. Health workers xxxx

It may be argued that Section 8 of the Milk Code refers only

to information given to health workers regarding breastmilk
substitutes, not to containers and labels thereof. However,
such restrictive application of Section 8(b) will result in the
absurd situation in which milk companies and distributors are
forbidden to claim to health workers that their products are
substitutes or equivalents of breastmilk, and yet be allowed
to display on the containers and labels of their products the
exact opposite message. That askewed interpretation of the
Milk Code is precisely what Section 5(a) thereof seeks to
avoid by mandating that all information regarding breastmilk
vis-a-vis breastmilk substitutes be consistent, at the same
time giving the government control over planning, provision,
design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and
labels to state that the product offered is not a substitute for
breastmilk, is a reasonable means of enforcing Section 8(b)
of the Milk Code and deterring circumvention of the
protection and promotion of breastfeeding as embodied in
Section 260 of the Milk Code.

(b) Information provided by manufacturers and distributors to

health professionals regarding products within the scope of
this Code shall be restricted to scientific and factual matters,
and such information shall not imply or create a belief that
bottlefeeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5.58
(Emphasis supplied)

Section 26(f)61 of the RIRR is an equally reasonable labeling

requirement. It implements Section 5(b) of the Milk Code
which reads:

and Section 10(d)59 which bars the use on containers and

labels of the terms "humanized," "maternalized," or similar
terms.

(b) Informational and educational materials, whether written,

audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: x x
x (5) where needed, the proper use of infant formula,
whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant
formula, they shall include the social and financial
implications of its use; the health hazards of inappropriate
foods or feeding methods; and, in particular, the health

These provisions of the Milk Code expressly forbid

information that would imply or create a belief that there is
any milk product equivalent to breastmilk or which is
humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.

SECTION 5. x x x
xxxx

128
hazards of unnecessary or improper use of infant formula and
other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes. (Emphasis supplied)
The label of a product contains information about said
product intended for the buyers thereof. The buyers of
breastmilk substitutes are mothers of infants, and Section 26
of the RIRR merely adds a fair warning about the likelihood of
pathogenic microorganisms being present in infant formula
and other related products when these are prepared and
used inappropriately.
Petitioners counsel has admitted during the hearing on June
19, 2007 that formula milk is prone to contaminations and
there is as yet no technology that allows production of
powdered infant formula that eliminates all forms of
contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR
for the label to contain the message regarding health hazards
including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk
Code.
The authority of DOH to control information regarding
breastmilk vis-a-vis breastmilk substitutes and supplements
and related products cannot be questioned. It is its
intervention into the area of advertising, promotion, and
marketing that is being assailed by petitioner.

created herein pursuant to the applicable standards provided

for in this Code.
the Milk Code invested regulatory authority over advertising,
promotional and marketing materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency
committee composed of the following members is hereby
created:
The members may designate their duly authorized
representative to every meeting of the Committee.
The Committee
functions:

shall

have

the

following

powers

and

(1) To review and examine all advertising. promotion or other

marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions
from and prohibit the printing, publication, distribution,
exhibition and broadcast of, all advertising promotion or
other marketing materials, whether written, audio or visual,
on products within the scope of this Code;
(3) To prescribe the internal and operational procedure for
the exercise of its powers and functions as well as the
performance of its duties and responsibilities; and

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials,
whether written, audio or visual, for products within the
scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly
authorized and approved by an inter-agency committee

(4) To promulgate such rules and regulations as are

necessary or proper for the implementation of Section 6(a) of
this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions,
sponsorships, or marketing materials and activities for

129
breastmilk substitutes intended for infants and young
children up to twenty-four (24) months, shall be allowed,
because they tend to convey or give subliminal messages or
impressions that undermine breastmilk and breastfeeding or
otherwise
exaggerate
breastmilk
substitutes
and/or
replacements, as well as related products covered within the
scope of this Code.
prohibits advertising, promotions, sponsorships or marketing
materials and activities for breastmilk substitutes in line with
the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
(f) Advertising, promotions, or sponsorships of infant formula,
breastmilk substitutes and other related products are
prohibited.
The DOH, through its co-respondents, evidently arrogated to
itself not only the regulatory authority given to the IAC but
also imposed absolute prohibition on advertising, promotion,
and marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the
requirement of the Milk Code in Section 6 thereof for prior
approval by IAC of all advertising, marketing and promotional
materials prior to dissemination.
Even respondents, through the OSG, acknowledged the
authority of IAC, and repeatedly insisted, during the oral
arguments on June 19, 2007, that the prohibition under
Section 11 is not actually operational, viz:

x x x Now, the crux of the matter that is being questioned by

Petitioner is whether or not there is an absolute prohibition
on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute
prohibition because Section 11 while it states and it is
entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast
milk substitutes intended for infants and young children up to
24 months shall be allowed because this is the standard they
tend to convey or give subliminal messages or impression
undermine that breastmilk or breastfeeding x x x.
We have to read Section 11 together with the other Sections
because the other Section, Section 12, provides for the inter
agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale
and manufacture, it simply regulates the advertisement and
the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be
taken together with the provision on the Inter-Agency
Committee that processes and evaluates because there may
be some information dissemination that are straight forward
information dissemination. What the AO 2006 is trying to
prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx

SOLICITOR GENERAL DEVANADERA:

ASSOCIATE JUSTICE SANTIAGO:

xxxx

Madam Solicitor General, under the Milk Code, which body

has authority or power to promulgate Rules and Regulations

130
regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?

But, would you nevertheless agree that there is an absolute

ban on advertising of breastmilk substitutes intended for
children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

SOLICITOR GENERAL DEVANADERA:
Your Honor, please, it is provided that the Inter-Agency
Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health
overstepped its rule making authority when it totally banned
advertising and promotion under Section 11 prescribed the
total effect rule as well as the content of materials under
Section 13 and 15 of the rules and regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is
no total absolute ban. Second, the Inter-Agency Committee is
under the Department of Health, Your Honor.

It's not an absolute ban, Your Honor, because we have the

Inter-Agency Committee that can evaluate some advertising
and promotional materials, subject to the standards that we
have stated earlier, which are- they should not undermine
breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken
in relation with the other Sections, particularly 12 and 13 and
15, Your Honor, because it is recognized that the Inter-Agency
Committee has that power to evaluate promotional materials,
Your Honor.
ASSOCIATE JUSTICE NAZARIO:

xxxx

So in short, will you please clarify there's no absolute ban on

advertisement regarding milk substitute regarding infants
two (2) years below?

ASSOCIATE JUSTICE NAZARIO:

SOLICITOR GENERAL DEVANADERA:

x x x Did I hear you correctly, Madam Solicitor, that there is

no absolute ban on advertising of breastmilk substitutes in
the Revised Rules?

We can proudly say that the general rule is that there is a

prohibition, however, we take exceptions and standards have
been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not
undermine breastmilk and breastfeeding, Your Honor.63

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

Sections 11 and 4(f) of the RIRR are clearly violative of the

Milk Code.

ASSOCIATE JUSTICE NAZARIO:

However, although it is the IAC which is authorized to
promulgate rules and regulations for the approval or rejection
of advertising, promotional, or other marketing materials

131
under Section 12(a) of the Milk Code, said provision must be
related to Section 6 thereof which in turn provides that the
rules and regulations must be "pursuant to the applicable
standards provided for in this Code." Said standards are set
forth in Sections 5(b), 8(b), and 10 of the Code, which, at the
risk of being repetitious, and for easy reference, are quoted
hereunder:

this Code shall be restricted to scientific and factual matters

and such information shall not imply or create a belief that
bottle feeding is equivalent or superior to breastfeeding. It
shall also include the information specified in Section 5(b).
xxxx
SECTION 10. Containers/Label

SECTION 5. Information and Education

xxxx
(b) Informational and educational materials, whether written,
audio, or visual, dealing with the feeding of infants and
intended to reach pregnant women and mothers of infants,
shall include clear information on all the following points: (1)
the benefits and superiority of breastfeeding; (2) maternal
nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of
reversing the decision not to breastfeed; and (5) where
needed, the proper use of infant formula, whether
manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula,
they shall include the social and financial implications of its
use; the health hazards of inappropriate foods of feeding
methods; and, in particular, the health hazards of
unnecessary or improper use of infant formula and other
breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk
substitutes.

(a) Containers and/or labels shall be designed to provide the

necessary information about the appropriate use of the
products, and in such a way as not to discourage
breastfeeding.
(b) Each container shall have a clear, conspicuous and easily
readable and understandable message in Pilipino or English
printed on it, or on a label, which message can not readily
become separated from it, and which shall include the
following points:
(i) the words "Important Notice" or their equivalent;
(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the
advice of a health worker as to the need for its use and the
proper methods of use; and
(iv) instructions for appropriate preparation, and a warning
against the health hazards of inappropriate preparation.

SECTION 8. Health Workers.

Section 12(b) of the Milk Code designates the DOH as the

principal implementing agency for the enforcement of the
provisions of the Code. In relation to such responsibility of the
DOH, Section 5(a) of the Milk Code states that:

xxxx

SECTION 5. Information and Education

(b) Information provided by manufacturers and distributors to

health professionals regarding products within the scope of

(a) The government shall ensure that objective and

consistent information is provided on infant feeding, for use

xxxx

132
by families and those involved in the field of infant nutrition.
This responsibility shall cover the planning, provision, design
and dissemination of information, and the control thereof, on
infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate
into operational terms the standards set forth in Sections 5,
8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly
provided for Section 13 in the RIRR which reads as follows:

In this case, correct information as to infant feeding and

nutrition is infused with public interest and welfare.
4. With regard to activities for dissemination of information to
health professionals, the Court also finds that there is no
inconsistency between the provisions of the Milk Code and
the RIRR. Section 7(b)66 of the Milk Code, in relation to
Section 8(b)67 of the same Code, allows dissemination of
information to health professionals but such information is
restricted to scientific and factual matters.

SECTION 13. "Total Effect" - Promotion of products within the

scope of this Code must be objective and should not equate
or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It
must not in any case undermine breastmilk or breastfeeding.
The "total effect" should not directly or indirectly suggest
that buying their product would produce better individuals, or
resulting in greater love, intelligence, ability, harmony or in
any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Contrary to petitioner's claim, Section 22 of the RIRR does

not prohibit the giving of information to health professionals
on scientific and factual matters. What it prohibits is the
involvement of the manufacturer and distributor of the
products covered by the Code in activities for the promotion,
education and production of Information, Education and
Communication (IEC) materials regarding breastfeeding that
are intended for women and children. Said provision cannot
be construed to encompass even the dissemination of
information to health professionals, as restricted by the Milk
Code.

Such standards bind the IAC in formulating its rules and

regulations on advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over
the information content of advertising, promotional and
marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also
sets a viable standard against which the IAC may screen such
materials before they are made public.

5. Next, petitioner alleges that Section 8(e)68 of the Milk

Code permits milk manufacturers and distributors to extend
assistance in research and in the continuing education of
health professionals, while Sections 22 and 32 of the RIRR
absolutely forbid the same. Petitioner also assails Section
4(i)69 of the RIRR prohibiting milk manufacturers' and
distributors' participation in any policymaking body in
relation to the advancement of breastfeeding.

In Equi-Asia Placement, Inc. vs. Department of Foreign

Affairs,64 the Court held:

Section 4(i) of the RIRR provides that milk companies and

their representatives should not form part of any
policymaking body or entity in relation to the advancement
of breastfeeding. The Court finds nothing in said provisions
which contravenes the Milk Code. Note that under Section
12(b) of the Milk Code, it is the DOH which shall be principally
responsible for the implementation and enforcement of the

x x x [T]his Court had, in the past, accepted as sufficient

standards the following: "public interest," "justice and
equity," "public convenience and welfare," and "simplicity,
economy and welfare."65

133
provisions of said Code. It is entirely up to the DOH to decide
which entities to call upon or allow to be part of policymaking
bodies on breastfeeding. Therefore, the RIRR's prohibition on
milk companies participation in any policymaking body in
relation to the advancement of breastfeeding is in accord
with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the
RIRR prohibits milk companies from giving reasearch
assistance and continuing education to health professionals.
Section 2270 of the RIRR does not pertain to research
assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion
and education for women and children. Nothing in Section 22
of the RIRR prohibits milk companies from giving assistance
for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision
must be struck down.
It is Sections 971 and 1072 of the RIRR which govern
research assistance. Said sections of the RIRR provide that
research assistance for health workers and researchers may
be allowed upon approval of an ethics committee, and with
certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine
how such research or educational assistance may be given
by milk companies or under what conditions health workers
may accept the assistance. Thus, Sections 9 and 10 of the
RIRR imposing limitations on the kind of research done or
extent of assistance given by milk companies are completely
in accord with the Milk Code.
Petitioner complains that Section 3273 of the RIRR prohibits
milk companies from giving assistance, support, logistics or
training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the
Milk Code, which provides that manufacturers and
distributors of breastmilk substitutes may assist in

researches, scholarships and the continuing education, of

health professionals in accordance with the rules and
regulations promulgated by the Ministry of Health, now DOH.
6. As to the RIRR's prohibition on donations, said provisions
are also consistent with the Milk Code. Section 6(f) of the Milk
Code provides that donations may be made by
manufacturers and distributors of breastmilk substitutes
upon the request or with the approval of the DOH. The law
does not proscribe the refusal of donations. The Milk Code
leaves it purely to the discretion of the DOH whether to
request or accept such donations. The DOH then
appropriately exercised its discretion through Section 5175 of
the RIRR which sets forth its policy not to request or approve
donations from manufacturers and distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in
Section 52 of the RIRR that any donation from milk
companies not covered by the Code should be coursed
through the IAC which shall determine whether such donation
should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to
accept donations. For that matter, no person or entity can be
forced to accept a donation. There is, therefore, no real
inconsistency between the RIRR and the law because the Milk
Code does not prohibit the DOH from refusing donations.
7. With regard to Section 46 of the RIRR providing for
administrative sanctions that are not found in the Milk Code,
the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine
Air Lines, Inc.76 is misplaced. The glaring difference in said
case and the present case before the Court is that, in the
Civil Aeronautics Board, the Civil Aeronautics Administration
(CAA) was expressly granted by the law (R.A. No. 776) the
power to impose fines and civil penalties, while the Civil
Aeronautics Board (CAB) was granted by the same law the
power to review on appeal the order or decision of the CAA

134
and to determine whether to impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus,
the Court upheld the CAB's Resolution imposing
administrative fines.
In a more recent case, Perez v. LPG Refillers Association of
the Philippines, Inc.,77 the Court upheld the Department of
Energy (DOE) Circular No. 2000-06-10 implementing Batas
Pambansa (B.P.) Blg. 33. The circular provided for fines for
the commission of prohibited acts. The Court found that
nothing in the circular contravened the law because the DOE
was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to
impose fines or penalties.
In the present case, neither the Milk Code nor the Revised
Administrative Code grants the DOH the authority to fix or
impose administrative fines. Thus, without any express grant
of power to fix or impose such fines, the DOH cannot provide
for those fines in the RIRR. In this regard, the DOH again
exceeded its authority by providing for such fines or
sanctions in Section 46 of the RIRR. Said provision is,
therefore, null and void.
The DOH is not left without any means to enforce its rules
and regulations. Section 12(b) (3) of the Milk Code authorizes
the DOH to "cause the prosecution of the violators of this
Code and other pertinent laws on products covered by this
Code." Section 13 of the Milk Code provides for the penalties
to be imposed on violators of the provision of the Milk Code
or the rules and regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the
rules and regulations issued pursuant to this Code shall, upon
conviction, be punished by a penalty of two (2) months to
one (1) year imprisonment or a fine of not less than One
Thousand Pesos (P1,000.00) nor more than Thirty Thousand
Pesos (P30,000.00) or both. Should the offense be committed
by a juridical person, the chairman of the Board of Directors,

the president, general manager, or the partners and/or the

persons directly responsible therefor, shall be penalized.
(b) Any license, permit or authority issued by any
government agency to any health worker, distributor,
manufacturer, or marketing firm or personnel for the practice
of their profession or occupation, or for the pursuit of their
business, may, upon recommendation of the Ministry of
Health, be suspended or revoked in the event of repeated
violations of this Code, or of the rules and regulations issued
pursuant to this Code. (Emphasis supplied)
8. Petitioners claim that Section 57 of the RIRR repeals
existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and
rules and regulations or parts thereof inconsistent with these
revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws
but only orders, issuances and rules and regulations. Thus,
said provision is valid as it is within the DOH's rule-making
power.
An administrative agency like respondent possesses quasilegislative or rule-making power or the power to make rules
and regulations which results in delegated legislation that is
within the confines of the granting statute and the
Constitution, and subject to the doctrine of non-delegability
and separability of powers.78 Such express grant of rulemaking power necessarily includes the power to amend,
revise, alter, or repeal the same.79 This is to allow
administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to
implement the provisions of a law,80 in order to make it more
responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative

135
agencies that are inconsistent
repealed or modified.

therewith

are

declared

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond

the authority of the DOH to promulgate and in contravention
of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the
Respondents is unnecessary and oppressive, and is offensive
to the due process clause of the Constitution, insofar as the
same is in restraint of trade and because a provision therein
is inadequate to provide the public with a comprehensible
basis to determine whether or not they have committed a
violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85
22,86 32,87 46,88 and 5289 as the provisions that suppress
the trade of milk and, thus, violate the due process clause of
the Constitution.
The framers of the constitution were well aware that trade
must be subjected to some form of regulation for the public
good. Public interest must be upheld over business
interests.90 In Pest Management Association of the
Philippines v. Fertilizer and Pesticide Authority,91 it was held
thus:
x x x Furthermore, as held in Association of Philippine
Coconut Desiccators v. Philippine Coconut Authority, despite
the fact that "our present Constitution enshrines free
enterprise as a policy, it nonetheless reserves to the
government the power to intervene whenever necessary to
promote the general welfare." There can be no question that
the unregulated use or proliferation of pesticides would be
hazardous to our environment. Thus, in the aforecited case,
the Court declared that "free enterprise does not call for
removal of protective regulations." x x x It must be clearly

explained and proven by competent evidence just exactly

how such protective regulation would result in the restraint of
trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of
milk manufacturers participation in any policymaking body
(Section 4(i)), classes and seminars for women and children
(Section 22); the giving of assistance, support and logistics or
training (Section 32); and the giving of donations (Section 52)
would unreasonably hamper the trade of breastmilk
substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk
substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and
oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w)
of the RIRR is unreasonable and oppressive. Said section
provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner,
manufacturer, distributor of infant formula, follow-up milk,
milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature,
including their representatives who promote or otherwise
advance their commercial interests in marketing those
products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other
entity in the public or private sector engaged in the business
(whether directly or indirectly) of marketing at the wholesale
or retail level a product within the scope of this Code. A
"primary distributor" is a manufacturer's sales agent,
representative, national distributor or broker.
xxxx

136
(j) "Manufacturer" means a corporation or other entity in the
public or private sector engaged in the business or function
(whether directly or indirectly or through an agent or and
entity controlled by or under contract with it) of
manufacturing a products within the scope of this Code.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections

4(f), 11 and 46 of Administrative Order No. 2006-0012 dated
May 12, 2006 are declared NULL and VOID for being ultra
vires. The Department of Health and respondents are
PROHIBITED from implementing said provisions.

Notably, the definition in the RIRR merely merged together

under the term "milk company" the entities defined
separately under the Milk Code as "distributor" and
"manufacturer." The RIRR also enumerated in Section 5(w)
the products manufactured or distributed by an entity that
would qualify it as a "milk company," whereas in the Milk
Code, what is used is the phrase "products within the scope
of this Code." Those are the only differences between the
definitions given in the Milk Code and the definition as restated in the RIRR.

The Temporary Restraining Order issued on August 15, 2006

is LIFTED insofar as the rest of the provisions of
Administrative Order No. 2006-0012 is concerned.

Since all the regulatory provisions under the Milk Code apply
equally to both manufacturers and distributors, the Court
sees no harm in the RIRR providing for just one term to
encompass both entities. The definition of "milk company" in
the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are
practically the same.
The Court is not convinced that the definition of "milk
company" provided in the RIRR would bring about any
change in the treatment or regulation of "distributors" and
"manufacturers" of breastmilk substitutes, as defined under
the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of
the RIRR are in consonance with the objective, purpose and
intent of the Milk Code, constituting reasonable regulation of
an industry which affects public health and welfare and, as
such, the rest of the RIRR do not constitute illegal restraint of
trade nor are they violative of the due process clause of the
Constitution.

SO ORDERED.

137
Oposa v. Factoran, GR 101083, July 30, 1993
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and
"arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which
was filed before Branch 66 (Makati, Metro Manila) of the
Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners,
are all minors duly represented and joined by their respective
parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and
non-profit corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of our
environment and natural resources. The original defendant
was the Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural Resources
(DENR). His substitution in this petition by the new Secretary,
the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners. 1 The complaint 2
was instituted as a taxpayers' class suit 3 and alleges that
the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use
and enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the
preservation of said resource but are "so numerous that it is
impracticable to bring them all before the Court." The minors
further asseverate that they "represent their generation as
well as generations yet unborn." 4 Consequently, it is prayed
for that judgment be rendered:

. . . ordering defendant, his agents, representatives and other

persons acting in his behalf to
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and
equitable under the premises." 5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with rich,
lush and verdant rainforests in which varied, rare and unique
species of flora and fauna may be found; these rainforests
contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence reveals
that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a
ratio of fifty-four per cent (54%) for forest cover and forty-six
per cent (46%) for agricultural, residential, industrial,
commercial and other uses; the distortion and disturbance of
this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water
shortages resulting from drying up of the water table,
otherwise known as the "aquifer," as well as of rivers, brooks
and streams, (b) salinization of the water table as a result of
the intrusion therein of salt water, incontrovertible examples
of which may be found in the island of Cebu and the
Municipality of Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one
billion (1,000,000,000) cubic meters per annum
approximately the size of the entire island of Catanduanes,
(d) the endangering and extinction of the country's unique,

138
rare and varied flora and fauna, (e) the disturbance and
dislocation
of
cultural
communities,
including
the
disappearance of the Filipino's indigenous cultures, (f) the
siltation of rivers and seabeds and consequential destruction
of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire country, (h)
increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and
agricultural plains arising from the absence of the absorbent
mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic
changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable
of unquestionable demonstration that the same may be
submitted
as
a
matter
of
judicial
notice.
This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and
film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four
per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares

of virgin old-growth rainforests are left, barely 2.8% of the
entire land mass of the Philippine archipelago and about 3.0
million hectares of immature and uneconomical secondary
growth forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the Philippines
will be bereft of forest resources after the end of this ensuing
decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a
matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
damage and irreparable injury to plaintiffs especially
plaintiff minors and their successors who may never see,
use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust
for the benefit of plaintiff minors and succeeding
generations.

139
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits
in the country.

20. Furthermore, defendant's continued refusal to cancel the

aforementioned TLA's is contradictory to the Constitutional
policy of the State to
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);

A copy of the plaintiffs' letter dated March 1, 1990 is hereto

attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and extreme
prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs,
especially plaintiff minors who may be left with a country
that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the
Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is
manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that
is conductive to a life of dignity and well-being. (P.D. 1151, 6
June 1977)

c. "conserve and promote the nation's cultural heritage and

resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony
of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind the natural law and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran,
Jr., filed a Motion to Dismiss the complaint based on two (2)
grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a
political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1)
the complaint shows a clear and unmistakable cause of
action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of
discretion.

140
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss. 7 In the said order,
not only was the defendant's claim that the complaint
states no cause of action against him and that it raises a
political question sustained, the respondent Judge further
ruled that the granting of the relief prayed for would result in
the impairment of contracts which is prohibited by the
fundamental law of the land.
Plaintiffs thus filed the instant special civil action for
certiorari under Rule 65 of the Revised Rules of Court and ask
this Court to rescind and set aside the dismissal order on the
ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the
plaintiffs-minors not only represent their children, but have
also joined the latter in this case. 8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains sufficient
allegations concerning their right to a sound environment
based on Articles 19, 20 and 21 of the Civil Code (Human
Relations), Section 4 of Executive Order (E.O.) No. 192
creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II
of the 1987 Constitution recognizing the right of the people
to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of
man's inalienable right to self-preservation and selfperpetuation embodied in natural law. Petitioners likewise
rely on the respondent's correlative obligation per Section 4
of E.O. No. 192, to safeguard the people's right to a healthful
environment.

It is further claimed that the issue of the respondent

Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners maintain
that the same does not apply in this case because TLAs are
not contracts. They likewise submit that even if TLAs may be
considered protected by the said clause, it is well settled that
they may still be revoked by the State when the public
interest so requires.
On the other hand, the respondents aver that the petitioners
failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but vague
and nebulous allegations concerning an "environmental
right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae."
Such allegations, according to them, do not reveal a valid
cause of action. They then reiterate the theory that the
question of whether logging should be permitted in the
country is a political question which should be properly
addressed to the executive or legislative branches of
Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before
Congress for the passage of a bill that would ban logging
totally.
As to the matter of the cancellation of the TLAs, respondents
submit that the same cannot be done by the State without
due process of law. Once issued, a TLA remains effective for a
certain period of time usually for twenty-five (25) years.
During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice
and hearing, to have violated the terms of the agreement or
other forestry laws and regulations. Petitioners' proposition to
have all the TLAs indiscriminately cancelled without the

141
requisite hearing would be violative of the requirements of
due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No. 90777 as a class suit. The original defendant and the present
respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We likewise
declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing of
a valid class suit under Section 12, Rule 3 of the Revised
Rules of Court are present both in the said civil case and in
the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in
ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class
suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety. 9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife, offshore areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future generations. 10
Needless to say, every generation has a responsibility to the

next to preserve that rhythm and harmony for the full

enjoyment of a balanced and healthful ecology. Put a little
differently, the minors' assertion of their right to a sound
environment constitutes, at the same time, the performance
of their obligation to ensure the protection of that right for
the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues raised
and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent
Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to enforce
and protect, or a specific legal wrong they are seeking to
prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague
assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its
Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter
of public policy, may not be taken cognizance of by this Court
without doing violence to the sacred principle of "Separation
of Powers" of the three (3) co-equal branches of the
Government.

142
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the
plaintiffs failed to allege with sufficient definiteness a specific
legal right involved or a specific legal wrong committed, and
that the complaint is replete with vague assumptions and
conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal
right the right to a balanced and healthful ecology which,
for the first time in our nation's constitutional history, is
solemnly incorporated in the fundamental law. Section 16,
Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with the
rhythm and harmony of nature.
This right unites with the right to health which is provided for
in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly

stressed by the petitioners the advancement of which may

even be said to predate all governments and constitutions.
As a matter of fact, these basic rights need not even be
written in the Constitution for they are assumed to exist from
the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated
as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when
all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit
nothing but parched earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission, the
following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty of
not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the
judicious management and conservation of the country's
forests.

143
Without such forests, the ecological or environmental balance
would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the other
related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the country's
environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural
resources as may be provided for by law in order to ensure
equitable sharing of the benefits derived therefrom for the
welfare of the present and future generations of Filipinos."
Section 3 thereof makes the following statement of policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of the
country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement
of the quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is
also the policy of the state to recognize and apply a true
value system including social and environmental cost
implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV,
Book IV of the Administrative Code of 1987, 15 specifically in
Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for

the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and
the objective of making the exploration, development and
utilization of such natural resources equitably accessible to
the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a
sound ecological balance and protecting and enhancing the
quality of the environment." Section 2 of the same Title, on
the other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the fact of
the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge
of carrying out the State's constitutional mandate to control
and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have
set the objectives which will serve as the bases for policy
formulation, and have defined the powers and functions of
the DENR.

144
It may, however, be recalled that even before the ratification
of the 1987 Constitution, specific statutes already paid
special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151
(Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former
"declared a continuing policy of the State (a) to create,
develop, maintain and improve conditions under which man
and nature can thrive in productive and enjoyable harmony
with each other, (b) to fulfill the social, economic and other
requirements of present and future generations of Filipinos,
and (c) to insure the attainment of an environmental quality
that is conducive to a life of dignity and well-being." 16 As its
goal, it speaks of the "responsibilities of each generation as
trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave
flesh to the said policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear as
the DENR's duty under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the
said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave
abuse of discretion, violated their right to a balanced and
healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the

defendant, and act or omission of the defendant in violation

of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss
based on the ground that the complaint fails to state a cause
of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in
such a case is: admitting such alleged facts to be true, may
the court render a valid judgment in accordance with the
prayer in the complaint? 20 In Militante vs. Edrosolano, 21
this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing
upon a motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the
legal order. The law itself stands in disrepute."
After careful examination of the petitioners' complaint, We
find the statements under the introductory affirmative
allegations, as well as the specific averments under the subheading CAUSE OF ACTION, to be adequate enough to show,
prima facie, the claimed violation of their rights. On the basis
thereof, they may thus be granted, wholly or partly, the
reliefs prayed for. It bears stressing, however, that insofar as
the cancellation of the TLAs is concerned, there is the need
to implead, as party defendants, the grantees thereof for
they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to
raise a political question. Policy formulation or determination
by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the
enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be

145
emphasized that the political question doctrine is no longer,
the insurmountable obstacle to the exercise of judicial power
or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states
that:

even if we were to assume that the issue presented before us

was political in nature, we would still not be precluded from
revolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly
provides: . . .

Judicial power includes the duty of the courts of justice to

settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.

The last ground invoked by the trial court in dismissing the

complaint is the non-impairment of contracts clause found in
the Constitution. The court a quo declared that:

Commenting on this provision in his book, Philippine Political

Law, 22 Mr. Justice Isagani A. Cruz, a distinguished member
of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of the
authority represents a broadening of judicial power to enable
the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of
the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of discretion.
The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this
Court, noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is that,

The Court is likewise of the impression that it cannot, no

matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed,
if not shocked, by such a sweeping pronouncement. In the
first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the nonimpairment clause. If he had done so, he would have acted
with utmost infidelity to the Government by providing undue
and unwarranted benefits and advantages to the timber
license holders because he would have forever bound the
Government to strictly respect the said licenses according to
their terms and conditions regardless of changes in policy
and the demands of public interest and welfare. He was
aware that as correctly pointed out by the petitioners, into
every timber license must be read Section 20 of the Forestry
Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the
President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .

146
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property or
a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court
held:

amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,

October 27, 1983, 125 SCRA 302].

. . . A timber license is an instrument by which the State

regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause;
it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public
welfare as in this case.

Sec. 10. No law impairing, the obligation of contracts shall be

passed. 27

A license is merely a permit or privilege to do what otherwise

would be unlawful, and is not a contract between the
authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting
of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co.,
Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent
or irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as

Since timber licenses are not contracts, the non-impairment

clause, which reads:

cannot be invoked.
In the second place, even if it is to be assumed that the same
are contracts, the instant case does not involve a law or even
an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the nonimpairment clause cannot as yet be invoked. Nevertheless,
granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such
as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the
right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare. In
Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New
York, 29 quoted in Philippine American Life Insurance Co. vs.
Auditor General, 30 to wit:

147
Under our form of government the use of property and the
making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police
power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the
non-impairment clause could apply with respect to the prayer
to enjoin the respondent Secretary from receiving, accepting,
processing, renewing or approving new timber licenses for,
save in cases of renewal, no contract would have as of yet
existed in the other instances. Moreover, with respect to
renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition
is hereby GRANTED, and the challenged Order of respondent
Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their
complaint to implead as defendants the holders or grantees
of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.

148
G.R. Nos. 171947-48

December 18, 2008

METROPOLITAN
MANILA
DEVELOPMENT
AUTHORITY,
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS,1
DEPARTMENT OF HEALTH, DEPARTMENT OF AGRICULTURE,
DEPARTMENT
OF
PUBLIC
WORKS
AND
HIGHWAYS,
DEPARTMENT OF BUDGET AND MANAGEMENT, PHILIPPINE
COAST GUARD, PHILIPPINE NATIONAL POLICE MARITIME
GROUP, and DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, petitioners,
vs.
CONCERNED RESIDENTS OF MANILA BAY, represented and
joined by DIVINA V. ILAS, SABINIANO ALBARRACIN, MANUEL
SANTOS, JR., DINAH DELA PEA, PAUL DENNIS QUINTERO,
MA. VICTORIA LLENOS, DONNA CALOZA, FATIMA QUITAIN,
VENICE SEGARRA, FRITZIE TANGKIA, SARAH JOELLE LINTAG,
HANNIBAL AUGUSTUS BOBIS, FELIMON SANTIAGUEL, and
JAIME AGUSTIN R. OPOSA, respondents.
DECISION
VELASCO, JR., J.:
The need to address environmental pollution, as a cause of
climate change, has of late gained the attention of the
international community. Media have finally trained their
sights on the ill effects of pollution, the destruction of forests
and other critical habitats, oil spills, and the unabated
improper disposal of garbage. And rightly so, for the
magnitude of environmental destruction is now on a scale
few ever foresaw and the wound no longer simply heals by
itself.2 But amidst hard evidence and clear signs of a climate
crisis that need bold action, the voice of cynicism, naysayers,
and procrastinators can still be heard.
This case turns on government agencies and their officers
who, by the nature of their respective offices or by direct
statutory command, are tasked to protect and preserve, at
the first instance, our internal waters, rivers, shores, and

seas polluted by human activities. To most of these agencies

and their official complement, the pollution menace does not
seem to carry the high national priority it deserves, if their
track records are to be the norm. Their cavalier attitude
towards solving, if not mitigating, the environmental pollution
problem, is a sad commentary on bureaucratic efficiency and
commitment.
At the core of the case is the Manila Bay, a place with a
proud historic past, once brimming with marine life and, for
so many decades in the past, a spot for different contact
recreation activities, but now a dirty and slowly dying
expanse mainly because of the abject official indifference of
people and institutions that could have otherwise made a
difference.
This case started when, on January 29, 1999, respondents
Concerned Residents of Manila Bay filed a complaint before
the Regional Trial Court (RTC) in Imus, Cavite against several
government agencies, among them the petitioners, for the
cleanup, rehabilitation, and protection of the Manila Bay.
Raffled to Branch 20 and docketed as Civil Case No. 1851-99
of the RTC, the complaint alleged that the water quality of
the Manila Bay had fallen way below the allowable standards
set by law, specifically Presidential Decree No. (PD) 1152 or
the Philippine Environment Code. This environmental
aberration, the complaint stated, stemmed from:
x x x [The] reckless, wholesale, accumulated and ongoing
acts of omission or commission [of the defendants] resulting
in the clear and present danger to public health and in the
depletion and contamination of the marine life of Manila Bay,
[for which reason] ALL defendants must be held jointly and/or
solidarily liable and be collectively ordered to clean up Manila
Bay and to restore its water quality to class B waters fit for
swimming, skin-diving, and other forms of contact
recreation.3

149
In their individual causes of action, respondents alleged that
the continued neglect of petitioners in abating the pollution
of the Manila Bay constitutes a violation of, among others:
(1) Respondents constitutional right to life, health, and a
balanced ecology;
(2) The Environment Code (PD 1152);
(3) The Pollution Control Law (PD 984);
(4) The Water Code (PD 1067);
(5) The Sanitation Code (PD 856);
(6) The Illegal Disposal of Wastes Decree (PD 825);
(7) The Marine Pollution Law (PD 979);

different beaches around the Manila Bay showed that the

amount of fecal coliform content ranged from 50,000 to
80,000 most probable number (MPN)/ml when what DENR
Administrative Order No. 34-90 prescribed as a safe level for
bathing and other forms of contact recreational activities, or
the "SB" level, is one not exceeding 200 MPN/100 ml.4
Rebecca de Vera, for Metropolitan Waterworks and Sewerage
System (MWSS) and in behalf of other petitioners, testified
about the MWSS efforts to reduce pollution along the Manila
Bay through the Manila Second Sewerage Project. For its
part, the Philippine Ports Authority (PPA) presented, as part of
its evidence, its memorandum circulars on the study being
conducted on ship-generated waste treatment and disposal,
and its Linis Dagat (Clean the Ocean) project for the cleaning
of wastes accumulated or washed to shore.
The RTC Ordered Petitioners to Clean Up and Rehabilitate
Manila Bay

(8) Executive Order No. 192;

(9) The Toxic and Hazardous Wastes Law (Republic Act No.
6969);
(10) Civil Code provisions on nuisance and human relations;
(11) The Trust Doctrine and the Principle of Guardianship; and
(12) International Law
Inter alia, respondents, as plaintiffs a quo, prayed that
petitioners be ordered to clean the Manila Bay and submit to
the RTC a concerted concrete plan of action for the purpose.
The trial of the case started off with a hearing at the Manila
Yacht Club followed by an ocular inspection of the Manila Bay.
Renato T. Cruz, the Chief of the Water Quality Management
Section, Environmental Management Bureau, Department of
Environment and Natural Resources (DENR), testifying for
petitioners, stated that water samples collected from

On September 13, 2002, the RTC rendered a Decision5 in

favor of respondents. The dispositive portion reads:
WHEREFORE, finding merit in the complaint, judgment is
hereby rendered ordering the abovenamed defendantgovernment agencies, jointly and solidarily, to clean up and
rehabilitate Manila Bay and restore its waters to SB
classification to make it fit for swimming, skin-diving and
other forms of contact recreation. To attain this, defendantagencies, with defendant DENR as the lead agency, are
directed, within six (6) months from receipt hereof, to act and
perform their respective duties by devising a consolidated,
coordinated and concerted scheme of action for the
rehabilitation and restoration of the bay.
In particular:
Defendant MWSS is directed to install, operate and maintain
adequate [sewerage] treatment facilities in strategic places
under its jurisdiction and increase their capacities.

150
Defendant LWUA, to see to it that the water districts under its
wings, provide, construct and operate sewage facilities for
the proper disposal of waste.
Defendant DENR, which is the lead agency in cleaning up
Manila Bay, to install, operate and maintain waste facilities to
rid the bay of toxic and hazardous substances.
Defendant PPA, to prevent and also to treat the discharge not
only of ship-generated wastes but also of other solid and
liquid wastes from docking vessels that contribute to the
pollution of the bay.

to have proper facilities for the treatment and disposal of

fecal sludge and sewage coming from septic tanks.
Defendant DECS, to inculcate in the minds and hearts of the
people through education the importance of preserving and
protecting the environment.
Defendant Philippine Coast Guard and the PNP Maritime
Group, to protect at all costs the Manila Bay from all forms of
illegal fishing.
No pronouncement as to damages and costs.
SO ORDERED.

Defendant MMDA, to establish, operate and maintain an

adequate and appropriate sanitary landfill and/or adequate
solid waste and liquid disposal as well as other alternative
garbage disposal system such as re-use or recycling of
wastes.
Defendant DA, through the Bureau of Fisheries and Aquatic
Resources, to revitalize the marine life in Manila Bay and
restock its waters with indigenous fish and other aquatic
animals.
Defendant DBM, to provide and set aside an adequate
budget solely for the purpose of cleaning up and
rehabilitation of Manila Bay.
Defendant DPWH, to remove and demolish structures and
other nuisances that obstruct the free flow of waters to the
bay. These nuisances discharge solid and liquid wastes which
eventually end up in Manila Bay. As the construction and
engineering arm of the government, DPWH is ordered to
actively participate in removing debris, such as carcass of
sunken vessels, and other non-biodegradable garbage in the
bay.
Defendant DOH, to closely supervise and monitor the
operations of septic and sludge companies and require them

The MWSS, Local Water Utilities Administration (LWUA), and

PPA filed before the Court of Appeals (CA) individual Notices
of Appeal which were eventually consolidated and docketed
as CA-G.R. CV No. 76528.
On the other hand, the DENR, Department of Public Works
and Highways (DPWH), Metropolitan Manila Development
Authority (MMDA), Philippine Coast Guard (PCG), Philippine
National Police (PNP) Maritime Group, and five other
executive departments and agencies filed directly with this
Court a petition for review under Rule 45. The Court, in a
Resolution of December 9, 2002, sent the said petition to the
CA for consolidation with the consolidated appeals of MWSS,
LWUA, and PPA, docketed as CA-G.R. SP No. 74944.
Petitioners, before the CA, were one in arguing in the main
that the pertinent provisions of the Environment Code (PD
1152) relate only to the cleaning of specific pollution
incidents and do not cover cleaning in general. And apart
from raising concerns about the lack of funds appropriated
for cleaning purposes, petitioners also asserted that the
cleaning of the Manila Bay is not a ministerial act which can
be compelled by mandamus.
The CA Sustained the RTC

151
By a Decision6 of September 28, 2005, the CA denied
petitioners appeal and affirmed the Decision of the RTC in
toto, stressing that the trial courts decision did not require
petitioners to do tasks outside of their usual basic functions
under existing laws.7
Petitioners are now before this Court praying for the
allowance of their Rule 45 petition on the following ground
and supporting arguments:
THE [CA] DECIDED A QUESTION OF SUBSTANCE NOT
HERETOFORE PASSED UPON BY THE HONORABLE COURT, I.E.,
IT AFFIRMED THE TRIAL COURTS DECISION DECLARING THAT
SECTION 20 OF [PD] 1152 REQUIRES CONCERNED
GOVERNMENT AGENCIES TO REMOVE ALL POLLUTANTS
SPILLED AND DISCHARGED IN THE WATER SUCH AS FECAL
COLIFORMS.
ARGUMENTS

On August 12, 2008, the Court conducted and heard the

parties on oral arguments.
Our Ruling
We shall first dwell on the propriety of the issuance of
mandamus under the premises.
The Cleaning or Rehabilitation of Manila Bay
Can be Compelled by Mandamus
Generally, the writ of mandamus lies to require the execution
of a ministerial duty.8 A ministerial duty is one that "requires
neither the exercise of official discretion nor judgment."9 It
connotes an act in which nothing is left to the discretion of
the person executing it. It is a "simple, definite duty arising
under conditions admitted or proved to exist and imposed by
law."10 Mandamus is available to compel action, when
refused, on matters involving discretion, but not to direct the
exercise of judgment or discretion one way or the other.

I
[SECTIONS] 17 AND 20 OF [PD] 1152 RELATE ONLY TO THE
CLEANING OF SPECIFIC POLLUTION INCIDENTS AND [DO] NOT
COVER CLEANING IN GENERAL
II
THE CLEANING OR REHABILITATION OF THE MANILA BAY IS
NOT A MINISTERIAL ACT OF PETITIONERS THAT CAN BE
COMPELLED BY MANDAMUS.
The issues before us are two-fold. First, do Sections 17 and
20 of PD 1152 under the headings, Upgrading of Water
Quality and Clean-up Operations, envisage a cleanup in
general or are they limited only to the cleanup of specific
pollution incidents? And second, can petitioners be
compelled by mandamus to clean up and rehabilitate the
Manila Bay?

Petitioners maintain that the MMDAs duty to take measures

and maintain adequate solid waste and liquid disposal
systems necessarily involves policy evaluation and the
exercise of judgment on the part of the agency concerned.
They argue that the MMDA, in carrying out its mandate, has
to make decisions, including choosing where a landfill should
be located by undertaking feasibility studies and cost
estimates, all of which entail the exercise of discretion.
Respondents, on the other hand, counter that the statutory
command is clear and that petitioners duty to comply with
and act according to the clear mandate of the law does not
require the exercise of discretion. According to respondents,
petitioners, the MMDA in particular, are without discretion, for
example, to choose which bodies of water they are to clean
up, or which discharge or spill they are to contain. By the
same token, respondents maintain that petitioners are bereft
of discretion on whether or not to alleviate the problem of

152
solid and liquid waste disposal; in other words, it is the
MMDAs ministerial duty to attend to such services.
We agree with respondents.
First off, we wish to state that petitioners obligation to
perform their duties as defined by law, on one hand, and how
they are to carry out such duties, on the other, are two
different concepts. While the implementation of the MMDAs
mandated tasks may entail a decision-making process, the
enforcement of the law or the very act of doing what the law
exacts to be done is ministerial in nature and may be
compelled by mandamus. We said so in Social Justice Society
v. Atienza11 in which the Court directed the City of Manila to
enforce, as a matter of ministerial duty, its Ordinance No.
8027 directing the three big local oil players to cease and
desist from operating their business in the so-called
"Pandacan Terminals" within six months from the effectivity
of the ordinance. But to illustrate with respect to the instant
case, the MMDAs duty to put up an adequate and
appropriate sanitary landfill and solid waste and liquid
disposal as well as other alternative garbage disposal
systems is ministerial, its duty being a statutory imposition.
The MMDAs duty in this regard is spelled out in Sec. 3(c) of
Republic Act No. (RA) 7924 creating the MMDA. This section
defines and delineates the scope of the MMDAs waste
disposal services to include:
Solid waste disposal and management which include
formulation and implementation of policies, standards,
programs and projects for proper and sanitary waste
disposal. It shall likewise include the establishment and
operation of sanitary land fill and related facilities and the
implementation of other alternative programs intended to
reduce, reuse and recycle solid waste. (Emphasis added.)
The MMDA is duty-bound to comply with Sec. 41 of the
Ecological Solid Waste Management Act (RA 9003) which
prescribes the minimum criteria for the establishment of
sanitary landfills and Sec. 42 which provides the minimum

operating requirements that each site operator shall maintain

in the operation of a sanitary landfill. Complementing Sec. 41
are Secs. 36 and 37 of RA 9003,12 enjoining the MMDA and
local government units, among others, after the effectivity of
the law on February 15, 2001, from using and operating open
dumps for solid waste and disallowing, five years after such
effectivity, the use of controlled dumps.
The MMDAs duty in the area of solid waste disposal, as may
be noted, is set forth not only in the Environment Code (PD
1152) and RA 9003, but in its charter as well. This duty of
putting up a proper waste disposal system cannot be
characterized as discretionary, for, as earlier stated,
discretion presupposes the power or right given by law to
public functionaries to act officially according to their
judgment or conscience.13 A discretionary duty is one that
"allows a person to exercise judgment and choose to perform
or not to perform."14 Any suggestion that the MMDA has the
option whether or not to perform its solid waste disposalrelated duties ought to be dismissed for want of legal basis.
A perusal of other petitioners respective charters or like
enabling statutes and pertinent laws would yield this
conclusion: these government agencies are enjoined, as a
matter of statutory obligation, to perform certain functions
relating directly or indirectly to the cleanup, rehabilitation,
protection, and preservation of the Manila Bay. They are
precluded from choosing not to perform these duties.
Consider:
(1) The DENR, under Executive Order No. (EO) 192,15 is the
primary
agency
responsible
for
the
conservation,
management, development, and proper use of the countrys
environment and natural resources. Sec. 19 of the Philippine
Clean Water Act of 2004 (RA 9275), on the other hand,
designates the DENR as the primary government agency
responsible for its enforcement and implementation, more
particularly over all aspects of water quality management.
On water pollution, the DENR, under the Acts Sec. 19(k),
exercises jurisdiction "over all aspects of water pollution,

153
determine[s] its location, magnitude, extent, severity, causes
and effects and other pertinent information on pollution, and
[takes] measures, using available methods and technologies,
to prevent and abate such pollution."
The DENR, under RA 9275, is also tasked to prepare a
National Water Quality Status Report, an Integrated Water
Quality Management Framework, and a 10-year Water
Quality Management Area Action Plan which is nationwide in
scope covering the Manila Bay and adjoining areas. Sec. 19
of RA 9275 provides:

the MMDA, the DENR should be made to accomplish the

tasks assigned to it under RA 9275.
Parenthetically, during the oral arguments, the DENR
Secretary manifested that the DENR, with the assistance of
and in partnership with various government agencies and
non-government organizations, has completed, as of
December 2005, the final draft of a comprehensive action
plan with estimated budget and time frame, denominated as
Operation Plan for the Manila Bay Coastal Strategy, for the
rehabilitation, restoration, and rehabilitation of the Manila
Bay.

Sec. 19 Lead Agency.The [DENR] shall be the primary

government agency responsible for the implementation and
enforcement of this Act x x x unless otherwise provided
herein. As such, it shall have the following functions, powers
and responsibilities:

The completion of the said action plan and even the

implementation of some of its phases should more than ever
prod the concerned agencies to fast track what are assigned
them under existing laws.

a) Prepare a National Water Quality Status report within

twenty-four (24) months from the effectivity of this Act:
Provided, That the Department shall thereafter review or
revise and publish annually, or as the need arises, said
report;

(2) The MWSS, under Sec. 3 of RA 6234,18 is vested with

jurisdiction, supervision, and control over all waterworks and
sewerage systems in the territory comprising what is now the
cities of Metro Manila and several towns of the provinces of
Rizal and Cavite, and charged with the duty:

b) Prepare an Integrated Water Quality Management

Framework within twelve (12) months following the
completion of the status report;

(g) To construct, maintain, and operate such sanitary

sewerages as may be necessary for the proper sanitation and
other uses of the cities and towns comprising the System; x x
x

c) Prepare a ten (10) year Water Quality Management Area

Action Plan within 12 months following the completion of the
framework for each designated water management area.
Such action plan shall be reviewed by the water quality
management area governing board every five (5) years or as
need arises.
The DENR has prepared the status report for the period 2001
to 2005 and is in the process of completing the preparation
of the Integrated Water Quality Management Framework.16
Within twelve (12) months thereafter, it has to submit a final
Water Quality Management Area Action Plan.17 Again, like

(3) The LWUA under PD 198 has the power of supervision and
control over local water districts. It can prescribe the
minimum standards and regulations for the operations of
these districts and shall monitor and evaluate local water
standards. The LWUA can direct these districts to construct,
operate, and furnish facilities and services for the collection,
treatment, and disposal of sewerage, waste, and storm
water. Additionally, under RA 9275, the LWUA, as attached
agency of the DPWH, is tasked with providing sewerage and
sanitation facilities, inclusive of the setting up of efficient and
safe collection, treatment, and sewage disposal system in the

154
different parts of the country.19 In relation to the instant
petition, the LWUA is mandated to provide sewerage and
sanitation facilities in Laguna, Cavite, Bulacan, Pampanga,
and Bataan to prevent pollution in the Manila Bay.
(4) The Department of Agriculture (DA), pursuant to the
Administrative Code of 1987 (EO 292),20 is designated as the
agency tasked to promulgate and enforce all laws and
issuances respecting the conservation and proper utilization
of agricultural and fishery resources. Furthermore, the DA,
under the Philippine Fisheries Code of 1998 (RA 8550), is, in
coordination with local government units (LGUs) and other
concerned sectors, in charge of establishing a monitoring,
control, and surveillance system to ensure that fisheries and
aquatic resources in Philippine waters are judiciously utilized
and managed on a sustainable basis.21 Likewise under RA
9275, the DA is charged with coordinating with the PCG and
DENR for the enforcement of water quality standards in
marine waters.22 More specifically, its Bureau of Fisheries
and Aquatic Resources (BFAR) under Sec. 22(c) of RA 9275
shall primarily be responsible for the prevention and control
of water pollution for the development, management, and
conservation of the fisheries and aquatic resources.
(5) The DPWH, as the engineering and construction arm of
the national government, is tasked under EO 29223 to
provide integrated planning, design, and construction
services for, among others, flood control and water resource
development systems in accordance
with
national
development objectives and approved government plans and
specifications.
In Metro Manila, however, the MMDA is authorized by Sec.
3(d), RA 7924 to perform metro-wide services relating to
"flood control and sewerage management which include the
formulation and implementation of policies, standards,
programs and projects for an integrated flood control,
drainage and sewerage system."

On July 9, 2002, a Memorandum of Agreement was entered

into between the DPWH and MMDA, whereby MMDA was
made the agency primarily responsible for flood control in
Metro Manila. For the rest of the country, DPWH shall remain
as the implementing agency for flood control services. The
mandate of the MMDA and DPWH on flood control and
drainage services shall include the removal of structures,
constructions, and encroachments built along rivers,
waterways, and esteros (drainages) in violation of RA 7279,
PD 1067, and other pertinent laws.
(6) The PCG, in accordance with Sec. 5(p) of PD 601, or the
Revised Coast Guard Law of 1974, and Sec. 6 of PD 979,24 or
the Marine Pollution Decree of 1976, shall have the primary
responsibility of enforcing laws, rules, and regulations
governing marine pollution within the territorial waters of the
Philippines. It shall promulgate its own rules and regulations
in accordance with the national rules and policies set by the
National Pollution Control Commission upon consultation with
the latter for the effective implementation and enforcement
of PD 979. It shall, under Sec. 4 of the law, apprehend
violators who:
a. discharge, dump x x x harmful substances from or out of
any ship, vessel, barge, or any other floating craft, or other
man-made structures at sea, by any method, means or
manner, into or upon the territorial and inland navigable
waters of the Philippines;
b. throw, discharge or deposit, dump, or cause, suffer or
procure to be thrown, discharged, or deposited either from or
out of any ship, barge, or other floating craft or vessel of any
kind, or from the shore, wharf, manufacturing establishment,
or mill of any kind, any refuse matter of any kind or
description whatever other than that flowing from streets and
sewers and passing therefrom in a liquid state into tributary
of any navigable water from which the same shall float or be
washed into such navigable water; and

155
c. deposit x x x material of any kind in any place on the bank
of any navigable water or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed
into such navigable water, either by ordinary or high tides, or
by storms or floods, or otherwise, whereby navigation shall or
may be impeded or obstructed or increase the level of
pollution of such water.
(7) When RA 6975 or the Department of the Interior and
Local Government (DILG) Act of 1990 was signed into law on
December 13, 1990, the PNP Maritime Group was tasked to
"perform all police functions over the Philippine territorial
waters and rivers." Under Sec. 86, RA 6975, the police
functions of the PCG shall be taken over by the PNP when the
latter acquires the capability to perform such functions. Since
the PNP Maritime Group has not yet attained the capability to
assume and perform the police functions of PCG over marine
pollution, the PCG and PNP Maritime Group shall coordinate
with regard to the enforcement of laws, rules, and regulations
governing marine pollution within the territorial waters of the
Philippines. This was made clear in Sec. 124, RA 8550 or the
Philippine Fisheries Code of 1998, in which both the PCG and
PNP Maritime Group were authorized to enforce said law and
other fishery laws, rules, and regulations.25
(8) In accordance with Sec. 2 of EO 513, the PPA is mandated
"to establish, develop, regulate, manage and operate a
rationalized national port system in support of trade and
national development."26 Moreover, Sec. 6-c of EO 513
states that the PPA has police authority within the ports
administered by it as may be necessary to carry out its
powers and functions and attain its purposes and objectives,
without prejudice to the exercise of the functions of the
Bureau of Customs and other law enforcement bodies within
the area. Such police authority shall include the following:

b) To regulate the entry to, exit from, and movement within

the port, of persons and vehicles, as well as movement
within the port of watercraft.27
Lastly, as a member of the International Marine Organization
and a signatory to the International Convention for the
Prevention of Pollution from Ships, as amended by MARPOL
73/78,28 the Philippines, through the PPA, must ensure the
provision of adequate reception facilities at ports and
terminals for the reception of sewage from the ships docking
in Philippine ports. Thus, the PPA is tasked to adopt such
measures as are necessary to prevent the discharge and
dumping of solid and liquid wastes and other ship-generated
wastes into the Manila Bay waters from vessels docked at
ports and apprehend the violators. When the vessels are not
docked at ports but within Philippine territorial waters, it is
the PCG and PNP Maritime Group that have jurisdiction over
said vessels.
(9) The MMDA, as earlier indicated, is duty-bound to put up
and maintain adequate sanitary landfill and solid waste and
liquid disposal system as well as other alternative garbage
disposal systems. It is primarily responsible for the
implementation and enforcement of the provisions of RA
9003, which would necessary include its penal provisions,
within its area of jurisdiction.29
Among the prohibited acts under Sec. 48, Chapter VI of RA
9003 that are frequently violated are dumping of waste
matters in public places, such as roads, canals or esteros,
open burning of solid waste, squatting in open dumps and
landfills, open dumping, burying of biodegradable or nonbiodegradable materials in flood-prone areas, establishment
or operation of open dumps as enjoined in RA 9003, and
operation of waste management facilities without an
environmental compliance certificate.

xxxx
Under Sec. 28 of the Urban Development and Housing Act of
1992 (RA 7279), eviction or demolition may be allowed
"when persons or entities occupy danger areas such as

156
esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places such as
sidewalks, roads, parks and playgrounds." The MMDA, as lead
agency, in coordination with the DPWH, LGUs, and concerned
agencies, can dismantle and remove all structures,
constructions, and other encroachments built in breach of RA
7279 and other pertinent laws along the rivers, waterways,
and esteros in Metro Manila. With respect to rivers,
waterways, and esteros in Bulacan, Bataan, Pampanga,
Cavite, and Laguna that discharge wastewater directly or
eventually into the Manila Bay, the DILG shall direct the
concerned LGUs to implement the demolition and removal of
such structures, constructions, and other encroachments
built in violation of RA 7279 and other applicable laws in
coordination with the DPWH and concerned agencies.
(10) The Department of Health (DOH), under Article 76 of PD
1067 (the Water Code), is tasked to promulgate rules and
regulations for the establishment of waste disposal areas that
affect the source of a water supply or a reservoir for domestic
or municipal use. And under Sec. 8 of RA 9275, the DOH, in
coordination with the DENR, DPWH, and other concerned
agencies, shall formulate guidelines and standards for the
collection, treatment, and disposal of sewage and the
establishment and operation of a centralized sewage
treatment system. In areas not considered as highly
urbanized cities, septage or a mix sewerage-septage
management system shall be employed.
In accordance with Sec. 7230 of PD 856, the Code of
Sanitation of the Philippines, and Sec. 5.1.131 of Chapter XVII
of its implementing rules, the DOH is also ordered to ensure
the regulation and monitoring of the proper disposal of
wastes by private sludge companies through the strict
enforcement of the requirement to obtain an environmental
sanitation clearance of sludge collection treatment and
disposal before these companies are issued their
environmental sanitation permit.

(11) The Department of Education (DepEd), under the

Philippine Environment Code (PD 1152), is mandated to
integrate subjects on environmental education in its school
curricula at all levels.32 Under Sec. 118 of RA 8550, the
DepEd, in collaboration with the DA, Commission on Higher
Education, and Philippine Information Agency, shall launch
and pursue a nationwide educational campaign to promote
the development, management, conservation, and proper
use of the environment. Under the Ecological Solid Waste
Management Act (RA 9003), on the other hand, it is directed
to strengthen the integration of environmental concerns in
school curricula at all levels, with an emphasis on waste
management principles.33
(12) The Department of Budget and Management (DBM) is
tasked under Sec. 2, Title XVII of the Administrative Code of
1987 to ensure the efficient and sound utilization of
government funds and revenues so as to effectively achieve
the countrys development objectives.34
One of the countrys development objectives is enshrined in
RA 9275 or the Philippine Clean Water Act of 2004. This law
stresses that the State shall pursue a policy of economic
growth in a manner consistent with the protection,
preservation, and revival of the quality of our fresh, brackish,
and marine waters. It also provides that it is the policy of the
government, among others, to streamline processes and
procedures in the prevention, control, and abatement of
pollution mechanisms for the protection of water resources;
to promote environmental strategies and use of appropriate
economic instruments and of control mechanisms for the
protection of water resources; to formulate a holistic national
program of water quality management that recognizes that
issues related to this management cannot be separated from
concerns about water sources and ecological protection,
water supply, public health, and quality of life; and to provide
a comprehensive management program for water pollution
focusing on pollution prevention.

157
Thus, the DBM shall then endeavor to provide an adequate
budget to attain the noble objectives of RA 9275 in line with
the countrys development objectives.
All told, the aforementioned enabling laws and issuances are
in themselves clear, categorical, and complete as to what are
the obligations and mandate of each agency/petitioner under
the law. We need not belabor the issue that their tasks
include the cleanup of the Manila Bay.
Now, as to the crux of the petition. Do Secs. 17 and 20 of the
Environment Code encompass the cleanup of water pollution
in general, not just specific pollution incidents?
Secs. 17 and 20 of the Environment Code
Include Cleaning in General
The disputed sections are quoted as follows:
Section 17. Upgrading of Water Quality.Where the quality of
water has deteriorated to a degree where its state will
adversely affect its best usage, the government agencies
concerned shall take such measures as may be necessary to
upgrade the quality of such water to meet the prescribed
water quality standards.
Section 20. Clean-up Operations.It shall be the
responsibility of the polluter to contain, remove and clean-up
water pollution incidents at his own expense. In case of his
failure to do so, the government agencies concerned shall
undertake containment, removal and clean-up operations
and expenses incurred in said operations shall be charged
against the persons and/or entities responsible for such
pollution.
When the Clean Water Act (RA 9275) took effect, its Sec. 16
on the subject, o, amended the counterpart provision (Sec.
20) of the Environment Code (PD 1152). Sec. 17 of PD 1152
continues, however, to be operational.

The amendatory Sec. 16 of RA 9275 reads:

SEC.
16.
Cleanup
Operations.Notwithstanding
the
provisions of Sections 15 and 26 hereof, any person who
causes pollution in or pollutes water bodies in excess of the
applicable and prevailing standards shall be responsible to
contain, remove and clean up any pollution incident at his
own expense to the extent that the same water bodies have
been rendered unfit for utilization and beneficial use:
Provided, That in the event emergency cleanup operations
are necessary and the polluter fails to immediately undertake
the same, the [DENR] in coordination with other government
agencies concerned, shall undertake containment, removal
and cleanup operations. Expenses incurred in said operations
shall be reimbursed by the persons found to have caused
such pollution under proper administrative determination x x
x. Reimbursements of the cost incurred shall be made to the
Water Quality Management Fund or to such other funds
where said disbursements were sourced.
As may be noted, the amendment
Environment Code is more apparent
amendment, insofar as it is relevant
consists in the designation of the DENR
cleanup operations.

to Sec. 20 of the
than real since the
to this case, merely
as lead agency in the

Petitioners contend at every turn that Secs. 17 and 20 of the

Environment Code concern themselves only with the matter
of cleaning up in specific pollution incidents, as opposed to
cleanup in general. They aver that the twin provisions would
have to be read alongside the succeeding Sec. 62(g) and (h),
which defines the terms "cleanup operations" and "accidental
spills," as follows:
g. Clean-up Operations [refer] to activities conducted in
removing the pollutants discharged or spilled in water to
restore it to pre-spill condition.

158
h. Accidental Spills [refer] to spills of oil or other hazardous
substances in water that result from accidents such as
collisions and groundings.
Petitioners proffer the argument that Secs. 17 and 20 of PD
1152 merely direct the government agencies concerned to
undertake containment, removal, and cleaning operations of
a specific polluted portion or portions of the body of water
concerned. They maintain that the application of said Sec. 20
is limited only to "water pollution incidents," which are
situations that presuppose the occurrence of specific,
isolated pollution events requiring the corresponding
containment, removal, and cleaning operations. Pushing the
point further, they argue that the aforequoted Sec. 62(g)
requires "cleanup operations" to restore the body of water to
pre-spill condition, which means that there must have been a
specific incident of either intentional or accidental spillage of
oil or other hazardous substances, as mentioned in Sec.
62(h).
As a counterpoint, respondents argue that petitioners
erroneously read Sec. 62(g) as delimiting the application of
Sec. 20 to the containment, removal, and cleanup operations
for accidental spills only. Contrary to petitioners posture,
respondents assert that Sec. 62(g), in fact, even expanded
the coverage of Sec. 20. Respondents explain that without its
Sec. 62(g), PD 1152 may have indeed covered only pollution
accumulating from the day-to-day operations of businesses
around the Manila Bay and other sources of pollution that
slowly accumulated in the bay. Respondents, however,
emphasize that Sec. 62(g), far from being a delimiting
provision, in fact even enlarged the operational scope of Sec.
20, by including accidental spills as among the water
pollution incidents contemplated in Sec. 17 in relation to Sec.
20 of PD 1152.
To respondents, petitioners parochial view on environmental
issues, coupled with their narrow reading of their respective
mandated roles, has contributed to the worsening water
quality of the Manila Bay. Assuming, respondents assert, that

petitioners are correct in saying that the cleanup coverage of

Sec. 20 of PD 1152 is constricted by the definition of the
phrase "cleanup operations" embodied in Sec. 62(g), Sec. 17
is not hobbled by such limiting definition. As pointed out, the
phrases "cleanup operations" and "accidental spills" do not
appear in said Sec. 17, not even in the chapter where said
section is found.
Respondents are correct. For one thing, said Sec. 17 does not
in any way state that the government agencies concerned
ought to confine themselves to the containment, removal,
and cleaning operations when a specific pollution incident
occurs. On the contrary, Sec. 17 requires them to act even in
the absence of a specific pollution incident, as long as water
quality "has deteriorated to a degree where its state will
adversely affect its best usage." This section, to stress,
commands
concerned
government
agencies,
when
appropriate, "to take such measures as may be necessary to
meet the prescribed water quality standards." In fine, the
underlying duty to upgrade the quality of water is not
conditional on the occurrence of any pollution incident.
For another, a perusal of Sec. 20 of the Environment Code, as
couched, indicates that it is properly applicable to a specific
situation in which the pollution is caused by polluters who fail
to clean up the mess they left behind. In such instance, the
concerned government agencies shall undertake the cleanup
work for the polluters account. Petitioners assertion, that
they have to perform cleanup operations in the Manila Bay
only when there is a water pollution incident and the erring
polluters do not undertake the containment, removal, and
cleanup operations, is quite off mark. As earlier discussed,
the complementary Sec. 17 of the Environment Code comes
into play and the specific duties of the agencies to clean up
come in even if there are no pollution incidents staring at
them. Petitioners, thus, cannot plausibly invoke and hide
behind Sec. 20 of PD 1152 or Sec. 16 of RA 9275 on the
pretext that their cleanup mandate depends on the
happening of a specific pollution incident. In this regard, what
the CA said with respect to the impasse over Secs. 17 and 20

159
of PD 1152 is at once valid as it is practical. The appellate
court wrote: "PD 1152 aims to introduce a comprehensive
program of environmental protection and management. This
is better served by making Secs. 17 & 20 of general
application rather than limiting them to specific pollution
incidents."35
Granting arguendo that petitioners position thus described
vis--vis the implementation of Sec. 20 is correct, they seem
to have overlooked the fact that the pollution of the Manila
Bay is of such magnitude and scope that it is well-nigh
impossible to draw the line between a specific and a general
pollution incident. And such impossibility extends to
pinpointing with reasonable certainty who the polluters are.
We note that Sec. 20 of PD 1152 mentions "water pollution
incidents" which may be caused by polluters in the waters of
the Manila Bay itself or by polluters in adjoining lands and in
water bodies or waterways that empty into the bay. Sec. 16
of RA 9275, on the other hand, specifically adverts to "any
person who causes pollution in or pollutes water bodies,"
which may refer to an individual or an establishment that
pollutes the land mass near the Manila Bay or the waterways,
such that the contaminants eventually end up in the bay. In
this situation, the water pollution incidents are so numerous
and involve nameless and faceless polluters that they can
validly be categorized as beyond the specific pollution
incident level.
Not to be ignored of course is the reality that the government
agencies concerned are so undermanned that it would be
almost impossible to apprehend the numerous polluters of
the Manila Bay. It may perhaps not be amiss to say that the
apprehension, if any, of the Manila Bay polluters has been
few and far between. Hence, practically nobody has been
required to contain, remove, or clean up a given water
pollution incident. In this kind of setting, it behooves the
Government to step in and undertake cleanup operations.
Thus, Sec. 16 of RA 9275, previously Sec. 20 of PD 1152,
covers for all intents and purposes a general cleanup
situation.

The cleanup and/or restoration of the Manila Bay is only an

aspect and the initial stage of the long-term solution. The
preservation of the water quality of the bay after the
rehabilitation process is as important as the cleaning phase.
It is imperative then that the wastes and contaminants found
in the rivers, inland bays, and other bodies of water be
stopped from reaching the Manila Bay. Otherwise, any
cleanup effort would just be a futile, cosmetic exercise, for, in
no time at all, the Manila Bay water quality would again
deteriorate below the ideal minimum standards set by PD
1152, RA 9275, and other relevant laws. It thus behooves the
Court to put the heads of the petitioner-department-agencies
and the bureaus and offices under them on continuing notice
about, and to enjoin them to perform, their mandates and
duties towards cleaning up the Manila Bay and preserving the
quality of its water to the ideal level. Under what other
judicial discipline describes as "continuing mandamus,"36
the Court may, under extraordinary circumstances, issue
directives with the end in view of ensuring that its decision
would not be set to naught by administrative inaction or
indifference. In India, the doctrine of continuing mandamus
was used to enforce directives of the court to clean up the
length of the Ganges River from industrial and municipal
pollution.37
The Court can take judicial notice of the presence of shanties
and other unauthorized structures which do not have septic
tanks along the Pasig-Marikina-San Juan Rivers, the National
Capital Region (NCR) (Paraaque-Zapote, Las Pias) Rivers,
the
Navotas-Malabon-Tullahan-Tenejeros
Rivers,
the
Meycuayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay,
and other minor rivers and connecting waterways, river
banks, and esteros which discharge their waters, with all the
accompanying filth, dirt, and garbage, into the major rivers
and eventually the Manila Bay. If there is one factor
responsible for the pollution of the major river systems and
the Manila Bay, these unauthorized structures would be on
top of the list. And if the issue of illegal or unauthorized

160
structures is not seriously addressed with sustained resolve,
then practically all efforts to cleanse these important bodies
of water would be for naught. The DENR Secretary said as
much.38
Giving urgent dimension to the necessity of removing these
illegal structures is Art. 51 of PD 1067 or the Water Code,39
which prohibits the building of structures within a given
length along banks of rivers and other waterways. Art. 51
reads:
The banks of rivers and streams and the shores of the seas
and lakes throughout their entire length and within a zone of
three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins, are subject to the easement of public use in
the interest of recreation, navigation, floatage, fishing and
salvage. No person shall be allowed to stay in this zone
longer than what is necessary for recreation, navigation,
floatage, fishing or salvage or to build structures of any kind.
(Emphasis added.)
Judicial notice may likewise be taken of factories and other
industrial establishments standing along or near the banks of
the Pasig River, other major rivers, and connecting
waterways. But while they may not be treated as
unauthorized constructions, some of these establishments
undoubtedly contribute to the pollution of the Pasig River and
waterways. The DILG and the concerned LGUs, have,
accordingly, the duty to see to it that non-complying
industrial establishments set up, within a reasonable period,
the necessary waste water treatment facilities and
infrastructure to prevent their industrial discharge, including
their sewage waters, from flowing into the Pasig River, other
major rivers, and connecting waterways. After such period,
non-complying establishments shall be shut down or asked to
transfer their operations.
At this juncture, and if only to dramatize the urgency of the
need for petitioners-agencies to comply with their statutory

tasks, we cite the Asian Development Bank-commissioned

study on the garbage problem in Metro Manila, the results of
which are embodied in the The Garbage Book. As there
reported, the garbage crisis in the metropolitan area is as
alarming as it is shocking. Some highlights of the report:
1. As early as 2003, three land-filled dumpsites in Metro
Manila - the Payatas, Catmon and Rodriquez dumpsites generate an alarming quantity of lead and leachate or liquid
run-off. Leachate are toxic liquids that flow along the surface
and seep into the earth and poison the surface and
groundwater that are used for drinking, aquatic life, and the
environment.
2. The high level of fecal coliform confirms the presence of a
large amount of human waste in the dump sites and
surrounding areas, which is presumably generated by
households that lack alternatives to sanitation. To say that
Manila Bay needs rehabilitation is an understatement.
3. Most of the deadly leachate, lead and other dangerous
contaminants and possibly strains of pathogens seeps
untreated into ground water and runs into the Marikina and
Pasig River systems and Manila Bay.40
Given the above perspective, sufficient sanitary landfills
should now more than ever be established as prescribed by
the Ecological Solid Waste Management Act (RA 9003).
Particular note should be taken of the blatant violations by
some LGUs and possibly the MMDA of Sec. 37, reproduced
below:
Sec. 37. Prohibition against the Use of Open Dumps for Solid
Waste.No open dumps shall be established and operated,
nor any practice or disposal of solid waste by any person,
including LGUs which [constitute] the use of open dumps for
solid waste, be allowed after the effectivity of this Act:
Provided, further that no controlled dumps shall be allowed
(5) years following the effectivity of this Act. (Emphasis
added.)

161
RA 9003 took effect on February 15, 2001 and the adverted
grace period of five (5) years which ended on February 21,
2006 has come and gone, but no single sanitary landfill
which strictly complies with the prescribed standards under
RA 9003 has yet been set up.
In addition, there are rampant and repeated violations of Sec.
48 of RA 9003, like littering, dumping of waste matters in
roads, canals, esteros, and other public places, operation of
open dumps, open burning of solid waste, and the like. Some
sludge companies which do not have proper disposal
facilities simply discharge sludge into the Metro Manila
sewerage system that ends up in the Manila Bay. Equally
unabated are violations of Sec. 27 of RA 9275, which enjoins
the pollution of water bodies, groundwater pollution, disposal
of infectious wastes from vessels, and unauthorized transport
or dumping into sea waters of sewage or solid waste and of
Secs. 4 and 102 of RA 8550 which proscribes the introduction
by human or machine of substances to the aquatic
environment including "dumping/disposal of waste and other
marine litters, discharge of petroleum or residual products of
petroleum of carbonaceous materials/substances [and other]
radioactive, noxious or harmful liquid, gaseous or solid
substances, from any water, land or air transport or other
human-made structure."
In the light of the ongoing environmental degradation, the
Court wishes to emphasize the extreme necessity for all
concerned executive departments and agencies to
immediately act and discharge their respective official duties
and obligations. Indeed, time is of the essence; hence, there
is a need to set timetables for the performance and
completion of the tasks, some of them as defined for them by
law and the nature of their respective offices and mandates.
The importance of the Manila Bay as a sea resource,
playground, and as a historical landmark cannot be overemphasized. It is not yet too late in the day to restore the
Manila Bay to its former splendor and bring back the plants

and sea life that once thrived in its blue waters. But the tasks
ahead, daunting as they may be, could only be accomplished
if those mandated, with the help and cooperation of all civicminded individuals, would put their minds to these tasks and
take responsibility. This means that the State, through
petitioners, has to take the lead in the preservation and
protection of the Manila Bay.
The era of delays, procrastination, and ad hoc measures is
over. Petitioners must transcend their limitations, real or
imaginary, and buckle down to work before the problem at
hand becomes unmanageable. Thus, we must reiterate that
different government agencies and instrumentalities cannot
shirk from their mandates; they must perform their basic
functions in cleaning up and rehabilitating the Manila Bay. We
are disturbed by petitioners hiding behind two untenable
claims: (1) that there ought to be a specific pollution incident
before they are required to act; and (2) that the cleanup of
the bay is a discretionary duty.
RA 9003 is a sweeping piece of legislation enacted to
radically transform and improve waste management. It
implements Sec. 16, Art. II of the 1987 Constitution, which
explicitly provides that the State shall protect and advance
the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.
So it was that in Oposa v. Factoran, Jr. the Court stated that
the right to a balanced and healthful ecology need not even
be written in the Constitution for it is assumed, like other civil
and political rights guaranteed in the Bill of Rights, to exist
from the inception of mankind and it is an issue of
transcendental
importance
with
intergenerational
implications.41 Even assuming the absence of a categorical
legal provision specifically prodding petitioners to clean up
the bay, they and the men and women representing them
cannot escape their obligation to future generations of
Filipinos to keep the waters of the Manila Bay clean and clear
as humanly as possible. Anything less would be a betrayal of
the trust reposed in them.

162
WHEREFORE, the petition is DENIED. The September 28,
2005 Decision of the CA in CA-G.R. CV No. 76528 and SP No.
74944 and the September 13, 2002 Decision of the RTC in
Civil Case No. 1851-99 are AFFIRMED but with
MODIFICATIONS in view of subsequent developments or
supervening events in the case. The fallo of the RTC Decision
shall now read:
WHEREFORE, judgment is hereby rendered ordering the
abovenamed defendant-government agencies to clean up,
rehabilitate, and preserve Manila Bay, and restore and
maintain its waters to SB level (Class B sea waters per Water
Classification Tables under DENR Administrative Order No. 34
[1990]) to make them fit for swimming, skin-diving, and other
forms of contact recreation.
In particular:
(1) Pursuant to Sec. 4 of EO 192, assigning the DENR as the
primary
agency
responsible
for
the
conservation,
management, development, and proper use of the countrys
environment and natural resources, and Sec. 19 of RA 9275,
designating the DENR as the primary government agency
responsible for its enforcement and implementation, the
DENR is directed to fully implement its Operational Plan for
the Manila Bay Coastal Strategy for the rehabilitation,
restoration, and conservation of the Manila Bay at the
earliest possible time. It is ordered to call regular
coordination
meetings
with
concerned
government
departments and agencies to ensure the successful
implementation of the aforesaid plan of action in accordance
with its indicated completion schedules.
(2) Pursuant to Title XII (Local Government) of the
Administrative Code of 1987 and Sec. 25 of the Local
Government Code of 1991,42 the DILG, in exercising the
Presidents power of general supervision and its duty to
promulgate guidelines in establishing waste management
programs under Sec. 43 of the Philippine Environment Code

(PD 1152), shall direct all LGUs in Metro Manila, Rizal,

Laguna, Cavite, Bulacan, Pampanga, and Bataan to inspect
all factories, commercial establishments, and private homes
along the banks of the major river systems in their respective
areas of jurisdiction, such as but not limited to the PasigMarikina-San Juan Rivers, the NCR (Paraaque-Zapote, Las
Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros Rivers,
the Meycauayan-Marilao-Obando (Bulacan) Rivers, the
Talisay (Bataan) River, the Imus (Cavite) River, the Laguna
De Bay, and other minor rivers and waterways that
eventually discharge water into the Manila Bay; and the
lands abutting the bay, to determine whether they have
wastewater treatment facilities or hygienic septic tanks as
prescribed by existing laws, ordinances, and rules and
regulations. If none be found, these LGUs shall be ordered to
require non-complying establishments and homes to set up
said facilities or septic tanks within a reasonable time to
prevent industrial wastes, sewage water, and human wastes
from flowing into these rivers, waterways, esteros, and the
Manila Bay, under pain of closure or imposition of fines and
other sanctions.
(3) As mandated by Sec. 8 of RA 9275,43 the MWSS is
directed to provide, install, operate, and maintain the
necessary adequate waste water treatment facilities in Metro
Manila, Rizal, and Cavite where needed at the earliest
possible time.
(4) Pursuant to RA 9275,44 the LWUA, through the local water
districts and in coordination with the DENR, is ordered to
provide, install, operate, and maintain sewerage and
sanitation facilities and the efficient and safe collection,
treatment, and disposal of sewage in the provinces of
Laguna, Cavite, Bulacan, Pampanga, and Bataan where
needed at the earliest possible time.
(5) Pursuant to Sec. 65 of RA 8550,45 the DA, through the
BFAR, is ordered to improve and restore the marine life of the
Manila Bay. It is also directed to assist the LGUs in Metro
Manila, Rizal, Cavite, Laguna, Bulacan, Pampanga, and

163
Bataan in developing, using recognized methods,
fisheries and aquatic resources in the Manila Bay.

the

(6) The PCG, pursuant to Secs. 4 and 6 of PD 979, and the

PNP Maritime Group, in accordance with Sec. 124 of RA 8550,
in coordination with each other, shall apprehend violators of
PD 979, RA 8550, and other existing laws and regulations
designed to prevent marine pollution in the Manila Bay.
(7) Pursuant to Secs. 2 and 6-c of EO 51346 and the
International Convention for the Prevention of Pollution from
Ships, the PPA is ordered to immediately adopt such
measures to prevent the discharge and dumping of solid and
liquid wastes and other ship-generated wastes into the
Manila Bay waters from vessels docked at ports and
apprehend the violators.
(8) The MMDA, as the lead agency and implementor of
programs and projects for flood control projects and drainage
services in Metro Manila, in coordination with the DPWH,
DILG, affected LGUs, PNP Maritime Group, Housing and Urban
Development Coordinating Council (HUDCC), and other
agencies, shall dismantle and remove all structures,
constructions, and other encroachments established or built
in violation of RA 7279, and other applicable laws along the
Pasig-Marikina-San Juan Rivers, the NCR (Paraaque-Zapote,
Las Pias) Rivers, the Navotas-Malabon-Tullahan-Tenejeros
Rivers, and connecting waterways and esteros in Metro
Manila. The DPWH, as the principal implementor of programs
and projects for flood control services in the rest of the
country more particularly in Bulacan, Bataan, Pampanga,
Cavite, and Laguna, in coordination with the DILG, affected
LGUs, PNP Maritime Group, HUDCC, and other concerned
government agencies, shall remove and demolish all
structures, constructions, and other encroachments built in
breach of RA 7279 and other applicable laws along the
Meycauayan-Marilao-Obando (Bulacan) Rivers, the Talisay
(Bataan) River, the Imus (Cavite) River, the Laguna De Bay,
and other rivers, connecting waterways, and esteros that
discharge wastewater into the Manila Bay.

In addition, the MMDA is ordered to establish, operate, and

maintain a sanitary landfill, as prescribed by RA 9003, within
a period of one (1) year from finality of this Decision. On
matters within its territorial jurisdiction and in connection
with the discharge of its duties on the maintenance of
sanitary landfills and like undertakings, it is also ordered to
cause the apprehension and filing of the appropriate criminal
cases against violators of the respective penal provisions of
RA 9003,47 Sec. 27 of RA 9275 (the Clean Water Act), and
other existing laws on pollution.
(9) The DOH shall, as directed by Art. 76 of PD 1067 and Sec.
8 of RA 9275, within one (1) year from finality of this
Decision, determine if all licensed septic and sludge
companies have the proper facilities for the treatment and
disposal of fecal sludge and sewage coming from septic
tanks. The DOH shall give the companies, if found to be noncomplying, a reasonable time within which to set up the
necessary facilities under pain of cancellation of its
environmental sanitation clearance.
(10) Pursuant to Sec. 53 of PD 1152,48 Sec. 118 of RA 8550,
and Sec. 56 of RA 9003,49 the DepEd shall integrate lessons
on pollution prevention, waste management, environmental
protection, and like subjects in the school curricula of all
levels to inculcate in the minds and hearts of students and,
through them, their parents and friends, the importance of
their duty toward achieving and maintaining a balanced and
healthful ecosystem in the Manila Bay and the entire
Philippine archipelago.
(11) The DBM shall consider incorporating an adequate
budget in the General Appropriations Act of 2010 and
succeeding years to cover the expenses relating to the
cleanup, restoration, and preservation of the water quality of
the Manila Bay, in line with the countrys development
objective to attain economic growth in a manner consistent
with the protection, preservation, and revival of our marine
waters.

164
(12) The heads of petitioners-agencies MMDA, DENR, DepEd,
DOH, DA, DPWH, DBM, PCG, PNP Maritime Group, DILG, and
also of MWSS, LWUA, and PPA, in line with the principle of
"continuing mandamus," shall, from finality of this Decision,
each submit to the Court a quarterly progressive report of the
activities undertaken in accordance with this Decision.
No costs.
SO ORDERED.

165
Imbong v. Ochoa, GR. 204819, April 8, 2014
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it
is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs , and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."1
To this day, poverty is still a major stumbling block to the
nation's emergence as a developed country, leaving our
people beleaguered in a state of hunger, illiteracy and
unemployment. While governmental policies have been
geared towards the revitalization of the economy, the
bludgeoning dearth in social services remains to be a
problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying
path to the realization of its very purpose, that is, the general
welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet
of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures
and bring concrete and substantial solutions within the reach
of Juan dela Cruz. Seemingly distant is the judicial branch,
oftentimes regarded as an inert governmental body that
merely casts its watchful eyes on clashing stakeholders until
it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its
solemn duty to interpret legislation vis-a-vis the most vital
and enduring principle that holds Philippine society together the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than

the issues of population growth control, abortion and
contraception. As in every democratic society, diametrically
opposed views on the subjects and their perceived
consequences freely circulate in various media. From
television debates2 to sticker campaigns,3 from rallies by
socio-political activists to mass gatherings organized by
members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level
of the society. Despite calls to withhold support thereto,
however, Republic Act (R.A.) No. 10354, otherwise known as
the Responsible Parenthood and Reproductive Health Act of
2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said
law, challengers from various sectors of society came
knocking on the doors of the Court, beckoning it to wield the
sword that strikes down constitutional disobedience. Aware of
the profound and lasting impact that its decision may
produce, the Court now faces the iuris controversy, as
presented in fourteen (14) petitions and two (2) petitions- inintervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses
Attys. James M. Imbong and Lovely Ann C. Imbong, in their
personal capacities as citizens, lawyers and taxpayers and on
behalf of their minor children; and the Magnificat Child
Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the
Family Foundation Philippines, Inc., through its president,
Atty. Maria Concepcion S. Noche7 and several others8 in their
personal capacities as citizens and on behalf of the
generations unborn (ALFI);

166
(3) Petition for Certiorari,9 filed by the Task Force for Family
and Life Visayas, Inc., and Valeriano S. Avila, in their
capacities as citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life
Cagayan De Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a
domestic, privately-owned educational institution, and
several others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity
as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo
Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the
Philippine Alliance of Xseminarians Inc.,18 and several
others19 in their capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several
others,21 in their capacities as citizens and taxpayers
(Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses
Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia,
in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his
capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life
Philippines Foundation Inc.24 and several others,25 in their
capacities as citizens and taxpayers and on behalf of its
associates who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint
Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita BorromeoGarcia, Stella Acedera, and Berteni Catalufia Causing, in their

capacities as citizens, taxpayers and members of the Bar

(MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John
Walter B. Juat and several others,29 in their capacities as
citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples
for Christ Foundation, Inc. and several others,31 in their
capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah
and Abdulhussein M. Kashim in their capacities as citizens
and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S.
Alcantara in his capacity as a citizen and a taxpayer
(Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang
Yumabong (B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the
petitioners are assailing the constitutionality of RH Law on
the following GROUNDS:
The RH Law violates the right to life of the unborn.
According to the petitioners, notwithstanding its declared
policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives,
intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which
guarantees protection of both the life of the mother and the
life of the unborn from conception.35
The RH Law violates the right to health and the right to
protection against hazardous products. The petitioners posit
that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and
other health problems.36

167
The RH Law violates the right to religious freedom. The
petitioners contend that the RH Law violates the
constitutional guarantee respecting religion as it authorizes
the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens conscientious
objectors of criminal prosecution, imprisonment and other
forms of punishment, as it compels medical practitioners 1]
to refer patients who seek advice on reproductive health
programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service,
although it is against their religious beliefs and
convictions.38
In this connection, Section 5 .23 of the Implementing Rules
and Regulations of the RH Law (RH-IRR),39 provides that
skilled health professionals who are public officers such as,
but not limited to, Provincial, City, or Municipal Health
Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or
rural health midwives, who are specifically charged with the
duty to implement these Rules, cannot be considered as
conscientious objectors.40
It is also argued that the RH Law providing for the
formulation of mandatory sex education in schools should not
be allowed as it is an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of
religious freedom is not absolute, they argue that the RH Law
fails to satisfy the "clear and present danger test" and the
"compelling state interest test" to justify the regulation of the
right to free exercise of religion and the right to free
speech.42

The RH Law violates the constitutional provision on

involuntary servitude. According to the petitioners, the RH
Law subjects medical practitioners to involuntary servitude
because, to be accredited under the PhilHealth program, they
are compelled to provide forty-eight (48) hours of pro bona
services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are
covered by PhilHealth, a medical practitioner would
effectively be forced to render reproductive health services
since the lack of PhilHealth accreditation would mean that
the majority of the public would no longer be able to avail of
the practitioners services.44
The RH Law violates the right to equal protection of the law.
It is claimed that the RH Law discriminates against the poor
as it makes them the primary target of the government
program that promotes contraceptive use. The petitioners
argue that, rather than promoting reproductive health among
the poor, the RH Law seeks to introduce contraceptives that
would effectively reduce the number of the poor.45
The RH Law is "void-for-vagueness" in violation of the due
process clause of the Constitution. In imposing the penalty of
imprisonment and/or fine for "any violation," it is vague
because it does not define the type of conduct to be treated
as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law
violates the right to due process by removing from them (the
people) the right to manage their own affairs and to decide
what kind of health facility they shall be and what kind of
services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct
their affairs in accordance with their own discretion and
judgment.
The RH Law violates the right to free speech. To compel a
person to explain a full range of family planning methods is

168
plainly to curtail his right to expound only his own preferred
way of family planning. The petitioners note that although
exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to
another healthcare facility willing to perform the service or
procedure.48
The RH Law intrudes into the zone of privacy of one's
family protected by the Constitution. It is contended that the
RH Law providing for mandatory reproductive health
education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person
who will undergo reproductive health procedure, the RH Law
forsakes any real dialogue between the spouses and impedes
the right of spouses to mutually decide on matters pertaining
to the overall well-being of their family. In the same breath, it
is also claimed that the parents of a child who has suffered a
miscarriage are deprived of parental authority to determine
whether their child should use contraceptives.50
The RH Law violates the constitutional principle of nondelegation of legislative authority. The petitioners question
the delegation by Congress to the FDA of the power to
determine whether a product is non-abortifacient and to be
included in the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision
under Section 26( 1 ), Article VI of the Constitution.52
The RH Law violates Natural Law.53
The RH Law violates the principle of Autonomy of Local
Government Units (LGUs) and the Autonomous Region of
Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local
government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.54

Various parties also sought and were granted leave to file

their respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the
Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr.
Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,57 the Filipino Catholic Voices for Reproductive
Health (C4RH),58 Ana Theresa "Risa" Hontiveros,59 and Atty.
Joan De Venecia60 also filed their respective Comments-inIntervention in conjunction with several others. On June 4,
2013, Senator Pia Juliana S. Cayetano was also granted leave
to intervene.61
The respondents, aside from traversing the substantive
arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual
case or controversy and, therefore, the issues are not yet ripe
for judicial determination.; 2] some petitioners lack standing
to question the RH Law; and 3] the petitions are essentially
petitions for declaratory relief over which the Court has no
original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR
enforcement of the assailed legislation took effect.

for

the

On March 19, 2013, after considering the issues and

arguments raised, the Court issued the Status Quo Ante
Order (SQAO), enjoining the effects and implementation of
the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference
with the counsels of the parties to determine and/or identify
the pertinent issues raised by the parties and the sequence
by which these issues were to be discussed in the oral
arguments. On July 9 and 23, 2013, and on August 6, 13, and
27, 2013, the cases were heard on oral argument. On July 16,

169
2013, the SQAO was ordered extended until further orders of
the Court.63
Thereafter, the Court directed the parties to submit their
respective memoranda within sixty (60) days and, at the
same time posed several questions for their clarification on
some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has
allowed the sale, dispensation and distribution of
contraceptive drugs and devices. As far back as June 18,
1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive
drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969,
contained provisions relative to "dispensing of abortifacients
or anti-conceptional substances and devices." Under Section
37 thereof, it was provided that "no drug or chemical product
or device capable of provoking abortion or preventing
conception as classified by the Food and Drug Administration
shall be delivered or sold to any person without a proper
prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN
Declaration on Population, which recognized that the
population problem should be considered as the principal
element for long-term economic development, enacted
measures that promoted male vasectomy and tubal ligation

to mitigate population growth.67 Among these measures

included R.A. No. 6365, approved on August 16, 1971,
entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be
made part of a broad educational program; safe and effective
means will be provided to couples desiring to space or limit
family size; mortality and morbidity rates will be further
reduced."
To further strengthen R.A. No. 6365, then President Ferdinand
E . Marcos issued Presidential Decree. (P.D.) No. 79,68 dated
December 8, 1972, which, among others, made "family
planning a part of a broad educational program," provided
"family planning services as a part of over-all health care,"
and
made
"available
all
acceptable
methods
of
contraception, except abortion, to all Filipino citizens desirous
of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and
family planning methods evolved from being a component of
demographic management, to one centered on the
promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to
one's right to freely choose the method of family planning to
be adopted, in conformity with its adherence to the
commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009,
the country enacted R.A. No. 9710 or "The Magna Carta for
Women, " which, among others, mandated the State to
provide for comprehensive health services and programs for
women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of
the country kept on galloping at an uncontrollable pace. From
a paltry number of just over 27 million Filipinos in 1960, the
population of the country reached over 76 million in the year
2000 and over 92 million in 2010.72 The executive and the

170
legislative, thus, felt that the measures were still not
adequate. To rein in the problem, the RH Law was enacted to
provide Filipinos, especially the poor and the marginalized,
access and information to the full range of modem family
planning methods, and to ensure that its objective to provide
for the peoples' right to reproductive health be achieved. To
make it more effective, the RH Law made it mandatory for
health providers to provide information on the full range of
modem family planning methods, supplies and services, and
for schools to provide reproductive health education. To put
teeth to it, the RH Law criminalizes certain acts of refusals to
carry out its mandates.
Stated differently, the RH Law is an enhancement measure to
fortify and make effective the current laws on contraception,
women's health and population control.

forms of family planning methods and the implementer of the

program by ensuring the widespread dissemination of, and
universal access to, a full range of family planning methods,
devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of
the parties, the Court has synthesized and refined them to
the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of
judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy

Prayer of the Petitioners - Maintain the Status Quo

3] Facial Challenge
The petitioners are one in praying that the entire RH Law be
declared unconstitutional. Petitioner ALFI, in particular,
argues that the government sponsored contraception
program, the very essence of the RH Law, violates the right
to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the
status quo ante - the situation prior to the passage of the RH
Law - must be maintained."73 It explains:
x x x. The instant Petition does not question contraception
and contraceptives per se. As provided under Republic Act
No. 5921 and Republic Act No. 4729, the sale and distribution
of contraceptives are prohibited unless dispensed by a
prescription duly licensed by a physician. What the
Petitioners find deplorable and repugnant under the RH Law
is the role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the
barangay officials in the remotest areas of the country - is
made to play in the implementation of the contraception
program to the fullest extent possible using taxpayers'
money. The State then will be the funder and provider of all

4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process

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7] Equal Protection

challenged "on its face" as it is not a speech-regulating

measure.80

8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its
implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its
power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand,
the OSG asserts that it should submit to the legislative and
political wisdom of Congress and respect the compromises
made in the crafting of the RH Law, it being "a product of a
majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that
the authority of the Court to review social legislation like the
RH Law by certiorari is "weak," since the Constitution vests
the discretion to implement the constitutional policies and
positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's
ruling in Southern Hemisphere v. Anti-Terrorism Council,78
the remedies of certiorari and prohibition utilized by the
petitioners are improper to assail the validity of the acts of
the legislature.79
Moreover, the OSG submits that as an "as applied challenge,"
it cannot prosper considering that the assailed law has yet to
be enforced and applied to the petitioners, and that the
government has yet to distribute reproductive health devices
that are abortive. It claims that the RH Law cannot be

In many cases involving the determination of the

constitutionality of the actions of the Executive and the
Legislature, it is often sought that the Court temper its
exercise of judicial power and accord due respect to the
wisdom of its co-equal branch on the basis of the principle of
separation of powers. To be clear, the separation of powers is
a fundamental principle in our system of government, which
obtains not through express provision but by actual division
in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is
supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative
power shall be vested in the Congress of the Philippines;82
(b) the executive power shall be vested in the President of
the Philippines;83 and (c) the judicial power shall be vested
in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out
with deft strokes and in bold lines, the allotment of powers
among the three branches of government.85
In its relationship with its co-equals, the Judiciary recognizes
the doctrine of separation of powers which imposes upon the
courts proper restraint, born of the nature of their functions
and of their respect for the other branches of government, in
striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of
courtesy and caution.86
It has also long been observed, however, that in times of
social disquietude or political instability, the great landmarks
of the Constitution are apt to be forgotten or marred, if not
entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts
performed by a co-equal branch done within its sphere of
competence and authority, but at the same time, allows it to
cross the line of separation - but only at a very limited and

172
specific point - to determine whether the acts of the
executive and the legislative branches are null because they
were undertaken with grave abuse of discretion.88 Thus,
while the Court may not pass upon questions of wisdom,
justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion
results.89 The Court must demonstrate its unflinching
commitment to protect those cherished rights and principles
embodied in the Constitution.
In this connection, it bears adding that while the scope of
judicial power of review may be limited, the Constitution
makes no distinction as to the kind of legislation that may be
subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back
to the earlier point. The Court may pass upon the
constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review,
the Court finds no constitutional violations of any sort, then,
it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the
Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has
unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional
issues and to review and/or prohibit/nullify, when proper, acts

of legislative and executive officials, as there is no other

plain, speedy or adequate remedy in the ordinary course of
law. This ruling was later on applied in Macalintal v.
COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94
and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the
ground that it contravenes the Constitution, the petition no
doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate)
remains to assure that the supremacy of the Constitution is
upheld. " Once a "controversy as to the application or
interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which
the Court is bound by constitutional mandate to decide.
[Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers
and the balancing of powers among the three great
departments of government through the definition and
maintenance of the boundaries of authority and control
between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court
does not have the unbridled authority to rule on just any and
every claim of constitutional violation. Jurisprudence is
replete with the rule that the power of judicial review is
limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess
locus standi; (c) the question of constitutionality must be
raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.96

173
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions
do not present any actual case or controversy because the
RH Law has yet to be implemented.97 They claim that the
questions raised by the petitions are not yet concrete and
ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing
that any of the petitioners' rights has been adversely
affected by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court
would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging.
The controversy must be justiciable-definite and concrete,
touching on the legal relations of parties having adverse
legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one
hand, and a denial thereof, on the other; that is, it must
concern a real, tangible and not merely a theoretical question
or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts.100
Corollary to the requirement of an actual case or controversy
is the requirement of ripeness.101 A question is ripe for
adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. For a case to
be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by
either branch before a court may come into the picture, and
the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged
action. He must show that he has sustained or is immediately

in danger of sustaining some direct injury as a result of the

act complained of102
In The Province of North Cotabato v. The Government of the
Republic of the Philippines,103 where the constitutionality of
an unimplemented Memorandum of Agreement on the
Ancestral Domain (MOA-AD) was put in question, it was
argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed
that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that
the fact of the law or act in question being not yet effective
does not negate ripeness. Concrete acts under a law are not
necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to
awaken judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its
implementing rules have already taken effect and that
budgetary measures to carry out the law have already been
passed, it is evident that the subject petitions present a
justiciable controversy. As stated earlier, when an action of
the legislative branch is seriously alleged to have infringed
the Constitution, it not only becomes a right, but also a duty
of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so
because medical practitioners or medical providers are in
danger of being criminally prosecuted under the RH Law for
vague violations thereof, particularly public health officers
who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at
least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge
lodged by the subject petitions, contending that the RH Law

174
cannot be challenged "on its face" as it is not a speech
regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge,
also known as a First Amendment Challenge, is one that is
launched to assail the validity of statutes concerning not only
protected speech, but also all other rights in the First
Amendment.106 These include religious freedom, freedom of
the press, and the right of the people to peaceably assemble,
and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression,
as they are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating
from the U.S. has been generally maintained, albeit with
some modifications. While this Court has withheld the
application of facial challenges to strictly penal statues,108 it
has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and
other fundamental rights.109 The underlying reason for this
modification is simple. For unlike its counterpart in the U.S.,
this Court, under its expanded jurisdiction, is mandated by
the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and
enforceable, but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of
the Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have
seriously alleged that the constitutional human rights to life,
speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the
Court has authority to take cognizance of these kindred

petitions and to determine if the RH Law can indeed pass

constitutional scrutiny. To dismiss these petitions on the
simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has
been transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners
to file their respective petitions. It contends that the "as
applied challenge" lodged by the petitioners cannot prosper
as the assailed law has yet to be enforced and applied
against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the
"transcendental importance" doctrine and their status as
citizens and taxpayers in establishing the requisite locus
standi.
Locus standi or legal standing is defined as a personal and
substantial interest in a case such that the party has
sustained or will sustain direct injury as a result of the
challenged governmental act.113 It requires a personal stake
in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult
constitutional questions.114
In relation to locus standi, the "as applied challenge"
embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of
his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the
rights of third persons not before the court. This rule is also
known as the prohibition against third-party standing.115
Transcendental Importance

175
Notwithstanding, the Court leans on the doctrine that "the
rule on standing is a matter of procedure, hence, can be
relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of
paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the
Court held that in cases of paramount importance where
serious constitutional questions are involved, the standing
requirement may be relaxed and a suit may be allowed to
prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency
Powers Cases,118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive
orders although they had only an indirect and general
interest shared in common with the public.
With these said, even if the constitutionality of the RH Law
may not be assailed through an "as-applied challenge, still,
the Court has time and again acted liberally on the locus s
tandi requirement. It has accorded certain individuals
standing to sue, not otherwise directly injured or with
material interest affected by a Government act, provided a
constitutional issue of transcendental importance is invoked.
The rule on locus standi is, after all, a procedural technicality
which the Court has, on more than one occasion, waived or
relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in
the public interest, albeit they may not have been directly
injured by the operation of a law or any other government
act. As held in Jaworski v. PAGCOR:119

influence on the social and moral well being of this nation,

specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance
with the well-entrenched principle that rules of procedure are
not inflexible tools designed to hinder or delay, but to
facilitate and promote the administration of justice. Their
strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis
supplied)
In view of the seriousness, novelty and weight as precedents,
not only to the public, but also to the bench and bar, the
issues raised must be resolved for the guidance of all. After
all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of
religion and expression and other constitutional rights.
Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused
deep division among a broad spectrum of society, the Court
entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at
issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint
at this time when rights enshrined in the Constitution are
being imperilled to be violated. To do so, when the life of
either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief

Granting arguendo that the present action cannot be

properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case
warrants that we set aside the technical defects and take
primary jurisdiction over the petition at bar. One cannot deny
that the issues raised herein have potentially pervasive

The respondents also assail the petitions because they are

essentially petitions for declaratory relief over which the
Court has no original jurisdiction.120 Suffice it to state that
most of the petitions are praying for injunctive reliefs and so
the Court would just consider them as petitions for

176
prohibition under Rule 65, over which it has original
jurisdiction. Where the case has far-reaching implications and
prays for injunctive reliefs, the Court may consider them as
petitions for prohibition under Rule 65.121

effective, legal, affordable, and quality reproductive health

care services, methods, devices, and supplies, which are all
intended to prevent pregnancy.

The petitioners also question the constitutionality of the RH

Law, claiming that it violates Section 26(1 ), Article VI of the
Constitution,122 prescribing the one subject-one title rule.
According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true
intent - to act as a population control measure.123

The Court, thus, agrees with the petitioners' contention that

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

To belittle the challenge, the respondents insist that the RH

Law is not a birth or population control measure,124 and that
the concepts of "responsible parenthood" and "reproductive
health" are both interrelated as they are inseparable.125

Be that as it may, the RH Law does not violate the one

subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero,
it was written:

Despite efforts to push the RH Law as a reproductive health

law, the Court sees it as principally a population control
measure. The corpus of the RH Law is geared towards the
reduction of the country's population. While it claims to save
lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier,
the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to
information on the full range of modem family planning
products and methods. These family planning methods,
natural or modem, however, are clearly geared towards the
prevention of pregnancy.

It is well-settled that the "one title-one subject" rule does not

require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or
catalogue all the contents and the minute details therein. The
rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute
seeks to effect, and where, as here, the persons interested
are informed of the nature, scope and consequences of the
proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical
construction of the rule "so as not to cripple or impede
legislation." [Emphases supplied]

For said reason, the manifest underlying objective of the RH

Law is to reduce the number of births in the country.

In this case, a textual analysis of the various provisions of the

law shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding
objective to control the population growth. As expressed in
the first paragraph of Section 2 of the RH Law:

One Subject-One Title

It cannot be denied that the measure also seeks to provide

pre-natal and post-natal care as well. A large portion of the
law, however, covers the dissemination of information and
provisions on access to medically-safe, non-abortifacient,

177
SEC. 2. Declaration of Policy. - The State recognizes and
guarantees the human rights of all persons including their
right to equality and nondiscrimination of these rights, the
right to sustainable human development, the right to health
which includes reproductive health, the right to education
and information, and the right to choose and make decisions
for themselves in accordance with their religious convictions,
ethics, cultural beliefs, and the demands of responsible
parenthood.
The one subject/one title rule expresses the principle that the
title of a law must not be "so uncertain that the average
person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is
misleading, either in referring to or indicating one subject
where another or different one is really embraced in the act,
or in omitting any expression or indication of the real subject
or scope of the act."129
Considering the close intimacy between "reproductive
health" and "responsible parenthood" which bears to the
attainment of the goal of achieving "sustainable human
development" as stated under its terms, the Court finds no
reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed
legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right
to life and health of the unborn child under Section 12, Article
II of the Constitution. The assailed legislation allowing access
to abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms
prohibiting abortion, Section 4(a) of the RH Law considers
contraceptives that prevent the fertilized ovum to reach and

be implanted in the mother's womb as an abortifacient; thus,

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

178
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due
consideration to various studies and consultations with the
World Health Organization (WHO) and other experts in the
medical field, it is asserted that the Court afford deference
and respect to such a determination and pass judgment only
when a particular drug or device is later on determined as an
abortive.135
For his part, respondent Lagman argues that the
constitutional protection of one's right to life is not violated
considering that various studies of the WHO show that life
begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional
since the law specifically provides that only contraceptives
that do not prevent the implantation of the fertilized ovum
are allowed.136
The Court's Position
It is a universally accepted principle that every human being
enjoys the right to life.137
Even if not formally established, the right to life, being
grounded on natural law, is inherent and, therefore, not a
creation of, or dependent upon a particular law, custom, or
belief. It precedes and transcends any authority or the laws
of men.

Regulate The Sale, Dispensation, and/or Distribution of

Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which
prevent fertilization,138 to the promotion of male vasectomy
and tubal ligation,139 and the ratification of numerous
international agreements, the country has long recognized
the need to promote population control through the use of
contraceptives in order to achieve long-term economic
development. Through the years, however, the use of
contraceptives and other family planning methods evolved
from being a component of demographic management, to
one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures
promoting women's rights and health and the overall
promotion of the family's well-being. Thus, aside from R.A.
No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The
Magna Carta of Women" were legislated. Notwithstanding
this paradigm shift, the Philippine national population
program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of
non-coercion."141 As will be discussed later, these principles
are not merely grounded on administrative policy, but rather,
originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious
freedom.
When Life Begins*

In this jurisdiction, the right to life is given more than ample

protection. Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family
planning methods in the Philippines is not of recent vintage.
From the enactment of R.A. No. 4729, entitled "An Act To

Majority of the Members of the Court are of the position that

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

179
In answering the question of when life begins, focus should
be made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life
and shall protect and strengthen the family as a basic
autonomous social institution. It shall equally protect the life
of the mother and the life of the unborn from conception. The
natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral
character shall receive the support of the Government.
Textually, the Constitution affords protection to the unborn
from conception. This is undisputable because before
conception, there is no unborn to speak of. For said reason, it
is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The
problem has arisen because, amazingly, there are quarters
who have conveniently disregarded the scientific fact that
conception is reckoned from fertilization. They are waving the
view that life begins at implantation. Hence, the issue of
when life begins.
In a nutshell, those opposing the RH Law contend that
conception is synonymous with "fertilization" of the female
ovum by the male sperm.142 On the other side of the
spectrum are those who assert that conception refers to the
"implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and ordinary
meaning. As held in the recent case of Chavez v. Judicial Bar
Council:144
One of the primary and basic rules in statutory construction
is that where the words of a statute are clear, plain, and free
from ambiguity, it must be given its literal meaning and
applied without attempted interpretation. It is a well-settled

principle of constitutional construction that the language

employed in the Constitution must be given their ordinary
meaning except where technical terms are employed. As
much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it
says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to
alter it, based on the postulate that the framers and the
people mean what they say. Verba legis non est recedendum
- from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First,
because it is assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained; and second, because the Constitution is not
primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as
an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional
meaning of the word "conception" which, as described and
defined by all reliable and reputable sources, means that life
begins at fertilization.
Webster's Third New International Dictionary describes it as
the act of becoming pregnant, formation of a viable zygote;
the fertilization that results in a new entity capable of
developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term
"conception" as the fecundation of the female ovum by the
male spermatozoon resulting in human life capable of
survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing Corporation v.
Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it
was written:

180
Life is not synonymous with civil personality. One need not
acquire civil personality first before he/she could die. Even a
child inside the womb already has life. No less than the
Constitution recognizes the life of the unborn from
conception, that the State must protect equally with the life
of the mother. If the unborn already has life, then the
cessation thereof even prior to the child being delivered,
qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing
for the US Supreme Court, said that the State "has respect
for human life at all stages in the pregnancy" and "a
legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was
referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on
the intention of the Framers regarding the term "conception"
used in Section 12, Article II of the Constitution. From their
deliberations, it clearly refers to the moment of "fertilization."
The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which
reads:
"The State shall equally protect the life of the mother and the
life of the unborn from the moment of conception."
When is the moment of conception?

As to why conception is reckoned from fertilization and, as

such, the beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological
manner. The first question that needs to be answered is: Is
the fertilized ovum alive? Biologically categorically says yes,
the fertilized ovum is alive. First of all, like all living
organisms, it takes in nutrients which it processes by itself. It
begins doing this upon fertilization. Secondly, as it takes in
these nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has
life.
The second question: Is it human? Genetics gives an equally
categorical "yes." At the moment of conception, the nuclei of
the ovum and the sperm rupture. As this happens 23
chromosomes from the ovum combine with 23 chromosomes
of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in
human cells. Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we
must conclude that if the fertilized ovum is both alive and
human, then, as night follows day, it must be human life. Its
nature is human.151
Why the Constitution used the phrase "from the moment of
conception" and not "from the moment of fertilization" was
not because of doubt when human life begins, but rather,
because:

xxx
Mr. Villegas: As I explained in the sponsorship speech, it is
when the ovum is fertilized by the sperm that there is human
life. x x x.150
xxx

Mr. Tingson: x x x x the phrase from the moment of

conception" was described by us here before with the
scientific phrase "fertilized ovum" may be beyond the
comprehension of some people; we want to use the simpler
phrase "from the moment of conception."152

181
Thus, in order to ensure that the fertilized ovum is given
ample protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient
for the purpose of writing a Constitution, without specifying
"from the moment of conception."
Mr. Davide: I would not subscribe to that particular view
because according to the Commissioner's own admission, he
would leave it to Congress to define when life begins. So,
Congress can define life to begin from six months after
fertilization; and that would really be very, very, dangerous.
It is now determined by science that life begins from the
moment of conception. There can be no doubt about it. So
we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a
question on that point. Actually, that is one of the questions I
was going to raise during the period of interpellations but it
has been expressed already. The provision, as proposed right
now states:
The State shall equally protect the life of the mother and the
life of the unborn from the moment of conception.
When it speaks of "from the moment of conception," does
this mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the
right to determine whether certain contraceptives that we
know today are abortifacient or not because it is a fact that
some of the so-called contraceptives deter the rooting of the
ovum in the uterus. If fertilization has already occurred, the
next process is for the fertilized ovum to travel towards the
uterus and to take root. What happens with some
contraceptives is that they stop the opportunity for the

fertilized ovum to reach the uterus. Therefore, if we take the

provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that
is what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to
Congress to state whether or not these certain
contraceptives are abortifacient. Scientifically and based on
the provision as it is now proposed, they are already
considered abortifacient.154
From the deliberations above-quoted, it is apparent that the
Framers of the Constitution emphasized that the State shall
provide equal protection to both the mother and the unborn
child from the earliest opportunity of life, that is, upon
fertilization or upon the union of the male sperm and the
female ovum. It is also apparent is that the Framers of the
Constitution intended that to prohibit Congress from enacting
measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the
Constitution did not intend to ban all contraceptives for being
unconstitutional. In fact, Commissioner Bernardo Villegas,
spearheading the need to have a constitutional provision on
the right to life, recognized that the determination of whether
a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on
established evidence.155
From the discussions above, contraceptives that kill or
destroy the fertilized ovum should be deemed an abortive
and thus prohibited. Conversely, contraceptives that actually
prevent the union of the male sperm and the female ovum,
and those that similarly take action prior to fertilization
should be deemed non-abortive, and thus, constitutionally
permissible.

182
As emphasized by the Framers of the Constitution:

vasectomy,
even
abortifacients.157

xxx

Atty. Noche:

xxx

xxx

condoms

are

not

classified

as

Mr. Gascon: xx xx. As I mentioned in my speech on the US

bases, I am pro-life, to the point that I would like not only to
protect the life of the unborn, but also the lives of the
millions of people in the world by fighting for a nuclear-free
world. I would just like to be assured of the legal and
pragmatic implications of the term "protection of the life of
the unborn from the moment of conception." I raised some of
these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask
that question again for a categorical answer.

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

I mentioned that if we institutionalize the term "the life of the

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

Justice Bersamin:

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

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

Under Section 12, yes.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking

more about some contraceptives, such as the intra-uterine
device which actually stops the egg which has already been
fertilized from taking route to the uterus. So if we say "from
the moment of conception," what really occurs is that some
of these contraceptives will have to be unconstitutionalized.

So you have no objection to condoms?

Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.

To be protected.
Atty. Noche:

Justice Bersamin:

Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the
1987 Constitution is even admitted by petitioners during the
oral arguments. There it was conceded that tubal ligation,

Even if there is already information that condoms sometimes

have porosity?
Atty. Noche:

183
Well, yes, Your Honor, there are scientific findings to that
effect, Your Honor, but I am discussing here Section 12,
Article II, Your Honor, yes.

mingling of their chromosomes to form a new cell. This

fertilized ovum, known as a zygote, is a large diploid cell that
is the beginning, or primordium, of a human being."162

Justice Bersamin:

The authors of Human Embryology & Teratology163 mirror

the same position. They wrote: "Although life is a continuous
process, fertilization is a critical landmark because, under
ordinary circumstances, a new, genetically distinct human
organism is thereby formed.... The combination of 23
chromosomes present in each pronucleus results in 46
chromosomes in the zygote. Thus the diploid number is
restored and the embryonic genome is formed. The embryo
now exists as a genetic unity."

Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your
Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical
foundation. Mosby s Medical, Nursing, and Allied Health
Dictionary defines conception as "the beginning of pregnancy
usually taken to be the instant a spermatozoon enters an
ovum and forms a viable zygote."159
It describes fertilization as "the union of male and female
gametes to form a zygote from which the embryo
develops."160
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),161 used by medical schools in the Philippines,
also concludes that human life (human person) begins at the
moment of fertilization with the union of the egg and the
sperm resulting in the formation of a new individual, with a
unique genetic composition that dictates all developmental
stages that ensue.
Similarly, recent medical research on the matter also reveals
that: "Human development begins after the union of male
and female gametes or germ cells during a process known as
fertilization (conception). Fertilization is a sequence of events
that begins with the contact of a sperm (spermatozoon) with
a secondary oocyte (ovum) and ends with the fusion of their
pronuclei (the haploid nuclei of the sperm and ovum) and the

In support of the RH Bill, The Philippine Medical Association

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

184
moral, political, or religious view of human life or of human
embryos.164

would be provocative and further aggravate religious-based

divisiveness.

Conclusion: The Moment of Conception is Reckoned from

Fertilization

It would legally permit what the Constitution proscribes abortion and abortifacients.

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

understood under medical parlance, and more importantly,
following the intention of the Framers of the Constitution, the
undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is,
upon fertilization.

The RH Law and Abortion

For the above reasons, the Court cannot subscribe to the

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

The clear and unequivocal intent of the Framers of the 1987

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

Not surprisingly, even the OSG does not support this position.
1] xx x.
If such theory would be accepted, it would unnervingly
legitimize the utilization of any drug or device that would
prevent the implantation of the fetus at the uterine wall. It

Section 4. Definition of Terms. - For the purpose of this Act,

the following terms shall be defined as follows:

185
xxx.

otherwise known as the Midwifery Act, is hereby repealed,

modified or amended accordingly.

(q) Reproductive health care refers to the access to a full

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

The RH Law and Abortifacients

xxx.

(a) Abortifacient refers to any drug or device that induces

abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb upon determination of
the FDA.

(3) Proscription of abortion and management of abortion

complications;

In carrying out its declared policy, the RH Law is consistent in

prohibiting abortifacients. To be clear, Section 4(a) of the RH
Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x

xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of
individuals and couples, to decide freely and responsibly
whether or not to have children; the number, spacing and
timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to
have the information and means to do so; and to attain the
highest standard of sexual health and reproductive health:
Provided, however, That reproductive health rights do not
include abortion, and access to abortifacients.

As stated above, the RH Law mandates that protection must

be afforded from the moment of fertilization. By using the
word " or," the RH Law prohibits not only drugs or devices
that prevent implantation, but also those that induce
abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug
or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's
womb; or
(c) Prevents the fertilized ovum to reach and be implanted in
the mother's womb, upon determination of the FDA.

3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws
against abortion, any law, presidential decree or issuance,
executive order, letter of instruction, administrative order,
rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392,

Contrary to the assertions made by the petitioners, the Court

finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that
the State has a bounden duty to protect it. The conclusion
becomes clear because the RH Law, first, prohibits any drug
or device that induces abortion (first kind), which, as
discussed exhaustively above, refers to that which induces

186
the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to
reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents
the fertilized ovum to reach and be implanted in the mother's
womb is an abortifacient (third kind), the RH Law does not
intend to mean at all that life only begins only at
implantation, as Hon. Lagman suggests. It also does not
declare either that protection will only be given upon
implantation, as the petitioners likewise suggest. Rather, it
recognizes that: one, there is a need to protect the fertilized
ovum which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent - all the
way until it reaches and implants in the mother's womb. After
all, if life is only recognized and afforded protection from the
moment the fertilized ovum implants - there is nothing to
prevent any drug or device from killing or destroying the
fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it
affords protection to the fertilized ovum, the RH Law does not
sanction abortion. To repeat, it is the Court's position that life
begins at fertilization, not at implantation. When a fertilized
ovum is implanted in the uterine wall , its viability is
sustained but that instance of implantation is not the point of
beginning of life. It started earlier. And as defined by the RH
Law, any drug or device that induces abortion, that is, which
kills or destroys the fertilized ovum or prevents the fertilized
ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under
Section 9 of the law that "any product or supply included or
to be included in the EDL must have a certification from the
FDA that said product and supply is made available on the
condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot

fully attest that a drug or device will not all be used as an

abortifacient, since the agency cannot be present in every
instance when the contraceptive product or supply will be
used.171
Pursuant to its declared policy of providing access only to
safe, legal and non-abortifacient contraceptives, however,
the Court finds that the proviso of Section 9, as worded,
should bend to the legislative intent and mean that "any
product or supply included or to be included in the EDL must
have a certification from the FDA that said product and
supply is made available on the condition that it cannot be
used as abortifacient." Such a construction is consistent with
the proviso under the second paragraph of the same section
that provides:
Provided, further, That the foregoing offices shall not
purchase or acquire by any means emergency contraceptive
pills, postcoital pills, abortifacients that will be used for such
purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors
of the RH-IRR gravely abused their office when they
redefined the meaning of abortifacient. The RH Law defines
"abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces
abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb upon determination of
the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient"
as:

187
Section 3.01 For purposes of these Rules, the terms shall be
defined as follows:
a) Abortifacient refers to any drug or device that primarily
induces abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to
reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA).
[Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is
redefined, viz:
j) Contraceptive refers to any safe, legal, effective and
scientifically proven modern family planning method, device,
or health product, whether natural or artificial, that prevents
pregnancy but does not primarily destroy a fertilized ovum or
prevent a fertilized ovum from being implanted in the
mother's womb in doses of its approved indication as
determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only those
that primarily induce abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized
ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice
Del Castillo are well taken. As they pointed out, with the
insertion of the word "primarily," Section 3.0l(a) and G) of the
RH-IRR173 must be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section
3.0l(a) and G) of the RH-IRR is indeed ultra vires. It
contravenes Section 4(a) of the RH Law and should,
therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the
approval of contraceptives which may harm or destroy the

life of the unborn from conception/fertilization in violation of

Article II, Section 12 of the Constitution. With such
qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if
its sole known effect is abortion or, as pertinent here, the
prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would
permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification
by the FDA that these contraceptives cannot act as abortive.
With this, together with the definition of an abortifacient
under Section 4 (a) of the RH Law and its declared policy
against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will
not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a
fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's
womb, but also those that do not have the secondary action
of acting the same way.
Indeed, consistent with the constitutional policy prohibiting
abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained,
the RH Law and its implementing rules must be consistent
with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be
declared void. To uphold the validity of Section 3.0l(a) and G)
of the RH-IRR and prohibit only those contraceptives that
have the primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives which
may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of
the Constitution."175

188
To repeat and emphasize, in all cases, the "principle of no
abortion" embodied in the constitutional protection of life
must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to
health because it requires the inclusion of hormonal
contraceptives, intrauterine devices, injectables and family
products and supplies in the National Drug Formulary and the
inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176 Citing
various studies on the matter, the petitioners posit that the
risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as
compared to women who never use them. They point out
that the risk is decreased when the use of contraceptives is
discontinued. Further, it is contended that the use of
combined oral contraceptive pills is associated with a
threefold increased risk of venous thromboembolism, a
twofold increased risk of ischematic stroke, and an
indeterminate effect on risk of myocardial infarction.177
Given the definition of "reproductive health" and "sexual
health" under Sections 4(p)178 and (w)179 of the RH Law,
the petitioners assert that the assailed legislation only seeks
to ensure that women have pleasurable and satisfying sex
lives.180
The OSG, however, points out that Section 15, Article II of the
Constitution is not self-executory, it being a mere statement
of the administration's principle and policy. Even if it were
self-executory, the OSG posits that medical authorities refute
the claim that contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional right to
health. In this regard, the Constitution is replete with

provisions protecting and promoting the right to health.

Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
A portion of Article XIII also specifically provides for the
States' duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick,
elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
Section 12. The State shall establish and maintain an
effective food and drug regulatory system and undertake
appropriate health, manpower development, and research,
responsive to the country's health needs and problems.
Section 13. The State shall establish a special agency for
disabled person for their rehabilitation, self-development, and
self-reliance, and their integration into the mainstream of
society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these
provisions are self-executing. Unless the provisions clearly
express the contrary, the provisions of the Constitution
should be considered self-executory. There is no need for

189
legislation to implement these self-executing provisions.182
In Manila Prince Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative
act is necessary to enforce a constitutional mandate, the
presumption now is that all provisions of the constitution are
self-executing. If the constitutional provisions are treated as
requiring legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify the
mandate of the fundamental law. This can be cataclysmic.
That is why the prevailing view is, as it has always been, that

... in case of doubt, the Constitution should be considered

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

physician. With R.A. No. 4729 in place, there exists adequate

safeguards to ensure the public that only contraceptives that
are safe are made available to the public. As aptly explained
by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of
contraceptives, the same cannot be dispensed and used
without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale,
Dispensation, and/ or Distribution of Contraceptive Drugs and
Devices" and Republic Act No. 5921 or "An Act Regulating the
Practice
of
Pharmacy
and
Setting
Standards
of
Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions
of said Acts are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of
contraceptive drugs and devices are particularly governed by
RA No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute whether
for or without consideration, any contraceptive drug or
device, unless such sale, dispensation or distribution is by a
duly licensed drug store or pharmaceutical company and with
the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or
portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and

190
"(b) "Contraceptive device" is any instrument, device,
material, or agent introduced into the female reproductive
system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the
provisions of this Act shall be punished with a fine of not
more than five hundred pesos or an imprisonment of not less
than six months or more than one year or both in the
discretion of the Court.

country. The DOH shall coordinate with all appropriate local

government bodies to plan and implement this procurement
and distribution program. The supply and budget allotments
shall be based on, among others, the current levels and
projections of the following:
(a) Number of women of reproductive age and couples who
want to space or limit their children;

"This Act shall take effect upon its approval.

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

and

"Approved: June 18, 1966"

(c) Cost of family planning supplies.

111. Of the same import, but in a general manner, Section 25

of RA No. 5921 provides:

Provided, That LGUs may implement its own procurement,

distribution and monitoring program consistent with the
overall provisions of this Act and the guidelines of the DOH.

"Section 25. Sale of medicine, pharmaceuticals, drugs and

devices. No medicine, pharmaceutical, or drug of whatever
nature and kind or device shall be compounded, dispensed,
sold or resold, or otherwise be made available to the
consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the
provisions of this Act.
112. With all of the foregoing safeguards, as provided for in
the RH Law and other relevant statutes, the pretension of the
petitioners that the RH Law will lead to the unmitigated
proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.186 [Emphases in the
Original. Underlining supplied.]

Thus, in the distribution by the DOH of contraceptive drugs

and devices, it must consider the provisions of R.A. No. 4729,
which is still in effect, and ensure that the contraceptives
that it will procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of
these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The
distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected
by all possible means. As pointed out by Justice De Castro, a
heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices,
for it may be held accountable for any injury, illness or loss of
life resulting from or incidental to their use.187

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with
Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning
Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the whole

At any rate, it bears pointing out that not a single

contraceptive has yet been submitted to the FDA pursuant to
the RH Law. It behooves the Court to await its determination
which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines
available to the public are safe for public consumption.
Consequently, the Court finds that, at this point, the attack

191
on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to
the constitutional yardstick as expounded herein, to be
determined as the case presents itself.
At this point, the Court is of the strong view that Congress
cannot legislate that hormonal contraceptives and intrauterine devices are safe and non-abortifacient. The first
sentence of Section 9 that ordains their inclusion by the
National Drug Formulary in the EDL by using the mandatory
"shall" is to be construed as operative only after they have
been tested, evaluated, and approved by the FDA. The FDA,
not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is
safe and non-abortifacient. The provision of the third
sentence concerning the requirements for the inclusion or
removal of a particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering the
inclusion of hormonal contraceptives, intra-uterine devices,
injectables, and other safe, legal, non-abortifacient and
effective family planning products and supplies by the
National Drug Formulary in the EDL is not mandatory. There
must first be a determination by the FDA that they are in fact
safe, legal, non-abortifacient and effective family planning
products and supplies. There can be no predetermination by
Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and
tubal ligation are not covered by the constitutional

proscription, there are those who, because of their religious

education
and
background,
sincerely
believe
that
contraceptives, whether abortifacient or not, are evil. Some
of these are medical practitioners who essentially claim that
their beliefs prohibit not only the use of contraceptives but
also the willing participation and cooperation in all things
dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is
contrary to the good of the transmission of life, and to the
reciprocal self-giving of the spouses; it harms true love and
denies the sovereign rule of God in the transmission of
Human life."188
The petitioners question the State-sponsored procurement of
contraceptives, arguing that the expenditure of their taxes on
contraceptives violates the guarantee of religious freedom
since contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law
attempts to address religious sentiments by making
provisions for a conscientious objector, the constitutional
guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the
patient seeking reproductive health services to another
medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring
the conscientious objector to cooperate with the very thing
he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's
duty to refer is recognized, the recognition is unduly limited,
because although it allows a conscientious objector in
Section 23 (a)(3) the option to refer a patient seeking
reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and
(2), i.e. against a patient seeking reproductive health
procedures. They claim that the right of other individuals to

192
conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in
Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191
Petitioner Echavez and the other medical practitioners
meanwhile, contend that the requirement to refer the matter
to another health care service provider is still considered a
compulsion on those objecting healthcare service providers.
They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14
and 1 7 of the law are too secular that they tend to disregard
the religion of Filipinos. Authorizing the use of contraceptives
with abortive effects, mandatory sex education, mandatory
pro-bono reproductive health services to indigents encroach
upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking
reproductive health care services to another provider
infringes on one's freedom of religion as it forces the objector
to become an unwilling participant in the commission of a
serious sin under Catholic teachings. While the right to act on
one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show
compelling state interest to justify regulation of religious
freedom because it mentions no emergency, risk or threat
that endangers state interests. It does not explain how the
rights of the people (to equality, non-discrimination of rights,
sustainable
human
development,
health,
education,
information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands
of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious
freedom.194

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

requiring would-be couples to attend family planning and
responsible parenthood seminars and to obtain a certificate
of compliance. They claim that the provision forces
individuals to participate in the implementation of the RH
Law even if it contravenes their religious beliefs.195 As the
assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions,
the petitioners claim that the RH Law forcing them to
provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it
runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH
Law does not provide that a specific mode or type of
contraceptives be used, be it natural or artificial. It neither
imposes nor sanctions any religion or belief.196 They point
out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive
health services to ensure maternal and child health, in line
with the State's duty to bring to reality the social justice
health guarantees of the Constitution,197 and that what the
law only prohibits are those acts or practices, which deprive
others of their right to reproductive health.198 They assert
that the assailed law only seeks to guarantee informed
choice, which is an assurance that no one will be compelled
to violate his religion against his free will.199
The respondents add that by asserting that only natural
family planning should be allowed, the petitioners are
effectively going against the constitutional right to religious
freedom, the same right they invoked to assail the
constitutionality of the RH Law.200 In other words, by
seeking the declaration that the RH Law is unconstitutional,
the petitioners are asking that the Court recognize only the

193
Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that
the same does not violate the constitutional guarantee of
religious freedom, it being a carefully balanced compromise
between the interests of the religious objector, on one hand,
who is allowed to keep silent but is required to refer -and that
of the citizen who needs access to information and who has
the right to expect that the health care professional in front
of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is
sufficient accommodation to the right to freely exercise one's
religion without unnecessarily infringing on the rights of
others.202
Whatever burden is placed on the petitioner's religious
freedom is minimal as the duty to refer is limited in duration,
location and impact.203
Regarding mandatory family planning seminars under
Section 15 , the respondents claim that it is a reasonable
regulation providing an opportunity for would-be couples to
have access to information regarding parenthood, family
planning, breastfeeding and infant nutrition. It is argued that
those who object to any information received on account of
their attendance in the required seminars are not compelled
to accept information given to them. They are completely
free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without
intervention of the State.204
For their part, respondents De Venecia et al., dispute the
notion that natural family planning is the only method
acceptable to Catholics and the Catholic hierarchy. Citing
various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception
throughout the years and note the general acceptance of the
benefits of contraceptives by its followers in planning their
families.

The Church and The State

At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse
ethnic, cultural and religious beliefs and backgrounds. History
has shown us that our government, in law and in practice,
has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced
minority groups and is tolerant towards all - the religious
people of different sects and the non-believers. The
undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they
call for guidance and enlightenment in crafting our
fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of
Almighty God, in order to build a just and humane society,
and establish a Government that shall embody our ideals and
aspirations, promote the common good, conserve and
develop our patrimony, and secure to ourselves and our
posterity, the blessings of independence and democracy
under the rule of law and a regime of truth, justice, freedom,
love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God "
manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means
that the State recognizes with respect the influence of
religion in so far as it instills into the mind the purest
principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating
provisions towards religions such as tax exemption of church
property, salary of religious officers in government
institutions, and optional religious instructions in public
schools.

194
The Framers, however, felt the need to put up a strong
barrier so that the State would not encroach into the affairs
of the church, and vice-versa. The principle of separation of
Church and State was, thus, enshrined in Article II, Section 6
of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be
inviolable.
Verily, the principle of separation of Church and State is
based on mutual respect.1wphi1 Generally, the State
cannot meddle in the internal affairs of the church, much less
question its faith and dogmas or dictate upon it. It cannot
favor one religion and discriminate against another. On the
other hand, the church cannot impose its beliefs and
convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it
sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should
ever be preferred over another, the Constitution in the
above-cited provision utilizes the term "church" in its generic
sense, which refers to a temple, a mosque, an iglesia, or any
other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious
congregations collectively.
Balancing the benefits that religion affords and the need to
provide an ample barrier to protect the State from the pursuit
of its secular objectives, the Constitution lays down the
following mandate in Article III, Section 5 and Article VI,
Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be
allowed. No religious test shall be required for the exercise of
civil or political rights.

Section 29.
xxx.
No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian
institution, or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned
to the armed forces, or to any penal institution, or
government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom
provides two guarantees: the Establishment Clause and the
Free Exercise Clause.
The establishment clause "principally prohibits the State from
sponsoring any religion or favoring any religion as against
other religions. It mandates a strict neutrality in affairs
among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the
respect for the inviolability of the human conscience.207
Under this part of religious freedom guarantee, the State is
prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the
concept of religious freedom, the Court, in Victoriano v.
Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for
the support of any religious tenets or the modes of worship of
any sect, thus forestalling compulsion by law of the
acceptance of any creed or the practice of any form of
worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion
within limits of utmost amplitude. It has been said that the

195
religion clauses of the Constitution are all designed to protect
the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate
invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within
its power, a general law which has for its purpose and effect
to advance the state's secular goals, the statute is valid
despite its indirect burden on religious observance, unless
the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81
S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).

The realm of belief and creed is infinite and limitless bounded

only by one's imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds.
One may believe in most anything, however strange, bizarre
and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or
doctrinal standards. But between the freedom of belief and
the exercise of said belief, there is quite a stretch of road to
travel.212
The second part however, is limited and subject to the
awesome power of the State and can be enjoyed only with
proper regard to the rights of others. It is "subject to
regulation where the belief is translated into external acts
that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause

As expounded in Escritor,
The establishment and free exercise clauses were not
designed to serve contradictory purposes. They have a single
goal-to promote freedom of individual religious beliefs and
practices. In simplest terms, the free exercise clause
prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the
establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and
practices. In other words, the two religion clauses were
intended to deny government the power to use either the
carrot or the stick to influence individual religious beliefs and
practices.210
Corollary to the guarantee of free exercise of one's religion is
the principle that the guarantee of religious freedom is
comprised of two parts: the freedom to believe, and the
freedom to act on one's belief. The first part is absolute. As
explained in Gerona v. Secretary of Education:211

Thus, in case of conflict between the free exercise clause and

the State, the Court adheres to the doctrine of benevolent
neutrality. This has been clearly decided by the Court in
Estrada v. Escritor, (Escritor)214 where it was stated "that
benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the
Philippine Constitution."215 In the same case, it was further
explained that"
The benevolent neutrality theory believes that with respect
to these governmental actions, accommodation of religion
may be allowed, not to promote the government's favored
form of religion, but to allow individuals and groups to
exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion."216 "What is
sought under the theory of accommodation is not a
declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its 'burdensome effect,'
whether by the legislature or the courts."217

196
In ascertaining the limits of the exercise of religious freedom,
the compelling state interest test is proper.218 Underlying
the compelling state interest test is the notion that free
exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.219 In Escritor, it was
written:
Philippine jurisprudence articulates several tests to
determine these limits. Beginning with the first case on the
Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then
pronounced that the test of permissibility of religious
freedom is whether it violates the established institutions of
society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine
that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to
accomplish the goal of the law. The case also used, albeit
inappropriately, the "compelling state interest" test. After
Victoriano , German went back to the Gerona rule. Ebralinag
then employed the "grave and immediate danger" test and
overruled the Gerona test. The fairly recent case of Iglesia ni
Cristo went back to the " clear and present danger" test in
the maiden case of A merican Bible Society. Not surprisingly,
all the cases which employed the "clear and present danger"
or "grave and immediate danger" test involved, in one form
or another, religious speech as this test is often used in cases
on freedom of expression. On the other hand, the Gerona and
German cases set the rule that religious freedom will not
prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German
has been overruled by Ebralinag which employed the "grave
and immediate danger" test . Victoriano was the only case
that employed the "compelling state interest" test, but as
explained previously, the use of the test was inappropriate to
the facts of the case.

The case at bar does not involve speech as in A merican

Bible Society, Ebralinag and Iglesia ni Cristo where the "clear
and present danger" and "grave and immediate danger"
tests were appropriate as speech has easily discernible or
immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the
benevolent neutrality approach, thus not appropriate in this
jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling
state interest" test is proper where conduct is involved for
the whole gamut of human conduct has different effects on
the state's interests: some effects may be immediate and
short-term while others delayed and far-reaching. A test that
would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is
a fundamental right that enjoys a preferred position in the
hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred
for an invocation of the Free Exercise Clause is an appeal to a
higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such
higher sovereignty, thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit
this fundamental right. A mere balancing of interests which
balances a right with just a colorable state interest is
therefore not appropriate. Instead, only a compelling interest
of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy
burden, a compelling one, for to do otherwise would allow the
state to batter religion, especially the less powerful ones until
they are destroyed. In determining which shall prevail
between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state
interest" serves the purpose of revering religious liberty while
at the same time affording protection to the paramount
interests of the state. This was the test used in Sherbert

197
which involved conduct, i.e. refusal to work on Saturdays. In
the end, the "compelling state interest" test, by upholding
the paramount interests of the state, seeks to protect the
very state, without which, religious liberty will not be
preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court
to determine whether the use of contraceptives or one's
participation in the support of modem reproductive health
measures is moral from a religious standpoint or whether the
same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith,
practice, doctrine, form of worship, ecclesiastical law, custom
and rule of a church ... are unquestionably ecclesiastical
matters which are outside the province of the civil
courts."220 The jurisdiction of the Court extends only to
public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only
in this realm where it has authority. Stated otherwise, while
the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have
authority to determine whether the RH Law contravenes the
guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and
respects religion and religious beliefs and convictions. It is
replete with assurances the no one can be compelled to
violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following:
1. The State recognizes and guarantees the human rights of
all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable
human development, the right to health which includes
reproductive health, the right to education and information,
and the right to choose and make decisions for themselves in
accordance with their religious convictions, ethics, cultural

beliefs, and the demands of responsible parenthood. [Section

2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social
institution and the foundation of the family which in turn is
the foundation of the nation. Pursuant thereto, the State shall
defend:
(a) The right of spouses to found a family in accordance with
their religious convictions and the demands of responsible
parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and
access, without bias, to all methods of family planning,
including effective natural and modern methods which have
been proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based
medical research standards such as those registered and
approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government
measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors
and their religious convictions. [Section 3(e), Declaration of
Policy]
4. The State shall promote programs that: (1) enable
individuals and couples to have the number of children they
desire with due consideration to the health, particularly of
women, and the resources available and affordable to them
and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice
of family planning methods that are in accordance with their
religious convictions and cultural beliefs, taking into
consideration the State's obligations under various human
rights instruments. [Section 3(h)]

198
6. Active participation by nongovernment organizations
(NGOs) , women's and people's organizations, civil society,
faith-based
organizations, the
religious sector
and
communities is crucial to ensure that reproductive health and
population and development policies, plans, and programs
will address the priority needs of women, the poor, and the
marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a
parent to respond to the needs and aspirations of the family
and children. It is likewise a shared responsibility between
parents to determine and achieve the desired number of
children, spacing and timing of their children according to
their own family life aspirations, taking into account
psychological preparedness, health status, sociocultural and
economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted
allowing the use of contraceptives. To some medical
practitioners,
however,
the
whole
idea
of
using
contraceptives is an anathema. Consistent with the principle
of benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts
what the government can do with religion, it also limits what
religious sects can or cannot do with the government. They
can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple
terms, would cause the State to adhere to a particular
religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their
supposition that the State cannot enhance its population
control program through the RH Law simply because the

promotion of contraceptive use is contrary to their religious

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

199
conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed
by the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against
his will, refers a patient seeking information on modem
reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has
been compelled to perform an act against his beliefs. As
Commissioner Joaquin A. Bernas (Commissioner Bernas) has
written, "at the basis of the free exercise clause is the
respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out
clause, it is, however, a false compromise because it makes
pro-life health providers complicit in the performance of an
act that they find morally repugnant or offensive. They
cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty
if he abets the offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily
intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that
should be afforded to individuals in communicating their
beliefs to others as well as the protection for simply being
silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to
utter what is not in his mind.223 While the RH Law seeks to
provide freedom of choice through informed consent,
freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or
burden, whether direct or indirect, in the practice of one's
religion.224

In case of conflict between the religious beliefs and moral

convictions of individuals, on one hand, and the interest of
the State, on the other, to provide access and information on
reproductive health products, services, procedures and
methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Court is
of the strong view that the religious freedom of health
providers, whether public or private, should be accorded
primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If
he would be compelled to act contrary to his religious belief
and conviction, it would be violative of "the principle of noncoercion" enshrined in the constitutional right to free exercise
of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the
Court of Session, found in the case of Doogan and Wood v.
NHS Greater Glasgow and Clyde Health Board,225 that the
midwives claiming to be conscientious objectors under the
provisions of Scotland's Abortion Act of 1967, could not be
required to delegate, supervise or support staff on their labor
ward who were involved in abortions.226 The Inner House
stated "that if 'participation' were defined according to
whether the person was taking part 'directly' or ' indirectly'
this
would
actually
mean
more
complexity
and
uncertainty."227
While the said case did not cover the act of referral, the
applicable principle was the same - they could not be forced
to assist abortions if it would be against their conscience or
will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty
hospitals and hospitals owned and operated by a religious
group and health care service providers. Considering that
Section 24 of the RH Law penalizes such institutions should
they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must

200
be struck down for being violative of the freedom of religion.
The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of
information regarding programs and services and in the
performance of reproductive health procedures, the religious
freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc.
v. Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the
framers of our fundamental law. And this Court has
consistently affirmed this preferred status, well aware that it
is "designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he
ought to live, consistent with the liberty of others and with
the common good."10
The Court is not oblivious to the view that penalties provided
by law endeavour to ensure compliance. Without set
consequences for either an active violation or mere inaction,
a law tends to be toothless and ineffectual. Nonetheless,
when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly
chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer
a patient to another, or who declines to perform reproductive
health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.

of their office are specifically charged with the duty to

implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection
clause. The conscientious objection clause should be equally
protective of the religious belief of public health officers.
There is no perceptible distinction why they should not be
considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should
equally apply to all medical practitioners without distinction
whether they belong to the public or private sector. After all,
the freedom to believe is intrinsic in every individual and the
protective robe that guarantees its free exercise is not taken
off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place
inferior to none in the hierarchy of human values. The mind
must be free to think what it wills, whether in the secular or
religious sphere, to give expression to its beliefs by oral
discourse or through the media and, thus, seek other candid
views in occasions or gatherings or in more permanent
aggrupation. Embraced in such concept then are freedom of
religion, freedom of speech, of the press, assembly and
petition, and freedom of association.229
The discriminatory provision is void not only because no such
exception is stated in the RH Law itself but also because it is
violative of the equal protection clause in the Constitution.
Quoting respondent Lagman, if there is any conflict between
the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial,
city or municipal health officers, chiefs of hospital, head
nurses, supervising midwives, among others, who by virtue

I'll go to another point. The RH law .. .in your Comment- inIntervention on page 52, you mentioned RH Law is replete
with provisions in upholding the freedom of religion and
respecting religious convictions. Earlier, you affirmed this
with qualifications. Now, you have read, I presumed you have

201
read the IRR-Implementing Rules and Regulations of the RH
Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long
IRR and I have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I
cannot find in the RH Law. But in the IRR it says: " .... skilled
health professionals such as provincial, city or municipal
health officers, chief of hospitals, head nurses, supervising
midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the
provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors." Do you agree with
this?

The foregoing discussion then begets the question on

whether the respondents, in defense of the subject
provisions, were able to: 1] demonstrate a more compelling
state interest to restrain conscientious objectors in their
choice of services to render; and 2] discharge the burden of
proof that the obligatory character of the law is the least
intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents'
submissions proved to be in vain. The OSG was curiously
silent in the establishment of a more compelling state
interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his
religious convictions. During the oral arguments, the OSG
maintained the same silence and evasion. The Transcripts of
the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to
refer. ..

Congressman Lagman:
Senior State Solicitor Hilbay:
I will have to go over again the provisions, Your Honor.
Yes, Justice.
Justice Mendoza:
Justice De Castro:
In other words, public health officers in contrast to the
private practitioners who can be conscientious objectors,
skilled
health
professionals
cannot
be
considered
conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?

... which you are discussing awhile ago with Justice Abad.
What is the compelling State interest in imposing this duty to
refer to a conscientious objector which refuses to do so
because of his religious belief?

Congressman Lagman:

Senior State Solicitor Hilbay:

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

Ahh, Your Honor, ..

Justice De Castro:

Compelling State Interest

What is the compelling State interest to impose this burden?

202
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard
is a compelling State interest, this is an ordinary health
legislation involving professionals. This is not a free speech
matter or a pure free exercise matter. This is a regulation by
the State of the relationship between medical doctors and
their patients.231
Resultantly, the Court finds no compelling state interest
which would limit the free exercise clause of the
conscientious objectors, however few in number. Only the
prevention of an immediate and grave danger to the security
and welfare of the community can justify the infringement of
religious freedom. If the government fails to show the
seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232
Freedom of religion means more than just the freedom to
believe. It also means the freedom to act or not to act
according to what one believes. And this freedom is violated
when one is compelled to act against one's belief or is
prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to
the life or health of an individual in the perceived scenario of
the subject provisions. After all, a couple who plans the
timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not
the mother decides to adopt or use the information, product,
method or supply given to her or whether she even decides
to become pregnant at all. On the other hand, the burden
placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks
consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify
the infringement of the conscientious objector's religious
freedom, the respondents have failed to demonstrate "the

gravest abuses, endangering paramount interests" which

could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented
any government effort exerted to show that the means it
takes to achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that the act of
referring would only be momentary, considering that the act
of referral by a conscientious objector is the very action
being contested as violative of religious freedom, it behooves
the respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without
violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other
practitioners who may perform reproductive health-related
procedures with open willingness and motivation. Suffice it to
say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last
vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by
the Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4
729 or the Contraceptive Act, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply
cater to the needs of women in relation to health services
and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in
fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive
Health Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive
health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of
women's mortality and morbidity: Provided, That in the
provision for comprehensive health services, due respect
shall be accorded to women's religious convictions, the rights
of the spouses to found a family in accordance with their
religious convictions, and the demands of responsible

203
parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to
address pregnancy and infant health and nutrition;

(10) Care of the elderly women beyond their child-bearing

years; and
(11) Management, treatment, and intervention of mental
health problems of women and girls. In addition, healthy
lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of
diseases.

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods
of family planning;
(4) Family and State collaboration in youth sexuality
education and health services without prejudice to the
primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract
infections, including sexually transmitted diseases, HIV, and
AIDS;

(b) Comprehensive Health Information and Education. The State shall provide women in all sectors with appropriate,
timely, complete, and accurate information and education on
all the above-stated aspects of women's health in
government education and training programs, with due
regard to the following:
(1) The natural and primary right and duty of parents in
the rearing of the youth and the development of moral
character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and
strengthening of character;

(6) Prevention and management of reproductive tract

cancers like breast and cervical cancers, and other
gynecological conditions and disorders;

(2) The formation of a person's sexuality that affirms

human dignity; and

(7) Prevention of abortion and management of pregnancyrelated complications;

(3) Ethical, legal, safe, and effective family planning

methods including fertility awareness.

(8) In cases of violence against women and children,

women and children victims and survivors shall be provided
with
comprehensive
health
services
that
include
psychosocial, therapeutic, medical, and legal interventions
and
assistance
towards
healing,
recovery,
and
empowerment;

As an afterthought, Asst. Solicitor General Hilbay eventually

replied that the compelling state interest was "Fifteen
maternal deaths per day, hundreds of thousands of
unintended pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by concrete facts
and figures from reputable sources.

(9) Prevention and management of infertility and sexual

dysfunction pursuant to ethical norms and medical
standards;

The undisputed fact, however, is that the World Health

Organization reported that the Filipino maternal mortality
rate dropped to 48 percent from 1990 to 2008, 236 although
there was still no RH Law at that time. Despite such

204
revelation, the proponents still insist that such number of
maternal deaths constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the
delivery of social healthcare programs for Filipino women,
they could not be solved by a measure that puts an
unwarrantable stranglehold on religious beliefs in exchange
for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid
exception set forth in the law. While generally healthcare
service providers cannot be forced to render reproductive
health care procedures if doing it would contravene their
religious beliefs, an exception must be made in lifethreatening cases that require the performance of
emergency procedures. In these situations, the right to life of
the mother should be given preference, considering that a
referral by a medical practitioner would amount to a denial of
service, resulting to unnecessarily placing the life of a mother
in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that
we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the
life of a child, the doctor is morally obliged always to try to
save both lives. If, however, it is impossible, the resulting
death to one should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the
principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein
intentional harm on the life of either the mother of the child
is never justified to bring about a "good" effect. In a conflict
situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save
both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to

save both, provided that no direct harm is intended to the

other. If the above principles are observed, the loss of the
child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty
of abortion or murder. The mother is never pitted against the
child because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother,
procedures endangering the life of the child may be resorted
to even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed
upon a medical practitioner in this case would have been
more than justified considering the life he would be able to
save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a
condition for the issuance of a marriage license, the Court
finds the same to be a reasonable exercise of police power by
the government. A cursory reading of the assailed provision
bares that the religious freedom of the petitioners is not at all
violated. All the law requires is for would-be spouses to
attend a seminar on parenthood, family planning
breastfeeding and infant nutrition. It does not even mandate
the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly
noted by the OSG, those who receive any information during
their attendance in the required seminars are not compelled
to accept the information given to them, are completely free
to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the
intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2)
(i) thereof violates the provisions of the Constitution by
intruding into marital privacy and autonomy. It argues that it

205
cultivates disunity and fosters animosity in the family rather
than promote its solidarity and total development.240
The Court cannot but agree.
The
1987
Constitution
is
replete
with
provisions
strengthening the family as it is the basic social institution. In
fact, one article, Article XV, is devoted entirely to the family.

and/or the father from participating in the decision making

process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor
daughter simply because she is already a parent or had
suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:

ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.

The following acts are prohibited:

(a) Any health care service provider, whether public or
private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive
health procedures on any person of legal age on the ground
of lack of consent or authorization of the following persons in
the following instances:

Section 3. The State shall defend:

The right of spouses to found a family in accordance with
their religious convictions and the demands of responsible
parenthood;
The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation and other conditions prejudicial
to their development;
The right of the family to a family living wage and income;
and
The right of families or family assoc1at1ons to participate in
the planning and implementation of policies and programs
that affect them.
In this case, the RH Law, in its not-so-hidden desire to control
population growth, contains provisions which tend to wreck
the family as a solid social institution. It bars the husband

(i) Spousal consent in case of married persons: provided,

That in case of disagreement, the decision of the one
undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures
like tubal litigation and vasectomy which, by their very
nature, should require mutual consent and decision between
the husband and the wife as they affect issues intimately
related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right
of the spouses to found a family." One person cannot found a
family. The right, therefore, is shared by both spouses. In the
same Section 3, their right "to participate in the planning and
implementation of policies and programs that affect them " is
equally recognized.
The RH Law cannot be allowed to infringe upon this mutual
decision-making. By giving absolute authority to the spouse
who would undergo a procedure, and barring the other
spouse from participating in the decision would drive a

206
wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family,
all for the sake of reducing the population. This would be a
marked departure from the policy of the State to protect
marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is
a private matter which belongs to the couple, not just one of
them. Any decision they would reach would affect their future
as a family because the size of the family or the number of
their children significantly matters. The decision whether or
not to undergo the procedure belongs exclusively to, and
shared by, both spouses as one cohesive unit as they chart
their own destiny. It is a constitutionally guaranteed private
right. Unless it prejudices the State, which has not shown any
compelling interest, the State should see to it that they chart
their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c)
of R.A. No. 9710, otherwise known as the "Magna Carta for
Women," provides that women shall have equal rights in all
matters relating to marriage and family relations, including
the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of
the RH Law states, is a shared responsibility between
parents. Section 23(a)(2)(i) of the RH Law should not be
allowed to betray the constitutional mandate to protect and
strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive
health procedure.242
The right to chart their own destiny together falls within the
protected zone of marital privacy and such state intervention
would encroach into the zones of spousal privacy guaranteed
by the Constitution. In our jurisdiction, the right to privacy
was first recognized in Marje v. Mutuc,243 where the Court,
speaking through Chief Justice Fernando, held that "the right
to privacy as such is accorded recognition independently of
its identification with liberty; in itself, it is fully deserving of
constitutional protection."244 Marje adopted the ruling of the

US Supreme Court in Griswold v. Connecticut,245 where

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

207
guardian/s except when the minor is already a parent or has
had a miscarriage.
There can be no other interpretation of this provision except
that when a minor is already a parent or has had a
miscarriage, the parents are excluded from the decision
making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is
already cut off just because there is a need to tame
population growth.

recognition that the State affords couples entering into the

special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take
over the role of parents in the care and custody of a minor
child, whether or not the latter is already a parent or has had
a miscarriage. Only a compelling state interest can justify a
state substitution of their parental authority.
First Exception: Access to Information

It is precisely in such situations when a minor parent needs

the comfort, care, advice, and guidance of her own parents.
The State cannot replace her natural mother and father when
it comes to providing her needs and comfort. To say that their
consent is no longer relevant is clearly anti-family. It does not
promote unity in the family. It is an affront to the
constitutional mandate to protect and strengthen the family
as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional
mandate that "the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of
the Government."247 In this regard, Commissioner Bernas
wrote:
The 1987 provision has added the adjective "primary" to
modify the right of parents. It imports the assertion that the
right of parents is superior to that of the State.248
[Emphases supplied]
To insist on a rule that interferes with the right of parents to
exercise parental control over their minor-child or the right of
the spouses to mutually decide on matters which very well
affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would
be dismissive of the unique and strongly-held Filipino
tradition of maintaining close family ties and violative of the

Whether with respect to the minor referred to under the

exception provided in the second paragraph of Section 7 or
with respect to the consenting spouse under Section 23(a)(2)
(i), a distinction must be made. There must be a
differentiation between access to information about family
planning services, on one hand, and access to the
reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional
objection to the acquisition of information by the minor
referred to under the exception in the second paragraph of
Section 7 that would enable her to take proper care of her
own body and that of her unborn child. After all, Section 12,
Article II of the Constitution mandates the State to protect
both the life of the mother as that of the unborn child.
Considering that information to enable a person to make
informed decisions is essential in the protection and
maintenance of ones' health, access to such information with
respect to reproductive health must be allowed. In this
situation, the fear that parents might be deprived of their
parental control is unfounded because they are not
prohibited to exercise parental guidance and control over
their minor child and assist her in deciding whether to accept
or reject the information received.
Second Exception: Life Threatening Cases

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As in the case of the conscientious objector, an exception
must be made in life-threatening cases that require the
performance of emergency procedures. In such cases, the life
of the minor who has already suffered a miscarriage and that
of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be
denied the appropriate medical care urgently needed to
preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)
(ii)249 should be struck down. By effectively limiting the
requirement of parental consent to "only in elective surgical
procedures," it denies the parents their right of parental
authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above,
and in the case of an abused child as provided in the first
sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To
deny them of this right would be an affront to the
constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to
Section 24 thereof, mandating the teaching of Age-and
Development-Appropriate Reproductive Health Education
under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners,
these provisions effectively force educational institutions to
teach reproductive health education even if they believe that
the same is not suitable to be taught to their students.250
Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver
that the prevalence of contraceptives has led to an increase
of out-of-wedlock births; divorce and breakdown of families;
the acceptance of abortion and euthanasia; the "feminization
of poverty"; the aging of society; and promotion of
promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity

of Section 14 of the RH Law is premature because the
Department of Education, Culture and Sports has yet to
formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content,
manner and medium of instruction that will be used to
educate the adolescents and whether they will contradict the
religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of
this particular issue, the Court declines to rule on its
constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution
provides that the natural and primary right and duty of
parents in the rearing of the youth for civic efficiency and
development of moral character shall receive the support of
the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State
recognition of the invaluable role of parents in preparing the
youth to become productive members of society. Notably, it
places more importance on the role of parents in the
development of their children by recognizing that said role
shall be "primary," that is, that the right of parents in
upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens
patriae to aid parents in the moral development of the youth.
Indeed, the Constitution makes mention of the importance of
developing the youth and their important role in nation
building.253 Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but
also for values formation; the development of knowledge and
skills in self-protection against discrimination; sexual abuse
and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social
and emotional changes in adolescents; women's rights and
children's rights; responsible teenage behavior; gender and
development; and responsible parenthood, and that Rule 10,
Section 11.01 of the RH-IRR and Section 4(t) of the RH Law
itself provides for the teaching of responsible teenage

209
behavior, gender sensitivity and physical and emotional
changes among adolescents - the Court finds that the legal
mandate provided under the assailed provision supplements,
rather than supplants, the rights and duties of the parents in
the moral development of their children.
Furthermore, as Section 14 also mandates that the
mandatory reproductive health education program shall be
developed in conjunction with parent-teacher-community
associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it
becomes apparent that the petitioners' contention that
Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might
raise their objection to their participation in the reproductive
health education program provided under Section 14 of the
RH Law on the ground that the same violates their religious
beliefs, the Court reserves its judgment should an actual case
be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from
vagueness and, thus violates the due process clause of the
Constitution. According to them, Section 23 (a)(l) mentions a
"private health service provider" among those who may be
held punishable but does not define who is a "private health
care service provider." They argue that confusion further
results since Section 7 only makes reference to a "private
health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups
from rendering reproductive health service and modern
family planning methods. It is unclear, however, if these
institutions are also exempt from giving reproductive health

information under Section 23(a)(l), or from rendering

reproductive health procedures under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the
withholding,
restricting
and
providing
of
incorrect
information, but at the same time fails to define "incorrect
information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it
lacks comprehensible standards that men of common
intelligence must necessarily guess its meaning and differ as
to its application. It is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of
the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.255
Moreover, in determining whether the words used in a
statute are vague, words must not only be taken in
accordance with their plain meaning alone, but also in
relation to other parts of the statute. It is a rule that every
part of the statute must be interpreted with reference to the
context, that is, every part of it must be construed together
with the other parts and kept subservient to the general
intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition
of "private health care service provider," reference must be
made to Section 4(n) of the RH Law which defines a "public
health service provider," viz:
(n) Public health care service provider refers to: (1) public
health care institution, which is duly licensed and accredited
and devoted primarily to the maintenance and operation of
facilities for health promotion, disease prevention, diagnosis,
treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of
obstetrical or other medical and nursing care; (2) public

210
health care professional, who is a doctor of medicine, a nurse
or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health
worker who has undergone training programs under any
accredited government and NGO and who voluntarily renders
primarily health care services in the community after having
been accredited to function as such by the local health board
in accordance with the guidelines promulgated by the
Department of Health (DOH) .

(a) Any health care service provider, whether public or

private, who shall:

Further, the use of the term "private health care institution"

in Section 7 of the law, instead of "private health care service
provider," should not be a cause of confusion for the obvious
reason that they are used synonymously.

From its plain meaning, the word "incorrect" here denotes

failing to agree with a copy or model or with established
rules; inaccurate, faulty; failing to agree with the
requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word
"knowingly" means with awareness or deliberateness that is
intentional.258 Used together in relation to Section 23(a)(l),
they connote a sense of malice and ill motive to mislead or
misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health
and safety demand that health care service providers give
their honest and correct medical information in accordance
with what is acceptable in medical practice. While health care
service providers are not barred from expressing their own
personal opinions regarding the programs and services on
reproductive health, their right must be tempered with the
need to provide public health and safety. The public deserves
no less.

The Court need not belabor the issue of whether the right to
be exempt from being obligated to render reproductive
health service and modem family planning methods, includes
exemption from being obligated to give reproductive health
information and to render reproductive health procedures.
Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to
render reproductive health service and modem family
planning methods, necessarily includes exemption from
being obligated to give reproductive health information and
to render reproductive health procedures. The terms
"service" and "methods" are broad enough to include the
providing of information and the rendering of medical
procedures.

(1) Knowingly withhold information or restrict the

dissemination thereof, and/ or intentionally provide incorrect
information regarding programs and services on reproductive
health including the right to informed choice and access to a
full range of legal, medically-safe, non-abortifacient and
effective family planning methods;

7-Egual Protection
The same can be said with respect to the contention that the
RH Law punishes health care service providers who
intentionally withhold, restrict and provide incorrect
information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby
quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:

The petitioners also claim that the RH Law violates the equal
protection clause under the Constitution as it discriminates
against the poor because it makes them the primary target of
the government program that promotes contraceptive use .
They argue that, rather than promoting reproductive health
among the poor, the RH Law introduces contraceptives that
would effectively reduce the number of the poor. Their bases
are the various provisions in the RH Law dealing with the

211
poor, especially those mentioned in the guiding principles259
and definition of terms260 of the law.
They add that the exclusion of private educational
institutions from the mandatory reproductive health
education program imposed by the RH Law renders it
unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had
the occasion to expound on the concept of equal protection.
Thus:
One of the basic principles on which this government was
founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in
a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal
protection clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat
similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every
person within a state's jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express
terms of a statue or by its improper execution through the
state's duly constituted authorities." "In other words, the
concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a
legitimate governmental objective."

The equal protection clause is aimed at all official state

actions, not just those of the legislature. Its inhibitions cover
all the departments of the government including the political
and executive departments, and extend to all actions of a
state denying equal protection of the laws, through whatever
agency or whatever guise is taken.
It, however, does not require the universal application of the
laws to all persons or things without distinction. What it
simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal
protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness.
The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of
the law; (3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of
constitutionality, it must include or embrace all persons who
naturally belong to the class. "The classification will be
regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made
with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal
degree. Substantial similarity will suffice; and as long as this
is achieved, all those covered by the classification are to be
treated equally. The mere fact that an individual belonging to
a class differs from the other members, as long as that class
is substantially distinguishable from all others, does not
justify the non-application of the law to him."
The classification must not be based on existing
circumstances only, or so constituted as to preclude addition
to the number included in the class. It must be of such a
nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or

212
"underinclude" those that should otherwise fall into a certain
classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a
violation of the equal protection clause. In fact, it is pursuant
to Section 11, Article XIII of the Constitution which recognizes
the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in
addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There
shall be priority for the needs of the underprivileged, sick,
elderly, disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes
poor and marginalized couples who are suffering from fertility
issues and desire to have children. There is, therefore, no
merit to the contention that the RH Law only seeks to target
the poor to reduce their number. While the RH Law admits
the use of contraceptives, it does not, as elucidated above,
sanction abortion. As Section 3(1) explains, the "promotion
and/or stabilization of the population growth rate is incidental
to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of
children a couple may have and does not impose conditions
upon couples who intend to have children. While the
petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would
raise them in a truly humane way, a deeper look into its
provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of
government programs to promote basic reproductive health
care.

With respect to the exclusion of private educational

institutions from the mandatory reproductive health
education program under Section 14, suffice it to state that
the mere fact that the children of those who are less
fortunate attend public educational institutions does not
amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial distinction
rests between public educational institutions and private
educational institutions, particularly because there is a need
to recognize the academic freedom of private educational
institutions especially with respect to religious instruction and
to consider their sensitivity towards the teaching of
reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally
infirm as it violates the constitutional prohibition against
involuntary servitude. They posit that Section 17 of the
assailed legislation requiring private and non-government
health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to
involuntary
servitude
because
it
requires
medical
practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services
envisioned in Section 17 can hardly be considered as forced
labor analogous to slavery, as reproductive health care
service providers have the discretion as to the manner and
time of giving pro bono services. Moreover, the OSG points
out that the imposition is within the powers of the
government, the accreditation of medical practitioners with
PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is
undeniably imbued with public interest that it is both a power
and a duty of the State to control and regulate it in order to
protect and promote the public welfare. Like the legal

213
profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the
very lives of the people. A fortiori, this power includes the
power of Congress263 to prescribe the qualifications for the
practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public
safety; and to regulate or control such professions or trades,
even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of
involuntary servitude connotes the presence of force, threats,
intimidation or other similar means of coercion and
compulsion.265 A reading of the assailed provision, however,
reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono
service. Other than non-accreditation with PhilHealth, no
penalty is imposed should they choose to do otherwise.
Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to
provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro
bono service against their will. While the rendering of such
service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive
imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed,
however, it should be emphasized that conscientious
objectors are exempt from this provision as long as their
religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress
to the FDA of the power to determine whether or not a supply

or product is to be included in the Essential Drugs List

(EDL).266
The Court finds nothing wrong with the delegation. The FDA
does not only have the power but also the competency to
evaluate, register and cover health services and methods. It
is the only government entity empowered to render such
services and highly proficient to do so. It should be
understood that health services and methods fall under the
gamut of terms that are associated with what is ordinarily
understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended
by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby
created an office to be called the Food and Drug
Administration (FDA) in the Department of Health (DOH). Said
Administration shall be under the Office of the Secretary and
shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act
and of the rules and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of
samples of health products;
"(c) To analyze and inspect health products in connection
with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the
preparation of health products standards, and to recommend
standards of identity, purity, safety, efficacy, quality and fill
of container;
"(e) To issue certificates of compliance with technical
requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance with
regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other

214
establishments and facilities
determined by the FDA;

of

health

products,

as

"x x x
"(h) To conduct appropriate tests on all applicable health
products prior to the issuance of appropriate authorizations
to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors,
importers, exporters, wholesalers, retailers, consumers, and
non-consumer users of health products to report to the FDA
any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon
verified complaint for health products, whether or not
registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after due
process has been observed;
"(k) After due process, to order the ban, recall, and/or
withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or
patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned
to implement the risk management plan which is a
requirement
for
the
issuance
of
the
appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and
duties of the FDA are specific to enable the agency to carry
out the mandates of the law. Being the country's premiere
and sole agency that ensures the safety of food and
medicines available to the public, the FDA was equipped with
the necessary powers and functions to make it effective.

Pursuant to the principle of necessary implication, the

mandate by Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are safe
includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public
be given only those medicines that are proven medically
safe, legal, non-abortifacient, and effective in accordance
with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation
was explained in Echagaray v. Secretary of Justice,267 as
follows:
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to
cope directly with the many problems demanding its
attention. The growth of society has ramified its activities
and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend.
Specialization even in legislation has become necessary. To
many of the problems attendant upon present day
undertakings, the legislature may not have the competence,
let alone the interest and the time, to provide the required
direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous
Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners
claim that the RH Law infringes upon the powers devolved to
local government units (LGUs) under Section 17 of the Local
Government Code. Said Section 17 vested upon the LGUs the
duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant
and shall continue exercising the powers and discharging the

215
duties and functions currently vested upon them. They shall
also discharge the functions and responsibilities of national
agencies and offices devolved to them pursuant to this Code.
Local government units shall likewise exercise such other
powers
and
discharge
such
other
functions
and
responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not
limited to, x x x.
While the aforementioned provision charges the LGUs to take
on the functions and responsibilities that have already been
devolved upon them from the national agencies on the
aspect of providing for basic services and facilities in their
respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving
nationally-funded
projects,
facilities,
programs
and
services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof,
public works and infrastructure projects and other facilities,
programs and services funded by the National Government
under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially
funded from foreign sources, are not covered under this
Section, except in those cases where the local government
unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the
national government is that, unless an LGU is particularly
designated as the implementing agency, it has no power
over a program for which funding has been provided by the
national
government
under
the
annual
general
appropriations act, even if the program involves the delivery
of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on

the matter of providing basic facilities and services cannot be

implied as the Local Government Code itself weighs against
it.270
In this case, a reading of the RH Law clearly shows that
whether it pertains to the establishment of health care
facilities,271 the hiring of skilled health professionals,272 or
the training of barangay health workers,273 it will be the
national government that will provide for the funding of its
implementation. Local autonomy is not absolute. The
national government still has the say when it comes to
national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us
are merely encouraged to provide these services. There is
nothing in the wording of the law which can be construed as
making the availability of these services mandatory for the
LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national
government upon the autonomy enjoyed by the local
governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of
local governments can be equally applied to the ARMM. The
RH Law does not infringe upon its autonomy. Moreover,
Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the
organic act of the ARMM, alluded to by petitioner Tillah to
justify the exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for the
guidance of the regional government. These provisions relied
upon by the petitioners simply delineate the powers that may
be exercised by the regional government, which can, in no
manner, be characterized as an abdication by the State of its
power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the
ARMM, the Constitution and the supporting jurisprudence, as
they now stand, reject the notion of imperium et imperio in

216
the relationship between the national and the regional
governments.274 Except for the express and implied
limitations imposed on it by the Constitution, Congress
cannot be restricted to exercise its inherent and plenary
power to legislate on all subjects which extends to all matters
of general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates
natural law,276 suffice it to say that the Court does not duly
recognize it as a legal basis for upholding or invalidating a
law. Our only guidepost is the Constitution. While every law
enacted by man emanated from what is perceived as natural
law, the Court is not obliged to see if a statute, executive
issuance or ordinance is in conformity to it. To begin with, it is
not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists.
The jurists of the philosophical school are interested in the
law as an abstraction, rather than in the actual law of the
past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to
strike down a law. In Republic v. Sandiganbayan,278 the very
case cited by the petitioners, it was explained that the Court
is not duty-bound to examine every law or action and
whether it conforms with both the Constitution and natural
law. Rather, natural law is to be used sparingly only in the
most peculiar of circumstances involving rights inherent to
man where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not
sanction the taking away of life. It does not allow abortion in
any shape or form. It only seeks to enhance the population
control program of the government by providing information
and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable,
and quality reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out, however, the
religious freedom of some sectors of society cannot be
trampled upon in pursuit of what the law hopes to achieve.
After all, the Constitutional safeguard to religious freedom is
a recognition that man stands accountable to an authority
higher than the State.
In conformity with the principle of separation of Church and
State, one religious group cannot be allowed to impose its
beliefs on the rest of the society. Philippine modem society
leaves enough room for diversity and pluralism. As such,
everyone should be tolerant and open-minded so that peace
and harmony may continue to reign as we exist alongside
each other.
As healthful as the intention of the RH Law may be, the idea
does not escape the Court that what it seeks to address is
the problem of rising poverty and unemployment in the
country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution
of wealth. Even if population growth is controlled, poverty will
remain as long as the country's wealth remains in the hands
of the very few.
At any rate, population control may not be beneficial for the
country in the long run. The European and Asian countries,
which embarked on such a program generations ago , are
now burdened with ageing populations. The number of their
young workers is dwindling with adverse effects on their
economy. These young workers represent a significant
human capital which could have helped them invigorate,
innovate and fuel their economy. These countries are now
trying to reverse their programs, but they are still struggling.
For one, Singapore, even with incentives, is failing.

217
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is
because we have an ample supply of young able-bodied
workers. What would happen if the country would be weighed
down by an ageing population and the fewer younger
generation would not be able to support them? This would be
the situation when our total fertility rate would go down
below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population problem,
but the State should not use coercive measures (like the
penal provisions of the RH Law against conscientious
objectors) to solve it. Nonetheless, the policy of the Court is
non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature
has laid down. Its duty is to say what the law is as enacted by
the lawmaking body. That is not the same as saying what the
law should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies
adopted by the legislative branch. Nor is it the business of
this Tribunal to remedy every unjust situation that may arise
from the application of a particular law. It is for the legislature
to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold
neutrality, the Court must carry out the delicate function of
interpreting the law, guided by the Constitution and existing
legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine
itself to the judicial task of saying what the law is, as enacted
by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a
mere compilation and enhancement of the prior existing
contraceptive and reproductive health laws, but with coercive
measures. Even if the Court decrees the RH Law as entirely
unconstitutional, there will still be the Population Act (R.A. No.

6365), the Contraceptive Act (R.A. No. 4729) and the

reproductive health for women or The Magna Carta of
Women (R.A. No. 9710), sans the coercive provisions of the
assailed legislation. All the same, the principle of "noabortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED.
Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR
insofar as they: a) require private health facilities and nonmaternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to modem
methods of family planning without written consent from
their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RHIRR, particularly Section 5 .24 thereof, insofar as they punish
any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on
reproductive health regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the
RH-IRR insofar as they allow a married individual, not in an
emergency or life-threatening case, as defined under
Republic Act No. 8344, to undergo reproductive health
procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the
RH-IRR insofar as they limit the requirement of parental
consent only to elective surgical procedures.

218
5) Section 23(a)(3) and the corresponding provision in the
RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or lifethreatening case, as defined under Republic Act No. 8344, to
another health care service provider within the same facility
or one which is conveniently accessible regardless of his or
her religious beliefs;
6) Section 23(b) and the corresponding provision in the RHIRR, particularly Section 5 .24 thereof, insofar as they punish
any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless
of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR
regarding the rendering of pro bona reproductive health
service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which
added the qualifier "primarily" in defining abortifacients and
contraceptives, as they are ultra vires and, therefore, null
and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19,
2013 as extended by its Order, dated July 16, 2013 , is
hereby LIFTED, insofar as the provisions of R.A. No. 10354
which have been herein declared as constitutional.
SO ORDERED.

219
G.R. No. 101949 December 1, 1994
THE HOLY SEE, petitioner,
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of
the Regional Trial Court of Makati, Branch 61 and
STARBRIGHT SALES ENTERPRISES, INC., respondents.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are
covered by Transfer Certificates of Title Nos. 271108 and
265388 respectively and registered in the name of the
Philippine Realty Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr.
Domingo A. Cirilos, Jr., acting as agent to the sellers. Later,
Licup assigned his rights to the sale to private respondent.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised
Rules of Court to reverse and set aside the Orders dated June
20, 1991 and September 19, 1991 of the Regional Trial Court,
Branch 61, Makati, Metro Manila in Civil Case No. 90-183.
The Order dated June 20, 1991 denied the motion of
petitioner to dismiss the complaint in Civil Case No. 90-183,
while the Order dated September 19, 1991 denied the motion
for reconsideration of the June 20,1991 Order.
Petitioner is the Holy See who exercises sovereignty over the
Vatican City in Rome, Italy, and is represented in the
Philippines by the Papal Nuncio.
Private respondent, Starbright Sales Enterprises, Inc., is a
domestic corporation engaged in the real estate business.
This petition arose from a controversy over a parcel of land
consisting of 6,000 square meters (Lot 5-A, Transfer
Certificate of Title No. 390440) located in the Municipality of
Paraaque, Metro Manila and registered in the name of
petitioner.

In view of the refusal of the squatters to vacate the lots sold

to private respondent, a dispute arose as to who of the
parties has the responsibility of evicting and clearing the land
of squatters. Complicating the relations of the parties was
the sale by petitioner of Lot 5-A to Tropicana Properties and
Development Corporation (Tropicana).
I
On January 23, 1990, private respondent filed a complaint
with the Regional Trial Court, Branch 61, Makati, Metro Manila
for annulment of the sale of the three parcels of land, and
specific performance and damages against petitioner,
represented by the Papal Nuncio, and three other
defendants: namely, Msgr. Domingo A. Cirilos, Jr., the PRC
and Tropicana (Civil Case No.
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr.
Cirilos, Jr., on behalf of petitioner and the PRC, agreed to sell
to Ramon Licup Lots 5-A, 5-B and 5-D at the price of
P1,240.00 per square meters; (2) the agreement to sell was
made on the condition that earnest money of P100,000.00 be
paid by Licup to the sellers, and that the sellers clear the said
lots of squatters who were then occupying the same; (3)
Licup paid the earnest money to Msgr. Cirilos; (4) in the same
month, Licup assigned his rights over the property to private
respondent and informed the sellers of the said assignment;
(5) thereafter, private respondent demanded from Msgr.
Cirilos that the sellers fulfill their undertaking and clear the
property of squatters; however, Msgr. Cirilos informed private

220
respondent of the squatters' refusal to vacate the lots,
proposing instead either that private respondent undertake
the eviction or that the earnest money be returned to the
latter; (6) private respondent counterproposed that if it would
undertake the eviction of the squatters, the purchase price of
the lots should be reduced from P1,240.00 to P1,150.00 per
square meter; (7) Msgr. Cirilos returned the earnest money of
P100,000.00 and wrote private respondent giving it seven
days from receipt of the letter to pay the original purchase
price in cash; (8) private respondent sent the earnest money
back to the sellers, but later discovered that on March 30,
1989, petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced by two
separate Deeds of Sale, one over Lot 5-A, and another over
Lots 5-B and 5-D; and that the sellers' transfer certificate of
title over the lots were cancelled, transferred and registered
in the name of Tropicana; (9) Tropicana induced petitioner
and the PRC to sell the lots to it and thus enriched itself at
the expense of private respondent; (10) private respondent
demanded the rescission of the sale to Tropicana and the
reconveyance of the lots, to no avail; and (11) private
respondent is willing and able to comply with the terms of
the contract to sell and has actually made plans to develop
the lots into a townhouse project, but in view of the sellers'
breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the
Deeds of Sale between petitioner and the PRC on the one
hand, and Tropicana on the other; (2) the reconveyance of
the lots in question; (3) specific performance of the
agreement to sell between it and the owners of the lots; and
(4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately
moved to dismiss the complaint petitioner for lack of
jurisdiction based on sovereign immunity from suit, and Msgr.
Cirilos for being an improper party. An opposition to the
motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying,

among others, petitioner's motion to dismiss after finding
that petitioner "shed off [its] sovereign immunity by entering
into the business contract in question" (Rollo, pp. 20-21).
On July 12, 1991, petitioner moved for reconsideration of the
order. On August 30, 1991, petitioner filed a "Motion for a
Hearing for the Sole Purpose of Establishing Factual
Allegation for claim of Immunity as a Jurisdictional Defense."
So as to facilitate the determination of its defense of
sovereign immunity, petitioner prayed that a hearing be
conducted to allow it to establish certain facts upon which
the said defense is based. Private respondent opposed this
motion as well as the motion for reconsideration.
On October 1, 1991, the trial court issued an order deferring
the resolution on the motion for reconsideration until after
trial on the merits and directing petitioner to file its answer
(Rollo, p. 22).
Petitioner forthwith elevated the matter to us. In its petition,
petitioner invokes the privilege of sovereign immunity only
on its own behalf and on behalf of its official representative,
the Papal Nuncio.
On December 9, 1991, a Motion for Intervention was filed
before us by the Department of Foreign Affairs, claiming that
it has a legal interest in the outcome of the case as regards
the diplomatic immunity of petitioner, and that it "adopts by
reference, the allegations contained in the petition of the
Holy See insofar as they refer to arguments relative to its
claim of sovereign immunity from suit" (Rollo, p. 87).
Private respondent opposed the intervention of the
Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of
Foreign Affairs submitted their respective memoranda.
II

221
A preliminary matter to be threshed out is the procedural
issue of whether the petition for certiorari under Rule 65 of
the Revised Rules of Court can be availed of to question the
order denying petitioner's motion to dismiss. The general rule
is that an order denying a motion to dismiss is not reviewable
by the appellate courts, the remedy of the movant being to
file his answer and to proceed with the hearing before the
trial court. But the general rule admits of exceptions, and one
of these is when it is very clear in the records that the trial
court has no alternative but to dismiss the complaint
(Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In
such a case, it would be a sheer waste of time and energy to
require the parties to undergo the rigors of a trial.
The other procedural question raised by private respondent is
the personality or legal interest of the Department of Foreign
Affairs to intervene in the case in behalf of the Holy See
(Rollo, pp. 186-190).
In Public International Law, when a state or international
agency wishes to plead sovereign or diplomatic immunity in
a foreign court, it requests the Foreign Office of the state
where it is sued to convey to the court that said defendant is
entitled to immunity.
In the United States, the procedure followed is the process of
"suggestion," where the foreign state or the international
organization sued in an American court requests the
Secretary of State to make a determination as to whether it is
entitled to immunity. If the Secretary of State finds that the
defendant is immune from suit, he, in turn, asks the Attorney
General to submit to the court a "suggestion" that the
defendant is entitled to immunity. In England, a similar
procedure is followed, only the Foreign Office issues a
certification to that effect instead of submitting a
"suggestion" (O'Connell, I International Law 130 [1965]; Note:
Immunity from Suit of Foreign Sovereign Instrumentalities
and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government

or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys its
endorsement to the courts varies. In International Catholic
Migration Commission v. Calleja, 190 SCRA 130 (1990), the
Secretary of Foreign Affairs just sent a letter directly to the
Secretary of Labor and Employment, informing the latter that
the respondent-employer could not be sued because it
enjoyed diplomatic immunity. In World Health Organization v.
Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs
sent the trial court a telegram to that effect. In Baer v. Tizon,
57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of
Foreign Affairs to request the Solicitor General to make, in
behalf of the Commander of the United States Naval Base at
Olongapo City, Zambales, a "suggestion" to respondent
Judge. The Solicitor General embodied the "suggestion" in a
Manifestation and Memorandum as amicus curiae.
In the case at bench, the Department of Foreign Affairs,
through the Office of Legal Affairs moved with this Court to
be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in
support of petitioner's claim of sovereign immunity.
In some cases, the defense of sovereign immunity was
submitted directly to the local courts by the respondents
through their private counsels (Raquiza v. Bradford, 75 Phil.
50 [1945]; Miquiabas v. Philippine-Ryukyus Command, 80
Phil. 262 [1948]; United States of America v. Guinto, 182
SCRA 644 [1990] and companion cases). In cases where the
foreign states bypass the Foreign Office, the courts can
inquire into the facts and make their own determination as to
the nature of the acts and transactions involved.
III
The burden of the petition is that respondent trial court has
no jurisdiction over petitioner, being a foreign state enjoying

222
sovereign immunity. On the other hand, private respondent
insists that the doctrine of non-suability is not anymore
absolute and that petitioner has divested itself of such a
cloak when, of its own free will, it entered into a commercial
transaction for the sale of a parcel of land located in the
Philippines.
A. The Holy See
Before we determine the issue of petitioner's non-suability, a
brief look into its status as a sovereign state is in order.
Before the annexation of the Papal States by Italy in 1870,
the Pope was the monarch and he, as the Holy See, was
considered a subject of International Law. With the loss of the
Papal States and the limitation of the territory under the Holy
See to an area of 108.7 acres, the position of the Holy See in
International Law became controversial (Salonga and Yap,
Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran
Treaty, where Italy recognized the exclusive dominion and
sovereign jurisdiction of the Holy See over the Vatican City. It
also recognized the right of the Holy See to receive foreign
diplomats, to send its own diplomats to foreign countries,
and to enter into treaties according to International Law
(Garcia, Questions and Problems In International Law, Public
and Private 81 [1948]).
The Lateran Treaty established the statehood of the Vatican
City "for the purpose of assuring to the Holy See absolute
and visible independence and of guaranteeing to it
indisputable sovereignty also in the field of international
relations" (O'Connell, I International Law 311 [1965]).
In view of the wordings of the Lateran Treaty, it is difficult to
determine whether the statehood is vested in the Holy See or
in the Vatican City. Some writers even suggested that the
treaty created two international persons the Holy See and
Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories

of states, and the attribution to it of "sovereignty" must be
made in a sense different from that in which it is applied to
other states (Fenwick, International Law 124-125 [1948];
Cruz, International Law 37 [1991]). In a community of
national states, the Vatican City represents an entity
organized not for political but for ecclesiastical purposes and
international objects. Despite its size and object, the Vatican
City has an independent government of its own, with the
Pope, who is also head of the Roman Catholic Church, as the
Holy See or Head of State, in conformity with its traditions,
and the demands of its mission in the world. Indeed, the
world-wide interests and activities of the Vatican City are
such as to make it in a sense an "international state"
(Fenwick, supra., 125; Kelsen, Principles of International Law
160 [1956]).
One authority wrote that the recognition of the Vatican City
as a state has significant implication that it is possible for
any entity pursuing objects essentially different from those
pursued by states to be invested with international
personality (Kunz, The Status of the Holy See in International
Law, 46 The American Journal of International Law 308
[1952]).
Inasmuch as the Pope prefers to conduct foreign relations
and enter into transactions as the Holy See and not in the
name of the Vatican City, one can conclude that in the Pope's
own view, it is the Holy See that is the international person.
The Republic of the Philippines has accorded the Holy See the
status of a foreign sovereign. The Holy See, through its
Ambassador, the Papal Nuncio, has had diplomatic
representations with the Philippine government since 1957
(Rollo, p. 87). This appears to be the universal practice in
international relations.
B. Sovereign Immunity

223
As expressed in Section 2 of Article II of the 1987
Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation,
such principles of International Law are deemed incorporated
as part of the law of the land as a condition and consequence
of our admission in the society of nations (United States of
America v. Guinto, 182 SCRA 644 [1990]).
There are two conflicting concepts of sovereign immunity,
each widely held and firmly established. According to the
classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another
sovereign. According to the newer or restrictive theory, the
immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard
to private acts or acts jure gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987];
Coquia and Defensor-Santiago, Public International Law 194
[1984]).
Some states passed legislation to serve as guidelines for the
executive or judicial determination when an act may be
considered as jure gestionis. The United States passed the
Foreign Sovereign Immunities Act of 1976, which defines a
commercial activity as "either a regular course of commercial
conduct or a particular commercial transaction or act."
Furthermore, the law declared that the "commercial
character of the activity shall be determined by reference to
the nature of the course of conduct or particular transaction
or act, rather than by reference to its purpose." The Canadian
Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial
activity" as any particular transaction, act or conduct or any
regular course of conduct that by reason of its nature, is of a
"commercial character."
The restrictive theory, which is intended to be a solution to
the host of problems involving the issue of sovereign
immunity, has created problems of its own. Legal treatises
and the decisions in countries which follow the restrictive

theory have difficulty in characterizing whether a contract of

a sovereign state with a private party is an act jure gestionis
or an act jure imperii.
The restrictive theory came about because of the entry of
sovereign states into purely commercial activities remotely
connected with the discharge of governmental functions. This
is particularly true with respect to the Communist states
which took control of nationalized business activities and
international trading.
This Court has considered the following transactions by a
foreign state with private parties as acts jure imperii: (1) the
lease by a foreign government of apartment buildings for use
of its military officers (Syquia v. Lopez, 84 Phil. 312 [1949];
(2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station (United States of America v. Ruiz,
supra.); and (3) the change of employment status of base
employees (Sanders v. Veridiano, 162 SCRA 88 [1988]).
On the other hand, this Court has considered the following
transactions by a foreign state with private parties as acts
jure gestionis: (1) the hiring of a cook in the recreation
center, consisting of three restaurants, a cafeteria, a bakery,
a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to American servicemen and
the general public (United States of America v. Rodrigo, 182
SCRA 644 [1990]); and (2) the bidding for the operation of
barber shops in Clark Air Base in Angeles City (United States
of America v. Guinto, 182 SCRA 644 [1990]). The operation of
the restaurants and other facilities open to the general public
is undoubtedly for profit as a commercial and not a
governmental activity. By entering into the employment
contract with the cook in the discharge of its proprietary
function, the United States government impliedly divested
itself of its sovereign immunity from suit.
In the absence of legislation defining what activities and
transactions shall be considered "commercial" and as

224
constituting acts jure gestionis, we have to come out with our
own guidelines, tentative they may be.
Certainly, the mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act
can only be the start of the inquiry. The logical question is
whether the foreign state is engaged in the activity in the
regular course of business. If the foreign state is not engaged
regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for
gain or profit.
As held in United States of America v. Guinto, (supra):
There is no question that the United States of America, like
any other state, will be deemed to have impliedly waived its
non-suability if it has entered into a contract in its proprietary
or private capacity. It is only when the contract involves its
sovereign or governmental capacity that no such waiver may
be implied.
In the case at bench, if petitioner has bought and sold lands
in the ordinary course of a real estate business, surely the
said transaction can be categorized as an act jure gestionis.
However, petitioner has denied that the acquisition and
subsequent disposal of Lot 5-A were made for profit but
claimed that it acquired said property for the site of its
mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute said claim.
Lot 5-A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to construct
thereon the official place of residence of the Papal Nuncio.
The right of a foreign sovereign to acquire property, real or
personal, in a receiving state, necessary for the creation and
maintenance of its diplomatic mission, is recognized in the
1961 Vienna Convention on Diplomatic Relations (Arts. 20-

22). This treaty was concurred in by the Philippine Senate

and entered into force in the Philippines on November 15,
1965.
In Article 31(a) of the Convention, a diplomatic envoy is
granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating
to private immovable property situated in the territory of the
receiving state which the envoy holds on behalf of the
sending state for the purposes of the mission. If this
immunity is provided for a diplomatic envoy, with all the
more reason should immunity be recognized as regards the
sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent
disposal thereof are likewise clothed with a governmental
character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the
same because the squatters living thereon made it almost
impossible for petitioner to use it for the purpose of the
donation. The fact that squatters have occupied and are still
occupying the lot, and that they stubbornly refuse to leave
the premises, has been admitted by private respondent in its
complaint (Rollo, pp. 26, 27).
The issue of petitioner's non-suability can be determined by
the trial court without going to trial in the light of the
pleadings, particularly the admission of private respondent.
Besides, the privilege of sovereign immunity in this case was
sufficiently established by the Memorandum and Certification
of the Department of Foreign Affairs. As the department
tasked with the conduct of the Philippines' foreign relations
(Administrative Code of 1987, Book IV, Title I, Sec. 3), the
Department of Foreign Affairs has formally intervened in this
case and officially certified that the Embassy of the Holy See
is a duly accredited diplomatic mission to the Republic of the
Philippines exempt from local jurisdiction and entitled to all
the rights, privileges and immunities of a diplomatic mission
or embassy in this country (Rollo, pp. 156-157). The
determination of the executive arm of government that a

225
state or instrumentality is entitled to sovereign or diplomatic
immunity is a political question that is conclusive upon the
courts (International Catholic Migration Commission v.
Calleja, 190 SCRA 130 [1990]). Where the plea of immunity is
recognized and affirmed by the executive branch, it is the
duty of the courts to accept this claim so as not to embarrass
the executive arm of the government in conducting the
country's foreign relations (World Health Organization v.
Aquino, 48 SCRA 242 [1972]). As in International Catholic
Migration Commission and in World Health Organization, we
abide by the certification of the Department of Foreign
Affairs.
Ordinarily, the procedure would be to remand the case and
order the trial court to conduct a hearing to establish the
facts alleged by petitioner in its motion. In view of said
certification, such procedure would however be pointless and
unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge
Tirso Velasco, G.R. No. 109645, July 25, 1994).
IV
Private respondent is not left without any legal remedy for
the redress of its grievances. Under both Public International
Law and Transnational Law, a person who feels aggrieved by
the acts of a foreign sovereign can ask his own government
to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government,
through the Foreign Office, to espouse its claims against the
Holy See. Its first task is to persuade the Philippine
government to take up with the Holy See the validity of its
claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal on the relations
between the Philippine government and the Holy See (Young,
Remedies of Private Claimants Against Foreign States,
Selected Readings on Protection by Law of Private Foreign
Investments 905, 919 [1964]). Once the Philippine
government decides to espouse the claim, the latter ceases
to be a private cause.

According to the Permanent Court of International Justice, the

forerunner of the International Court of Justice:
By taking up the case of one of its subjects and by reporting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own rights its
right to ensure, in the person of its subjects, respect for the
rules of international law (The Mavrommatis Palestine
Concessions, 1 Hudson, World Court Reports 293, 302
[1924]).
WHEREFORE, the petition for certiorari is GRANTED and the
complaint in Civil Case No. 90-183 against petitioner is
DISMISSED.
SO ORDERED.

226
Most Rev. Pedro D. Arigo, et al. v. Scott H. Swift, et
al., GR. 206510, September 15, 2014
DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan
with prayer for the issuance of a Temporary Environmental
Protection Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental
Cases (Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military
ship USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring
people of southern Philippines) language which means "long
reef exposed at low tide." Tubbataha is composed of two
huge coral atolls - the north atoll and the south atoll - and the
Jessie Beazley Reef, a smaller coral structure about 20
kilometers north of the atolls. The reefs of Tubbataha and
Jessie Beazley are considered part of Cagayancillo, a remote
island municipality of Palawan.1
In 1988, Tubbataha was declared a National Marine Park by
virtue of Proclamation No. 306 issued by President Corazon C.
Aquino on August 11, 1988. Located in the middle of Central
Sulu Sea, 150 kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization (UNESCO) as
a World Heritage Site. It was recognized as one of the
Philippines'
oldest
ecosystems,
containing
excellent
examples of pristine reefs and a high diversity of marine life.
The 97,030-hectare protected marine park is also an
important habitat for internationally threatened and

endangered marine species. UNESCO cited Tubbataha's

outstanding universal value as an important and significant
natural habitat for in situ conservation of biological diversity;
an example representing significant on-going ecological and
biological processes; and an area of exceptional natural
beauty and aesthetic importance.2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,3 otherwise known as the "Tubbataha Reefs Natural
Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic, biological,
sociocultural, educational and scientific values of the
Tubbataha Reefs into perpetuity for the enjoyment of present
and future generations." Under the "no-take" policy, entry
into the waters of TRNP is strictly regulated and many human
activities are prohibited and penalized or fined, including
fishing, gathering, destroying and disturbing the resources
within the TRNP. The law likewise created the Tubbataha
Protected Area Management Board (TPAMB) which shall be
the sole policy-making and permit-granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures
ship of the US Navy. In December 2012, the US Embassy in
the Philippines requested diplomatic clearance for the said
vessel "to enter and exit the territorial waters of the
Philippines and to arrive at the port of Subic Bay for the
purpose of routine ship replenishment, maintenance, and
crew liberty."4 On January 6, 2013, the ship left Sasebo,
Japan for Subic Bay, arriving on January 13, 2013 after a brief
stop for fuel in Okinawa, Japan.1wphi1
On January 15, 2013, the USS Guardian departed Subic Bay
for its next port of call in Makassar, Indonesia. On January 17,
2013 at 2:20 a.m. while transiting the Sulu Sea, the ship ran
aground on the northwest side of South Shoal of the
Tubbataha Reefs, about 80 miles east-southeast of Palawan.
No cine was injured in the incident, and there have been no
reports of leaking fuel or oil.

227
On January 20, 2013, U.S. 7th Fleet Commander, Vice
Admiral Scott Swift, expressed regret for the incident in a
press statement.5 Likewise, US Ambassador to the
Philippines Harry K. Thomas, Jr., in a meeting at the
Department of Foreign Affairs (DFA) on February 4,
"reiterated his regrets over the grounding incident and
assured Foreign Affairs Secretazy Albert F. del Rosario that
the United States will provide appropriate compensation for
damage to the reef caused by the ship."6 By March 30, 2013,
the US Navy-led salvage team had finished removing the last
piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their
behalf
and
in
representation
of
their
respective
sector/organization and others, including minors or
generations yet unborn, filed the present petition agairtst
Scott H. Swift in his capacity as Commander of the US 7th
Fleet, Mark A. Rice in his capacity as Commanding Officer of
the USS Guardian and Lt. Gen. Terry G. Robling, US Marine
Corps Forces, Pacific and Balikatan 2013 Exercises CoDirector ("US respondents"); President Benigno S. Aquino III
in his capacity as Commander-in-Chief of the Armed Forces of
the Philippines (AFP), DF A Secretary Albert F. Del Rosario,
Executive Secretary Paquito Ochoa, Jr., Secretary Voltaire T.
Gazmin (Department of National Defense), Secretary Jesus P.
Paje (Department of Environment and Natural Resources),
Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer
in Command, AFP), Admiral Rodolfo D. Isorena (Philippine
Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively
the "Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and postsalvaging operations of the USS Guardian cause and continue
to cause environmental damage of such magnitude as to
affect the provinces of Palawan, Antique, Aklan, Guimaras,
Iloilo, Negros Occidental, Negros Oriental, Zamboanga del

Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their

constitutional rights to a balanced and healthful ecology.
They also seek a directive from this Court for the institution
of civil, administrative and criminal suits for acts committed
in violation of environmental laws and regulations in
connection with the grounding incident.
Specifically, petitioners cite the following violations
committed by US respondents under R.A. No. 10067:
unauthorized
entry
(Section
19);
non-payment
of
conservation fees (Section 21 ); obstruction of law
enforcement officer (Section 30); damages to the reef
(Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain
provisions of the Visiting Forces Agreement (VFA) which they
want this Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the
final prayer of the petition, to wit: WHEREFORE, in view of the
foregoing, Petitioners respectfully pray that the Honorable
Court: 1. Immediately issue upon the filing of this petition a
Temporary Environmental Protection Order (TEPO) and/or a
Writ of Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their behalf,
to cease and desist all operations over the Guardian
grounding incident;
b. Initially demarcating the metes and bounds of the
damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games
under 'Balikatan' because of the absence of clear guidelines,
duties, and liability schemes for breaches of those duties,
and require Respondents to assume responsibility for prior
and future environmental damage in general, and
environmental damage under the Visiting Forces Agreement
in particular.

228
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near or
around the TRNP but away from the damaged site and an
additional buffer zone;
2. After summary hearing, issue a Resolution extending the
TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall
include, without limitation:
a. Order Respondents Secretary of Foreign Affairs, following
the dispositive portion of Nicolas v. Romulo, "to forthwith
negotiate with the United States representatives for the
appropriate agreement on [environmental guidelines and
environmental accountability] under Philippine authorities as
provided in Art. V[] of the VFA ... "
b. Direct Respondents and appropriate agencies to
commence administrative, civil, and criminal proceedings
against erring officers and individuals to the full extent of the
law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary
and exclusive criminal jurisdiction over erring U.S. personnel
under the circumstances of this case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims for
damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such had
been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and production
of evidence, including seizure and delivery of objects
connected with the offenses related to the grounding of the
Guardian;

f. Require the authorities of the Philippines and the United

States to notify each other of the disposition of all cases,
wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any purported
restoration, repair, salvage or post salvage plan or plans,
including cleanup plans covering the damaged area of the
Tubbataha Reef absent a just settlement approved by the
Honorable Court;
h. Require Respondents to engage in stakeholder and LOU
consultations in accordance with the Local Government Code
and R.A. 10067;
i. Require Respondent US officials and their representatives
to place a deposit to the TRNP Trust Fund defined under
Section 17 of RA 10067 as a bona .fide gesture towards full
reparations;
j. Direct Respondents to undertake measures to rehabilitate
the areas affected by the grounding of the Guardian in light
of Respondents' experience in the Port Royale grounding in
2009, among other similar grounding incidents;
k. Require Respondents to regularly publish on a quarterly
basis and in the name of transparency and accountability
such environmental damage assessment, valuation, and
valuation methods, in all stages of negotiation;
l. Convene a multisectoral technical working group to provide
scientific and technical support to the TPAMB;
m. Order the Department of Foreign Affairs, Department of
National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces Agreement
and the Mutual Defense Treaty to consider whether their
provisions allow for the exercise of erga omnes rights to a
balanced and healthful ecology and for damages which follow
from any violation of those rights;

229
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged areas of
TRNP;
o. Declare the grant of immunity found in Article V ("Criminal
Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for
violating the preemptory norm of nondiscrimination
incorporated as part of the law of the land under Section 2,
Article II, of the Philippine Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the Tubbataha
Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable
under the premises.7 (Underscoring supplied.)
Since only the Philippine respondents filed their comment8 to
the petition, petitioners also filed a motion for early
resolution and motion to proceed ex parte against the US
respondents.9
Respondents' Consolidated Comment
In their consolidated comment with opposition to the
application for a TEPO and ocular inspection and production
orders, respondents assert that: ( 1) the grounds relied upon
for the issuance of a TEPO or writ of Kalikasan have become
fait accompli as the salvage operations on the USS Guardian
were already completed; (2) the petition is defective in form
and substance; (3) the petition improperly raises issues
involving the VFA between the Republic of the Philippines and
the United States of America; and ( 4) the determination of
the extent of responsibility of the US Government as regards
the damage to the Tubbataha Reefs rests exdusively with the
executive branch.

The Court's Ruling

As a preliminary matter, there is no dispute on the legal
standing of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on
a given question."10 Specifically, it is "a party's personal and
substantial interest in a case where he has sustained or will
sustain direct injury as a result" of the act being challenged,
and "calls for more than just a generalized grievance."11
However, the rule on standing is a procedural matter which
this Court has relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers and legislators when the public
interest so requires, such as when the subject matter of the
controversy is of transcendental importance, of overreaching
significance to society, or of paramount public interest.12
In the landmark case of Oposa v. Factoran, Jr.,13 we
recognized the "public right" of citizens to "a balanced and
healthful ecology which, for the first time in our constitutional
history, is solemnly incorporated in the fundamental law." We
declared that the right to a balanced and healthful ecology
need not be written in the Constitution for it is assumed, like
other civil and polittcal rights guaranteed in the Bill of Rights,
to exist from the inception of mankind and it is an issue of
transcendental
importance
with
intergenerational
implications.1wphi1 Such right carries with it the correlative
duty to refrain from impairing the environment.14
On the novel element in the class suit filed by the petitioners
minors in Oposa, this Court ruled that not only do ordinary
citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of
their own and future generations. Thus:
Petitioners minors assert that they represent their generation
as well as generations yet unborn. We find no difficulty in
ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class

230
suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as
hereinafter expounded, considers the "rhythm and harmony
of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia,
the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land,
waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and
utilization be equitably accessible to the present a:: well as
future generations. Needless to say, every generation has a
responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time,
the performance of their obligation to ensure the protection
of that right for the generations to come.15 (Emphasis
supplied.)
The liberalization of standing first enunciated in Oposa,
insofar as it refers to minors and generations yet unborn, is
now enshrined in the Rules which allows the filing of a citizen
suit in environmental cases. The provision on citizen suits in
the Rules "collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of
nature."16
Having settled the issue of locus standi, we shall address the
more fundamental question of whether this Court has
jurisdiction over the US respondents who did not submit any
pleading or manifestation in this case.
The immunity of the State from suit, known also as the
doctrine of sovereign immunity or non-suability of the
State,17 is expressly provided in Article XVI of the 1987
Constitution which states:
Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed

the principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent,
now expressed in Article XVI, Section 3, of the 1987
Constitution, is one of the generally accepted principles of
international law that we have adopted as part of the law of
our land under Article II, Section 2. x x x.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by
the majority of states, such principles are deemed
incorporated in the law of every civilized state as a condition
and consequence of its membership in the society of nations.
Upon its admission to such society, the state is automatically
obligated to comply with these principles in its relations with
other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that ''there
can be no legal right against the authority which makes the
law on which the right depends." [Kawanakoa v. Polybank,
205 U.S. 349] There are other practical reasons for the
enforcement of the doctrine. In the case of the foreign state
sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet
imperium. All states are sovereign equals and cannot assert
jurisdiction over one another. A contrary disposition would, in
the language of a celebrated case, "unduly vex the peace of
nations." [De Haber v. Queen of Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the
state without its consent, it is also applicable to complaints
filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. The rule is that if the
judgment against such officials will require the state itself to
perform an affirmative act to satisfy the same,. such as the
appropriation of the amount needed to pay the damages

231
awarded against them, the suit must be regarded as against
the state itself although it has not been formally impleaded.
[Garcia v. Chief of Staff, 16 SCRA 120] In such a situation, the
state may move to dismiss the comp.taint on the ground that
it has been filed without its consent.19 (Emphasis supplied.)
Under the American Constitution, the doctrine is expressed in
the Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by Citizens of
another State, or by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,20 we further
expounded on the immunity of foreign states from the
jurisdiction of local courts, as follows:
The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary
international law then closely identified with the personal
immunity of a foreign sovereign from suit and, with the
emergence of democratic states, made to attach not just to
the person of the head of state, or his representative, but
also distinctly to the state itself in its sovereign capacity. If
the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the
state itself. The proscription is not accorded for the benefit of
an individual but for the State, in whose service he is, under
the maxim -par in parem, non habet imperium -that all states
are soverr~ign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the
judgment against an official would rec 1uire the state itself to
perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages
decreed against him, the suit must be regarded as being

against the state itself, although it has not been formally

impleaded.21 (Emphasis supplied.)
In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity from
the observance of the law of the territorial sovereign or from
ensuing legal liability; it is, rather, an immunity from the
exercise of territorial jurisdiction.22
In United States of America v. Judge Guinto,23 one of the
consolidated cases therein involved a Filipino employed at
Clark Air Base who was arrested following a buy-bust
operation conducted by two officers of the US Air Force, and
was eventually dismissed from his employment when he was
charged in court for violation of R.A. No. 6425. In a complaint
for damages filed by the said employee against the military
officers, the latter moved to dismiss the case on the ground
that the suit was against the US Government which had not
given its consent. The RTC denied the motion but on a
petition for certiorari and prohibition filed before this Court,
we reversed the RTC and dismissed the complaint. We held
that petitioners US military officers were acting in the
exercise of their official functions when they conducted the
buy-bust operation against the complainant and thereafter
testified against him at his trial. It follows that for discharging
their duties as agents of the United States, they cannot be
directly impleaded for acts imputable to their principal, which
has not given its consent to be sued.
This traditional rule of State immunity which exempts a State
from being sued in the courts of another State without the
former's consent or waiver has evolved into a restrictive
doctrine which distinguishes sovereign and governmental
acts (Jure imperil") from private, commercial and proprietary
acts (Jure gestionis). Under the restrictive rule of State
immunity, State immunity extends only to acts Jure imperii.
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of
the foreign sovereign, its commercial activities or economic
affairs.24

232
In Shauf v. Court of Appeals,25 we discussed the limitations
of the State immunity principle, thus:
It is a different matter where the public official is made to
account in his capacity as such for acts contrary to law and
injurious to the rights of plaintiff. As was clearly set forth by
JustiGe
Zaldivar
in
Director
of
the
Bureau
of
Telecommunications, et al. vs. Aligaen, etc., et al. :
"Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials
or officers by one whose rights have been invaded or violated
by such acts, for the protection of his rights, is not a suit
against the State within the rule of immunity of the State
from suit. In the same tenor, it has been said that an action
at law or suit in equity against a State officer or the director
of a State department on the ground that, while claiming to
act for the State, he violates or invades the personal and
property rights of the plaintiff, under an unconstitutional act
or under an assumption of authority which he does not have,
is not a suit against the State within the constitutional
provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of
state immunity cannot be used as an instrument for
perpetrating an injustice.

for whatever damage he may have caused by his act done

with malice and in bad faith, or beyond the scope of his
authority or jurisdiction.26 (Emphasis supplied.) In this case,
the US respondents were sued in their official capacity as
commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged
act or omission resulting in the unfortunate grounding of the
USS Guardian on the TRNP was committed while they we:re
performing official military duties. Considering that the
satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US
government, the suit is deemed to be one against the US
itself. The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons of
respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T.
Carpio took the position that the conduct of the US in this
case, when its warship entered a restricted area in violation
of R.A. No. 10067 and caused damage to the TRNP reef
system, brings the matter within the ambit of Article 31 of
the United Nations Convention on the Law of the Sea
(UNCLOS). He explained that while historically, warships
enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this
rule in cases where they fail to comply with the rules and
regulations of the coastal State regarding passage through
the latter's internal waters and the territorial sea.

xxxx
The aforecited authorities are clear on the matter. They state
that the doctrine of immunity from suit will not apply and
may not be invoked where the public official is being sued in
his private and personal capacity as an ordinary citizen. The
cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their
individual capacity. This situation usually arises where the
public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that
a public official may be liable in his personal private capacity

According to Justice Carpio, although the US to date has not

ratified the UNCLOS, as a matter of long-standing policy the
US considers itself bound by customary international rules on
the "traditional uses of the oceans" as codified in UNCLOS, as
can be gleaned from previous declarations by former
Presidents Reagan and Clinton, and the US judiciary in the
case of United States v. Royal Caribbean Cruise Lines, Ltd.27
The international law of the sea is generally defined as "a
body of treaty rules arid customary norms governing the uses
of the sea, the exploitation of its resources, and the exercise

233
of jurisdiction over maritime regimes. It is a branch of public
international law, regulating the relations of states with
respect to the uses of the oceans."28 The UNCLOS is a
multilateral treaty which was opened for signature on
December 10, 1982 at Montego Bay, Jamaica. It was ratified
by the Philippines in 1984 but came into force on November
16, 1994 upon the submission of the 60th ratification.
The UNCLOS is a product of international negotiation that
seeks to balance State sovereignty (mare clausum) and the
principle of freedom of the high seas (mare liberum).29 The
freedom to use the world's marine waters is one of the oldest
customary principles of international law.30 The UNCLOS
gives to the coastal State sovereign rights in varying degrees
over the different zones of the sea which are: 1) internal
waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
economic zone, and 5) the high seas. It also gives coastal
States more or less jurisdiction over foreign vessels
depending on where the vessel is located.31
Insofar as the internal waters and territorial sea is concerned,
the Coastal State exercises sovereignty, subject to the
UNCLOS and other rules of international law. Such
sovereignty extends to the air space over the territorial sea
as well as to its bed and subsoil.32
In the case of warships,33 as pointed out by Justice Carpio,
they continue to enjoy sovereign immunity subject to the
following exceptions:
Article 30
Non-compliance by warships with the laws and regulations of
the coastal State
If any warship does not comply with the laws and regulations
of the coastal State concerning passage through the
territorial sea and disregards any request for compliance
therewith which is made to it, the coastal State may require it
to leave the territorial sea immediately.

Article 31
Responsibility of the flag State for damage caused by a
warship
or other government ship operated for non-commercial
purposes
The flag State shall bear international responsibility for any
loss or damage to the coastal State resulting from the noncompliance by a warship or other government ship operated
for non-commercial purposes with the laws and regulations of
the coastal State concerning passage through the territorial
sea or with the provisions of this Convention or other rules of
international law.
Article 32
Immunities of warships and other government ships operated
for non-commercial purposes
With such exceptions as are contained in subsection A and in
articles 30 and 31, nothing in this Convention affects the
immunities of warships and other government ships operated
for non-commercial purposes. (Emphasis supplied.) A foreign
warship's unauthorized entry into our internal waters with
resulting damage to marine resources is one situation in
which the above provisions may apply. But what if the
offending warship is a non-party to the UNCLOS, as in this
case, the US?
An overwhelming majority - over 80% -- of nation states are
now members of UNCLOS, but despite this the US, the
world's leading maritime power, has not ratified it.
While the Reagan administration was instrumental in
UNCLOS' negotiation and drafting, the U.S. delegation
ultimately voted against and refrained from signing it due to
concerns over deep seabed mining technology transfer
provisions contained in Part XI. In a remarkable, multilateral
effort to induce U.S. membership, the bulk of UNCLOS
member states cooperated over the succeeding decade to

234
revise the objection.able provisions. The revisions satisfied
the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994,
President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its advice
and consent. Despite consistent support from President
Clinton, each of his successors, and an ideologically diverse
array of stakeholders, the Senate has since withheld the
consent required for the President to internationally bind the
United States to UNCLOS.
While UNCLOS cleared the Senate Foreign Relations
Committee (SFRC) during the 108th and 110th Congresses,
its progress continues to be hamstrung by significant pockets
of political ambivalence over U.S. participation in
international institutions. Most recently, 111 th Congress
SFRC Chairman Senator John Kerry included "voting out"
UNCLOS for full Senate consideration among his highest
priorities. This did not occur, and no Senate action has been
taken on UNCLOS by the 112th Congress.34
Justice Carpio invited our attention to the policy statement
given by President Reagan on March 10, 1983 that the US will
"recognize the rights of the other , states in the waters off
their coasts, as reflected in the convention [UNCLOS], so long
as the rights and freedom of the United States and others
under international law are recognized by such coastal
states", and President Clinton's reiteration of the US policy
"to act in a manner consistent with its [UNCLOS] provisions
relating to traditional uses of the oceans and to encourage
other countries to do likewise." Since Article 31 relates to the
"traditional uses of the oceans," and "if under its policy, the
US 'recognize[s] the rights of the other states in the waters
off their coasts,"' Justice Carpio postulates that "there is more
reason to expect it to recognize the rights of other states in
their internal waters, such as the Sulu Sea in this case."
As to the non-ratification by the US, Justice Carpio
emphasizes that "the US' refusal to join the UN CLOS was
centered on its disagreement with UN CLOS' regime of deep

seabed mining (Part XI) which considers the oceans and deep
seabed commonly owned by mankind," pointing out that
such "has nothing to do with its [the US'] acceptance of
customary international rules on navigation."
It may be mentioned that even the US Navy Judge Advocate
General's Corps publicly endorses the ratification of the
UNCLOS, as shown by the following statement posted on its
official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a
maximum outer limit for territorial seas; codifies innocent
passage, transit passage, and archipelagic sea lanes passage
rights; works against "jurisdictiomtl creep" by preventing
coastal nations from expanding their own maritime zones;
and reaffirms sovereign immunity of warships, auxiliaries anJ
government aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert
its sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the
Sea Convention that first established the concept of a
maritime Exclusive Economic Zone out to 200 nautical miles,
and recognized the rights of coastal states to conserve and
manage the natural resources in this Zone.35
We fully concur with Justice Carpio's view that nonmembership in the UNCLOS does not mean that the US will
disregard the rights of the Philippines as a Coastal State over
its internal waters and territorial sea. We thus expect the US
to bear "international responsibility" under Art. 31 in
connection with the USS Guardian grounding which adversely
affected the Tubbataha reefs. Indeed, it is difficult to imagine
that our long-time ally and trading partner, which has been
actively supporting the country's efforts to preserve our vital
marine resources, would shirk from its obligation to

235
compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend
a Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations
to cooperate in the global task to protect and preserve the
marine environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate,
on a regional basis, directly or through competent
international organizations, in formulating and elaborating
international rules, standards and recommended practices
and procedures consistent with this Convention, for the
protection and preservation of the marine environment,
taking into account characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty
upholds the immunity of warships from the jurisdiction of
Coastal States while navigating the.latter's territorial sea, the
flag States shall be required to leave the territorial '::;ea
immediately if they flout the laws and regulations of the
Coastal State, and they will be liable for damages caused by
their warships or any other government vessel operated for
non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit
found in the VFA. Likewise, they invoke federal statutes in the
US under which agencies of the US have statutorily waived
their immunity to any action. Even under the common law
tort claims, petitioners asseverate that the US respondents
are liable for negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of
United States troops and personnel visiting the Philippines to
promote "common security interests" between the US and

the Philippines in the region. It provides for the guidelines to

govern such visits of military personnel, and further defines
the rights of the United States and the Philippine government
in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials
and supplies.36 The invocation of US federal tort laws and
even common law is thus improper considering that it is the
VF A which governs disputes involving US military ships and
crew navigating Philippine waters in pursuance of the
objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains
only to criminal jurisdiction and not to special civil actions
such as the present petition for issuance of a writ of
Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of
the Rules that a criminal case against a person charged with
a violation of an environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a
petition for the issuance of the writ of kalikasan shall not
preclude the filing of separate civil, criminal or administrative
actions.
In any case, it is our considered view that a ruling on the
application or non-application of criminal jurisdiction
provisions of the VF A to US personnel who may be found
responsible for the grounding of the USS Guardian, would be
premature and beyond the province of a petition for a writ of
Kalikasan. We also find it unnecessary at this point to
determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which
have resulted from the violation of environmental laws. The
Rules allows the recovery of damages, including the
collection of administrative fines under R.A. No. 10067, in a
separate civil suit or that deemed instituted with the criminal
action charging the same violation of an environmental
law.37

236
Section 15, Rule 7 enumerates the reliefs which may be
granted in a petition for issuance of a writ of Kalikasan, to
wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the
petition is submitted for decision, the court shall render
judgment granting or denying the privilege of the writ of
kalikasan.
The reliefs that may be granted under the writ are the
following:
(a) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of a
duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict compliance
with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic reports
on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the people
to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment,
except the award of damages to individual petitioners.
(Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting
that this petition has become moot in the sense that the
salvage operation sought to be enjoined or restrained had
already been accomplished when petitioners sought recourse
from this Court. But insofar as the directives to Philippine

respondents to protect and rehabilitate the coral reef stn

icture and marine habitat adversely affected by the
grounding incident are concerned, petitioners are entitled to
these reliefs notwithstanding the completion of the removal
of the USS Guardian from the coral reef. However, we are
mindful of the fact that the US and Philippine governments
both expressed readiness to negotiate and discuss the
matter of compensation for the damage caused by the USS
Guardian. The US Embassy has also declared it is closely
coordinating with local scientists and experts in assessing the
extent of the damage and appropriate methods of
rehabilitation.
Exploring avenues for settlement of environmental cases is
not proscribed by the Rules. As can be gleaned from the
following provisions, mediation and settlement are available
for the consideration of the parties, and which dispute
resolution methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial
conference, the court shall inquire from the parties if they
have settled the dispute; otherwise, the court shall
immediately refer the parties or their counsel, if authorized
by their clients, to the Philippine Mediation Center (PMC) unit
for purposes of mediation. If not available, the court shall
refer the case to the clerk of court or legal researcher for
mediation.
Mediation must be conducted within a non-extendible period
of thirty (30) days from receipt of notice of referral to
mediation.
The mediation report must be submitted within ten (10) days
from the expiration of the 30-day period.

237
SEC. 4. Preliminary conference.-If mediation fails, the court
will schedule the continuance of the pre-trial. Before the
scheduled date of continuance, the court may refer the case
to the branch clerk of court for a preliminary conference for
the following purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall
put the parties and their counsels under oath, and they shall
remain under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to
arrive at a settlement of the dispute. The judge may issue a
consent decree approving the agreement between the
parties in accordance with law, morals, public order and
public policy to protect the right of the people to a balanced
and healthful ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make
the parties to agree to compromise or settle in accordance
with law at any stage of the proceedings before rendition of
judgment. (Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009
when a guided-missile cruiser, the USS Port Royal, ran
aground about half a mile off the Honolulu Airport Reef
Runway and remained stuck for four days. After spending
$6.5 million restoring the coral reef, the US government was
reported to have paid the State of Hawaii $8.5 million in
settlement over coral reef damage caused by the
grounding.38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the USS
Guardian grounding, the US Embassy in the Philippines has

announced the formation of a US interdisciplinary scientific

team which will "initiate discussions with the Government of
the Philippines to review coral reef rehabilitation options in
Tubbataha, based on assessments by Philippine-based
marine scientists." The US team intends to "help assess
damage and remediation options, in coordination with the
Tubbataha Management Office, appropriate Philippine
government entities, non-governmental organizations, and
scientific experts from Philippine universities."39
A rehabilitation or restoration program to be implemented at
the cost of the violator is also a major relief that may be
obtained under a judgment rendered in a citizens' suit under
the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court
may grant to the plaintiff proper reliefs which shall include
the protection, preservation or rehabilitation of the
environment and the payment of attorney's fees, costs of suit
and other litigation expenses. It may also require the violator
to submit a program of rehabilitation or restoration of the
environment, the costs of which shall be borne by the
violator, or to contribute to a special trust fund for that
purpose subject to the control of the court.1wphi1
In the light of the foregoing, the Court defers to the Executive
Branch on the matter of compensation and rehabilitation
measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the
context of common security interests under the VFA. It is
settled that "[t]he conduct of the foreign relations of our
government is committed by the Constitution to the
executive and legislative-"the political" --departments of the
government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial
inquiry or decision."40

238
On the other hand, we cannot grant the additional reliefs
prayed for in the petition to order a review of the VFA and to
nullify certain immunity provisions thereof.
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec.
Sec. Zamora,41 the VFA was duly concurred in by the
Philippine Senate and has been recognized as a treaty by the
United States as attested and certified by the duly authorized
representative of the United States government. The VF A
being a valid and binding agreement, the parties are required

as a matter of international law to abide by its terms and

provisions.42 The present petition under the Rules is not the
proper remedy to assail the constitutionality of its provisions.
WHEREFORE, the petition for the issuance of the privilege of
the Writ of Kalikasan is hereby DENIED.
No pronouncement as to costs.
SO ORDERED.