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G.R. No.

127325 March 19, 1997


MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA,
in their capacities as founding members of the People's Initiative for Reforms, Modernization
and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG KONSTITUSYON (DIK),
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG
PILIPINO (LABAN), petitioners-intervenors.

DAVIDE, JR., J.:


The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of the Rules of Court is the right of the people to
directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was unknown to the people of this country, except perhaps to a few

and the
main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution, characterized this
system as "innovative". 3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two methods of
proposing amendments to, or revision of, the Constitution were recognized, viz., (1) by Congress upon a
vote of three-fourths of all its members and (2) by a constitutional convention. 4For this and the other
reasons hereafter discussed, we resolved to give due course to this petition.
scholars, before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself, through the original proponent 1

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin Petition) 5 wherein Delfin asked the
COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached "Petition for
Initiative on the 1987 Constitution, in newspapers of general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist
Petitioners and volunteers, in establishing signing stations at the time and on the
dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's Initiative, 6 a
group of citizens desirous to avail of the system intended to institutionalize people power; that he and the
members of the Movement and other volunteers intend to exercise the power to directly propose
amendments to the Constitution granted under Section 2, Article XVII of the Constitution; that the exercise
of that power shall be conducted in proceedings under the control and supervision of the COMELEC; that,
as required in COMELEC Resolution No. 2300, signature stations shall be established all over the

country, with the assistance of municipal election registrars, who shall verify the signatures affixed by
individual signatories; that before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first fixed in an order to be issued
by the COMELEC; and that to adequately inform the people of the electoral process involved, it is likewise
necessary that the said order, as well as the Petition on which the signatures shall be affixed, be
published in newspapers of general and local circulation, under the control and supervision of the
COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7 of
Article VI, 7Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution. Attached to the petition
is a copy of a "Petition for Initiative on the 1987 Constitution" 10 embodying the proposed amendments
which consist in the deletion from the aforecited sections of the provisions concerning term limits, and
with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7
OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF
THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people, and after it is
signed by at least twelve per cent of the total number of registered voters in the country it will be
formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin "to cause
the publication of the petition, together with the attached Petition for Initiative on the 1987 Constitution
(including the proposal, proposed constitutional amendment, and the signature form), and the notice of
hearing in three (3) daily newspapers of general circulation at his own expense" not later than 9
December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and Atty.
Pete Q. Quadra; representatives of the People's Initiative for Reforms, Modernization and Action
(PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP), DemokrasyaIpagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin Petition on the
ground that it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on people's initiative to amend the Constitution can
only be implemented by law to be passed by Congress. No such law has been

passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating
Constitution Amendments by People's Initiative, which petitioner Senator Santiago
filed on 24 November 1995, is still pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely,
initiative on the Constitution, on statutes, and on local legislation. However, it failed to
provide any subtitle on initiative on the Constitution, unlike in the other modes of
initiative, which are specifically provided for in Subtitle II and Subtitle III. This
deliberate omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo Tolentino stressed
this deficiency in the law in his privilege speech delivered before the Senate in 1994:
"There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in
print media. This indicates that the Act covers only laws and not constitutional
amendments because the latter take effect only upon ratification and not after
publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the
conduct of initiative on the Constitution and initiative and referendum on national and
local laws, is ultra vires insofar asinitiative on amendments to the Constitution is
concerned, since the COMELEC has no power to provide rules and regulations for
the exercise of the right of initiative to amend the Constitution. Only Congress is
authorized by the Constitution to pass the implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not
to revision thereof. Extending or lifting of term limits constitutes a revision and is,
therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative; neither the
COMELEC nor any other government department, agency, or office has realigned
funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in
the event the COMELEC grants the Delfin Petition, the people's initiative spearheaded by PIRMA
would entail expenses to the national treasury for general re-registration of voters amounting to at
least P180 million, not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and
the nation of the issues raised demands that this petition for prohibition be settled promptly and
definitely, brushing aside technicalities of procedure and calling for the admission of a taxpayer's and
legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy in the ordinary course
of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within a
non-extendible period of ten days from notice; and (b) issued a temporary restraining order, effective
immediately and continuing until further orders, enjoining public respondent COMELEC from
proceeding with the Delfin Petition, and private respondents Alberto and Carmen Pedrosa from
conducting a signature drive for people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their Comment
They argue therein that:

15

on the petition.

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


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

6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 CONTAINS


A PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE
SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT
THE PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX
E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE
OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION"
OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-EXAMINATION OF THE
ENTIRE DOCUMENT TO DETERMINE HOW AND TO WHAT EXTENT IT SHOULD
BE ALTERED." (PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which starts
off with an assertion that the instant petition is a "knee-jerk reaction to a draft 'Petition for Initiative on the
1987 Constitution'. . . which is not formally filed yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to start the signature campaign to amend
the Constitution or to put the movement to gather signatures under COMELEC power and function. On
the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which
governs the conduct of initiative to amend the Constitution. The absence therein of a
subtitle for such initiative is not fatal, since subtitles are not requirements for the
validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes cast in
the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a)
Section 2, Article IX-C of the Constitution, which grants the COMELEC the power to
enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such rules and regulations as may be
necessary to carry out the purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere amendment to,
the Constitution because it seeks to alter only a few specific provisions of the
Constitution, or more specifically, only those which lay term limits. It does not seek to
reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners' estimate of P180
million as unreliable, for only the COMELEC can give the exact figure. Besides, if there will be a
plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund requirements

for initiative will be a priority government expense because it will be for the exercise of the sovereign
power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the Office of the
Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the Constitution.
Its Section 2 on Statement of Policy explicitly affirms, recognizes, and guarantees
that power; and its Section 3, which enumerates the three systems of initiative,
includes initiative on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No.
6735 because, being national in scope, that system of initiative is deemed included in
the subtitle on National Initiative and Referendum; and Senator Tolentino simply
overlooked pertinent provisions of the law when he claimed that nothing therein was
provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No.
6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No.
6735 and under the Omnibus Election Code. The rule-making power of the
COMELEC to implement the provisions of R.A. No. 6735 was in fact upheld by this
Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed by
private respondents through Atty. Quadra, as well as the latter's Manifestation stating that he is the
counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he filed was for
the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997 by Senator Raul
Roco and allowed him to file his Petition in Intervention not later than 20 January 1997; and (d) set
the case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement of
Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for Intervention.
Attached to the motion was their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, S.J., 18 it would involve a
change from a political philosophy that rejects unlimited tenure to one that accepts

unlimited tenure; and although the change might appear to be an isolated one, it can
affect other provisions, such as, on synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public service and prohibiting political
dynasties. 19 Arevision cannot be done by initiative which, by express provision of Section
2 of Article XVII of the Constitution, is limited to amendments.

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

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC
Resolution No. 2300, since the COMELEC is without authority to legislate the
procedure for a people's initiativeunder Section 2 of Article XVII of the Constitution.
That function exclusively pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the people's right to
initiate constitutional amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No.
21505; he co-authored the House Bill and even delivered a sponsorship speech thereon. He likewise
submits that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without jurisdiction to
take cognizance of the Delfin Petition and to order its publication because the said petition is not the
initiatory pleading contemplated under the Constitution, Republic Act No. 6735, and COMELEC
Resolution No. 2300. What vests jurisdiction upon the COMELEC in an initiative on the Constitution is the

filing of a petition for initiative which is signedby the required number of registered voters. He also submits
that the proponents of a constitutional amendment cannot avail of the authority and resources of the
COMELEC to assist them is securing the required number of signatures, as the COMELEC's role in an
initiative on the Constitution is limited to the determination of the sufficiency of the initiative petition and
the call and supervision of a plebiscite, if warranted.

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


The following day, the IBP filed a Motion for Intervention to which it attached a Petition in Intervention
raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2, Article
XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing
law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have the
required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be proposed
only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed by
the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by LABAN; (b)
admitting the Amended Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a nonextendible period of
five days their Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five days from receipt of the
said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor, was intended to include or
cover initiative on amendments to the Constitution; and if so, whether the Act, as
worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and Initiative and
Referendum on National and Local Laws) regarding the conduct of initiative on
amendments to the Constitution is valid, considering the absence in the law of
specific provisions on the conduct of such initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed
in the draft "Petition for Initiative on the 1987 Constitution," would constitute a
revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition
solely intended to obtain an order (a) fixing the time and dates for signature
gathering; (b) instructing municipal election officers to assist Delfin's movement and
volunteers in establishing signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the petition when
there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their respective
memoranda within twenty days and requested intervenor Senator Roco to submit copies of the
deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations and
arguments in the main Petition. It further submits that the COMELEC should have dismissed the
Delfin Petition for failure to state a sufficient cause of action and that the Commission's failure or
refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the Record
of the House of Representatives relating to the deliberations of House Bill No. 21505, as well as the
transcripts of stenographic notes on the proceedings of the Bicameral Conference Committee,
Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No. 21505 and Senate
Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter filed, in
due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF
THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when there
is a pending case before the COMELEC. The petitioners provide an affirmative answer. Thus:

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from
proceeding any further, and under the Rules of Court, Rule 65, Section 2, a petition
for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of
superior jurisdiction and directed to an inferior court, for the purpose of preventing
the inferior tribunal from usurping a jurisdiction with which it is not legally vested.
(People v. Vera, supra., p. 84). In this case the writ is an urgent necessity, in view of
the highly divisive and adverse environmental consequences on the body politic of
the questioned Comelec order. The consequent climate of legal confusion and
political instability begs for judicial statesmanship.
30. In the final analysis, when the system of constitutional law is threatened by the
political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the arguments of
Delfin and the oppositors at the hearing on 12 December 1996, it required them to submit within five days
their memoranda or oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the petition, together
with the attached Petition for Initiative, the signature form, and the notice of hearing; and by setting the
case for hearing. The COMELEC's failure to act on Roco's motion to dismiss and its insistence to hold on
to the petition rendered ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of
Court, which provides:
Sec. 2. Petition for prohibition. Where the proceedings of any tribunal, corporation,
board, or person, whether exercising functions judicial or ministerial, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the ordinary course of
law, a person aggrieved thereby may file a verified petition in the proper court
alleging the facts with certainty and praying that judgment be rendered commanding
the defendant to desist from further proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over the
Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may brush
aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, Jr. 28

A party's standing before this Court is a procedural technicality which it may, in the
exercise of its discretion, set aside in view of the importance of issues raised. In the
landmark Emergency Powers Cases, this Court brushed aside this technicality
because the transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON AMENDMENTS
TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE TO COVER THAT
SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the
people through initiative upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein. No amendment under
this section shall be authorized within five years following the ratification of this
Constitution nor oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise of this right.
This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986 Constitutional
Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although this mode
of amending the Constitution is a mode of amendment which bypasses
congressional action, in the last analysis it still is dependent on congressional action.
Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever
reason, does not provide for its implementation.
This system of initiative was originally included in Section 1 of the draft Article on Amendment or
Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30 That
section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or


(c) directly by the people themselves thru initiative as provided for in Article___
Section ___of the Constitution. 31
After several interpellations, but before the period of amendments, the Committee submitted
a new formulation of the concept of initiative which it denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully
call attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now covered by
Section 2 of the complete committee report. With the permission of
the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly
propose amendments to this Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.

32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory
questions.
First, on Section 1 on the matter of initiative upon petition of at least
10 percent, there are no details in the provision on how to carry this
out. Do we understand, therefore, that we are leaving this matter to
the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long
as the legislature does not pass the necessary implementing law on
this, this will not operate?
MR. SUAREZ. That matter was also taken up during the committee
hearing, especially with respect to the budget appropriations which
would have to be legislated so that the plebiscite could be called. We
deemed it best that this matter be left to the legislature. The
Gentleman is right. In any event, as envisioned, no amendment
through the power of initiative can be called until after five years from
the date of the ratification of this Constitution. Therefore, the first

amendment that could be proposed through the exercise of this


initiative power would be after five years. It is reasonably expected
that within that five-year period, the National Assembly can come up
with the appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature the details
on how this is to be carried out is it possible that, in effect, what
will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that
possibility?
MR. SUAREZ. No, it does not exclude that possibility because even
the legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in
order to constitute itself as a constituent assembly and submit that
proposal to the people for ratification through the process of an
initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in
the proposal is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the
proposal in terms of institutionalizing popular participation in the
drafting of the Constitution or in the amendment thereof, but I would
have a lot of difficulties in terms of accepting the draft of Section 2, as
written. Would the sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy over all other legal
mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the
hierarchy of legal values, the Constitution is source of all legal
mandates and that therefore we require a great deal of
circumspection in the drafting and in the amendments of the
Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of
constituent power we have a separate article in the constitution that

would specifically cover the process and the modes of amending the
Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions
are drafted now, to again concede to the legislature the process or
the requirement of determining the mechanics of amending the
Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this could very well be
placed in the hands of the National Assembly, not unless we can
incorporate into this provision the mechanics that would adequately
cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals
to AMEND not to REVISE the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that
this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the
traditional modes of amending the Constitution as embodied in
Section 1. The committee members felt that this system of initiative
should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. 34
xxx xxx xxx

MS. AQUINO. In which case, I am seriously bothered by providing


this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph
(c) of Section 1, instead of setting it up as another separate section
as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we clarified a
while ago, this process of initiative is limited to the matter of
amendment and should not expand into a revision which
contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include
the process of revision; whereas theprocess of initiation to amend,
which is given to the public, would only apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G.
Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute
the entire Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed
amendment after taking into account the modifications submitted by
the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified
amendment in substitution of the proposed Section 2 will now read as
follows: "SECTION 2. AMENDMENTS TO THIS CONSTITUTION
MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE
PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER
THIS SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS CONSTITUTION NOR
OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed
amendment is reflective of the sense contained in Section 2 of our
completed Committee Report No. 7, we accept the proposed
amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it
possible for the legislature to set forth certain procedures to carry out
the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx

MR. ROMULO. But the Commissioner's amendment does not


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

National Assembly is required, the import being that the process of


amendment must be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end to a law proposed
by the National Assembly by way of a referendum. I cannot agree to
reducing the requirement approved by the Committee on the
Legislative because it would require another voting by the
Committee, and the voting as precisely based on a requirement of 10
percent. Perhaps, I might present such a proposal, by way of an
amendment, when the Commission shall take up the Article on the
Legislative or on the National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended,
reads as follows: "AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT
OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF THIS
RIGHT. 40
The entire proposed Article on Amendments or Revisions was approved on second reading
on 9 July 1986.41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view
thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42
However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in the
second paragraph so that said paragraph reads: The Congress 43 shall provide for the implementation
of the exercise of this right. 44 This amendment was approved and is the text of the present second
paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer the
question in the affirmative, like the private respondents and intervenor Senator Roco, point to us
R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last minute
amendment by the Constitutional Commission to substitute the last paragraph of Section 2 of Article
XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise of this right.
with
The Congress shall provide for the implementation of the exercise of this right.
This substitute amendment was an investiture on Congress of a power to provide for the
rules implementing the exercise of the right. The "rules" means "the details on how [the right]
is to be carried out." 46
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. The power of the people under a system of initiative
and referendum to directly propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed, recognized and
guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought. That word is
neither germane nor relevant to said section, which exclusively relates to initiative and
referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the
Constitution is confined only to proposals to AMEND. The people are not accorded the power
to "directly propose, enact, approve, or reject, in whole or in part, the Constitution" through
the system of initiative. They can only do so with respect to "laws, ordinances, or
resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted from Section 1
of Senate Bill No. 17, which solely referred to a statement of policy on local initiative and referendum
and appropriately used the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on amendments to
the Constitution and mentions it as one of the three systems of initiative, and that Section 5
(Requirements) restates the constitutional requirements as to the percentage of the registered voters
who must submit the proposal. But unlike in the case of the other systems of initiative, the Act does
not provide for the contents of a petition forinitiative on the Constitution. Section 5, paragraph (c)
requires, among other things, statement of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be. It does not include, as among the contents of
the petition, the provisions of the Constitution sought to be amended, in the case of initiative on the
Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100) words
which shall be legibly written or printed at the top of every page of the petition.
(Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or rejected, amended
or repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative
on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and for
Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the Constitution.
This conspicuous silence as to the latter simply means that the main thrust of the Act is initiative and
referendum on national and local laws. If Congress intended R.A. No. 6735 to fully provide for the
implementation of the initiative on amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is subsumed
under the subtitle on National Initiative and Referendum because it is national in scope. Our reading
of Subtitle II (National Initiative and Referendum) and Subtitle III (Local Initiative and Referendum)
leaves no room for doubt that the classification is not based on the scope of the initiative involved,
but on its nature and character. It is "national initiative," if what is proposed to be adopted or enacted
is a national law, or a law which only Congress can pass. It is "local initiative" if what is proposed to

be adopted or enacted is a law, ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities, municipalities, and barangays can pass.
This classification of initiative into national and local is actually based on Section 3 of the Act, which
we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing amendments to
the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a national
legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle on initiative
on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by the majority of the
votes cast in the plebiscite shall become effective as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of the votes cast in
an election called for the purpose shall become effective fifteen (15) days after
certification and proclamation of the Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative
bodies of local governments; thus:
Sec. 11. Indirect Initiative. Any duly accredited people's organization, as defined
by law, may file a petition for indirect initiative with the House of Representatives,
and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings
of sufficiency or insufficiency of the petition for initiative or referendum, which could be
petitions for both national and localinitiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative and
Referendum is misplaced, 54 since the provision therein applies to both national and local initiative and
referendum. It reads:
Sec. 18. Authority of Courts. Nothing in this Act shall prevent or preclude the
proper courts from declaring null and void any proposition approved pursuant to this
Act for violation of the Constitution or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the details in
the implementation of initiative and referendum on national and local legislation thereby giving them
special attention, it failed, rather intentionally, to do so on the system of initiative on amendments to
the Constitution. Anent the initiative on national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes for its
approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general
circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition.

55

As regards local initiative, the Act provides for the following:


(a) The preliminary requirement as to the number of signatures of registered voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local government unit
concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the registered
voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of its
twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines "initiative
on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an initiative on the Constitution
may be approved or rejected by the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.
There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. RA. No. 6735 thus delivered a humiliating blow to the system of initiative on amendments
to the Constitution by merely paying it a reluctant lip service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or wanting
in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned. Its lacunae on this substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a Latin
maxim: potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to
promulgate rules and regulations is a form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be a showing that the delegation itself

is valid. It is valid only if the law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b) fixes a standard the limits of which
are sufficiently determinate and determinable to which the delegate must conform in the
performance of his functions. 61 A sufficient standard is one which defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the power
to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND
REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations to implement
the exercise of the right of the people to directly propose amendments to the Constitution through
the system of initiative. It does not have that power under R.A. No. 6735. Reliance on the
COMELEC's power under Section 2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the COMELEC under (a) Section 3 of
Article IX-C of the Constitution, or (b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of Congress
to implement the right to initiate constitutional amendments, or that it has validly vested upon the
COMELEC the power of subordinate legislation and that COMELEC Resolution No. 2300 is valid,
the COMELEC acted without jurisdiction or with grave abuse of discretion in entertaining the Delfin
Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a petition for
initiative on the Constitution must be signed by at least 12% of the total number of registered voters
of which every legislative district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters. Delfin himself admits
that he has not yet gathered signatures and that the purpose of his petition is primarily to obtain
assistance in his drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The petition then
is theinitiatory pleading. Nothing before its filing is cognizable by the COMELEC, sitting en banc. The

only participation of the COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63(2) to issue through its Election Records and Statistics Office a
certificate on the total number of registered voters in each legislative district; 64 (3) to assist, through its
election registrars, in the establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters' affidavits, and voters'
identification cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC Resolution
No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The respondent
Commission must have known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for which reason it did not
assign to the petition a docket number. Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a mere scrap of paper, which should not
have been dignified by the Order of 6 December 1996, the hearing on 12 December 1996, and the
order directing Delfin and the oppositors to file their memoranda or oppositions. In so dignifying it,
the COMELEC acted without jurisdiction or with grave abuse of discretion and merely wasted its
time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the implementation of the system.
We feel, however, that the system of initiative to propose amendments to the Constitution should no
longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress should
not tarry any longer in complying with the constitutional mandate to provide for the implementation of
the right of the people under that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on amendments to the
Constitution, and to have failed to provide sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or amendments to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition (UND-96037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
G.R. No. 174153

October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED


VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x
ATTY. PETE QUIRINO QUADRA, Intervenor.
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA
represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO represented by
its Secretary General Joel Maglunsod, HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas,
MIGRANTE represented by its Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor
de Guzman, LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo
Palabay, JOJO PINEDA of the League of Concerned Professionals and Businessmen, DR.
DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD
PAMUGAS of Health Action for Human Rights, Intervenors.
x--------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROSBARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.

x ------------------------------------------------------- x
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x---------------------------------------------------------x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS
C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.
x ------------------------------------------------------- x
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.
x -------------------------------------------------------- x
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR.
VICTORINO F. BALAIS, Intervenors.
x -------------------------------------------------------- x
SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.
x ------------------------------------------------------- x
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
x ------------------------------------------------------- x
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L.
SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x -------------------------------------------------------- x
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x --------------------------------------------------------x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R.
OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

x -----------------------------------------------------x
G.R. No. 174299

October 25, 2006

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

DECISION

CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on
Elections ("COMELEC") denying due course to an initiative petition to amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B.
Aumentado ("Lambino Group"), with other groups1 and individuals, commenced gathering signatures
for an initiative petition to change the 1987 Constitution. On 25 August 2006, the Lambino Group
filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at
least twelveper centum (12%) of all registered voters, with each legislative district represented by at
least three per centum(3%) of its registered voters. The Lambino Group also claimed that
COMELEC election registrars had verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department)4 and Sections 1-4 of Article VII (Executive Department) 5 and by
adding Article XVIII entitled "Transitory Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary form of government. The Lambino
Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND

PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT


FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating
modifications in the proposed Article XVIII (Transitory Provisions) of their initiative. 7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino
Group's petition for lack of an enabling law governing initiative petitions to amend the Constitution.
The COMELEC invoked this Court's ruling in Santiago v. Commission on Elections8 declaring RA
6735 inadequate to implement the initiative clause on proposals to amend the Constitution. 9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and
mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel the COMELEC
to give due course to their initiative petition. The Lambino Group contends that the COMELEC
committed grave abuse of discretion in denying due course to their petition since Santiago is not a
binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to
that case, and their petition deserves cognizance as an expression of the "will of the sovereign
people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC
Commissioners to show cause why they should not be cited in contempt for the COMELEC's
verification of signatures and for "entertaining" the Lambino Group's petition despite the permanent
injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the
petitioners, urging the Court to grant the petition despite the Santiago ruling. The Solicitor General
proposed that the Court treat RA 6735 and its implementing rules "as temporary devises to
implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or opposing the
Lambino Group's petition. The supporting intervenors10 uniformly hold the view that the COMELEC
committed grave abuse of discretion in relying on Santiago. On the other hand, the opposing
intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The
opposing intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the
validity of the signature gathering and verification process; (3) the Lambino Group's compliance with
the minimum requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not
mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the
Lambino Group's compliance with the requirement in Section 10(a) of RA 6735 limiting initiative
petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006. After
receiving the parties' memoranda, the Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the
Constitution on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate
or wanting in essential terms and conditions" to implement the initiative clause on proposals to
amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative. Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on
Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of
registered voters of which every legislative district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an amendment
"directly proposed by the people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a
constitutional amendment. Is the draft of the proposed constitutional amendment ready
to be shown to the people when they are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them
before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft shown to
them and they are asked whether or not they want to propose this constitutional
amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it
around for signature.13 (Emphasis supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional
amendment" should be "ready and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a draft shown to them." The framers
also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."
The essence of amendments "directly proposed by the people through initiative upon a
petition" is that the entire proposal on its face is a petition by the people. This means two
essential elements must be present. First, the people must author and thus sign the entire proposal.
No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments is first
shown to the people who express their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the people through initiative upon a
petition" only if the people sign on a petition that contains the full text of the proposed
amendments.
The full text of the proposed amendments may be either written on the face of the petition, or
attached to it. If so attached, the petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to the petition had seen the full text of
the proposed amendments before signing. Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the proposed
amendments before signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative from the United
States where various State constitutions incorporate an initiative clause. In almost all States 15 which
allow initiative petitions,the unbending requirement is that the people must first see the full text
of the proposed amendments before they sign to signify their assent, and that the people
must sign on an initiative petition that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained in several decisions of various
courts. Thus, inCapezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying the
signature has not first seen what it is that he or she is signing. Further, and more
importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative petition
to a potential signer, without the signer having actually examined the petition, could easily
mislead the signer by, for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the drafter of
the petition, who obviously has a vested interest in seeing that it gets the requisite
signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative commonly are
described in similar terms. x x x (The purpose of the full text requirement is to provide
sufficient information so that registered voters can intelligently evaluate whether to
sign the initiative petition."); x x x (publication of full text of amended constitutional

provision required because it is "essential for the elector to have x x x the section which is
proposed to be added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the dark.")
(Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed" and failure to do so is "deceptive and misleading" which renders the
initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the
full text of the proposed amendments. However, the deliberations of the framers of our Constitution
clearly show that the framers intended to adopt the relevant American jurisprudence on people's
initiative. In particular, the deliberations of the Constitutional Commission explicitly reveal that the
framers intended that the people must first see the full text of the proposed amendments
before they sign, and that the people must sign on a petition containing such full text. Indeed,
Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino Group
invokes as valid, requires that the people must sign the "petition x x x as signatories."
The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials. The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments
to the people. The proponents present favorably their proposal to the people and do not present the
arguments against their proposal. The proponents, or their supporters, often pay those who gather
the signatures.
Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures. The proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the paper that
the people signed as their initiative petition. The Lambino Group submitted to this Court a copy of
a signature sheet20 after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments
was the signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by
intervenor Atty. Pete Quirino-Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same. We reproduce below the signature sheet in full:

Province:

City/Municipality:

No. of
Verified

Legislative District: Barangay:

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM OF

GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY


IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?"
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which
shall form part of the petition for initiative to amend the Constitution signifies my support for the filing
thereof.

Precinct
Number

Name
Last Name, First
Name, M.I.

Address

Birthdate

Signature

Verification

MM/DD/YY

10

_________________
Barangay Official

_________________
Witness

__________________
Witness

(Print Name and Sign)

(Print Name and Sign)

(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed
changes in the signature sheet. Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this during the oral
arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from the BicameralPresidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the
signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to
August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of the
Lambino Group's draft petition which they later filed on 25 August 2006 with the COMELEC. When
asked if his group also circulated the draft of their amended petition filed on 30 August 2006 with the
COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed
his answer and stated that what his group circulated was the draft of the 30 August 2006 amended
petition, not the draft of the 25 August 2006 petition.
The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started
gathering signatures. Petitioner Erico B. Aumentado's "Verification/Certification" of the 25 August
2006 petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as
follows:
I have caused the preparation of the foregoing [Amended] Petition in my personal capacity
as a registered voter, for and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached, and as
representative of the mass of signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition.
However, the "Official Website of the Union of Local Authorities of the Philippines" 22 has posted the
full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to
adopt a common stand on the approach to support the proposals of the People's
Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms as embodied in the ULAP Joint

Declaration for Constitutional Reforms signed by the members of the ULAP and the majority
coalition of the House of Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change created by Her
Excellency to recommend amendments to the 1987 Constitution has submitted its final
report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in Congress which
militates against the use of the expeditious form of amending the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the failure of Congress
to amend the Constitution as a constituent assembly, ULAP has unanimously agreed to
pursue the constitutional reform agenda through People's Initiative and Referendum without
prejudice to other pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE
MEMBER-LEAGUES OF THE UNION OF LOCAL AUTHORITIES OF THE PHILIPPINES
(ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14 January 2006
at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC. ULAP Resolution
No. 2006-02 "support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter
Change through people's initiative and referendum as a mode of amending the 1987 Constitution."
The proposals of the Consultative Commission24 arevastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with the
COMELEC.
For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions. The proposed revisions
have profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino
Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the
filing of the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC.
However, ULAP Resolution No. 2006-02 does not establish that ULAP or the Lambino Group caused
the circulation of the draft petition, together with the signature sheets, six months before the filing
with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the
Lambino Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group
declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments
alleged in the Petition, more specifically, paragraph 3 of Section 4 and paragraph 2 of
Section 5 of the Transitory Provisions were inaccurately stated and failed to correctly reflect
their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signaturegathering. Instead, the Lambino Group alleged that the petition of 25 August 2006 "inaccurately
stated and failed to correctly reflect their proposed amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC that they circulated printed copies of the draft petition together with the
signature sheets. Likewise, the Lambino Group did not allege in their present petition before this
Court that they circulated printed copies of the draft petition together with the signature sheets. The
signature sheets do not also contain any indication that the draft petition is attached to, or circulated
with, the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first
claimed that they circulated the "petition for initiative filed with the COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." [82 C.J.S.
S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters
who signed the signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition contained in
the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for initiative filed
with the COMELEC" appears an afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out that
the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply,
the Lambino Group alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the oral arguments
that what they circulated was the draft of the amended petition of 30 August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act." The Lambino Group quotes an authority that cites a
proposed changeattached to the petition signed by the people. Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
with, or attached to, the initiative petition signed by the people. In the present initiative, the Lambino
Group's proposed changes were not incorporated with, or attached to, the signature sheets. The
Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
August 2006 during the signature-gathering period, the draft of the petition or amended petition they
filed later with the COMELEC. The Lambino Group are less than candid with this Court in their
belated claim that they printed and circulated, together with the signature sheets, the petition or

amended petition. Nevertheless, even assumingthe Lambino Group circulated the amended
petition during the signature-gathering period, the Lambino Group admitted circulating
only very limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000
copies of the draft petition they filed more than six months later with the COMELEC. Atty.
Lambino added that he also asked other supporters to print additional copies of the draft petition but
he could not state with certainty how many additional copies the other supporters printed. Atty.
Lambino could only assure this Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admits that "petitioner Lambino initiated the printing and reproduction of 100,000
copies of the petition for initiative x x x."25 This admission binds the Lambino Group and
establishes beyond any doubt that the Lambino Group failed to show the full text of the
proposed changes to the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage. If Atty. Lambino and
company attached one copy of the petition to each signature sheet, only 100,000 signature sheets
could have circulated with the petition. Each signature sheet contains space for ten signatures.
Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the
maximum number of people who saw the petition before they signed the signature sheets would not
exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets. The inescapable conclusion is that the Lambino Group failed to show to the 6.3
million signatories the full text of the proposed changes. If ever, not more than one million
signatories saw the petition before they signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal. The failure to so include the text of
the proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be "directly proposed by the people through
initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative
clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the
full text of the proposed changes before signing. They could not have known the nature and effect of
the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus members of
Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its members, who are
almost all the present members of Congress, decide to call for new parliamentary elections.
Thus, the members of the interim Parliament will determine the expiration of their own
term of office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament
shall convene to propose further amendments or revisions to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino Group's signature
sheets. The people who signed the signature sheets had no idea that they were proposing these
amendments. These three proposed changes are highly controversial. The people could not have
inferred or divined these proposed changes merely from a reading or rereading of the contents of the
signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would be
held during the 2007 local elections if the proposed changes were ratified before the 2007 local
elections. However, the text of the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition,
states:
Section 5(2). The interim Parliament shall provide for the election of the members of
Parliament, which shall be synchronized and held simultaneously with the election of
all local government officials. x x x x (Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections. This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have
easily written the word "next" before the phrase "election of all local government officials." This would
have insured that the elections for the regular Parliament would be held in the next local elections
following the ratification of the proposed changes. However, the absence of the word "next" allows
the interim Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term of office.
This allows incumbent members of the House of Representatives to hold office beyond their current
three-year term of office, and possibly even beyond the five-year term of office of regular members
of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his
group to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that contains the full
text of the proposed amendments to avoid fraud or misrepresentation. In the present initiative, the
6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed changes. The result is
a grand deception on the 6.3 million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections.
The Lambino Group's initiative springs another surprise on the people who signed the signature
sheets. The proposed changes mandate the interim Parliament to make further amendments or
revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim
Parliament shall convene to propose amendments to, or revisions of, this
Constitution consistent with the principles of local autonomy, decentralization and a strong
bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court
and the people should simply ignore it. Far from being a surplusage, this provision invalidates the
Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system. American jurisprudence on initiatives outlaws this as logrolling when the initiative petition incorporates an unrelated subject matter in the same petition. This puts
the people in a dilemma since they can answer only either yes or no to the entire proposition, forcing
them to sign a petition that effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
only the unrelated subject matter. Thus, in Fine v. Firestone,29 the Supreme Court of Florida
declared:
Combining multiple propositions into one proposal constitutes "logrolling," which, if
our judicial responsibility is to mean anything, we cannot permit. The very broadness of
the proposed amendment amounts to logrolling because the electorate cannot know what it
is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment
being voted on. x x x x The ballot language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state what it will affect and effect and
violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme
Court of Alaska warned against "inadvertence, stealth and fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the singlesubject rule was enacted to prevent are exacerbated. There is a greater danger of logrolling, or the
deliberate intermingling of issues to increase the likelihood of an initiative's passage, and there is a
greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative
process. The drafters of an initiative operate independently of any structured or supervised process.
They often emphasize particular provisions of their proposition, while remaining silent on other (more
complex or less appealing) provisions, when communicating to the public. x x x Indeed, initiative
promoters typically use simplistic advertising to present their initiative to potential petitionsigners and eventual voters. Many voters will never read the full text of the initiative before the
election. More importantly, there is no process for amending or splitting the several provisions in an
initiative proposal. These difficulties clearly distinguish the initiative from the legislative process.
(Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments or revisions to
be undertaken by the interim Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament
to amend or revise again the Constitution within 45 days from ratification of the proposed
changes, or before the May 2007 elections. In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again the Constitution. With the
proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or revising again
so soon the Constitution. The signature sheets do not also explain what specific amendments or
revisions the initiative proponents want the interim Parliament to make, and why there is a need for
such further amendments or revisions. The people are again left in the dark to fathom the nature
and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the
people" because the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August
2006. The proposed Section 4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament
until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present members of the House of Representatives
even if their term of office will all end on 30 June 2007, three years earlier than that of half of the
present Senators. Thus, all the present members of the House will remain members of the interim
Parliament after 30 June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises
all the powers of the President. If the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010, the Prime Minister will come only from the present members of the
House of Representatives to theexclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used
to discriminate against the Senators. They could not have known that their signatures would
be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to
members of the existing House of Representatives.
An initiative that gathers signatures from the people without first showing to the people the full text
of the proposed amendments is most likely a deception, and can operate as a gigantic fraud on the
people. That is why the Constitution requires that an initiative must be "directly proposed by the
people x x x in a petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's fundamental law,
the writing of the text of the proposed amendments cannot be hidden from the people under a
general or special power of attorney to unnamed, faceless, and unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to the
Constitution. This Court trusts the wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this trust emanates from a
fundamental assumption: the full text of the proposed amendment is first shown to the
people before they sign the petition, not after they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to
comply with the requirement of Section 2, Article XVII of the Constitution that the initiative must be
"directly proposed by the people through initiative upon a petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision
through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the Constitution and
not to its revision. In contrast, Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode
is through Congress upon three-fourths vote of all its Members. The second mode is through a
constitutional convention. The third mode is through a people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or
revision of, this Constitution." In contrast, Section 2 of Article XVII, referring to the third mode,
applies only to "[A]mendments to this Constitution." This distinction was intentional as shown by the
following deliberations of the Constitutional Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that pursuant to the
mandate given to us last night, we submitted this afternoon a complete Committee Report
No. 7 which embodies the proposed provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. With the permission of the Members,
may I quote Section 2:
The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters.
This completes the blanks appearing in the original Committee Report No. 7. This proposal
was suggested on the theory that this matter of initiative, which came about because of the
extraordinary developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should be limited to amendments to the Constitution and
should not extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate
section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1,
instead of setting it up as another separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process
of initiative is limited to the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the Constitution. That was the sense
that was conveyed by the Committee.
MS. AQUINO: In other words, the Committee was attempting to distinguish the
coverage of modes (a) and (b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on
line 1 refers to "amendments." Does it not cover the word "revision" as defined by
Commissioner Padilla when he made the distinction between the words
"amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision" should be
covered by Section 1. So insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear
distinction between "amendment" and "revision" of the Constitution. The framers intended, and
wrote, that only Congress or a constitutional convention may propose revisions to the Constitution.
The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the
power to propose revisions to the Constitution, the people cannot propose revisions even as they
are empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32 the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the Constitution x x x
applies only to the proposing and the adopting or rejecting of 'laws and amendments
to the Constitution' and does not purport to extend to a constitutional revision. x x x x
It is thus clear that a revision of the Constitution may be accomplished only through
ratification by the people of a revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of the proposed initiative

measure (hereinafter termed 'the measure') now before us is so broad that if such measure
became law a substantial revision of our present state Constitution would be effected, then
the measure may not properly be submitted to the electorate until and unless it is first agreed
upon by a constitutional convention, and the writ sought by petitioner should issue. x x x x
(Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it may be
amended or revised, it can be altered by those who favor amendments, revision, or other
change only through the use of one of the specified means. The constitution itself recognizes
that there is a difference between an amendment and a revision; and it is obvious from an
examination of the measure here in question that it is not an amendment as that term is
generally understood and as it is used in Article IV, Section 1. The document appears to be
based in large part on the revision of the constitution drafted by the 'Commission for
Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to
the 1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority
vote of both houses required by Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure sponsored by the
plaintiffs is, nevertheless, a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can be submitted
to the people through the initiative. If a revision, it is subject to the requirements of Article
XVII, Section 2(1); if a new constitution, it can only be proposed at a convention called in the
manner provided in Article XVII, Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments. There
can be no deviation from the constitutionally prescribed modes of revising the Constitution. A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or amended in the
manner prescribed by the instrument itself, and that any attempt to revise a
constitution in a manner other than the one provided in the instrument is almost
invariably treated as extra-constitutional and revolutionary. x x x x "While it is
universally conceded that the people are sovereign and that they have power to adopt a
constitution and to change their own work at will, they must, in doing so, act in an orderly
manner and according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter or amend
it, an attempt to change the fundamental law in violation of the self-imposed restrictions, is
unconstitutional." x x x x (Emphasis supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution that a
people's initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution? If the Lambino Group's initiative constitutes a revision, then the present petition should
be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of a constitution.
One of the earliest cases that recognized the distinction described the fundamental difference in this
manner:
[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and
the provisions contained therein for its revision indicate the will of the people that the
underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of
the original instrument as will effect an improvement, or better carry out the purpose for
which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances. There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects
substantial provisions of the constitution. On the other hand, amendment broadly refers to a
change that adds, reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally affects only the
specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the constitution just
like in our Constitution, courts have developed a two-part test: the quantitative test and the
qualitative test. The quantitative test asks whether the proposed change is "so extensive in its
provisions as to change directly the 'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines only the number of provisions
affected and does not consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the constitution.
The main inquiry is whether the change will "accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision."37 Whether there is an alteration in the
structure of government is a proper subject of inquiry. Thus, "a change in the nature of [the] basic
governmental plan" includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes changes that
"jeopardize the traditional form of government and the system of check and balances." 39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not
merely an amendment. Quantitatively, the Lambino Group's proposed changes overhaul two articles
- Article VI on the Legislature and Article VII on the Executive - affecting a total of 105 provisions in
the entire Constitution.40Qualitatively, the proposed changes alter substantially the basic plan of
government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the three great coequal branches of government in the present Constitution are reduced into two. This alters the
separation of powers in the Constitution. A shift from the present Bicameral-Presidential system
to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution. Likewise, the abolition alone
of one chamber of Congress alters the system of checks-and-balances within the legislature and
constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a
Unicameral-Parliamentary system, involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision, not a mere amendment. On the
face alone of the Lambino Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth in the Constitution. Father Joaquin
Bernas, S.J., a leading member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable provisions. The
guiding original intention of an amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress specific portions that may have become
obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which
have over-all implications for the entire document, to determine how and to what extent they should
be altered. Thus, for instance a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional structure. So
would a switch from a bicameral system to a unicameral system be because of its effect on
other important provisions of the Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution
to shift from a bicameral to a unicameral legislature. The issue turned on whether the initiative
"was defective and unauthorized where [the] proposed amendment would x x x affect several other
provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a
Unicameral Legislature affects not only many other provisions of the Constitution but
provides for a change in the form of the legislative branch of government, which has
been in existence in the United States Congress and in all of the states of the nation, except
one, since the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form of
government. It would not only radically change the whole pattern of government in this
state and tear apart the whole fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed amendment were adopted by the
people at the General Election and if the Legislature at its next session should fail to submit
further amendments to revise and clarify the numerous inconsistencies and conflicts which
would result, or if after submission of appropriate amendments the people should refuse to
adopt them, simple chaos would prevail in the government of this State. The same result
would obtain from an amendment, for instance, of Section 1 of Article V, to provide for only a
Supreme Court and Circuit Courts-and there could be other examples too numerous to
detail. These examples point unerringly to the answer.
The purpose of the long and arduous work of the hundreds of men and women and many
sessions of the Legislature in bringing about the Constitution of 1968 was to eliminate

inconsistencies and conflicts and to give the State a workable, accordant, homogenous and
up-to-date document. All of this could disappear very quickly if we were to hold that it could
be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition. The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adams did not even touch the
executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on
the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision" is only one
of procedure, not of substance. The Lambino Group posits that when a deliberative body drafts
and proposes changes to the Constitution, substantive changes are called "revisions"
because members of the deliberative body work full-time on the changes. However, the same
substantive changes, when proposed through an initiative, are called "amendments" because the
changes are made by ordinary people who do not make an "occupation, profession, or
vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:
99. With this distinction in mind, we note that the constitutional provisions expressly provide
for both "amendment" and "revision" when it speaks of legislators and constitutional
delegates, while the same provisions expressly provide only for "amendment" when it speaks
of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work fulltime on the matter of correcting the constitution because that is not their occupation,
profession or vocation; while on the other hand, the legislators and constitutional convention
delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision"
and "amendment" pertain only to the process or procedure of coming up with the
corrections, for purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and "revision" cannot
reasonably be in the substance or extent of the correction. x x x x (Underlining in the
original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the
same proposed changes that the Lambino Group wrote in the present initiative, the changes would
constitute a revision of the Constitution. Thus, the Lambino Group concedes that the proposed
changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the land.
The express intent of the framers and the plain language of the Constitution contradict the
Lambino Group's theory. Where the intent of the framers and the language of the Constitution are

clear and plainly stated, courts do not deviate from such categorical intent and language. 45 Any
theory espousing a construction contrary to such intent and language deserves scant consideration.
More so, if such theory wreaks havoc by creating inconsistencies in the form of government
established in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's position. Any
theory advocating that a proposed change involving a radical structural change in government does
not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have
attempted to advance without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the constitution
proposed by initiative. His theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a revision of the constitution, but it
does not affect proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the
constitution that cannot be enacted through the initiative process. They assert that the
distinction between amendment and revision is determined by reviewing the scope and
subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument, including profound impacts on existing
fundamental rights and radical restructuring of the government's relationship with a defined
group of citizens. Plaintiffs assert that, because the proposed ballot measure "will refashion
the most basic principles of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot without the prior approval of
the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions
instituted by initiative. In Holmes v. Appling, x x x, the Supreme Court concluded that a
revision of the constitution may not be accomplished by initiative, because of the provisions
of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as
a means of amending the Oregon Constitution, but it contains no similar sanction for its use
as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of
the constitution which provides the means for constitutional revision and it excludes the idea
that an individual, through the initiative, may place such a measure before the electorate." x
xxx
Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to
constitutional revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the
framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for amendments and
at the other end red for revisions. Towards the middle of the spectrum, colors fuse and difficulties

arise in determining whether there is an amendment or revision. The present initiative is indisputably
located at the far end of the red spectrum where revision begins. The present initiative seeks a
radical overhaul of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the Constitution.
Where the proposed change applies only to a specific provision of the Constitution without affecting
any other section or article, the change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18 years to 15 years 47 is an
amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media
companies from 100 percent to 60 percent is an amendment and not a revision. 48 Also, a change
requiring a college degree as an additional qualification for election to the Presidency is an
amendment and not a revision.49
The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is located.
However, there can be no fixed rule on whether a change is an amendment or a revision. A change
in a single word of one sentence of the Constitution may be a revision and not an amendment. For
example, the substitution of the word "republican" with "monarchic" or "theocratic" in Section 1,
Article II50 of the Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other provisions, as well as how it affects the
structure of government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a constitution,
a deliberative body with recorded proceedings is best suited to undertake a revision. A revision
requires harmonizing not only several provisions, but also the altered principles with those that
remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent
assemblies or constitutional conventions to undertake revisions. On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice President,
with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution
which shall hereby be amended and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior
law, the later law prevails. This rule also applies to construction of constitutions. However, the
Lambino Group's draft of Section 2 of the Transitory Provisions turns on its head this rule of
construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall
be amended to conform with a unicameral parliamentary form of government." The effect is to

freeze the two irreconcilable provisions until the earlier one "shall be amended," which requires a
future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily
conceded during the oral arguments that the requirement of a future amendment is a "surplusage."
In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the later provision
automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is
not between a provision in Article VI of the 1987 Constitution and a provision in the proposed
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
"Parliamentary system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed
changes refer to the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are
among the few countries withunicameral parliaments? The proposed changes could not possibly
refer to the traditional and well-known parliamentary forms of government the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the signature sheets realize that they were
adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the Constitution
but only for amendments. A shift from the present Bicameral-Presidential to a UnicameralParliamentary system requires harmonizing several provisions in many articles of the Constitution.
Revision of the Constitution through a people's initiative will only result in gross absurdities in the
Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment. Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to "[A]mendments to this
Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the
Constitution. There is no need to revisit this Court's ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiagowill not change the
outcome of the present petition. Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before
the Court can be resolved on some other grounds. Such avoidance is a logical consequence of the
well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case can be
resolved on some other grounds.51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on
initiatives to amend the Constitution, this will not change the result here because the present petition
violates Section 2, Article XVII of the Constitution. To be a valid initiative, the present initiative

must first comply with Section 2, Article XVII of the Constitution even before complying with RA
6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for
an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number
of registered voters as signatories." Section 5(b) of RA 6735 requires that the people must sign
the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for "Raul L.
Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming
to act "together with" the 6.3 million signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition
embracing more than one (1) subject shall be submitted to the electorate; x x x." The proposed
Section 4(4) of the Transitory Provisions, mandating the interim Parliament to propose further
amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
form of government. Since the present initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this
Court's ruling inSantiago and People's Initiative for Reform, Modernization and Action (PIRMA)
v. COMELEC.52 For following this Court's ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants outright dismissal. Thus, this Court
should reiterate its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be
attributed to the public respondent COMELEC in dismissing the petition filed by PIRMA
therein, it appearing that it only complied with the dispositions in the Decisions of this Court
in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of
all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising
it in blatant violation of the clearly specified modes of amendment and revision laid down in the
Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters,
to be tossed and turned by every dominant political group of the day. If this Court allows today a
cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new
dominant political group that comes will demand its own set of changes in the same cavalier and
unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this
country.

An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53
approved our Constitution in a national plebiscite held on 11 February 1987. That approval is the
unmistakable voice of the people, the full expression of the people's sovereign will. That
approval included the prescribed modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group,
can change our Constitution contrary to the specific modes that the people, in their sovereign
capacity, prescribed when they ratified the Constitution. The alternative is an extra-constitutional
change, which means subverting the people's sovereign will and discarding the Constitution.
This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution,
this Court is sworn to perform its solemn duty to defend and protect the Constitution, which
embodies the real sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override
the specific modes of changing the Constitution as prescribed in the Constitution itself. Otherwise,
the Constitution the people's fundamental covenant that provides enduring stability to our society
becomes easily susceptible to manipulative changes by political groups gathering signatures
through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that "ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that
their "people's" initiative is an "unqualified support to the agenda" of the incumbent President to
change the Constitution. This forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution,
which embodies the people's sovereign will, is the bible of this Court. This Court exists to defend
and protect the Constitution. To allow this constitutionally infirm initiative, propelled by deceptively
gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.

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


AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,


ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,

CHRISTIAN RIVERO, DIANNE MARIE


ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,

- versus HON. EDUARDO ERMITA, IN HIS


CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION

AUTHORITY, and HON. HILARIO


DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the
constitutionality of Republic Act No. 9522 (RA 9522) adjusting the countrys
archipelagic baselines and classifying the baseline regime of nearby territories.
1

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) demarcating the
maritime baselines of the Philippines as an archipelagic State. This law followed the
framing of the Convention on the Territorial Sea and the Contiguous Zone in 1958
(UNCLOS I), codifying, among others, the sovereign right of States parties over their
territorial sea, the breadth of which, however, was left undetermined. Attempts to fill
this void during the second round of negotiations in Geneva in 1960 (UNCLOS II)
proved futile. Thus, domestically, RA 3046 remained unchanged for nearly five
decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA 5446])
correcting typographical errors and reserving the drawing of baselines around Sabah
in North Borneo.
2

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III), which the Philippines ratified on 27 February 1984. Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines and sets the deadline for the filing of application for the extended
continental shelf. Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.
5

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


capacities as citizens, taxpayers or x x x legislators, as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine states
9

sovereign power, in violation of Article 1 of the 1987 Constitution, embodying the


terms of the Treaty of Paris and ancillary treaties, and (2) RA 9522 opens the
countrys waters landward of the baselines to maritime passage by all vessels and
aircrafts, undermining Philippine sovereignty and national security, contravening the
countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.
10

11

12

13

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


of islands not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen. To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
14

Commenting on the petition, respondent officials raised threshold issues questioning


(1) the petitions compliance with the case or controversy requirement for judicial
review grounded on petitioners alleged lack of locus standi and (2) the propriety of
the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys compliance with the terms
of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment
and economic interests or relinquish the Philippines claim over Sabah.

Respondents also question the normative force, under international law, of


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

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and


2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.

The Ruling of the Court


On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to
test the constitutionality of RA 9522. On the merits, we find no basis to declare RA
9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus


Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and


taxpayers because the petition alleges neither infringement of legislative
prerogative nor misuse of public funds, occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the
case which undoubtedly raises issues of national significance necessitating urgent
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably
difficult to find other litigants possessing a more direct and specific interest to bring
the suit, thus satisfying one of the requirements for granting citizenship standing.
15

16

17

The Writs of Certiorari and Prohibition


Are Proper Remedies to Test
the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that
the writs cannot issue absent any showing of grave abuse of discretion in the exercise
of judicial, quasi-judicial or ministerial powers on the part of respondents and
resulting prejudice on the part of petitioners.
18

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

20

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool


to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory

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


territory because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the definition of
national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States.
Petitioners argue that from the Treaty of Paris technical description, Philippine
21

sovereignty over territorial waters extends hundreds of nautical miles around the
Philippine archipelago, embracing the rectangular area delineated in the Treaty of
Paris.
22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e.,
the territorial waters [12 nautical miles from the baselines], contiguous zone [24
nautical miles from the baselines], exclusive economic zone [200 nautical miles from
the baselines]), and continental shelves that UNCLOS III delimits. UNCLOS III was
the culmination of decades-long negotiations among United Nations members to
codify norms regulating the conduct of States in the worlds oceans and submarine
areas, recognizing coastal and archipelagic States graduated authority over a limited
span of waters and submarine lands along their coasts.
23

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as geographic starting points to
measure the breadth of the maritime zones and continental shelf. Article 48 of
UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the


contiguous zone, the exclusive economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone, the exclusive
economic zone and the continental shelf shall be measured from
archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and

continental shelves. In turn, this gives notice to the rest of the international
community of the scope of the maritime space and submarine areas within which
States parties exercise treaty-based rights, namely, the exercise of sovereignty over
territorial waters (Article 2), the jurisdiction to enforce customs, fiscal, immigration,
and sanitation laws in the contiguous zone (Article 33), and the right to exploit the
living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III.
The baselines cannot be drawn from the boundaries or other portions of the
rectangular area delineated in the Treaty of Paris, but from the outermost islands and
drying reefs of the archipelago.
24

UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription, not by executing multilateral treaties
on the regulations of sea-use rights or enacting statutes to comply with the treatys
terms to delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules on general
international law.
25

26

RA 9522s Use of the Framework


of Regime of Islands to Determine the
Maritime Zones of the KIG and the
Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty


Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands
framework to draw the baselines, and to measure the breadth of the applicable
maritime zones of the KIG, weakens our territorial claim over that area. Petitioners
add that the KIGs (and Scarborough Shoals) exclusion from the Philippine
archipelagic baselines results in the loss of about 15,000 square nautical miles of
territorial waters, prejudicing the livelihood of subsistence fishermen. A comparison
of the configuration of the baselines drawn under RA 3046 and RA 9522 and the
extent of maritime space encompassed by each law, coupled with a reading of the text
of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations
under UNCLOS III, belie this view.
27

28

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS IIIs limitation on the
maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the
Scarborough Shoal lie outside of the baselines drawn around the Philippine
archipelago. This undeniable cartographic fact takes the wind out of petitioners
argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522,
by optimizing the location of basepoints, increased the Philippines total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below:
29

Extent of maritime area

Extent of maritime

using RA 3046, as

area using RA 9522,

amended, taking into

taking into account

account the Treaty of Paris

UNCLOS III (in

delimitation (in square

square nautical

nautical miles)

miles)

166,858

171,435

274,136

32,106

Internal or
archipelagic
waters

Territorial
Sea

Exclusive
Economic
382,669

Zone

TOTAL

440,994

586,210

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

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

SEC. 2. The baselines in the following areas over which the


Philippines likewise exercises sovereignty and jurisdiction shall be
determined as Regime of Islands under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the Law
of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
of the Philippine archipelago, adverse legal effects would have ensued. The
Philippines would have committed a breach of two provisions of UNCLOS III. First,
Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall
not exceed 100 nautical miles, save for three per cent (3%) of the total number of
baselines which can reach up to 125 nautical miles.
31

Although the Philippines has consistently claimed sovereignty over the


KIG and the Scarborough Shoal for several decades, these outlying areas are located
at an appreciable distance from the nearest shoreline of the Philippine
archipelago, such that any straight baseline loped around them from the nearest
basepoint will inevitably depart to an appreciable extent from the general
configuration of the archipelago.
32

33

The principal sponsor of RA 9522 in the Senate, Senator Miriam DefensorSantiago, took pains to emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago. So sa loob ng
ating baseline, dapat magkalapit ang mga islands. Dahil malayo ang
Scarborough Shoal, hindi natin masasabing malapit sila sa atin
although we are still allowed by international law to claim them as our
own.
This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi
na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago. (Emphasis
supplied)
34

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

[T]he amendment of the baselines law was necessary to enable the


Philippines to draw the outer limits of its maritime zones including the

extended continental shelf in the manner provided by Article 47 of


[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-water
line and drying reefs as prescribed by Article 47.
35

Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal
as Regime[s] of Islands under the Republic of the Philippines consistent with Article
121 of UNCLOS III manifests the Philippine States responsible observance of
its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS
III, any naturally formed area of land, surrounded by water, which is above water at
high tide, such as portions of the KIG, qualifies under the category of regime of
islands, whose islands generate their own applicable maritime zones.
36

37

Statutory Claim Over Sabah under


RA 5446 Retained

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

Section 2. The definition of the baselines of the territorial sea of


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

UNCLOS III and RA 9522 not


Incompatible with the Constitutions
Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the
law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under UNCLOS
III, including overflight. Petitioners extrapolate that these passage rights indubitably

expose Philippine internal waters to nuclear and maritime pollution hazards, in


violation of the Constitution.
38

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


Constitution or as archipelagic waters under UNCLOS III (Article 49 [1]), the
Philippines exercises sovereignty over the body of water lying landward of the
baselines, including the air space over it and the submarine areas underneath.
UNCLOS III affirms this:
39

Article 49. Legal status of archipelagic waters, of the air space


over archipelagic waters and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the
waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and subsoil,
and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this
Part shall not in other respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise by the archipelagic
State of its sovereignty over such waters and their air space, bed and
subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine

government, in the competent discharge of their constitutional powers, may pass


legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are
now pending in Congress.
40

41

In the absence of municipal legislation, international law norms, now codified


in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise. Significantly, the right of innocent passage is a customary international
law, thus automatically incorporated in the corpus of Philippine law. No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
42

43

44

The fact that for archipelagic States, their archipelagic waters are subject to
both the right of innocent passage and sea lanes passage does not place them in lesser
footing vis--vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international
straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their
islands as separate islands under UNCLOS III. Separate islands generate their own
maritime zones, placing the waters between islands separated by more than 24
nautical miles beyond the States territorial sovereignty, subjecting these waters to the
rights of other States under UNCLOS III.
45

46

47

Petitioners invocation of non-executory constitutional provisions in Article II


(Declaration of Principles and State Policies) must also fail. Our present state of
48

jurisprudence considers the provisions in Article II as mere legislative guides, which,


absent enabling legislation, do not embody judicially enforceable constitutional rights
x x x. Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 2 ) and subsistence fishermen (Article XIII, Section 7 ), are not violated by
RA 9522.
49

50

51

52

In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all
living and non-living resources within such zone. Such a maritime delineation binds
the international community since the delineation is in strict observance of UNCLOS
III. If the maritime delineation is contrary to UNCLOS III, the international
community will of course reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles. UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS III.
53

RA 9522 and the Philippines Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522. We have looked at the relevant provision
of UNCLOS III and we find petitioners reading plausible. Nevertheless, the
prerogative of choosing this option belongs to Congress, not to this Court. Moreover,
the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III
compliant baselines law, an archipelagic State like the Philippines will find itself
devoid of internationally acceptable baselines from where the breadth of its maritime
zones and continental shelf is measured. This is recipe for a two-fronted disaster: first,
it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it
weakens the countrys case in any international dispute over Philippine maritime
space. These are consequences Congress wisely avoided.
54

55

The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationallyrecognized delimitation of the breadth of the Philippines maritime zones and
continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines
in safeguarding its maritime zones, consistent with the Constitution and our national
interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.
G.R. No. 204819

April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT
CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports

and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor children,
Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their minor
children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture
and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA DirectorGeneral, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION,
represented by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE
PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its President Donato
Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as
President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G.
NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary, Department of
Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE
PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY
FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A.
LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National
President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M.
Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J.

SOLIMAN, Secretary, Department of Social Welfare and Development, HON. ARSENIO


BALISACAN, Director-General, National Economic and Development Authority, HON.
SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF
COMMISSIONERS, Philippine Commission on Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,
AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary
of the Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the Department of Education;
and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive
Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A. NIDOY,
WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES,
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEOGARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF
HEALTH, DEPARTMENT OF EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH
MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO
AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the
Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management,Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to

profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."
1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the bludgeoning
dearth in social services remains to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to the realization of its very purpose,
that is, the general welfare of the Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative government, endeavors to enact laws and
policies that aim to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions within the reach of Juan
dela Cruz. Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly embarks on its solemn duty
to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates to sticker campaigns, from rallies by socio-political activists to mass gatherings organized
by members of the clergy - 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.
2

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition, 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);
5

(2) Petition for Prohibition, filed by the Alliance for the Family Foundation Philippines, Inc.,
through its president, Atty. Maria Concepcion S. Noche and several others in their personal
capacities as citizens and on behalf of the generations unborn (ALFI);
6

(3) Petition for Certiorari, 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);
9

(4) Petition for Certiorari and Prohibition, filed by Serve Life Cagayan De Oro City,
Inc., Rosevale Foundation, Inc., a domestic, privately-owned educational institution, and
several others, in their capacities as citizens (Serve Life);
10

11

12

13

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

(6) Petition for Certiorari and Prohibition, filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines, in their capacities as a citizens and taxpayers
(Olaguer);
15

16

(7) Petition for Certiorari and Prohibition, filed by the Philippine Alliance of Xseminarians
Inc., and several others in their capacities as citizens and taxpayers (PAX);
17

18

19

(8) Petition, filed by Reynaldo J. Echavez, M.D. and several others, in their capacities as
citizens and taxpayers (Echavez);
20

21

(9) Petition for Certiorari and Prohibition, 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);
22

(10) Petition for Certiorari and Prohibition, filed by Pro-Life Philippines Foundation Inc. and
several others, in their capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
23

24

25

(11) Petition for Prohibition, filed by Millennium Saint Foundation, Inc., Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);
26

27

(12) Petition for Certiorari and Prohibition, filed by John Walter B. Juat and several
others, in their capacities as citizens (Juat) ;
28

29

(13) Petition for Certiorari and Prohibition, filed by Couples for Christ Foundation, Inc. and
several others, in their capacities as citizens (CFC);
30

31

(14) Petition for Prohibition filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and
32

(15) Petition-In-Intervention, filed by Atty. Samson S. Alcantara in his capacity as a citizen


and a taxpayer (Alcantara); and
33

(16) Petition-In-Intervention, filed by Buhay Hayaang Yumabong (B UHAY) , an accredited


political party.
34

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

The RH Law violates the right to health and the right to protection against hazardous
products. The petitioners posit that the RH Law provides universal access to contraceptives
which are hazardous to one's health, as it causes cancer and other health problems.
36

The RH Law violates the right to religious freedom. The petitioners contend that the RH
Law violates the constitutional guarantee respecting religion as it authorizes the use of public
funds for the procurement of contraceptives. For the petitioners, the use of public funds for
purposes that are believed to be contrary to their beliefs is included in the constitutional
mandate ensuring religious freedom.
37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.
38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RHIRR), 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.
39

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." It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their
own discretion and judgment.
47

The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way
of family planning. The petitioners note that although exemption is granted to institutions
owned and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.
48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution.
It is contended that the RH Law providing for mandatory reproductive health education
intrudes upon their constitutional right to raise their children in accordance with their beliefs.

49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives.
50

The RH Law violates the constitutional principle of non-delegation of legislative authority.


The petitioners question the delegation by Congress to the FDA of the power to determine
whether a product is non-abortifacient and to be included in the Emergency Drugs List
(EDL).
51

The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI
of the Constitution.
52

The RH Law violates Natural Law.

53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local Government
Code and R.A . No. 9054.
54

Various parties also sought and were granted leave to file their respective comments-in-intervention
in defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG)
which commented on the petitions in behalf of the respondents, Congressman Edcel C.
Lagman, former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan,
and Dr. Alberto G. Romualdez, the Filipino Catholic Voices for Reproductive Health (C4RH), Ana
Theresa "Risa" Hontiveros, and Atty. Joan De Venecia 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.
55

56

57

58

59

60

61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which
the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status
Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a
period of one hundred and twenty (120) days, or until July 17, 2013.
62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to
determine and/or identify the pertinent issues raised by the parties and the sequence by which these
issues were to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13,
and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.
63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60)
days and, at the same time posed several questions for their clarification on some contentions of the
parties.
64

The Status Quo Ante


(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, 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."
66

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. 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."
67

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79, 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."
68

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. 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. 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.
69

70

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. The executive and
the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the marginalized, access and
information to the full range of modem family planning methods, and to ensure that its objective to
provide for the peoples' right to reproductive health be achieved. To make it more effective, the RH
Law made it mandatory for health providers to provide information on the full range of modem family
planning methods, supplies and services, and for schools to provide reproductive health education.
To put teeth to it, the RH Law criminalizes certain acts of refusals to carry out its mandates.
72

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very essence
of the RH Law, violates the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained." It explains:
73

x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives
are prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners
find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas
of the country - is made to play in the implementation of the contraception program to the fullest
extent possible using taxpayers' money. The State then will be the funder and provider of all forms of
family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and
supplies.
74

ISSUES
After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized
and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.
1] Power of Judicial Review

2] Actual Case or Controversy


3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
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" and "characterized by an
inordinate amount of transparency." 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. It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti75

76

77

Terrorism Council, the remedies of certiorari and prohibition utilized by the petitioners are improper
to assail the validity of the acts of the legislature.
78

79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet
to distribute reproductive health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.
80

In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of government, which
obtains not through express provision but by actual division in our Constitution. Each department of
the government has exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere.
81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress
of the Philippines; (b) the executive power shall be vested in the President of the Philippines; and
(c) the judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. The Constitution has truly blocked out with deft strokes and in bold lines, the
allotment of powers among the three branches of government.
82

83

84

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. In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a
co-equal branch done within its sphere of competence and authority, but at the same time, allows it
to cross the line of separation - but only at a very limited and specific point - to determine whether
the acts of the executive and the legislative branches are null because they were undertaken with
grave abuse of discretion. Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results. The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
87

88

89

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. This is in line with Article VIII, Section 1 of
the Constitution which expressly provides:
90

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, 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, Aldaba v. COMELEC, Magallona v. Ermita, and countless others. In
Tanada, the Court wrote:
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93

94

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the legislative
branch is seriously alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a
"controversy as to the application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is bound by constitutional
mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.
95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority
to rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule
that the power of judicial review is limited by four exacting requisites, viz : (a) there must be an
actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.
96

Actual Case or Controversy


Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented. 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. In short, it is contended that judicial review of the RH Law is
premature.
97

98

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion. The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite
and concrete, touching on the legal relations of parties having adverse legal interests. In other
words, the pleadings must show an active antagonistic assertion of a 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
99

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. 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 of
101

102

In The Province of North Cotabato v. The Government of the Republic of the Philippines, where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOAAD) 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.
103

In this case, the Court is of the view that an actual case or controversy exists and that the same is
ripe for judicial determination. Considering that the RH Law and its implementing rules have already
taken effect and that budgetary measures to carry out the law have already been passed, it is
evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.
104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.
105

The Court is not persuaded.


In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment. 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. 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.
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107

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, it has expanded its scope to cover statutes not only regulating
free speech, but also those involving religious freedom, and other fundamental rights. The
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109

underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court,
under its expanded jurisdiction, is mandated by the Fundamental Law not only to settle actual
controversies involving rights which are legally demandable and enforceable, but also to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its duty to maintain the supremacy of
the Constitution.
110

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, and the government has yet to distribute
reproductive health devices that are abortive.
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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. 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.
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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
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."
116

In Coconut Oil Refiners Association, Inc. v. Torres, the Court held that in cases 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, 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.
117

118

With these said, even if the constitutionality of the RH Law may not be assailed through an "asapplied challenge, still, the Court has time and again acted liberally on the locus s tandi requirement.
It has accorded certain individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on
more than one occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public interest, albeit they may not
have been directly injured by the operation of a law or any other government act. As held in Jaworski
v. PAGCOR:
119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum
of society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction. Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule
65.
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121

One Subject-One Title


The petitioners also question the constitutionality of the RH Law, claiming that it violates Section
26(1 ), Article VI of the Constitution, 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.
122

123

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

125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with access to information on the full
range of modem family planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law. Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation. 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."
126

127

128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the
title of the enactment language of such precision as to mirror, fully index or catalogue all the contents
and the minute details therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and consequences of the proposed law and its
operation. Moreover, this Court has invariably adopted a liberal rather than technical construction of
the rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education and
information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where

another or different one is really embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."
129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under
its terms, the Court finds no reason to believe that Congress intentionally sought to deceive the
public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.
130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH
Law considers contraceptives that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization
and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life.
131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man.
132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration
(FDA) to certify that the product or supply is not to be used as an abortifacient, the assailed
legislation effectively confirms that abortifacients are not prohibited. Also considering that the FDA is
not the agency that will actually supervise or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make a certification that it shall not be used for
abortifacient purposes.
133

Position of the Respondents


For their part, the defenders of the RH Law point out that the intent of the Framers of the
Constitution was simply the prohibition of abortion. They contend that the RH Law does not violate
the Constitution since the said law emphasizes that only "non-abortifacient" reproductive health care
services, methods, devices products and supplies shall be made accessible to the public.
134

According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health Organization (WHO) and other experts in
the medical field, it is asserted that the Court afford deference and respect to such a determination
and pass judgment only when a particular drug or device is later on determined as an abortive.
135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.
136

The Court's Position


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

137

Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization, to the promotion of male
vasectomy and tubal ligation, and the ratification of numerous international agreements, the
country has long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development. Through the years, however,
the use of contraceptives and other family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly,
reproductive health.
138

139

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." 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.
141

When Life Begins*


Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at fertilization.
In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and the
life of the unborn from conception. The natural and primary right and duty of parents in the rearing of
the youth for civic efficiency and the development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at
implantation. Hence, the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization"
of the female ovum by the male sperm. On the other side of the spectrum are those who assert that
conception refers to the "implantation" of the fertilized ovum in the uterus.
142

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, it was written:
147

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, 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.
148

149

Intent of the Framers


Records of the Constitutional Convention also shed light on the intention of the Framers regarding
the term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.
150

xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is
alive. First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell division. All these processes are
vital signs of life. Therefore, there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from
the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized
ovum is human.
Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum
is both alive and human, then, as night follows day, it must be human life. Its nature is human.
151

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

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it
was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's
own admission, he would leave it to Congress to define when life begins. So, Congress can define
life to begin from six months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.
153

Upon further inquiry, it was asked:


Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of
the questions I was going to raise during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.
When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the socalled contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach
the uterus. Therefore, if we take the provision as it is proposed, these so called contraceptives
should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.
154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female

ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit Congress
from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.
155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed
an abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take action prior to fertilization should be
deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx

xxx

xxx

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.
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?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as
the intra-uterine device which actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception," what really occurs is that some of
these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.

156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients.
157

Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:

There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing
here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.

158

Medical Meaning
That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be
the instant a spermatozoon enters an ovum and forms a viable zygote."
159

It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."
160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics), used by medical schools in
the Philippines, also concludes that human life (human person) begins at the moment of fertilization
161

with the union of the egg and the sperm resulting in the formation of a new individual, with a unique
genetic composition that dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the
haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell.
This fertilized ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of
a human being."
162

The authors of Human Embryology & Teratology 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."
163

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

Conclusion: The Moment of Conception is Reckoned from


Fertilization
In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is
that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation. According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous." 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."
165

166

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. 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.
168

Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and
further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion.
It was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception,
explained:
The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress
or any pro-abortion decision passed by the Supreme Court.
169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the
law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for
implantation.
170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive healthrelated 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:
xxx.
(3) Proscription of abortion and management of abortion complications;

xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of discrimination, coercion and violence; to have
the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and
access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with
the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits any
drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to
that which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any
drug or device the fertilized ovum to reach and be implanted in the mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life,
and two, the fertilized ovum must be protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only recognized and afforded
protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the
RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization,
not at implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained
but that instance of implantation is not the point of beginning of life. It started earlier. And as defined
by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty
as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in every instance when the
contraceptive product or supply will be used.
171

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

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


Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as
"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.
172

This cannot be done.


In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR must be
struck down for being ultra vires.
173

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid.
There is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears
to insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect
is abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism.
174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that
do not have the primary action of causing abortion or the destruction of a fetus inside the mother's
womb or the prevention of the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary

effect of being an abortive would effectively "open the floodgates to the approval of contraceptives
which may harm or destroy the life of the unborn from conception/fertilization in violation of Article II,
Section 12 of the Constitution."
175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals. 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. Given the definition of "reproductive health" and "sexual health" under
Sections 4(p) and (w) of the RH Law, the petitioners assert that the assailed legislation only seeks
to ensure that women have pleasurable and satisfying sex lives.
176

177

178

179

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 selfexecutory. There is no need for legislation to implement these self-executing provisions. In Manila
Prince Hotel v. GSIS, it was stated:
182

183

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 selfexecuting. If the constitutional provisions are treated as requiring legislation instead of selfexecuting, 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-selfexecuting. . . . 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. 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.
184

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
"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or
more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes,
the pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless. [Emphases in the
Original. Underlining supplied.]
186

In Re: Section 10 of the RH Law:


The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure,
distribute to LGUs and monitor the usage of family planning supplies for the whole country. The DOH
shall coordinate with all appropriate local government bodies to plan and implement this
procurement and distribution program. The supply and budget allotments shall be based on, among
others, the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their
children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.
187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available
to the public are safe for public consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must
first be measured up to the constitutional yardstick as expounded herein, to be determined as the
case presents itself.
At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and 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, intrauterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and
background, sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of
these are medical practitioners who essentially claim that their beliefs prohibit not only the use of
contraceptives but also the willing participation and cooperation in all things dealing with
contraceptive use. Petitioner PAX explained that "contraception is gravely opposed to marital
chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the transmission of Human
life."
188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.
189

2. On Religious Accommodation and


The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs.
190

They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3)
the option to refer a patient seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other individuals to conscientiously
object, such as: a) those working in public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section 23(b ); and c) teachers in public
schools referred to in Section 14 of the RH Law, are also not recognize.
191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.
192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person
seeking reproductive health care services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.
193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions 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. 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.
195

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. 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, and that what the law only prohibits are those acts or practices, which deprive others
of their right to reproductive health. 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.
196

197

198

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. In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning methods and impose this on the entire
citizenry.
200

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. 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.
205

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. 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.
1wphi1

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." Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.
206

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience. Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith. Explaining the concept of
religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union wrote:
207

208

209

The constitutional provisions not only prohibits legislation for the support of any religious tenets or
the modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but
also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It
has been said that the religion clauses of the Constitution are all designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his conscience directs, to profess his
beliefs, and to live as he believes he ought to live, consistent with the liberty of others and with the
common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may
be characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct.
1970) But if the state regulates conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such
burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland,
366 U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In simplest
terms, the free exercise clause prohibits government from inhibiting religious beliefs with penalties
for religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion

clauses were intended to deny government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.
210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education:
211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe
in most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom
of belief and the exercise of said belief, there is quite a stretch of road to travel.
212

The second part however, is limited and subject to the awesome power of the State and can be
enjoyed only with proper regard to the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."
213

Legislative Acts and the


Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor) where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution." In the same
case, it was further explained that"
214

215

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The purpose
of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion." "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."
216

217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper. Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny. In Escritor, it was written:
218

219

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and
present danger" test but did not employ it. Nevertheless, this test continued to be cited in
subsequent cases on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established institutions of society and law.
The Victoriano case mentioned the "immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise provided the law is the least restrictive
means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag then employed
the "grave and immediate danger" test and overruled the Gerona test. The fairly recent case of
Iglesia ni Cristo went back to the " clear and present danger" test in the maiden case of A merican
Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is

often used in cases on freedom of expression. On the other hand, the Gerona and German cases
set the rule that religious freedom will not prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only case that employed the
"compelling state interest" test, but as explained previously, the use of the test was inappropriate to
the facts of the case.
The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching. A
test that would protect the interests of the state in preventing a substantive evil, whether immediate
or delayed, is therefore necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental right that enjoys a preferred position in
the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of
Jefferson. This right is sacred for an invocation of the Free Exercise Clause is an appeal to a higher
sovereignty. The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the
gravest abuses, endangering paramount interests can limit this fundamental right. A mere balancing
of interests which balances a right with just a colorable state interest is therefore not appropriate.
Instead, only a compelling interest of the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise
would allow the state to batter religion, especially the less powerful ones until they are destroyed. In
determining which shall prevail between the state's interest and religious liberty, reasonableness
shall be the guide. The "compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the
"compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which
are outside the province of the civil courts." 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.
220

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his

religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying
marginalization: Provided, That the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their
religious convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's and people's
organizations, civil society, faith-based organizations, the religious sector and communities is crucial
to ensure that reproductive health and population and development policies, plans, and programs
will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.
The Establishment Clause

and Contraceptives
In the same breath that the establishment clause restricts what the government can do with religion,
it also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The demarcation line between Church and
State demands that one render unto Caesar the things that are Caesar's and unto God the things
that are God's.
221

The Free Exercise Clause and the Duty to Refer


While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be
reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that
a hospital or a medical practitioner to immediately refer a person seeking health care and services
under the law to another accessible healthcare provider despite their conscientious objections based
on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of
an important secular objective. Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom
has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the law and the abandonment of his
religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners whose religious beliefs are
incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services, procedures
and methods, his conscience is immediately burdened as he has been compelled to perform an act
against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the
basis of the free exercise clause is the respect for the inviolability of the human conscience.
222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false
compromise because it makes pro-life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in conscience, do indirectly what they cannot
do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by
indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech,
it being an externalization of one's thought and conscience. This in turn includes the right to be
silent. With the constitutional guarantee of religious freedom follows the protection that should be
afforded to individuals in communicating their beliefs to others as well as the protection for simply
being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and
the liberty not to utter what is not in his mind. 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.
223

224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand,
and the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number
and spacing of the birth of their children, the Court is of the strong view that the religious freedom of
health providers, whether public or private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and conviction, it would be violative of "the
principle of non-coercion" enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board, 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. 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."
225

226

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 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 Secretary it
was stressed:
228

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others
and with the common good."
10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends to

be toothless and ineffectual. Nonetheless, when what is bartered for an effective implementation of a
law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or
who declines to perform reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs
of hospital, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to
believe is intrinsic in every individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek other
candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such
concept then are freedom of religion, freedom of speech, of the press, assembly and petition, and
freedom of association.
229

The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned
RH Law is replete with provisions in upholding the freedom of religion and respecting religious
convictions. Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have
read the IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected
the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it
says: " .... skilled health professionals such as provincial, city or municipal health officers, chief of

hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree
with this? Is this not against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law must prevail.

230

Compelling State Interest


The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is
an ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and
their patients.
231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.
232

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

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who
object to contraceptive use is immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means. 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.
234

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 parenthood,
and the right of women to protection from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address pregnancy and
infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family planning;
(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually
transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related complications;
(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance towards
healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant to
ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of women
and girls. In addition, healthy lifestyle activities are encouraged and promoted
through programs and projects as strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the youth and
the development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of
character;
(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x." He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.
235

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, although there was still no RH
Law at that time. Despite such revelation, the proponents still insist that such number of maternal
deaths constitute a compelling state interest.
236

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 15 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted 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.
239

4-The Family and the Right to Privacy


Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of
the Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its solidarity and total development.
240

The Court cannot but agree.


The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.
The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:


The 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:
(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision
of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section 3,
their right "to participate in the planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as an
inviolable social institution.
241

Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as one
cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right. Unless
it prejudices the State, which has not shown any compelling interest, the State should see to it that
they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as
the "Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by giving to only one spouse the
absolute authority to decide whether to undergo reproductive health procedure.
242

The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc, 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." Marje adopted the ruling of the US Supreme Court in Griswold v.
Connecticut, where Justice William O. Douglas wrote:
243

244

245

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to privacy
of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various
guarantees create zones of privacy."
246

At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. x x x.
No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.
There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance
of her own parents. The State cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no longer relevant is clearly anti-family.
It does not promote unity in the family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government." In this regard, Commissioner Bernas
wrote:
247

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. [Emphases supplied]
248

To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the very
purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and strongly-

held Filipino tradition of maintaining close family ties and violative of the recognition that the State
affords couples entering into the special contract of marriage to as one unit in forming the foundation
of the family and society.
The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only
a compelling state interest can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in the second paragraph
of Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning
methods themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception
in the second paragraph of Section 7 that would enable her to take proper care of her own body and
that of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to
protect both the life of the mother as that of the unborn child. Considering that information to enable
a person to make informed decisions is essential in the protection and maintenance of ones' health,
access to such information with respect to reproductive health must be allowed. In this situation, the
fear that parents might be deprived of their parental control is unfounded because they are not
prohibited to exercise parental guidance and control over their minor child and assist her in deciding
whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack
of consent. It should be emphasized that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii) 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.
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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. 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.
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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. Considering that Section 14 provides not only
for the age-appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination; sexual abuse and
violence against women and children and other forms of gender based violence and teen pregnancy;
physical, social and emotional changes in adolescents; women's rights and children's rights;
responsible teenage behavior; gender and development; and responsible parenthood, and that Rule
10, Section 11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in the moral development of
their children.
253

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.
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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. 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.
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256

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

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


(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or
with established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional. 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.
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7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing with
the poor, especially those mentioned in the guiding principles and definition of terms of the law.
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260

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, the Court had the occasion to expound on the concept
of equal protection. Thus:
261

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 nonapplication of the law to him."
The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article
XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of the
people. Thus:
Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a

truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.
With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because
there is a need to recognize the academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity towards the teaching of reproductive
health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48) hours
of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.
262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have
the discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation of medical practitioners
with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress to prescribe the qualifications for the practice of professions
or trades which affect the public welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the point of revoking such right
altogether.
263

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. 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 nongovernment 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.
265

Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL).
266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also
the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food
and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be
under the Office of the Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health products;
"(c) To analyze and inspect health products in connection with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products, as determined by the
FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,
retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health

products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found
to have caused death, serious illness or serious injury to a consumer or patient, or is found
to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a requirement for the issuance
of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was equipped
with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting
only food and medicines that are safe includes "service" and "methods." From the declared policy of
the RH Law, it is clear that Congress intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice, as follows:
267

The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may
not have the competence, let alone the interest and the time, to provide the required direct and
efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities.
(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to
them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic services and
facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on
the aspect of providing for basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical exception of cases involving
nationally-funded projects, facilities, programs and services. Thus:
268

(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. 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.
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270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities, the hiring of skilled health professionals, or the training of barangay health
workers, 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.
271

272

273

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the RH
Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by
the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government. These provisions relied upon by the
petitioners simply delineate the powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State of its power to enact legislation
that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM,
the Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium
et imperio in the relationship between the national and the regional governments. 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.
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275

11 - Natural Law

With respect to the argument that the RH Law violates natural law, 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. 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, 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.
276

277

278

279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the religious
freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large population but the unequal distribution of
wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the long run. The European
and Asian countries, which embarked on such a program generations ago , are now burdened with
ageing populations. The number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger

generation would not be able to support them? This would be the situation when our total fertility rate
would go down below the replacement level of two (2) children per woman.
280

Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and
mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must
confine itself to the judicial task of saying what the law is, as enacted by the lawmaking body.
281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the
Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No.
6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna
Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the
same, the principle of "no-abortion" and "non-coercion" in the adoption of any family planning
method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No.
10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which are
declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require
private health facilities and non-maternity specialty hospitals and hospitals owned and
operated by a religious group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to
modem methods of family planning without written consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless
of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic
Act No. 8344, to undergo reproductive health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to
refer a patient not in an emergency or life-threatening case, as defined under Republic Act

No. 8344, to another health care service provider within the same facility or one which is
conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and
void for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated
July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been
herein declared as constitutional.
SO ORDERED.

THE PROVINCE OF NORTH COTABATO, duly G.R. No. 183591


represented by GOVERNOR JESUS SACDALAN Present:
and/or VICE-GOVERNOR EMMANUEL PIOL,
for and in his own behalf,
PUNO, C.J.,
Petitioners,
QUISUMBING,
YNARES- versus SANTIAGO,
CARPIO,
AUSTRIATHE GOVERNMENT OF THE REPUBLIC OF
MARTINEZ,
THE PHILIPPINES PEACE PANEL ON
CORONA,
ANCESTRAL DOMAIN (GRP), represented by
CARPIO
SEC. RODOLFO GARCIA, ATTY. LEAH
MORALES,
ARMAMENTO,
ATTY.
SEDFREY
AZCUNA,
CANDELARIA, MARK RYAN SULLIVAN
TINGA,
and/or GEN. HERMOGENES ESPERON, JR.,
CHICOthe latter in his capacity as the present and dulyNAZARIO,
appointed Presidential Adviser on the Peace
VELASCO, JR.,
Process (OPAPP) or the so-called Office of the
NACHURA,
Presidential Adviser on the Peace Process,
REYES,
Respondents.
LEONARDO-DE
x--------------------------------------------x
CASTRO, &

CITY GOVERNMENT OF ZAMBOANGA, as


BRION, JJ.
represented by HON. CELSO L. LOBREGAT, Promulgated:
City Mayor of Zamboanga, and in his personal
capacity as resident of the City of Zamboanga, October 14, 2008
Rep. MA. ISABELLE G. CLIMACO, District 1,
and Rep. ERICO BASILIO A. FABIAN, District
2, City ofZamboanga,
Petitioners,
- versus G.R. No. 183752
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL (GRP), as represented by RODOLFO C.
GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by
CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,
- versus
THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by
SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO,
ATTY.
SEDFREY
CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed
Presidential Adviser on the Peace Process; and/or
SEC. EDUARDO ERMITA, in his capacity as

Executive Secretary.

G.R. No. 183893


Respondents.

x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF
ZAMBOANGA DEL NORTE, as represented by
HON. ROLANDO E. YEBES, in his capacity as
Provincial Governor, HON. FRANCIS H. OLVIS,
in his capacity as Vice-Governor and Presiding
Officer of the Sangguniang Panlalawigan, HON.
CECILIA
JALOSJOS
CARREON,
st
Congresswoman, 1 Congressional District, HON.
CESAR
G.
JALOSJOS,
Congressman,
rd
3 Congressional District, and Members of the
Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH
FREDERICK P. JALOSJOS, HON. FERNANDO
R. CABIGON, JR., HON. ULDARICO M.
MEJORADA
II,
HON.
EDIONAR
M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON.
CEDRIC L. ADRIATICO, HON.FELIXBERTO
C. BOLANDO, HON. JOSEPH BRENDO C.
AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO
S.
DARUNDAY,
HON.
ANGELICA
J.
CARREON
and
HON.
LUZVIMINDA E. TORRINO,
Petitioners,
G.R. No. 183951
- versus THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL [GRP], as represented by HON.
RODOLFO
C.
GARCIA
and
HON.
HERMOGENES ESPERON, in his capacity as the
Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY,

and AQUILINO L. PIMENTEL III,


Petitioners,
- versus THE GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES PEACE NEGOTIATING
PANEL, represented by its Chairman RODOLFO
C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING
PANEL,
represented
by
its
Chairman
MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS
TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY
OF
LINAMON
duly
represented by its Municipal Mayor NOEL N.
DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE
, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep.
by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of G.R. No. 183962
the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf

and on behalf of Indigenous Peoples in Mindanao


Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG,
NESARIO G. AWAT, JOSELITO C. ALISUAG
and RICHALEX G. JAGMIS, as citizens and
residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION,
INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT
FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on
the armed conflict in Mindanao between the government and the Moro Islamic
Liberation Front (MILF), the legal issue involved has a bearing on all areas in the
country where there has been a long-standing armed conflict.Yet again, the Court is
tasked to perform a delicate balancing act. It must uncompromisingly delineate the
bounds within which the President may lawfully exercise her discretion, but it must
do so in strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief Executive
precisely to enable her to pursue the peace process effectively.

I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and
the MILF, through the Chairpersons of their respective peace negotiating panels,
were scheduled to sign a Memorandum of Agreement on the Ancestral Domain
(MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001
in Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National
Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among
others, of what Salamat perceived to be the manipulation of the MNLF away from
an Islamic basis towards Marxist-Maoist orientations.[1]
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 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 2022, 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 theImplementing 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. Murads 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
Domain[7] and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor
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 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 MOA-AD or, if the same had already been signed, from
implementing the same, and that the MOA-AD be declared
unconstitutional. Petitioners herein additionally implead Executive Secretary
Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, ViceGovernor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, 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 Isabela[21] and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat[22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in

Lanao del Norte,[23] Ruy Elias Lopez of Davao City and of the Bagobo
tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin
Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario
Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement
for Peace and Development (MMMPD) filed their respective Comments-inIntervention.
By subsequent Resolutions, the Court ordered the consolidation of the
petitions. Respondents filed Comments on the petitions, while some of petitioners
submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that
the Executive Department shall thoroughly review the MOA-AD and pursue
further negotiations to address the issues hurled against it, and thus moved to
dismiss the cases. In the succeeding exchange of pleadings, respondents motion
was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that
tackled the following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum
of Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has
become fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines
Peace Panel committed grave abuse of discretion amounting to lack
or excess of jurisdiction when it negotiated and initiated the MOA
vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on


matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including
public consultation under Republic Act No. 7160 (LOCAL
GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
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 thePhilippines.
[24]

The Court, thereafter, ordered the parties to submit their respective


Memoranda. Most of the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject
five petitions and six petitions-in-intervention against the MOA-AD, as well as the
two comments-in-intervention in favor of the MOA-AD, the Court takes an
overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading Terms of Reference (TOR), the MOA-AD includes not
only four earlier agreements between the GRP and MILF, but also two agreements
between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace
Agreement on the Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples
Rights Act (IPRA),[26] and several international law instruments the ILO
Convention No. 169 Concerning Indigenous and Tribal Peoples in 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-muahada (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 thedar-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-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were
drawn up to describe novel ways of perceiving non-Muslim territories. For
instance, areas like dar-ul-muahada (land of compact) and dar-ul-sulh (land
oftreaty) 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-muahada and dar-ul-sulh simply refers to all other agreements between
the MILF and the Philippine government the Philippines being the land of compact
and peace agreement that partake of the nature of a treaty device, treaty being
broadly defined as any solemn agreement in writing that sets out understandings,
obligations, and benefits for both parties which provides for a framework that
elaborates the principles declared in the [MOA-AD].[29]
The MOA-AD states that the Parties HAVE AGREED AND 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 descendantswhether


mixed or of full blood, including their spouses.[30]
Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD,
includes not only Moros as traditionally understood even by Muslims,[31] but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds
that the freedom of choice of indigenous peoples shall be respected. What this
freedom of choice consists in has not been specifically defined.
The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of
which is vested exclusively in the Bangsamoro people by virtue of
their prior rights of occupation.[32] Both parties to the MOA-AD acknowledge
that ancestral domain does notform part of the public domain.[33]
The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under
the suzerain authority of their sultanates and the Pat a Pangampong ku
Ranaw. The sultanates were described as states or karajaan/kadatuan resembling a
body politic endowed with all the elements of a nation-state in the modern sense.[34]
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people
on the past suzerain authority of the sultanates.As gathered, the territory defined as
the Bangsamoro homeland was ruled by several sultanates and, specifically in the
case of the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of
independent principalities (pangampong) each ruled by datus and sultans, none of
whom was supreme over the others.[35]
The MOA-AD goes on to describe the Bangsamoro people as the First
Nation with defined territory and with a system of government having entered into
treaties of amity and commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians.In Canada, each of these
indigenous peoples is equally entitled to be called First Nation, hence, all of them
are usually described collectively by the plural First Nations. [36] To that extent, the
MOA-AD, by identifying the Bangsamoro people as the First Nation suggesting its

exclusive entitlement to that designation departs from the Canadian usage of the
term.
The MOA-AD then mentions for the first time the Bangsamoro Juridical
Entity (BJE) to which it grants the authority and jurisdiction over the Ancestral
Domain and Ancestral Lands of the Bangsamoro.[37]

B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as
the maritime, terrestrial, fluvial and alluvial domains, including the aerial domain
and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region.[38]
More specifically, the core of the BJE is defined as the present geographic area of
the ARMM thus constituting the following areas: Lanao del Sur, Maguindanao,
Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes
certain municipalities of Lanao del Norte that voted for inclusion in the ARMM in
the 2001 plebiscite.[39]
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two categories, Category A
and Category B. Each of these areas is to be subjected to a plebiscite to be held on
different dates, years apart from each other. Thus, Category A areas are to be
subjected to a plebiscite not later than twelve (12) months following the signing of
the MOA-AD.[40] Category B areas, also called Special Intervention Areas, on the
other hand, are to be subjected to a plebiscite twenty-five (25) years from the
signing of a separate agreement the Comprehensive Compact.[41]
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all
natural resources within its internal waters,defined as extending fifteen (15)
kilometers from the coastline of the BJE area; [42] that the BJE shall also
have territorial waters, which shall stretch beyond the BJE internal waters up to
the baselines of the Republic of the Philippines (RP) south east and south west of

mainland Mindanao; and that within these territorial waters, the BJE and the
Central
Government (used
interchangeably
with
RP)
shall
exercise joint jurisdiction, authority and management over all natural resources.
[43]
Notably, the jurisdiction over the internal waters is not similarly described as
joint.
The
MOA-AD
further
provides
for
the sharing of minerals
on
the territorial waters between the Central Government and the BJE, in favor of the
latter, through production sharing and economic cooperation agreement. [44] The
activities which the Parties are allowed to conduct on the territorial waters are
enumerated, among which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of police and
safety measures.[45] There is no similar provision on the sharing of minerals and
allowed activities with respect to the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation
and trade relations with foreign countries and shall have the option to establish
trade missions in those countries. Such relationships and understandings, however,
are not to include aggression against the GRP. The BJE may also enter into
environmental cooperation agreements.[46]
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to
ensure the BJEs participation in international meetings and events like those of the
ASEAN and the specialized agencies of the UN. The BJE is to be entitled to
participate in Philippine official missions and delegations for the negotiation of
border agreements or protocols for environmental protection and equitable sharing
of incomes and revenues involving the bodies of water adjacent to or between the
islands forming part of the ancestral domain.[47]
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
instrumentsgranted by the Philippine Government, including those issued by the
present ARMM.[51]
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of theComprehensive Compact. This compact is to
embody the details for the effective enforcement and the mechanisms and
modalities for the actual implementation of the MOA-AD. The MOA-AD
explicitly provides that the participation of the third party shall not in any way
affect the status of the relationship between the Central Government and the BJE.
[52]

The associative relationship


between the Central Government
and the BJE
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.


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]
[54]

An actual case or controversy involves a conflict of legal rights, an assertion


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

xxxx
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 cites[63] 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 MOA-AD, a
plebiscite covering the areas as enumerated in the list
and depicted in the map as Category A attached herein
(the Annex). The Annex constitutes an integral part of
this framework agreement. Toward this end, the Parties
shall endeavor to complete the negotiations and resolve
all outstanding issues on the Comprehensive Compact
within fifteen (15) months from the signing of the
MOA-AD.
xxxx
GOVERNANCE

xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable
it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the
existing legal framework shall come into force upon the
signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to
non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.
[64]
(Underscoring supplied)

The Solicitor Generals 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 schools policy
allowing student-led prayers and speeches before games was ripe for adjudication,

even if no public prayer had yet been led under the policy, because the policy was
being challenged as unconstitutional on its face.[68]
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,[69]decided in 1992, the United
States Supreme Court held that the action by the State of New York challenging the
provisions of the Low-Level Radioactive Waste Policy Act was ripe for
adjudication even if the questioned provision was not to take effect until January 1,
1996, because the parties agreed that New York had to take immediate action to
avoid the provision's consequences.[70]
The present petitions pray for Certiorari,[71] Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted by law when any
tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the
case of prohibition, without or in excess of its jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction. [72] Mandamus is a remedy
granted by law when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully excludes another from the
use or enjoyment of a right or office to which such other is entitled. [73] Certiorari,
Mandamus and Prohibition are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive
officials.[74]
The authority of the GRP Negotiating Panel is defined by Executive Order
No. 3 (E.O. No. 3), issued on February 28, 2001.[75] The said executive order
requires that [t]he government's policy framework for peace, including the
systematic approach and the administrative structure for carrying out the
comprehensive peace process x x x be governed by this Executive Order.[76]
The present petitions allege that respondents GRP Panel and PAPP Esperon
drafted the terms of the MOA-AD without consulting the local government units or
communities affected, nor informing them of the proceedings. As will be discussed
in greater detail later, such omission, by itself, constitutes a departure by
respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate
the Constitution. The MOA-AD provides that any provisions of the MOA-AD
requiring amendments to the existing legal framework shall come into force upon
the signing of a Comprehensive Compact and upon effecting the necessary changes
to the legal framework, implying an amendment of the Constitution to
accommodate the MOA-AD. This stipulation, in effect, guaranteed to the MILF
the amendment of the Constitution.Such act constitutes 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 taxpayers 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]
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.
Macapagal-Arroyo,[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 Courts forbearing stance on locus
standi on issues involving constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within
the limits of the Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.[91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No.


183591) Province of Zamboanga del Norte (G.R. No. 183951), City of
Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and
petitioners-in-intervention Province
of
Sultan
Kudarat,
City
of
Isabela and Municipality of Linamon have locus standi in view of the direct and
substantial injury that they, as LGUs, would suffer as their territories, whether in
whole or in part, are to be included in the intended domain of the BJE.These
petitioners allege that they did not vote for their inclusion in the ARMM which
would be expanded to form the BJE territory.Petitioners legal standing is thus
beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be
wastage of public funds. The fact that they are a former Senator, an incumbent
mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental importance of the
issues at hand, however, the Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as
taxpayers, assert that government funds would be expended for the conduct of an
illegal and unconstitutional plebiscite to delineate the BJE territory. On that score
alone, they can be given legal standing. Their allegation that the issues involved in
these petitions are of undeniable transcendental importance clothes them with
added basis for their personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a
member of the Senate and a citizen to enforce compliance by respondents of the
publics constitutional right to be informed of the MOA-AD, as well as on a
genuine legal interest in the matter in litigation, or in the success or failure of either
of the parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the
3rd district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B.
Gomez, et al., as members of the IBP Palawan chapter, citizens and
taxpayers; Marino Ridao, as taxpayer, resident and member of the Sangguniang

Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the Court exercises
its discretion to relax the procedural technicality on locus standi given the
paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and
prosperity in Muslim Mindanao; and Muslim Legal 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. Romulo[100] and Manalo v. Calderon[101] where the Court similarly
decided them on the merits, supervening events that would ordinarily have
rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD
and the eventual dissolution of the GRP Peace Panel did not moot the present
petitions. It bears emphasis that the signing of the MOA-AD did not push through
due to the Courts 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 itsnomenclature, 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 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 countrys territory and the wide-ranging
political modifications of affected LGUs. The assertion that the MOA-AD is
subject to further legal enactments including possible Constitutional
amendments more than ever provides impetus for the Court to formulate
controlling principles to guide the bench, the bar, the public and, in this case,
the government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e]
on issues which no longer legitimately constitute an actual case or controversy [as
this] will do more harm than good to the nation as a whole.
The present petitions must be differentiated from Suplico. Primarily, in Suplico,
what was assailed and eventually cancelled was a stand-alone government
procurement contract for a national broadband network involving a one-time
contractual relation between two partiesthe 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 TripoliAgreement 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 Courts attention to the separate opinion of then Chief
Justice Artemio Panganiban in Sanlakas v. Reyes[104]in which he stated that the
doctrine of capable of repetition yet evading review can override mootness,
provided the party raising it in a proper case has been and/or continue to be
prejudiced or damaged as a direct result of their issuance. They contend that the
Court must have jurisdiction over the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this
Court exercises original jurisdiction. While G.R. No. 183893 (City of Iligan v.
GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as
one for Prohibition as it has far reaching implications and raises questions that
need to be resolved.[105] At all events, the Court has jurisdiction over most if not the
rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.[106] There is a reasonable expectation that petitioners, particularly the
Provinces of North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities
of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be

subjected to the same problem in the future as respondents actions are capable of
repetition, in another or any form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its
annexes. Too, intervenors have been furnished, or have procured for themselves,
copies of the MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the
MOA-AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed
the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of
public concern, as provided in Section 7, Article III on the Bill of Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as
may be provided by law.[107]

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
nations problems, nor a meaningful democratic decision-making if they
are denied access to information of general interest. Information is
needed to enable the members of society to cope with the exigencies of
the times. As has been aptly observed: Maintaining the flow of such
information depends on protection for both its acquisition and its
dissemination since, if either process is interrupted, the flow inevitably
ceases. x x x[111]

In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better 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 above-quoted Section


28 complements the right of access to information on matters of public
concern found in the Bill of Rights. The right to information guarantees the right of
the people to demand information, while Section 28 recognizes the duty of
officialdom to give information even if nobody demands.[125]
The policy of public disclosure establishes a concrete ethical principle for the
conduct of public affairs in a genuinely open democracy, with the peoples right to
know as the centerpiece. It is a mandate of the State to be accountable by following
such policy.[126] These provisions are vital to the exercise of the freedom of
expression and essential to hold public officials at all times accountable to the
people.[127]
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy
will not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought


clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said that
this is not a self-executing provision? It would require a legislation by
Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but


I accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause as may be
provided by law
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 peoples will.
[131]
Envisioned to be corollary to the twin rights to information and disclosure is
the design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding
Officer, will the people be able to participate? Will the government
provide feedback mechanisms so that the people can participate and
can react where the existing media facilities are not able to provide

full feedback mechanisms to the government? I suppose this will be


part of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a feedback,
both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make
one last sentence?
I think when we talk about the feedback network, we are not
talking about public officials but also network of private business
o[r] community-based organizations that will be reacting. As a matter
of fact, we will put more credence or credibility on the private network of
volunteers and voluntary community-based organizations. So I do not
think we are afraid that there will be another OMA in the making.
[132]
(Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is


evident in the marching orders to respondents.The mechanics for the duty to
disclose information and to conduct public consultation regarding the peace agenda
and process is manifestly provided by E.O. No. 3.[133] The preambulatory clause of
E.O. No. 3 declares that there is a need to further enhance the contribution of civil
society to the comprehensive peace process by institutionalizing the peoples
participation.
One of the three underlying principles of the comprehensive peace process is
that it should be community-based, reflecting the sentiments, values and principles
important to all Filipinos and shall be defined not by the government alone, nor by
the different contending groups only, but by all Filipinos as one community.
[134]
Included as a component of the comprehensive peace process is consensusbuilding 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 peoples 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
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 peoples 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. 3s explicit provisions on continuing consultation and dialogue on
both national and local levels. The executive order even recognizes the exercise
of the publics right even before the GRP makes 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 Courts August 4,
2008 Resolution, without a prayer for the documents 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 welltaken. 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 above-stated policy and abovequoted provision of the LGU apply only to national programs or projects which are
to be implemented in a particular local community. Among the programs and
projects covered are those that are critical to the environment and human ecology
including those that may call for the eviction of a particular group of people
residing in the locality where these will be implemented.[145] The MOA-AD is one
peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people,[146] which could pervasively and
drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.
With respect to the indigenous cultural communities/indigenous peoples
(ICCs/IPs), whose interests are represented herein by petitioner Lopez and are
adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right
to participate fully at all levels of decision-making in matters which may affect
their rights, lives and destinies.[147] The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-cut
mechanisms ordained in said Act,[148] which entails, among other things, the
observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain claim by mere
agreement or compromise. The recognition of the ancestral domain is the raison
detre of the MOA-AD, without which all other stipulations or consensus points
necessarily must fail. In proceeding to make a sweeping declaration on ancestral
domain, without complying with the IPRA, which is cited as one of the TOR of the
MOA-AD, respondents clearly transcended the boundaries of their
authority. As it seems, even the heart of the MOA-AD is still subject to necessary
changes to the legal framework. While paragraph 7 on Governance suspends the
effectivity of all 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 MOAAD, namely, the international law concept of association. Significantly, the MOAAD explicitly alludes to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe
the envisioned relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative institutions
with defined powers and functions in the comprehensive compact. A

period of transition shall be established in a comprehensive peace


compact specifying the relationship between the Central Government
and the BJE. (Emphasis and underscoring supplied)

The nature of the associative relationship may have been intended to be


defined more precisely in the still to be forged Comprehensive
Compact. Nonetheless, given that there is a concept of association in international
law, and the MOA-AD by its inclusion of international law instruments in its TOR
placed itself in an international legal context, that concept of association may be
brought to bear in understanding the use of the term associative in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while
maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x
x x[150] (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
nations 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 areAntigua, St. Kitts-Nevis-Anguilla, Dominica, St.
Lucia, St. Vincent and Grenada. All have since become independent states.[153]
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJEs
capacity to enter into economic and trade relations with foreign countries, the
commitment of the Central Government to ensure the BJEs 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 BJEs 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-ADs 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 powerful


entity than the autonomous region
recognized in the Constitution

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.
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.
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)
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.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of
the general welfare of the people of the region. (Underscoring
supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted
provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of
said constitutional provision would not suffice, since any new law that might vest
in the BJE the powers found in the MOA-AD must, itself, comply with other
provisions of the Constitution. It would not do, for instance, to merely pass
legislation vesting the BJE with treaty-making power in order to accommodate
paragraph 4 of the strand on RESOURCES which states: The BJE is free to enter
into any economic cooperation and trade relations with foreign countries: provided,
however, that such relationships and understandings do not include aggression

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 Secretary[155] instructs:
In our system of government, the President, being the head of state, is
regarded as the sole organ and authority in external relations and is
the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece
with respect to international affairs. Hence, the President is vested with
the authority to deal with foreign states and governments, extend or
withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In
the realm of treaty-making, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected.That constitutional provision states:
The State recognizes and promotes the rights of indigenous cultural
communities within
the
framework
of national
unity and
development. (Underscoring supplied) An associative arrangement does not
uphold national unity.While there may be a semblance of unity because of the
associative ties between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive
to national unity.
Besides being irreconcilable with the
Constitution,
the
MOA-AD
is
also inconsistent with prevailing statutory
law, among which are R.A. No. 9054[156] or
the Organic Act of the ARMM, and
the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption
of the definition of Bangsamoro people used in the MOA-AD. Paragraph 1
on CONCEPTS AND PRINCIPLES states:

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


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

This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of
the Bangsamoro and other indigenous peoples living in Mindanao,
clearly distinguishes between Bangsamoro people and Tribal peoples, as
follows:
As used in this Organic Act, the phrase indigenous cultural community
refers to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the national
community; and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions.

Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-ADs manner of delineating the
ancestral domain of the Bangsamoro people is a clear departure from that
procedure. By paragraph 1 of TERRITORY, the Parties simply agree that, subject
to the delimitations in the agreed Schedules, [t]he Bangsamoro homeland and
historic territory refer to the land mass as well as the maritime, terrestrial, fluvial
and alluvial domains, and the aerial domain, the atmospheric space above it,
embracing the Mindanao-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 histories of traditional communal forests
and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of
the community.
e) Preparation of Maps. On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the
NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and landmarks
embraced therein;
f) Report of Investigation and Other Documents. A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall be
posted in a prominent place therein for at least fifteen (15) days. A copy
of the document shall also be posted at the local, provincial and regional
offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other
claimants to file opposition thereto within fifteen (15) days from date of
such publication: Provided, That in areas where no such newspaper
exists, broadcasting in a radio station will be a valid substitute: Provided,
further, That mere posting shall be deemed sufficient if both newspaper
and radio station are not available;
h) Endorsement to NCIP. Within fifteen (15) days from publication, and
of the inspection process, the Ancestral Domains Office shall prepare a
report to the NCIP endorsing a favorable action upon a claim that is
deemed to have sufficient proof. However, if the proof is deemed
insufficient, the Ancestral Domains Office shall require the submission
of additional evidence: Provided, That the Ancestral Domains Office

shall reject any claim that is deemed patently false or fraudulent after
inspection and verification: Provided, further, That in case of rejection,
the Ancestral Domains Office shall give the applicant due notice, copy
furnished all concerned, containing the grounds for denial. The denial
shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a
preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the
present legal system, a discussion of not only the Constitution and domestic
statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution


states that the Philippines adopts the
generally
accepted
principles
of
international law as part of the law of the
land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of


Prisons,[158] held that the Universal Declaration of Human Rights is part of the law
of the land on account of which it ordered the release on bail of a detained alien of
Russian descent whose deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional
provision to the 1968 Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of peoples,
understood not merely as the entire population of a State but also a portion
thereof. In considering the question of whether the people of Quebec had a right to
unilaterally secede from Canada, the Canadian Supreme Court in REFERENCE
RE SECESSION OF QUEBEC[160] had occasion to acknowledge that the right of a
people to self-determination is now so widely recognized in international
conventions that the principle has acquired a status beyond convention and is
considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil


and Political Rights[161] and the International Covenant on Economic, Social and
Cultural Rights[162] which state, in Article 1 of both covenants, that all peoples, by
virtue of the right of self-determination, freely determine their political status and
freely pursue their economic, social, and cultural development.
The peoples right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between
the right of internal and external self-determination. REFERENCE 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
throughinternal self-determination a peoples pursuit of its political,
economic, social and cultural development within the framework of
an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to
unilateral secession) arises in only the most extreme of cases and,
even then, under carefully defined circumstances. x x x
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 selfdetermination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial integrity of
existing states. The various international documents that support the
existence of a peoples right to self-determination also contain parallel
statements supportive of the conclusion that the exercise of such a right
must be sufficiently limited to prevent threats to an existing states
territorial integrity or the stability of relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)

The 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 COMMITTEEOF JURISTS ON THE
LEGAL
ASPECTS
OF
THE
AALAND ISLANDS
QUESTION.
[163]
There, Sweden presented to the Council of the League of Nations the question
of whether the inhabitants of the Aaland Islands should be authorized to determine
by plebiscite if the archipelago should remain under Finnish sovereignty or be
incorporated in the kingdom of Sweden. The Council, before resolving the
question, appointed an International Committee composed of three jurists to submit
an opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland.The
Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the
right of disposing of national territory is essentially an attribute of
the sovereignty of every State. Positive International Law does not
recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such
a question, under normal conditions therefore, bears upon a question

which International Law leaves entirely to the domestic jurisdiction of


one of the States concerned. Any other solution would amount to an
infringement of sovereign rights of a State and would involve the risk of
creating difficulties and a lack of stability which would not only be
contrary to the very idea embodied in term State, but would also
endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held
by the State to which the national group wishes to be attached, nor by
any other State. (Emphasis and underscoring supplied)

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

conquest.[164] Examples of groups who have been regarded as indigenous peoples


are the Maori of New Zealand and the aboriginal peoples of Canada.
As with the broader category of peoples, indigenous peoples situated within states
do not have a general right to independence or secession from those states under
international law,[165] but they do have rights amounting to what was discussed
above as the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly
adopted the United Nations Declaration on the Rights of Indigenous Peoples (UN
DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4,
the Philippines being included among those in favor, and the four voting against
being Australia, Canada, New Zealand, and the U.S. The Declaration clearly
recognized the right of indigenous peoples to self-determination, encompassing the
right to autonomy or self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions, while
retaining their right to participate fully, if they so choose, in the political,
economic, social and cultural life of the State.

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;
(c) Any form of forced population transfer which has the aim
or effect of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite
racial or ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special
measures to ensure continuing improvement of their economic and
social conditions. Particular attention shall be paid to the rights and
special needs of indigenous elders, women, youth, children and
persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control
the lands, territories and resources that they possess by reason of
traditional ownership or other traditional occupation or use, as well
as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of the
indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in particular
through their representative institutions, prior to using their lands or
territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities
and strategies for the development or use of their lands or territories
and other resources.
2. States shall consult and cooperate in good faith with the indigenous
peoples concerned through their own representative institutions in
order to obtain their free and informed consent prior to the approval
of any project affecting their lands or territories and other resources,
particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for
any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37

1. Indigenous peoples have the right to the recognition, observance and


enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to have
States honour and respect such treaties, agreements and other
constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall
take the appropriate measures, including legislative measures, to achieve
the ends of this Declaration.

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 peoples 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 nearindependent status of an associated state. All the rights recognized in that
document are qualified in Article 46 as follows:
1. Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations
or construed as authorizing or encouraging any action which
would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to
Article II, Section 2 of the Constitution, it would not suffice to uphold the validity
of the MOA-AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that
cannot be reconciled with the Constitution and the laws as presently
worded. Respondents proffer, however, that the signing of the MOA-AD alone
would not have entailed any violation of law or grave abuse of discretion on their
part, precisely because it stipulates that the provisions thereof inconsistent with the
laws shall not take effect until these laws are amended. They cite paragraph 7 of
the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced
below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal
framework with due regard to non derogation of prior agreements and
within the stipulated timeframe to be contained in the Comprehensive
Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the
MOA-AD from coming into force until the necessary changes to the legal

framework are effected. While the word Constitution is not mentioned in the
provision now under consideration or anywhere else in the MOA-AD, the
term legal framework is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere
act of incorporating in the MOA-AD the provisions thereof regarding the
associative relationship between the BJE and the Central Government, have
already violated the Memorandum of Instructions From The President dated March
1, 2001, which states that the negotiations shall be conducted in accordance with x
x x the principles of the sovereignty and territorial integrity of the Republic of
the Philippines. (Emphasis supplied) Establishing an associative relationship
between the BJE and the Central Government is, for the reasons already discussed,
a preparation for independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOAAD is defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups
to be appointed by the President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups. These negotiating panels
are to report to the President, through the PAPP on the conduct and progress of the
negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to
the Moro Problem through its negotiations with the MILF, was not restricted by
E.O. No. 3 only to those options available under the laws as they presently
stand. One of the components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the Paths to Peace, is the pursuit of social, economic, and
political reforms which may require new legislation or even constitutional
amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.
125,[167] states:

SECTION 4. The Six Paths to Peace. The components of the


comprehensive peace process comprise the processes known as the Paths
to Peace. These component processes are interrelated and not mutually
exclusive, and must therefore be pursued simultaneously in a
coordinated and integrated fashion. They shall include, but may not be
limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This
component
involves
the vigorous
implementation of various policies, reforms, programs and
projects aimed at addressing the root causes of internal armed
conflicts and social unrest. This may require administrative
action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of


respondents to address, pursuant to this provision of E.O. No. 3, the root causes of
the armed conflict in Mindanao. The E.O. authorized them to think outside the box,
so to speak.Hence, they negotiated and were set on signing the MOA-AD that
included various social, economic, and political reforms which cannot, however,
all be accommodated within the present legal framework, and which thus would
require new legislation and constitutional amendments.
The inquiry on the legality of the suspensive clause, however, cannot stop here,
because it must be asked
whether the President herself may
exercise the power delegated to
the GRP Peace Panel under E.O. No. 3,
Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations, agree to pursue
reforms that would require new legislation and constitutional amendments, or
should the reforms be restricted only to those solutions which the present laws
allow? The answer to this question requires a discussion of

the extent of the Presidents power to


conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups
is not explicitly mentioned in the Constitution does not mean that she has no such
authority. In Sanlakas v. Executive 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:
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis
into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the
grant of executive power and which are necessary for
her to comply with her duties under the
Constitution. The powers of the President are not
limited to what are expressly enumerated in the article
on the Executive Department and in scattered
provisions of the Constitution. This is so, notwithstanding
the avowed intent of the members of the Constitutional
Commission of 1986 to limit the powers of the President as
a reaction to the abuses under the regime of Mr. Marcos,
for the result was a limitation of specific powers of the
President, particularly those relating to the commander-inchief clause, but not a diminution of the general grant of
executive power.
Thus, the President's authority to declare a state of rebellion springs
in the main from her powers as chief executive and, at the same
time, draws strength from her Commander-in-Chief powers. x x
x (Emphasis and underscoring supplied)
Similarly, the Presidents power to conduct peace negotiations is implicitly
included in her powers as Chief Executive and Commander-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]

As the experience of nations which have similarly gone through internal armed
conflict will show, however, peace is rarely attained by simply pursuing a military
solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of
the nations constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through technical
electoral assistance and institution- or capacity-building, is unlikely to
succeed. On average, more than 50 percent of 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 constitution-making process can
play an important role in the political and governance
transition.Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to 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.
The President may not, of course, unilaterally implement the solutions that
she considers viable, but she may not be prevented from submitting them as
recommendations to Congress, which could then, if it is minded, act upon them
pursuant to the legal procedures for constitutional amendment and revision. In
particular, Congress would have the option, pursuant to Article XVII, Sections 1
and 3 of the Constitution, to propose the recommended amendments or revision to
the people, call a constitutional convention, or submit to the electorate the question
of calling such a convention.

While the President does not possess constituent powers as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through
initiative and referendum she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act
of directly submitting proposals for constitutional amendments to a referendum,
bypassing the interim National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments. President Marcos, it will
be recalled, never convened the interim National Assembly. The majority upheld
the Presidents 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 Courts concern at
present, however, is not with regard to the point on which it was then divided in
that controversial case, but on that which was not disputed by either side.
Justice Teehankees dissent,[175] in particular, bears noting. While he disagreed
that the President may directly submit proposed constitutional amendments to a
referendum, implicit in his opinion is a recognition that he would have upheld the
Presidents 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 Presidents questioned decrees
proposing and submitting constitutional amendments directly to the
people (without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional and
legal basis.[176] (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President in
the course of conducting peace negotiations may validly consider implementing

even those policies that require changes to the Constitution, but she
may not unilaterally implement them without the intervention of Congress, or
act in any way as if the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly
propose amendments through initiative and referendum, the President may also
submit her recommendations to the people, not as a formal proposal to be voted on
in a plebiscite similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations merit being formally
proposed through initiative.
These recommendations, however, may amount to nothing more than the
Presidents suggestions to the people, for any further involvement in the process of
initiative by the Chief Executive may vitiate its character as a
genuine peoples initiative. The only initiative recognized by the Constitution is that
which truly proceeds from the people. As the Court stated in Lambino v.
COMELEC:[177]
The Lambino Group claims that their initiative is the people's
voice. However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ULAP maintains its unqualified support to the agenda
of Her Excellency President Gloria Macapagal-Arroyo for constitutional
reforms. The Lambino Group thus admits that their people's initiative is
an unqualified support to the agenda of the incumbent President to
change the Constitution. This forewarns the Court to be wary of
incantations of people's voice or sovereign will in the present initiative.
It will be observed that the President has authority, as stated in her oath of
[178]
office,
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 Presidents 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 Presidents authority to propose constitutional
amendments, she cannot guarantee to any third party that the required
amendments will eventually be put in place, nor even be submitted to a
plebiscite. The most she could do is submit these proposals 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, butwhen. That there is no
uncertainty being contemplated is plain from what follows, for the paragraph goes
on to state that the contemplated changes shall be with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained
in the Comprehensive Compact.
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect
the changes to the legal framework contemplated in the MOA-AD which changes
would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in


place, the MOA-AD itself would be
counted among the prior agreements
from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these consensus points and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with
the limits of the Presidents 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 asunconstitutional.
A comparison between the suspensive clause of the MOA-AD with a similar
provision appearing in the 1996 final peace agreement between the MNLF and the
GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase I covered a three-year transitional period
involving the putting up of new administrative structures through Executive Order,
such as the Special Zone of Peace and Development (SZOPAD) and the Southern
Philippines Council for Peace and Development (SPCPD), whilePhase 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
AMNESTY[180] (the Lom Accord case) of the Special Court of Sierra Leone is
enlightening. The Lom Accord was a peace agreement signed on July 7, 1999
between the Government of Sierra Leone and the Revolutionary United Front
(RUF), a rebel group with which the Sierra Leone Government had been in armed
conflict for around eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government of the Togolese
Republic, the Economic Community of West African States, and the UN.
On January 16, 2002, after a successful negotiation between the UN
Secretary-General and the Sierra Leone Government, another agreement was
entered into by the UN and that Government whereby the Special Court of Sierra
Leone was established.The sole purpose of the Special Court, an international
court, was to try persons who bore the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law committed in the
territory of Sierra Leone since November 30, 1996.

Among the stipulations of the 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 noncontracting signatories of the Lom Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV
of the Agreement, this peace agreement is implemented with

integrity and in good faith by both parties. The moral


guarantors assumed no legal obligation. It is recalled that the UN
by its representative appended, presumably for avoidance of doubt,
an understanding of the extent of the agreement to be implemented
as not including certain international crimes.
42. An international agreement in the nature of a treaty must create
rights and obligations regulated by international law so that a
breach of its terms will be a breach determined under international
law which will also provide principle means of enforcement. The
Lom Agreement created neither rights nor obligations capable
of being regulated by international law. An agreement such as
the Lom Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of
peace that the international community acting through the
Security Council may take note of. That, however, will not
convert it to an international agreement which creates an
obligation enforceable in international, as distinguished from
municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a
threat to peace in the determination of the Security Council may
indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of
conflict created. Such consequences such as action by the Security
Council pursuant to Chapter VII arise from the situation and not
from the agreement, nor from the obligation imposed by it. Such
action cannot be regarded as a remedy for the breach. A peace
agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more
warring States.The Lom Agreement cannot be characterised as
an international instrument. x x x (Emphasis, italics and
underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States
and international organizations not parties to the Agreement would not have
sufficed to vest in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to
a unilateral declaration of the Philippine State, binding under international law, that

it would comply with all the stipulations stated therein, with the result that it would
have to amend its Constitution accordingly regardless of the true will of the
people. Cited as authority for this view is Australia v. France,[181] also known as
the Nuclear Tests Case, decided by the International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of
Frances nuclear tests in the South Pacific.France refused to appear in the case, but
public statements from its President, and similar statements from other French
officials including its Minister of Defence, that its 1974 series of atmospheric tests
would be its last, persuaded the ICJ to dismiss the case. [182] Those statements, the
ICJ held, amounted to a legal undertaking addressed to the international
community, which required no acceptance from other States for it to become
effective.
Essential to the ICJ ruling is its finding that the French government intended
to be bound to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of the State
making the declaration that it should become bound according
to its terms, that intention confers on the declaration the
character of a legal undertaking, the State being thenceforth
legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and
with an intent to be bound, even though not made within the context
of international negotiations, is binding. In these circumstances,
nothing in the nature of a quid pro quo nor any subsequent
acceptance of the declaration, nor even any reply or reaction from
other States, is required for the declaration to take effect, since such
a requirement would be inconsistent with the strictly unilateral
nature of the juridical act by which the pronouncement by the State
was made.
44. Of course, not all unilateral acts imply obligation; but a State
may choose to take up a certain position in relation to a
particular matter with the intention of being boundthe intention
is to be ascertained by interpretation of the act. When States

make statements by which their freedom of action is to be limited, a


restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be
the last, the French Government conveyed to the world at large,
including the Applicant, its intention effectively to terminate
these tests. It was bound to assume that other States might take
note of these statements and rely on their being effective. The
validity of these statements and their legal consequences must
be considered within the general framework of the security of
international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual
substance of these statements, and from the circumstances
attending their making, that the legal implications of the
unilateral act must be deduced. The objects of these statements
are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute
an
undertaking
possessing
legal
effect. The
Court
considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to
the international community to which his words were addressed. x x
x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the
following conditions are present: the statements were clearly addressed to the
international community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements would be
detrimental to the security of international intercourse. Plainly, unilateral
declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later
case decided by the ICJ entitled Burkina Faso v. Mali,[183] also known as the Case
Concerning the Frontier Dispute. The public declaration subject of that case was a
statement made by the President of Mali, in an interview by a foreign press agency,
that Mali would abide by the decision to be issued by a commission of the

Organization of African Unity on a frontier dispute then pending


between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis
President was not a unilateral act with legal implications. It clarified that its ruling
in the Nuclear Tests case rested on the peculiar circumstances surrounding the
French declaration subject thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only
ones concerned at the possible continuance of atmospheric
testing by the French Government, that Government's
unilateral declarations had conveyed to the world at large,
including the Applicant, its intention effectively to terminate
these tests (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those cases, the French
Government could not express an intention to be bound
otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its
contention that its conduct was lawful. The circumstances of the
present case are radically different. Here, there was nothing to
hinder the Parties from manifesting an intention to accept the
binding character of the conclusions of the Organization of
African Unity Mediation Commission by the normal method: a
formal agreement on the basis of reciprocity. Since no agreement
of this kind was concluded between the Parties, the Chamber finds
that there are no grounds to interpret the declaration made by Mali's
head of State on 11 April 1975 as a unilateral act with legal
implications in regard to the present case. (Emphasis and
underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have
amounted to a unilateral declaration on the part of the Philippine State to the
international community. The Philippine panel did not draft the same with the clear
intention of being bound thereby to the international community as a whole or to
any State, but only to the MILF. While there were States and international

organizations involved, one way or another, in the negotiation and projected


signing of the MOA-AD, they participated merely as witnesses or, in the case
of Malaysia, as facilitator. As held in the 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 Presidents
statement was not held to be a binding unilateral declaration by the ICJ. As in that
case, there was also nothing to hinder the Philippine panel, had it really been its
intention to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by the inclusion in
the MOA-AD of a clear commitment to be legally bound to the international
community, not just the MILF, and by an equally clear indication that the
signatures of the participating states-representatives would constitute an
acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that prevented the
French Government from entering into a formal agreement with other
countries. That the Philippine panel did not enter into such a formal agreement
suggests that it had no intention to be bound to the international community. On
that ground, the MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines under
international law notwithstanding, respondents almost consummated act
of guaranteeing amendments to the legal framework is, by itself, sufficient to
constitute grave abuse of discretion. The grave abuse lies not in the fact that they
considered, as a solution to the Moro Problem, the creation of a state within a state,
but in their brazen willingness to guarantee that Congress and the sovereign

Filipino people would give their imprimatur to their solution. Upholding such
an act would amount to authorizing a usurpation of the constituent powers vested
only in Congress, a Constitutional Convention, or the people themselves through
the process of initiative, for the only way that the Executive can ensure the
outcome of the amendment process is through an undue influence or interference
with that process.
The sovereign people may, if it so desired, go to the extent of giving up a
portion of its own territory to the Moros for the sake of peace, for it can change the
Constitution in any it wants, so long as the change is not inconsistent with what, in
international law, is known as Jus Cogens.[184] Respondents, however, may not
preempt it in that decision.

SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult
the local government units or communities affected constitutes a departure by
respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded
their authority by the mere act of guaranteeing amendments to the
Constitution. Any alleged violation of the Constitution by any branch of
government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public
interest or of transcendental importance, the Court grants the petitioners,
petitioners-in-intervention and intervening respondents the requisite locus standi in
keeping with the liberal stance adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel mooted the present petitions, the
Court finds that the present petitions provide an exception to the moot and
academic principle in view of (a) the grave violation of the Constitution involved;
(b) the exceptional character of the situation and paramount public interest; (c) the
need to formulate controlling principles to guide the bench, the bar, and the public;
and (d) the fact that the case is capable of repetition yet evading review.

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 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.
The peoples right to information on matters of public concern under Sec. 7, Article
III of the Constitution is in splendid symmetrywith 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 peoples right to be consulted on relevant matters relating to the
peace agenda.
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.
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.
The invocation of the doctrine of executive privilege as a defense to the general
right to information or the specific right to consultation is untenable. The various
explicit legal provisions fly in the face of executive secrecy. In any event,
respondents effectively waived such defense after it unconditionally disclosed the
official copies of the final draft of the MOA-AD, for judicial compliance and
public scrutiny.
IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as
mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The
furtive process by which the MOA-AD was designed and crafted runs contrary to
and in excess of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a gross evasion of
positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not
only its specific provisions but the very concept underlying them, namely, the
associative
relationship
envisioned
between
the
GRP
and
the
BJE, are unconstitutional, for the concept presupposes that the associated entity is
a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof
inconsistent with the present legal framework will not be effective until that
framework is amended, the same does not cure its defect. The inclusion of
provisions in the MOA-AD establishing an associative relationship between the
BJE and the Central Government is, itself, a violation of the Memorandum of
Instructions From The President dated March 1, 2001, addressed to the government
peace panel. Moreover, as the clause is worded, it virtually guarantees that the
necessary amendments to the Constitution and the laws will eventually be put in
place. Neither the GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to authorizing a usurpation
of the constituent powers vested only in Congress, a Constitutional Convention, or
the people themselves through the process of initiative, for the only way that the
Executive can ensure the outcome of the amendment process is through an undue
influence or interference with that process.
While the MOA-AD would not amount to an international agreement or
unilateral declaration binding on the Philippines under international law,
respondents act of guaranteeing amendments is, by itself, already a constitutional
violation that renders the MOA-AD fatally defective.
WHEREFORE, respondents motion to dismiss is DENIED. The main and
intervening petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of
the GRP-MILF Tripoli Agreement on Peace of 2001 is declared CONTRARY TO
LAW AND THE CONSTITUTION.
SO ORDERED
G.R. No. 180771

April 21, 2015

RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAON STRAIT, e.g.,


TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza EismaOsorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Taon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,
RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Taon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management BureauRegion VII, DOE Regional Director for Region VIII ANTONIO LABIOS, JAPAN PETROLEUM
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.
1

DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court, concerning
Service Contract No. 46 (SC-46), which allowed the exploration, development, and exploitation of
petroleum resources within Taon Strait, a narrow passage of water situated between the islands of
Negros and Cebu.
2

The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and
Injunction, which seeks to enjoin respondents from implementing SC-46 and to have it nullified for
willful and gross violation of the 1987 Constitution and certain international and municipal laws.
3

Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition,
and Mandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by
the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), Region VII in connection with SC-46; to prohibit respondents from implementing

SC-46; and to compel public respondents to provide petitioners access to the pertinent documents
involving the Taon Strait Oil Exploration Project.
4

ANTECEDENT FACTS AND PROCEEDINGS


Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the
petition, are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the
waters in and around the Taon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and
Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as friends (to be collectively
known as "the Stewards") who allegedly empathize with, and seek the protection of, the
aforementioned marine species. Also impleaded as an unwilling co-petitioner is former President
Gloria Macapagal-Arroyo, for her express declaration and undertaking in the ASEAN Charter to
protect the Taon Strait, among others.
5

Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a
non-stock, non-profit, non-governmental organization, established for the welfare of the marginal
fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco
Labid (Labid), in their personal capacities and as representatives of the subsistence fisherfolk of the
municipalities of Aloguinsan and Pinamungajan, Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the
Department of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R.
Sibbaluca, as then DENRRegional Director for Region VII and Chairman of the Taon Strait
Protected Seascape Management Board; Japan Petroleum Exploration Co., Ltd. (JAPEX), a
company organized and existing under the laws of Japan with a Philippine branch office; and Supply
Oilfield Services, Inc. (SOS), as the alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C.
Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB,
Region VII and then Regional Director of the DOE, Region VII, respectively.
6

On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a
Geophysical Survey and Exploration Contract-I 02 (GSEC-102) with JAPEX. This contract involved
geological and geophysical studies of the Taon Strait. The studies included surface geology,
sample analysis, and reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also
conducted geophysical and satellite surveys, as well as oil and gas sampling in Taon Strait.
7

On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the
exploration, development, and production of petroleum resources in a block covering approximately
2,850 square kilometers offshore the Taon Strait.
8

From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Taon Strait. A multichannel sub-bottom profiling covering approximately 751 kilometers was also done to determine the
area's underwater composition.
9

JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the
well was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Taon Strait
was declared a protected seascape in 1988, JAPEX agreed to comply with the Environmental
Impact Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing
An Environmental Impact Statement System, Including Other Environmental Management Related
Measures And For Other Purposes."
10

11

On January 31, 2007, the Protected Area Management Board of the Taon Strait (PAMB-Taon
Strait) issued Resolution No. 2007-001, wherein it adopted the Initial Environmental Examination
(IEE) commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for
an ECC.
12

13

On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the
offshore oil and gas exploration project in Taon Strait. Months later, on November 16, 2007,
JAPEX began to drill an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in
the western Cebu Province. This drilling lasted until February 8, 2008.
14

15

16

It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two
separate original petitions both dated December 1 7, 2007, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among others, violation of the 1987
Constitution.
On March 31, 2008, SOS filed a Motion to Strike its name as a respondent on the ground that it is
not the Philippine agent of JAPEX. In support of its motion, it submitted the branch office application
of JAPEX, wherein the latter's resident agent was clearly identified. SOS claimed that it had acted
as a mere logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.
17

18

Petitioners Resident Marine Mammals and Stewards opposed SOS' s motion on the ground that it
was premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that
"it is in law a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Taon
Strait under the instructions of its principal, JAPEX. They argued that it would be premature to drop
SOS as a party as JAPEX had not yet been joined in the case; and that it was "convenient" for SOS
to ask the Court to simply drop its name from the parties when what it should have done was to
either notify or ask JAPEX to join it in its motion to enable proper substitution. At this juncture,
petitioners Resident Marine Mammals and Stewards also asked the Court to" implead JAPEX
Philippines as a corespondent or as a substitute for its parent company, JAPEX.
19

On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested that they were adopting in toto the Opposition to Strike
with Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No.
180771.
20

On June 19, 2008, public respondents filed their Manifestation that they were not objecting to
SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file
any comment at all.
21

Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample
chance and opportunity to answer the issues herein, issued a Resolution directing the Court's
process servicing unit to again serve the parties with a copy of the September 23, 2008 Resolution
of the Court, which gave due course to the petitions in G.R. Nos. 180771 and 181527, and which
required the parties to submit their respective memoranda. The February 7, 2012 Resolution reads
as follows:
22

G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Taon Strait, e.g., Toothed
Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his
capacity as Secretary of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas
Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct

the Process Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following
parties and counsel, together with this resolution:
Atty. Aristeo O. Carino
Counsel for Respondent Supply
Oilfield Services, Inc.

20th Floor Pearlbank Centre


146 Valero Street
Salcedo Village, Makati City

JAPEX Philippines Ltd.

20th Floor Pearlbank Centre


146 Valero Street
Salcedo Village, Makati City

JAPEX Philippines Ltd.


c/o Atty. Maria Farah Z.G.
Nicolas-Suchianco

19th Floor Pearlbank Centre


146 Valero Street
Salcedo Village, Makati City

Atty. Maria Farah Z.G.


Nicolas-Suchianco
Resident Agent of JAPEX
Philippines Ltd.

Suite 2404 Discovery Centre


25 ADB Avenue
Ortigas Center, Pasig City

This Resolution was personally served to the above parties, at the above addresses on February 23,
2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed
a Motion to Admit its Motion for Clarification, wherein JAPEX PH requested to be clarified as to
whether or not it should deem the February 7, 2012 Resolution as this Court's Order of its inclusion
in the case, as it has not been impleaded. It also alleged that JAPEX PH had already stopped
exploration activities in the Taft. on Strait way back in 2008, rendering this case moot.
23

24

On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time to
file its Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23,
2012, it had until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional
thirty days, supposedly to give this Court some time to consider its Motion for Clarification.
25

On April 24, 2012, this Court issued a Resolution granting JAPEX PH's Motion to Admit its Motion
for Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:
26

With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court
considers JAPEX Philippines, Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3
of the 1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX
Philippines, Ltd. 's allegation that it is a completely distinct corporation, which should not be
confused with JAPEX Company, Ltd., JAPEX Philippines, Ltd. is a mere branch office, established
by JAPEX Company, Ltd. for the purpose of carrying out the latter's business transactions here in
the Philippines. Thus, JAPEX Philippines, Ltd., has no separate personality from its mother foreign
corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a
resident agent of a foreign corporation:
SECTION 128. Resident agent; service of process. - The Securities and Exchange Commission
shall require as a condition precedent to the issuance of the license to transact business in the
Philippines by any foreign corporation that such corporation file with the Securities and Exchange
Commission a written power of attorney designating some person who must be a resident of the

Philippines, on whom any summons and other legal processes may be served in all actions or other
legal proceedings against such corporation, and consenting that service upon such resident agent
shall be admitted and held as valid as if served upon the duly authorized officers of the foreign
corporation at its home office. Any such foreign corporation shall likewise execute and file with the
Securities and Exchange Commission an agreement or stipulation, executed by the proper
authorities of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being
granted by the Securities and Exchange Commission a license to transact business in the
Philippines, that if at any time said corporation shall cease to transact business in the Philippines, or
shall be without any resident agent in the Philippines on whom any summons or other legal
processes may be served, then in any action or proceeding arising out of any business or
transaction which occurred in the Philippines, service of any summons or other legal process may be
made upon the Securities and Exchange Commission and that such service shall have the same
force and effect as if made upon the duly-authorized officers of the corporation at its home office."
Whenever such service of summons or other process shall be made upon the Securities and
Exchange Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a
copy of such summons or other legal process to the corporation at its home or principal office. The
sending of such copy by the Commission shall be a necessary part of and shall complete such
service. All expenses incurred by the Commission for such service shall be paid in advance by the
party at whose instance the service is made.
In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in
writing the Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a resident agent is to receive summons or
legal processes that may be served in all actions or other legal proceedings against the foreign
corporation. These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX
Philippines Ltd., as its branch office and resident agent, had been receiving the various resolutions
from this Court, as evidenced by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to
file its memorandum, and was given until April 21, 2012, as prayed for, within which to comply with
the submission.
27

Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an
additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request
by claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for
filing, which was on April 21, 2012.
28

On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its
Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda, and public respondents had earlier
filed a Manifestation that they were adopting their Comment dated March 31, 2008 as their
memorandum, this Court submitted the case for decision.
29

30

Petitioners.' Allegations

Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Taon Strait,
petitioners Resident Marine Mammals and Stewards aver that a study made after the seismic survey
showed that the fish catch was reduced drastically by 50 to 70 percent. They claim that before the
seismic survey, the average harvest per day would be from 15 to 20 kilos; but after the activity, the
fisherfolk could only catch an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to
the destruction of the ''payao," also known as the "fish aggregating device" or "artificial
reef." Petitioners Resident Marine Mammals and Stewards also impute the incidences of "fish
kill" observed by some of the local fisherfolk to the seismic survey. And they further allege that the
ECC obtained by private respondent JAPEX is invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the issuance of the ECC, were not held prior to the
ECC's issuance.
31

32

In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and
Stewards' allegations of reduced fish catch and lack of public consultations or discussions with the
fisherfolk and other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during
the seismic surveys and drilling, it was barred from entering and fishing within a 7-kilometer radius
from the point where the oilrig was located, an area greater than the 1.5-kilometer radius "exclusion
zone" stated in the IEE. It also agrees in the allegation that public respondents DENR and EMB
abused their discretion when they issued an ECC to public respondent DOE and private respondent
JAPEX without ensuring the strict compliance with the procedural and substantive requirements
under the Environmental Impact Assessment system, the Fisheries Code, and their implementing
rules and regulations. It further claims that despite several requests for copies of all the documents
pertaining to the project in Taon Strait, only copies of the P AMB-Taon Strait Resolution and the
ECC were given to the fisherfolk.
33

34

35

Public Respondents' Counter-Allegations


Public respondents, through the Solicitor General, contend that petitioners Resident Marine
Mammals and Stewards have no legal standing to file the present petition; that SC-46 does not
violate the 1987 Constitution and the various laws cited in the petitions; that the ECC was issued in
accordance with existing laws and regulations; that public respondents may not be compelled by
mandamus to furnish petitioners copies of all documents relating to SC-46; and that all the
petitioners failed to show that they are entitled to injunctive relief. They further contend that the
issues raised in these petitions have been rendered moot and academic by the fact that SC-46 had
been mutually terminated by the parties thereto effective June 21, 2008.
36

ISSUES
The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R.
No. 180771:
I. WHETHER OR NOT PETITIONERS HAVE LOCUS STAND! TO FILE THE INSTANT
PETITION;
II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLA T[IVE] OF THE 1987
PHILIPPINE CONSTITUTION AND STATUTES;
III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED
EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE
MARINE WATERS OF THE TAON STRAIT PROTECTED SEASCAPE IS INCONSISTENT
WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS
AND INSTRUMENTS; AND

IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE


CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF
MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER.
37

Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:
I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN
RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING
IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE
CONSTITUTION AND APPLICABLE LAWS;
II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORAT[I]ON CONTEMPLATED UNDER
SERVICE CONTRACT NO. 46 IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING DULY
PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE
TAON STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL
PROTECTION GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND
APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE
CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE
AN ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TAON STRAIT PROTECTED
SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON THE
MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO
FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE
TAON STRAIT OIL EXPLORATION PROJECT.
38

In these consolidated petitions, this Court has determined that the various issues raised by the
petitioners may be condensed into two primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in
G.R. No. 180771; and
II. Main Issue: Legality of Service Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the "'moot and academic principle' is not a magical formula
that can automatically dissuade the courts in resolving a case." Courts have decided cases
otherwise moot and academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public interest is involved;
3) The constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and

4) The case is capable of repetition yet evading review.

39

In this case, despite the termination of SC-46, this Court deems it necessary to resolve these
consolidated petitions as almost all of the foregoing exceptions are present in this case. Both
petitioners allege that SC-46 is violative of the Constitution, the environmental and livelihood issues
raised undoubtedly affect the public's interest, and the respondents' contested actions are capable of
repetition.
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to
file this action since they stand to be benefited or injured by the judgment in this suit. Citing Oposa
v. Factoran, Jr., they also assert their right to sue for the faithful performance of international and
municipal environmental laws created in their favor and for their benefit. In this regard, they
propound that they have the right to demand that they be accorded the benefits granted to them in
multilateral international instruments that the Philippine Government had signed, under the concept
of stipulation pour autrui.
40

41

42

For their part, the Stewards contend that there should be no question of their right to represent the
Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build
awareness among the affected residents of Taon Strait and as stewards of the environment since
the primary steward, the Government, had failed in its duty to protect the environment pursuant to
the public trust doctrine.
43

Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the
benchmark in locus standi as an exercise of epistolary jurisdiction.
44

In opposition, public respondents argue that the Resident Marine Mammals have no standing
because Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or
juridical persons, viz.:
Section 1. Who may be parties, plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party,
the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners
therein were all natural persons, albeit some of them were still unborn.
45

As regards the Stewards, the public respondents likewise challenge their claim of legal standing on
the ground that they are representing animals, which cannot be parties to an action. Moreover, the
public respondents argue that the Stewards are not the real parties-in-interest for their failure to
show how they stand to be benefited or injured by the decision in this case. Invoking the alter ego
principle in political law, the public respondents claim that absent any proof that former President
Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts remain to
be her own.
46

47

The public respondents contend that since petitioners Resident Marine Mammals and Stewards'
petition was not brought in the name of a real party-in-interest, it should be dismissed for failure to
state a cause of action.
48

The issue of whether or not animals or even inanimate objects should be given legal standing in
actions before courts of law is not new in the field o f animal rights and environmental law.
Petitioners Resident Marine Mammals and Stewards cited the 1972 United States case Sierra Club
v. Rogers C.B. Morton, wherein Justice William 0. Douglas, dissenting to the conventional thought
on legal standing, opined:
49

The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a
federal rule that allowed environmental issues to be litigated before federal agencies or federal
courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and
bulldozers and where injury is the subject of public outrage. x x x. Inanimate objects are sometimes
parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The
corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes
ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes,
whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges,
groves of trees, swampland, or even air that feels the destructive pressures of modem technology
and modem life. The river, for example, is the living symbol of all the life it sustains or nourishes-fish,
aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who
are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for
the ecological unit of life that is part of it. Those people who have a meaningful relation to that body
of water-whether it be a fisherman, a canoeist, a zoologist, or a logger-must be able to speak for the
values which the river represents and which are threatened with destruction. (Citations omitted.)
50

The primary reason animal rights advocates and environmentalists seek to give animals and
inanimate objects standing is due to the need to comply with the strict requirements in bringing a suit
to court. Our own 1997 Rules of Court demand that parties to a suit be either natural or juridical
persons, or entities authorized by law. It further necessitates the action to be brought in the name of
the real party-in-interest, even if filed by a representative, viz.:
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party,
the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a counterclaim, the crossdefendant, or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party authorized by law or these

Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or be
sued without joining the principal except when the contract involves things belonging to the principal.
It had been suggested by animal rights advocates and environmentalists that not only natural and
juridical persons should be given legal standing because of the difficulty for persons, who cannot
show that they by themselves are real parties-in-interests, to bring actions in representation of these
animals or inanimate objects. For this reason, many environmental cases have been dismissed for
failure of the petitioner to show that he/she would be directly injured or affected by the outcome of
the case. However, in our jurisdiction, locus standi in environmental cases has been given a more
liberalized approach. While developments in Philippine legal theory and jurisprudence have not
progressed as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current
trend moves towards simplification of procedures and facilitating court access in environmental
cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases, which allow
for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of
our environmental laws:
51

SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions. (Emphasis ours.)
52

Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for
Environmental Cases, commented:
Citizen suit. To further encourage the protection of the environment, the Rules enable litigants
enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing
for all cases filed enforcing environmental laws and collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of nature. The terminology of the text
reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and
generations yet unborn. (Emphasis supplied, citation omitted.) Although this petition was filed in
2007, years before the effectivity of the Rules of Procedure for Environmental Cases, it has been
consistently held that rules of procedure "may be retroactively applied to actions pending and
undetermined at the time of their passage and will not violate any right of a person who may feel that
he is adversely affected, inasmuch as there is no vested rights in rules of procedure."
53

54

Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations
Commission held that:
55

Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a retroactive law, or the general rule
against retroactive operation of statutes. Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the time of their passage.
Procedural laws are retroactive in that sense and to that extent. x x x.

Moreover, even before the Rules of Procedure for Environmental Cases became effective, this
Court had already taken a permissive position on the issue of locus standi in environmental cases. In
Oposa, we allowed the suit to be brought in the name of generations yet unborn "based on the
concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned." Furthermore, we said that the right to a balanced and healthful ecology, a right that
does not even need to be stated in our Constitution as it is assumed to exist from the inception of
humankind, carries with it the correlative duty to refrain from impairing the environment.
56

57

In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to
enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean species. The Stewards, Ramos
and Eisma-Osorio, having shown in their petition that there may be possible violations of laws
concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
Impleading Former President Gloria Macapagal-Arroyo
as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President
Gloria Macapagal-Arroyo for the following reasons, which we quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacailang
Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent
President of the Philippine Islands. She is personally impleaded in this suit as an unwilling copetitioner by reason of her express declaration and undertaking under the recently signed ASEAN
Charter to protect Your Petitioners' habitat, among others. She is meantime dominated as an
unwilling co-petitioner due to lack of material time in seeking her signature and imprimatur hereof
and due to possible legal complications that may hereafter arise by reason of her official relations
with public respondents under the alter ego principle in political law. This is incorrect.
58

Section 10, Rule 3 of the Rules of Court provides:


Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be
obtained, he or she may be made a party defendant to the case. This will put the unwilling party
under the jurisdiction of the Court, which can properly implead him or her through its processes. The
unwilling party's name cannot be simply included in a petition, without his or her knowledge and
consent, as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former President MacapagalArroyo in their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the
former President as an unwilling co-petitioner, for an act she made in the performance of the
functions of her office, is contrary to the public policy against embroiling the President in suits, "to
assure the exercise of Presidential duties and functions free from any hindrance or distraction,
considering that being the Chief Executive of the Government is a job that, aside from requiring all of
the office holder's time, also demands undivided attention."
59

Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this
suit. Thus, her name is stricken off the title of this case.

Main Issue:
Legality of Service Contract No. 46
Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2,
Article XII of the 1987 Constitution because JAPEX is 100% Japanese-owned. Furthermore, the
FIDEC asserts that SC-46 cannot be considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision. The petitioners claim that La BugalB'laan Tribal Association, Inc. v. Ramos laid down the guidelines for a valid service contract, one of
which is that there must exist a general law for oil exploration before a service contract may be
entered into by the Government. The petitioners posit that the service contract in La Bugal is
presumed to have complied with the requisites of (a) legislative enactment of a general law after the
effectivity of the 1987 Constitution (such as Republic Act No. 7942, or the Philippine Mining Law of
1995, governing mining contracts) and (b) presidential notification. The petitioners thus allege that
the ruling in La Bugal, which involved mining contracts under Republic Act No. 7942, does not apply
in this case. The petitioners also argue that Presidential Decree No. 87 or the Oil Exploration and
Development Act of 1972 cannot legally justify SC-46 as it is deemed to have been repealed by the
1987 Constitution and subsequent laws, which enunciate new policies concerning the
environment. In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2,
Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our
natural resources, and paragraph 4 does not speak of service contracts but of FTAAs or Financial
Technical Assistance Agreements.
60

61

62

63

64

65

66

The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not
violate Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the
coverage of paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987
Constitution on FTAAs. They also insist that paragraphs 2 and 3, which refer to the grant of exclusive
fishing right to Filipinos, are not applicable to SC-46 as the contract does not grant exclusive fishing
rights to JAPEX nor does it otherwise impinge on the FIDEC's right to preferential use of communal
marine and fishing resources.
67

Ruling of the Court


On the legality of Service Contract No. 46
vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by

law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The
Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed under the
1987 Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987
Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length,
portions of the deliberations of the members of the Constitutional Commission (ConCom) to show
that in deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service
contracts as understood in the 1973 Constitution, albeit with safety measures to eliminate or
minimize the abuses prevalent during the martial law regime, to wit: Summation of the
ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the Con Com
deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or
minimize the abuses prevalent during the marital law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors, but with safety measures to prevent
abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article
XII. This provision reserves or limits to Filipino citizens -- and corporations at least 60 percent of
which is owned by such citizens -- the exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for
foreign investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered
adequate and reasonable. But some of them, having more "radical" leanings, wanted to ban service

contracts altogether; for them, the provision would permit aliens to exploit and benefit from the
nation's natural resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4
allowing service contracts with foreign corporations as an exception to the general norm in
paragraph 1 of Section 2 of the same article --was resoundingly approved by a vote of 32 to 7, with 2
abstentions.
Agreements Involving Technical
Or Financial Assistance Are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either
technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike
those of the 1973 variety, the new ones are between foreign corporations acting as contractors on
the one hand; and on the other, the government as principal or "owner" of the works. In the new
service contracts, the foreign contractors provide capital, technology and technical know-how, and
managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and
the government, through its agencies (DENR, MGB), actively exercises control and supervision over
the entire operation.
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In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are the
safeguards this Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted in accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.
69

Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration

The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act
of 1972. This was enacted by then President Ferdinand Marcos to promote the discovery and
production of indigenous petroleum through the utilization of government and/or local or foreign
private resources to yield the maximum benefit to the Filipino people and the revenues to the
Philippine Government.
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Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before
the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and
other executive issuances not inconsistent with this Constitution shall remain operative until
amended, repealed, or revoked.
If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly
by Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government
Code of 1991, expressly repealed a number of laws, including a specific provision in Presidential
Decree No. 87, viz.:
SECTION 534. Repealing Clause. - (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions,
memoranda and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund;
Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632,
752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded
projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent
with the provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704;
Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70,
71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of
Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations
and administrative regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet been
expressly repealed, it had been impliedly repealed. As we held in Villarea v. The Commission on
Audit, "[i]mplied repeals are not lightly presumed." It is a settled rule that when laws are in conflict
71

with one another, every effort must be exerted to reconcile them. In Republic of the Philippines v.
Marcopper Mining Corporation, we said:
72

The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et
concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought
into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the
legislature should be presumed to have known the existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect to all laws on the subject. (Citation
omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction
that it is in harmony with the Constitution is also possible, that construction should be
preferred. This Court, in Pangandaman v. Commission on Elections expounding on this point,
pronounced:
73

74

It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent. x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform terms, conditions, and requirements for
service contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87 may serve as the general
law upon which a service contract for petroleum exploration and extraction may be authorized, as
will be discussed below, the exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the Taon Strait is a NIPAS area.
75

2. President was not the signatory to SC-46 and the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a
general law, the absence of the two other conditions, that the President be a signatory to SC-46, and
that Congress be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of
Presidential Decree No. 87, but also to those of the 1987 Constitution. The Civil Code provides:
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals, this Court held that:
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It is basic that the law is deemed written into every contract. Although a contract is the law between
the parties, the provisions of positive law which regulate contracts are deemed written therein and
shall limit and govern the relations between the parties. x x x. (Citations omitted.) Paragraph 4,
Section 2, Article XII of the 1987 Constitution requires that the President himself enter into any
service contract for the exploration of petroleum. SC-46 appeared to have been entered into and
signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said

constitutional requirement. Moreover, public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego principle," their acts are also that
of then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres, we explained
the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this
wise:
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Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Emphasis ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the
1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to
"eliminate or minimize the abuses prevalent during the martial law regime." Thus, they are not just
mere formalities, which will only render a contract unenforceable but not void, if not complied with.
They are requirements placed, not just in an ordinary statute, but in the fundamental law, the nonobservance of which will nullify the contract. Elucidating on the concept of a "constitution," this Court,
in Manila Prince Hotel v. Government Service Insurance System, held:
78

79

A constitution is a system of fundamental laws for the governance and administration of a nation. It is
supreme, imperious, absolute and unalterable except by the authority from which it emanates. It has
been defined as the fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their respective powers
and duties, and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm
of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force
and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President himself be the
signatory of service agreements with foreign-owned corporations involving the exploration,
development, and utilization of our minerals, petroleum, and other mineral oils. This power cannot be
taken lightly.
In this case, the public respondents have failed to show that the President had any participation in
SC-46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo,
absent proof of her disapproval, must fail as the requirement that the President herself enter into
these kinds of contracts is embodied not just in any ordinary statute, but in the Constitution itself.
These service contracts involving the exploitation, development, and utilization of our natural
resources are of paramount interest to the present and future generations. Hence, safeguards were
put in place to insure that the guidelines set by law are meticulously observed and likewise to

eradicate the corruption that may easily penetrate departments and agencies by ensuring that the
President has authorized or approved of these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board,
now the DOE, obtain the President's approval for the execution of any contract under said statute, as
shown in the following provision:
SECTION 5. Execution of contract authorized in this Act. -Every contract herein authorized shall,
subject to the approval of the President, be executed by the Petroleum Board created in this Act,
after due public notice pre-qualification and public bidding or concluded through negotiations. In
case bids are requested or if requested no bid is submitted or the bids submitted are rejected by the
Petroleum Board for being disadvantageous to the Government, the contract may be concluded
through negotiation.
In opening contract areas and in selecting the best offer for petroleum operations, any of the
following alternative procedures may be resorted to by the Petroleum Board, subject to prior
approval of the President[.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution
with the aforementioned provision of Presidential Decree No. 87, it must be shown that the
government agency or subordinate official has been authorized by the President to enter into such
service contract for the government. Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None of these circumstances is evident in the
case at bar.
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the
Wildlife Resources Conservation and Protection Act, which bans all marine exploration and
exploitation of oil and gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the
National Integrated Protected Areas System Act of 1992 (NIPAS Act), which allows the exploration of
protected areas for the purpose of information-gathering, has been repealed by Section 27 of
Republic Act No. 914 7. The said petitioners further claim that SC-46 is anathema to Republic Act
No. 8550 or the Philippine Fisheries Code of 1998, which protects the rights of the fisherfolk in the
preferential use of municipal waters, with the exception being limited only to research and survey
activities.
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The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIP AS Act, the
gathering of information must be in accordance with a DENR-approved program, and the
exploitation and utilization of energy resources must be pursuant to a general law passed by
Congress expressly for that purpose. Since there is neither a DENR approved program nor a
general law passed by Congress, the seismic surveys and oil drilling operations were all done
illegally. The FIDEC likewise contends that SC-46 infringes on its right to the preferential use of the
communal fishing waters as it is denied free access within the prohibited zone, in violation not only
of the Fisheries Code but also of the 1987 Constitutional provisions on subsistence fisherfolk and
social justice. Furthermore, the FIDEC believes that the provisions in Presidential Decree No. 87,
which allow offshore drilling even in municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic Act No. 7160, which reiterate
the social justice provisions of the Constitution.
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82

83

The public respondents invoke the rules on statutory construction and argue that Section 14 of the
NIP AS Act is a more particular provision and cannot be deemed to have been repealed by the more

general prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which
SC-46 falls, should instead be regarded as an exemption to Section 27. Addressing the claim of
petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic Act No. 9147, the
public respondents assert that what the section prohibits is the exploration of minerals, which as
defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothennal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply.
84

85

The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing
rights to JAPEX; hence, it does not violate the rule on preferential use of municipal waters.
Moreover, they allege that JAPEX has not banned fishing in the project area, contrary to the FIDEC's
claim. The public respondents also contest the attribution of the declining fish catch to the seismic
surveys and aver that the allegation is unfounded. They claim that according to the Bureau of
Fisheries and Aquatic Resources' fish catch data, the reduced fish catch started in the 1970s due to
destructive fishing practices.
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Ruling of the Court


On the legality of Service Contract No. 46
vis-a-vis Other Laws
Although we have already established above that SC-46 is null and void for being violative of the
1987 Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to
serve as a guide for the Government when executing service contracts involving not only the Tafion
Strait, but also other similar areas. While the petitioners allege that SC-46 is in violation of several
laws, including international ones, their arguments focus primarily on the protected status of the
Taon Strait, thus this Court will concentrate on those laws that pertain particularly to the Taon
Strait as a protected seascape.
The Taon Strait is a narrow passage of water bounded by the islands of Cebu in the East and
Negros in the West. It harbors a rich biodiversity of marine life, including endangered species of
dolphins and whales. For this reason, former President Fidel V. Ramos declared the Taon Strait as
a protected seascape in 1998 by virtue of Proclamation No. 1234 -Declaring the Taon Strait
situated in the Provinces of Cebu, Negros Occidental and Negros Oriental as a Protected Area
pursuant to the NIP AS Act and shall be known as Taon Strait Protected Seascape. During former
President Joseph E. Estrada's time, he also constituted the Taon Strait Commission via Executive
Order No. 76 to ensure the optimum and sustained use of the resources in that area without
threatening its marine life. He followed this with Executive Order No. 177, wherein he included the
mayor of Negros Occidental Municipality/City as a member of the Taon Strait Commission, to
represent the LGUs concerned. This Commission, however, was subsequently abolished in 2002 by
then President Gloria Macapagal-Arroyo, via Executive Order No. 72.
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88

True to the constitutional policy that the "State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature," Congress
enacted the NIP AS Act to secure the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas. These areas possess
common ecological values that were incorporated into a holistic plan representative of our natural
heritage. The system encompasses outstandingly remarkable areas and biologically important public
lands that are habitats of rare and endangered species of plants and animals, biogeographic zones
and related ecosystems, whether terrestrial, wetland, or marine. It classifies and administers all the
designated protected areas to maintain essential ecological processes and life-support systems, to
89

90

preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain
their natural conditions to the greatest extent possible. The following categories of protected areas
were established under the NIPAS Act:
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a. Strict nature reserve;


b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or international agreements which the
Philippine Government is a signatory.
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Under Section 4 of the NIP AS Act, a protected area refers to portions of land and water, set aside
due to their unique physical and biological significance, managed to enhance biological diversity and
protected against human exploitation.
The Taon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area
under the category of Protected Seascape. The NIP AS Act defines a Protected Seascape to be an
area of national significance characterized by the harmonious interaction of man and land while
providing opportunities for public enjoyment through recreation and tourism within the normal
lifestyle and economic activity of this areas; thus a management plan for each area must be
designed to protect and enhance the permanent preservation of its natural conditions. Consistent
with this endeavor is the requirement that an Environmental Impact Assessment (EIA) be made prior
to undertaking any activity outside the scope of the management plan. Unless an ECC under the EIA
system is obtained, no activity inconsistent with the goals of the NIP AS Act shall be implemented.
93

94

95

The Environmental Impact Statement System (EISS) was established in 1978 under Presidential
Decree No. 1586. It prohibits any person, partnership or corporation from undertaking or operating
any declared environmentally critical project or areas without first securing an ECC issued by the
President or his duly authorized representative. Pursuant to the EISS, which called for the proper
management of environmentally critical areas, Proclamation No. 2146 was enacted, identifying the
areas and types of projects to be considered as environmentally critical and within the scope of the
EISS, while DENR Administrative Order No. 2003-30 provided for its Implementing Rules and
Regulations (IRR).
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97

98

DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area
delineated as environmentally sensitive such that significant environmental impacts are expected if
certain types of proposed projects or programs are located, developed, or implemented in it"; thus,
before a project, which is "any activity, regardless of scale or magnitude, which may have significant
impact on the environment," is undertaken in it, such project must undergo an EIA to evaluate and
predict the likely impacts of all its stages on the environment. An EIA is described in detail as
follows:
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100

101

h. Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the
likely impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment
and the community's welfare. The process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders.
102

Under Proclamation No. 2146, the Taon Strait is an environmentally critical area, having been
declared as a protected area in 1998; therefore, any activity outside the scope of its management
plan may only be implemented pursuant to an ECC secured after undergoing an EIA to determine
the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in obtaining an ECC and
that SC-46 falls under the exceptions in Section 14 of the NIP AS Act, due to the following reasons:
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1) The Taon Strait is not a strict nature reserve or natural park;


2) Exploration is only for the purpose of gathering information on possible energy resources;
and 3) Measures are undertaken to ensure that the exploration is being done with the least
damage to surrounding areas.
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We do not agree with the arguments raised by the public respondents.


Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the
scope of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system.
In instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and the preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in
accordance with a program approved by the DENR, and the result of such surveys shall be made
available to the public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIP AS areas shall be allowed only
through a law passed by Congress.
It is true that the restrictions found under the NIP AS Act are not without exceptions. However, while
an exploration done for the purpose of surveying for energy resources is allowed under Section 14 of
the NIP AS Act, this does not mean that it is exempt from the requirement to undergo an EIA under
Section 12. In Sotto v. Sotto, this Court explained why a statute should be construed as a whole:
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A statute is passed as a whole and not in parts or sections and is animated by one general purpose
and intent. Consequently each part or section should be construed in connection with every other
part or section and so as to produce a harmonious whole. It is not proper to confine the attention to
the one section to be construed. It is always an unsafe way of construing a statute or contract to
divide it by a process of etymological dissection, into separate words, and then apply to each, thus
separated from its context, some particular definition given by lexicographers, and then reconstruct
the instrument upon the basis of these definitions. An instrument must always be construed as a
whole, and the particular meaning to be attached to any word or phrase is usually to be ascertained
from the context, the nature of the subject treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or framed the statute or constitution. x x x.
Surveying for energy resources under Section 14 is not an exemption from complying with the EIA
requirement in Section 12; instead, Section 14 provides for additional requisites before any
exploration for energy resources may be done in protected areas.
The rationale for such additional requirements are incorporated m Section 2 of the NIP AS Act, to wit:
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of this area is possible only through cooperation among national
government, local government and concerned private organizations; that the use and enjoyment of
these protected areas must be consistent with the principles of biological diversity and sustainable
development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstandingly remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the
second sub-phase of SC-46, which required the drilling of an oil exploration well. This means that
when the seismic surveys were done in the Taon Strait, no such environmental impact evaluation
was done. Unless seismic surveys are part of the management plan of the Taon Strait, such
surveys were done in violation of Section 12 of the NIPAS Act and Section 4 of Presidential Decree
No. 1586, which provides:
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President
of the Philippines may, on his own initiative or upon recommendation of the National Environmental
Protection Council, by proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall undertake or operate any such
declared environmentally critical project or area without first securing an Environmental Compliance

Certificate issued by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the realignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper
land or water use pattern for said critical project(s) or area(s); (b) establish ambient environmental
quality standards; (c) develop a program of environmental enhancement or protective measures
against calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform
such other functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot
and will not cure this violation. The following penalties are provided for under Presidential Decree
No. 1586 and the NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC
requirement:
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of
this Decree, or the terms and conditions in the issuance of the Environmental Compliance
Certificate, or of the standards, rules and regulations issued by the National Environmental
Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of
his/its certificates and/or a fine in an amount not to exceed Fifty Thousand Pesos (P50,000.00) for
every violation thereof, at the discretion of the National Environmental Protection Council. (Emphasis
supplied.)
Violations of the NIP AS Act entails the following fines and/or imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the
Department pursuant to this Act or whoever is found guilty by a competent court of justice of any of
the offenses in the preceding section shall be fined in the amount of not less than Five thousand
pesos (P5,000) nor more than Five hundred thousand pesos (P500,000), exclusive of the value of
the thing damaged or imprisonment for not less than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the area requires rehabilitation or restoration as
determined by the court, the offender shall be required to restore or compensate for the restoration
to the damages: Provided, further, that court shall order the eviction of the offender from the land
and the forfeiture in favor of the Government of all minerals, timber or any species collected or
removed including all equipment, devices and firearms used in connection therewith, and any
construction or improvement made thereon by the offender. If the offender is an association or
corporation, the president or manager shall be directly responsible for the act of his employees and
laborers: Provided, finally, that the DENR may impose administrative fines and penalties consistent
with this Act. (Emphases supplied.) Moreover, SC-46 was not executed for the mere purpose of
gathering information on the possible energy resources in the Taon Strait as it also provides for the
parties' rights and obligations relating to extraction and petroleum production should oil in
commercial quantities be found to exist in the area. While Presidential Decree No. 87 may serve as
the general law upon which a service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Taon Strait is a NIPAS area. Since
there is no such law specifically allowing oil exploration and/or extraction in the Taon Strait, no
energy resource exploitation and utilization may be done in said protected seascape.
106

In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other
issues raised in these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No.
46 is hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586,
and Presidential Decree No. 1586.
SO ORDERED

G.R. No. 209271, December 08, 2015 - INTERNATIONAL SERVICE FOR THE ACQUISITION OF
AGRI-BIOTECH APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASIO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.; CROP LIFE PHILIPPINES, INC.,
Petitioner-in-Intervention.; G.R. No. 209276 - ENVIRONMENTAL MANAGEMENT BUREAU OF
THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF PLANT
INDUSTRY AND FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG,
LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC.
Petitioner-in-Intervention.; G.R. No. 209301 - UNIVERSITY OF THE PHILIPPINES LOS BANOS
FOUNDATION, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP.
TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.; G.R. No. 209430 - UNIVERSITY OF THE PHILIPPINES,
Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG
III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT,
ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

EN BANC
G.R. No. 209271, December 08, 2015
INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT

SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO


CASIO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.
G.R. No. 209276
ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT
AND NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND
PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT
OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC. Petitioner-in-Intervention.
G.R. No. 209301
UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION,
INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD
S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.
G.R. No. 209430
UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA
(MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO
KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL
CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.
DECISION
VILLARAMA, JR., J.:
The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013
which permanently enjoined the conduct of field trials for genetically modified eggplant.
The Parties
Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace
Southeast Asia, a regional office of Greenpeace International registered in
Thailand.3 Greenpeace is a non-governmental environmental organization which operates in
over 40 countries and with an international coordinating body in Amsterdam, Netherlands. It is
well known for independent direct actions in the global campaign to preserve the environment

and promote peace.


Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is
an international non-profit organization founded in 1990 "to facilitate the acquisition and
transfer of agricultural biotechnology applications from the industrial countries, for the benefit
of resource-poor farmers in the developing world" and ultimately "to alleviate hunger and
poverty in the developing countries." Partly funded by the United States Agency for
International Development (USAID), ISAAA promotes the use of agricultural biotechnology,
such as genetically modified organisms (GMOs). 4
Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition
of local farmers, scientists and NGOs working towards "the sustainable use and management
of biodiversity through farmers' control of genetic and biological resources, agricultural
production, and associated knowledge."
The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the
University of the Philippines (UP), originally established as the UP College of Agriculture. It is
the center of biotechnology education and research in Southeast Asia and home to at least four
international research and extension centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a
private corporation organized "to be an instrument for institutionalizing a rational system of
utilizing UPLB expertise and other assets for generating additional revenues and other
resources needed by [UPLB]". Its main purpose is to assist UPLB in "expanding and optimally
utilizing its human, financial, and material resources towards a focused thrust in agriculture,
biotechnology, engineering and environmental sciences and related academic programs and
activities." A memorandum of agreement between UPLBFI and UPLB allows the former to use
available facilities for its activities and the latter to designate from among its staff such
personnel needed by projects.5
Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908.
Under its new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria
Macapagal-Arroyo, UP was declared as the national university tasked "to perform its unique
and distinctive leadership in higher education and development." Among others, UP was
mandated to "serve as a research university in various fields of expertise and specialization by
conducting basic and applied research and development, and promoting research in various
colleges and universities, and contributing to the dissemination and application of knowledge." 7
The other individual respondents are Filipino scientists, professors, public officials and ordinary
citizens invoking their constitutionally guaranteed right to health and balanced ecology, and
suing on their behalf and on behalf of future generations of Filipinos.
Factual Background
Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses
living organisms or substances from those organisms to make or modify a product, to improve
plants or animals, or to develop microorganisms for specific uses." 8 Its many applications
include agricultural production, livestock, industrial chemicals and pharmaceuticals.
In 1979, President Ferdinand Marcos approved and provided funding for the establishment of
the National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the
premier national research and development (R & D) institution applying traditional and modern
biotechnologies in innovating products, processes, testing and analytical services for
agriculture, health, energy, industry and development. 9
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the
National Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others,
to "identify and evaluate potential hazards involved in initiating genetic engineering
experiments or the introduction of new species and genetically engineered organisms and
recommend measures to minimize risks" and to "formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and
their genetic materials for the protection of public health, environment and personnel and
supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of
the importation or introduction, movement and field release of potentially hazardous biological
materials in the Philippines. The guidelines also describe the required physical and biological
containment and safety procedures in handling biological materials. This was followed in 1998
by the "Guidelines on Planned Release of Genetically Manipulated Organisms (GMOs) and
Potentially Harmful Exotic Species (PHES)."10
On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This
multilateral treaty recognized that "modern biotechnology has great potential for human wellbeing if developed and used with adequate safety measures for the environment and human
health." Its main objectives, as spelled out in Article 1, are the "conservation of biological
diversity, the sustainable use of its components and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources."
In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety
(Cartagena Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to contribute
to ensuring an adequate level of the safe transfer, handling and use of living modified
organisms resulting from modern biotechnology that may have adverse effects on the
conservation and sustainable use of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary movements."
On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on
September 11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution
No. 92 or the "Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety
(CPB) to the UN Convention on Biological Diversity."
On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the
government policy of promoting the safe and responsible use of modern biotechnology and its
products as one of several means to achieve and sustain food security, equitable access to
health services, sustainable and safe environment and industry development. 11
In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08
providing rules and regulations for the importation and release into the environment of plants
and plant products derived from the use of modem biotechnology.
DAO-08-2002 covers the importation or release into the environment of: (1) any plant which
has been altered or produced through the use of modem biotechnology if the donor organism,
host organism, or vector or vector agent belongs to the genera or taxa classified by the Bureau
of Plant Industry (BPI) as meeting the definition of plant pest or is a medium for the
introduction of noxious weeds; or (2) any plant or plant product altered through the use of
modem biotechnology which may pose significant risks to human health and the environment
based on available scientific and technical information.
The country's biosafety regulatory system was further strengthened with the issuance of EO
No. 514 (EO 514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF),
Prescribing Guidelines for its Implementation, and Strengthening the NCBP." The NBF shall
apply to the development, adoption and implementation of all biosafety policies, measures and
guidelines and in making decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of regulated
articles.12
EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO
08-2002, the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except
for provisions on potentially harmful exotic species which were repealed, and all issuances of
the Bureau of Food and Drugs Authority (FDA) on products of modem biotechnology, shall
continue to be in force and effect.13
On September 24, 2010, a Memorandum of Undertaking 14 (MOU) was executed between
UPLBFI, ISAAA and UP Mindanao Foundation, Inc.
(UPMFI), in pursuance of a collaborative research and development project on eggplants that
are resistant to the fruit and shoot borer. Other partner agencies involved in the project were

UPLB through its Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of
India, Cornell University and the Agricultural Biotechnology Support Project II (ABSPII) of US
AID.
As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the
pest-resistant crop subject of the field trial was described as a "bioengineered eggplant." The
crystal toxin genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into
the eggplant (talong) genome to produce the protein CrylAc which is toxic to the target insect
pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and
shoot borer (FSB), the most destructive insect pest of eggplant.
Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and
officially completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of
Contained Experiment stating that "During the conduct of the experiment, all the biosafety
measures have been complied with and no untoward incident has occurred." 16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field
testing of Bt talong commenced on various dates in the following approved trial sites: Kabacan,
North Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and
Bay, Laguna.
On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed
a petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of
a Temporary Environmental Protection Order (TEPO). They alleged that the Bt talong field trials
violate their constitutional right to health and a balanced ecology considering that (1) the
required environmental compliance certificate under Presidential Decree (PD) No. 1151 was not
secured prior to the project implementation; (2) as a regulated article under DAO 08-2002, Bt
talong is presumed harmful to human health and the environment, and there is no
independent, peer-reviewed study on the safety of Bt talong for human consumption and the
environment; (3) a study conducted by Professor Gilles-Eric Seralini showed adverse effects on
rats who were fed Bt corn, while local scientists also attested to the harmful effects of GMOs to
human and animal health; (4) Bt crops can be directly toxic to non-target species as
highlighted by a research conducted in the US which demonstrated that pollen from Bt maize
was toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that
beneficial insects have increased mortality when fed on larvae of a maize pest, the corn borer,
which had been fed on Bt, and hence non-target beneficial species that may feed on eggplant
could be similarly affected; (6) data from China show that the use of Bt crops (Bt cotton) can
exacerbate populations of other secondary pests; (7) the built-in pesticides of Bt crops will
lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set
by BPI is not sufficient to stop contamination of nearby non-Bt eggplants because pollinators
such as honeybees can fly as far as four kilometers and an eggplant is 48% insect-pollinated.
The full acceptance by the project proponents of the findings in the MAHYCO Dossier was
strongly assailed on the ground that these do not precisely and adequately assess the
numerous hazards posed by Bt talong and its field trial.
Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the
required public consultation under Sections 26 & 27 of theLocal Government Code, A random
survey by Greenpeace on July 21, 2011 revealed that ten households living in the area
immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of Pangasugan in
Baybay, Leyte complained about the lack of information on the nature and uncertainties of
the Bt talong field testing in their barangay. The Davao City Government likewise opposed the
project due to lack of transparency and public consultation. It ordered the uprooting
of Bt eggplants at the trial site and disposed them strictly in accordance with protocols relayed
by the BPI through Ms. Merle Palacpac. Such action highlighted the city government's policy on
"sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta. Barbara,
Iloilo passed a resolution suspending the field testing due to the following: lack of public
consultation; absence of adequate study to determine the effect of Bt talong field testing on
friendly insects; absence of risk assessment on the potential impacts of genetically modified
(GM) crops on human health and the environment; and the possibility of cross-pollination
of Bt eggplants with native species or variety of eggplants, and serious threat to human health

if these products were sold to the market.


Greenpeace, et al. argued that this case calls for the application of the precautionary principle,
the Bt talong field testing being a classic environmental case where scientific evidence as to
the health, environmental and socio-economic safety is insufficient or uncertain and
preliminary scientific evaluation indicates reasonable grounds for concern that there are
potentially dangerous effects on human health and the environment.
The following reliefs are thus prayed for:
a. Upon the filing [of this petition], a Temporary Environment Protection Order should be
issued: (i) enjoining public respondents BPI and FPA of the DA from processing for field
testing, and registering as herbicidal product, Bt talong in the Philippines; (ii) stopping all
pending field testing of Bt talong anywhere in the Philippines; and (in) ordering the uprooting
of planted Bt talong for field trials as their very presence pose significant and irreparable risks
to human health and the environment.
b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement
system under the Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests
report, regulatory compliance reports and supporting documents, and other material
particulars of the Bt talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public
consultation, public participation, and consent of the local government units in the barangays,
municipalities, and provinces affected by the field testing of Bt talong;
(iv) Respondent regulator, in coordination with relevant government agencies and in
consultation with stakeholders, to submit an acceptable draft of an amendment of the National
Bio-Safety Framework of the Philippines, and DA Administrative Order No. 08, defining or
incorporating an independent, transparent, and comprehensive scientific and socio-economic
risk assessment, public information, consultation, and participation, and providing for their
effective implementation, in accord with international safety standards; and,
(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct
balanced nationwide public information on the nature of Bt talong and Bt talong field trial, and
a survey of social acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating or
threatening to violate or allowing the violation of the above-enumerated laws, principles, and
international principle and standards, or committing acts, which would result into an
environmental damage of such magnitude as to prejudice the life, health, or property of
petitioners in particular and of the Filipino people in general.
d. After hearing and judicial determination, to cancel all Bt talong field experiments that are
found to be violating the abovementioned laws, principles, and international standards; and
recommend to Congress curative legislations to effectuate such order.18
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental
Management Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB, 18-a ordering
them to make a verified return within a non-extendible period often (10) days, as provided in
Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.19
ChanRoblesVirtualawlibrary

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued
that the issuance of writ of kalikasan is not proper because in the implementation of the Bt
talong project, all environmental laws were complied with, including public consultations in the
affected communities, to ensure that the people's right to a balanced and healthful ecology
was protected and respected. They also asserted that the Bt talongproject is not covered by
the Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field trials will
not significantly affect the quality of the environment nor pose a hazard to human health.
ISAAA contended that the NBF amply safeguards the environment policies and goals promoted
by the PEIS Law. On its part, UPLBFI asserted that there is a "plethora of scientific works and

literature, peer-reviewed, on the safety of Bt talong for human consumption."20 UPLB, which
filed an Answer21 to the petition before the CA, adopted said position of UPLBFI.
ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in
the field trial stage as none of the eggplants will be consumed by humans or animals, and all
materials that will not be used for analyses will be chopped, boiled and buried following the
Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history of
safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2
million hectares of land in the Philippines which have been planted with Bt corn since 2003,
and the absence of documented significant and negative impact to the environment and
human health. The statements given by scientists and experts in support of the allegations of
Greenpeace, et al. on the safety of Bt corn was also addressed by citing the contrary findings
in other studies which have been peer-reviewed and published in scientific journals.
On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for
non-observance of the rule on hierarchy of courts and the allegations therein being mere
assertions and baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of
Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to suffer any
direct injury as a result of the Bt talong field tests. They likewise prayed for the denial of the
petition for continuing mandamus for failure to state a cause of action and for utter lack of
merit.
UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they
have been prejudiced or damaged, or their constitutional rights to health and a balanced
ecology were violated or threatened to be violated by the conduct of Bt talong field trials.
Insofar as the field trials in Davao City, the actual field trials at Bago Oshiro started on
November 25, 2010 but the plants were uprooted by Davao City officials on December 17-18,
2010. There were no further field trials conducted and hence no violation of constitutional
rights of persons or damage to the environment, with respect to Davao City, occurred which
will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the MOU, its
responsibility was only to handle the funds for the project in their trial site. It pointed out that
in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and
Terminal Report (Davao City Government) by respondent Leonardo R. Avila III, nowhere does
UPMFI appear either as project proponent, partner or implementing arm. Since UPMFI, which is
separate and distinct from UP, undertook only the fund management of Bt talong field test
project the duration of which expired on July 1, 2011, it had nothing to do with any field trials
conducted in other parts of the country.
Finally, it is argued that the precautionary principle is not applicable considering that the field
testing is only a part of a continuing study being done to ensure that the field trials have no
significant and negative impact on the environment. There is thus no resulting environmental
damage of such magnitude as to prejudice the life, health, property of inhabitants in two or
more cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely involve
technical matters which pertain to the special competence of BPI whose determination thereon
is entitled to great respect and even finality.
By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the
return of the writ and for hearing, reception of evidence and rendition of judgment. 22
CA Proceedings and Judgment
At the preliminary conference held on September 12, 2012, the parties submitted the following
procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition
for writ of kalikasan; (2) whether or not said petition had been rendered moot and academic
by the alleged termination of the Bt talong field testing; and (3) whether or not the case
presented a justiciable controversy.
Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al.
possess the requisite legal standing to file the petition for writ ofkalikasan; (2)
assuming arguendo that the field trials have already been terminated, the case is not yet moot
since it is capable of repetition yet evading review; and (3) the alleged non-compliance with

environmental and local government laws present justiciable controversies for resolution by
the court.
The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein
the expert witnesses of both parties testify at the same time. Greenpeace, et al. presented the
following as expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr.
Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the opposing side were the expert
witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr.
Flerida Cario (Dr. Cario), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified
were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario Navasero
(Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).
On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent
Motion for Leave to Intervene as Respondent.24 It claimed to have a legal interest in the
subject matter of the case as a broad-based coalition of advocates for the advancement of
modern biotechnology in the Philippines.
In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention
stating that the latter had no direct and specific interest in the conduct of Bt talong field trials.
On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by
us GRANTING the petition filed in this case. The respondents are DIRECTED to:
chanRoble svirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and
(b) Protect, preserve, rehabilitate and restore the environment in accordance with the
foregoing judgment of this Court.
No costs.
SO ORDERED.26
The CA found that existing regulations issued by the DA and the Department of Science and
Technology (DOST) are insufficient to guarantee the safety of the environment and health of
the people. Concurring with Dr. Malayang's view that the government must exercise precaution
"under the realm of public policy" and beyond scientific debate, the appellate court noted the
possible irreversible effects of the field trials and the introduction of Bt talong to the market.
ChanRoblesVirtualawlibrary

After scrutinizing the parties' arguments and evidence, the CA concluded that the
precautionary principle set forth in Section 1, Rule 20 of the Rules of Procedure for
Environmental Cases27 finds relevance in the present controversy. Stressing the fact that the
"over-all safety guarantee of the bt talong" remains unknown, the appellate court cited the
testimony of Dr. Cario who admitted that the product is not yet safe for consumption because
a safety assessment is still to be done. Again, the Decision quoted from Dr. Malayang who
testified that the question of Bt talong's safety demands maximum precaution and utmost
prudence, bearing in mind the country's rich biodiversity. Amid the uncertainties surrounding
the Bt talong, the CA thus upheld the primacy of the people's constitutional right to health and
a balanced ecology.
Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the
CA in its Resolution dated September 20, 2013 rejected the argument of UPLB that the
appellate court's ruling violated UPLB's constitutional right to academic freedom. The appellate
court pointed out that the writ of kalikasan originally issued by this Court did not stop research
on Bt talong but only the particular procedure adopted in doing field trials and only at this time
when there is yet no law in the form of a congressional enactment for ensuring its safety and
levels of acceptable risks when introduced into the open environment. Since the writ stops the
field trials of Bt talong as a procedure but does not stop Bt talong research, there is no assault
on academic freedom.
The CA then justified its ruling by expounding on the theory that introducing a genetically
modified plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of

biotic (living) and non-biotic things interacting as a living community in a particular space and
time. In the ecosystem are found specific and particular biotic and non-biotic entities which
depend on each other for the biotic entities to survive and maintain life. A critical element for
biotic entities to maintain life would be that their populations are in a proper and natural
proportion to others so that, in the given limits of available non-biotic entities in the
ecosystem, no one population overwhelms another. In the case of the Philippines, it is
considered as one of the richest countries in terms of biodiversity. It has so many plants and
animals. It also has many kinds of other living things than many countries in the world. We do
not fully know how all these living things or creatures interact among themselves. But, for
sure, there is a perfect and sound balance of our biodiversity as created or brought
about by God out of His infinite and absolute wisdom. In other words, every living
creature has been in existence or has come into being for a purpose. So, we humans are not
supposed to tamper with any one element in this swirl of interrelationships among living things
in our ecosystem. Now, introducing a genetically modified plant in our intricate world
of plants by humans certainly appears to be an ecologically imbalancing act. The
damage that it will cause may be irreparable and irreversible.
At this point, it is significant to note that during the hearing conducted by this Court on
November 20, 2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies
(Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular
Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in
Entomology), Dr. Flerida Cario (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in
Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in
admitting that bt talong is an altered plant. x x x
xxxx
Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of
an otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder
relationships of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter
its natural order which is meant to eliminate one feeder (the borer) in order to give undue
advantage to another feeder (the humans). The genetic transformation is one designed to
make bt talong toxic to its pests (the targeted organisms). In effect, bt talong kills its targeted
organisms. Consequently, the testing or introduction of bt talong into the Philippines,
by its nature and intent, is a grave and present danger to (and an assault on) the
Filipinos' constitutional right to a balanced ecology because, in any book and by any
yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and deliberate
tampering of a naturally ordained feed-feeder relationship in our environment. It destroys the
balance of our biodiversity. Because it violates the conjunct right of our people to a balanced
ecology, the whole constitutional right of our people (as legally and logically construed) is
violated.
Of course, the bt talong's threat to the human health of the Filipinos as of now remains
uncertain. This is because while, on one hand, no Filipinos has ever eaten it yet, and so, there
is no factual evidence of it actually causing acute or chronic harm to any or a number of
ostensibly identifiable perms, on the other hand, there is correspondingly no factual evidence
either of it not causing harm to anyone. However, in a study published on September 20, 2012
in "Food and Chemical Toxicology", a team of scientists led by Professor Gilles-Eric Seralini
from the University of Caen and backed by the France-based Committee of Independent
Research and Information on Genetic Engineering came up with a finding that rats fed with
Roundup-tolerant genetically modified corn for two years developed cancers, tumors and
multiple organ damage. The seven expert witnesses who testified in this Court in the hearing
conducted on November 20, 2012 were duly confronted with this finding and they were not
able to convincingly rebut it. That is why we, in deciding this case, applied the precautionary
principle in granting the petition filed in the case at bench.
Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually
uncertain, the entire constitutional right of the Filipino people to a balanced and healthful
ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ of
mandamus is justified and warranted.28 (AdditionalEmphasis supplied.)
Petitioners' Arguments

G.R. No. 209271


ISAAA advances the following arguments in support of its petition:
I
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS
ALREADY MOOT AND ACADEMIC.
II
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME
RAISES POLITICAL QUESTIONS.
A.

IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE


DRAFT OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE
PHILIPPINES, AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE
COURT OF APPEALS "RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS,"
RESPONDENTS SEEK TO REVIEW THE WISDOM OF THE PHILIPPINE REGULATORY
SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS IS WITHOUT JURISDICTION TO
DO SO.

B.

WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING
THE STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND
COMPLETELY DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.
III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS
FAILED TO EXHAUST ADMINISTRATIVE REMEDIES.
IV
THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT
OF CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY
JURISDICTION OVER THE SAME LIES WITH THE REGULATORY AGENCIES.
V
THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT
CASE WHEN IT RENDERED THE ASSAILEDDECISION DATED 17 MAY 2013
AND RESOLUTION DATED 20 SEPTEMBER 2013.
VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR
OF RESPONDENTS.
A.

THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT


TALONG FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND
REGULATIONS IN ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED
AND HEALTHFUL ECOLOGY ARE PROTECTED AND RESPECTED.

B.

THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT
CAUSE ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND
PROPERTY OF INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.

C.

THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY


PRINCIPLE IN THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO
PRESENT AN IOTA OF EVIDENCE TO PROVE THEIR CLAIM.
VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS


AGAINST PETITIONER ISAAA.
VIII
THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013 IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS. 29
G.R. No. 209276

ChanRoblesVirtualawlibrary

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails
the CA Decision granting the petition for writ of kalikasanand writ of continuing mandamus
despite the failure of Greenpeace, et al. (respondents) to prove the requisites for their
issuance.
Petitioners contend that while respondents presented purported studies that supposedly show
signs of toxicity in genetically engineered eggplant and other crops, these studies are
insubstantial as they were not published in peer-reviewed scientific journals. Respondents thus
failed to present evidence to prove their claim that the Bt talong field trials violated
environmental laws and rules.
As to the application of the precautionary principle, petitioners asserted that its application in
this case is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not
formally offered in evidence. In volunteering the said article to the parties, petitioners lament
that the CA manifested its bias towards respondents' position and did not even consider the
testimony of Dr. Davies who stated that "Seralini's work has been refuted by International
committees of scientists"30 as shown by published articles critical of Seralini's work.
Petitioners aver that there was no damage to human health since no Bt talong will be ingested
by any human being during the field trial stage. Besides, if the results of said testing are
adverse, petitioners will not allow the release of Bt talong to the environment, in line with the
guidelines set by EO 514. The CA thus misappreciated the regulatory process as approval for
field testing does not automatically mean approval for propagation of the same product. And
even assuming that the field trials may indeed cause adverse environmental or health effects,
the requirement of unlawful act or omission on the part of petitioners or any of the
proponents, was still absent. Respondents clearly failed to prove there was any unlawful
deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk
assessment on the Bt talong project should thus be accorded respect, if not finality by the
courts.
Petitioners likewise fault the CA in giving such ambiguous and general directive for them to
protect, preserve, rehabilitate and restore the environment, lacking in specifics which only
indicates that there was really nothing to preserve, rehabilitate or restore as there was nothing
damaged or adversely affected in the first place. As to the supposed inadequacy and
ineffectiveness of existing regulations, these are all political questions and policy issues best
left to the discretion of the policy-makers, the Legislative and Executive branches of
government. Petitioners add that the CA treads on judicial legislation when it recommended
the re-examination of country's existing laws and regulations governing studies and research
on GMOs.
GR. No. 209301
Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary
to prove actual or imminent injury to them or the environment as to render the controversy
ripe for judicial determination. It points out that nowhere in the testimonies during the "hot-

tub" presentation of expert witnesses did the witnesses for respondents claim actual or
imminent injury to them or to the environment as a result of the Bt talong field tests, as they
spoke only of injury in the speculative, imagined kind without any factual basis. Further, the
petition for writ of kalikasan has been mooted by the termination of the field trials as of August
10, 2012.
Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of
the nature, character, scale, duration, design, processes undertaken, risk assessments and
strategies employed, results heretofore recorded, scientific literature, the safeguards and other
precautionary measures undertaken and applied, the Bt talong field tests did not or could not
have violated the right of respondents to a balanced and healthful ecology. The appellate court
apparently misapprehended the nature, character, design of the field trials as one for
"consumption" rather than for "field testing" as defined in DAO 08-2002, the sole purpose of
which is for the "efficacy" of the eggplant variety's resistance to the FSB.
Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne
by competent evidence on record" (admitted exhibits) 31:

118. Since the technology's inception 50 years ago, studies have


shown that genetically modified crops, including Bt talong,
significantly reduce the use of pesticides by farmers in
growing eggplants, lessening pesticide poisoning to
humans.
119. Pesticide use globally has decreased in the last [14-15]
years owing to the use of insect-resistant genetically
modified crops. Moreover, that insect-resistant genetically
modified crops significantly reduce the use of pesticides in
growing plants thus lessening pesticide poisoning in
humans, reducing pesticide load in the environment and
encouraging more biodiversity in farms.
120. Global warming is likewise reduced as more crops can be
grown.
121. Transgenic Bacillus thuringensis (Bt) cotton has had a
major impact on the Australian cotton industry by largely
controlling Lepidopteran pests. To date, it had no significant
impact on the invertebrate community studied.
122. Feeding on CrylAcc contaminated non-target herbivores
does not harm predatory heteropterans and, therefore,
cultivation of Btcotton may provide an opportunity for
conservation of these predators in cotton ecosystems by
reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and


that Bt corn pollens do not negatively affect monarch
butterflies.
124. The field trials will not cause "contamination" as feared by
the petitioners because flight distance of the pollinators is a
deterrent to cross pollination. Studies reveal that there can
be no cross pollination more than a fifty (50) meter
distance.
xxx
x
135. There is a 50 year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial
pesticides and a 14 year history of safe consumption of
food and feed derived from Bt crops.
xxx
x
140. In separate reviews by the European Food Safety Agency
(EFSA) and the Food Standards Australia and New Zealand
(FSANZ), the "work" of one Prof. Seralini relied upon by
[respondents] was dismissed as "scientifically flawed", thus
providing no plausible basis to the proposition that Bt
talong is dangerous to public health.
141. In a learned treatise by James Clive entitled "Global Status
of Commercialized Biotech/GM Crops: 2011," the
Philippines was cited to be the first country in the ASEAN
region to implement a regulatory system for transgenic
crops (which includes DAO 08-[2]002). Accordingly, the
said regulatory system has also served as a model for other
countries in the region and other developing countries
outside of Asia.

On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The
testimonial and documentary evidence of respondents, taken together, do not amount to
"scientifically plausible" evidence of threats of serious and irreversible damage to the
environment. In fact, since BPI started regulating GM crops in 2002, they have monitored 171
field trials all over the Philippines and said agency has not observed any adverse
environmental effect caused by said field trials. Plainly, respondents failed to show proof of
"specific facts" of environmental damage of the magnitude contemplated under the Rules of
Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.
Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which they have been deprived without due process
of law. Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's
pronouncement of their guilt despite the preponderance of evidence on the environmental
safety of the field trials, as evident from its declaration that "the over-all safety guarantee
of Bt talong remains to be still unknown." It thus asks if in the meantime, petitioners must
bear the judicial stigma of being cast as violators of the right of the people to a balanced and
healthful ecology for an injury or damage unsubstantiated by evidence of scientific plausibility.
G.R. No. 209430
Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the
exercise of UPLB's academic freedom, which is aconstitutional right. In this case, there is
nothing based on evidence on record or overwhelming public welfare concern, such as the right
of the people to a balanced and healthful ecology, which would warrant restraint on UPLB's
exercise of academic freedom. Considering that UPLB complied with all laws, rules and
regulations regarding the application and conduct of field testing of GM eggplant, and was
performing such field tests within the prescribed limits of DAO 08-2002, and there being no
harm to the environment or prejudice that will be caused to the life, health or property of
inhabitants in two or more cities or provinces, to restrain it from performing the said field
testing is unjustified.
Petitioner likewise objects to the CA's application of the precautionary principle in this case, in
violation of the standards set by the Rules of Procedure for Environmental Cases. It points out
that the Bt eggplants are not yet intended to be introduced into the Philippine ecosystem nor
to the local market for human consumption.
Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who
is an entomologist and expert in integrated pest management and insect taxonomy, and Dr.
Davies, a member of the faculty of the Department of Plant Biology and Horticulture at Cornell
University for 43 years and served as a senior science advisor in agricultural technology to the
United States Department of State. Both had testified that based on generally accepted and
scientific methodology, the field trial of Bt crops do not cause damage to the environment or
human health.
Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It
asserts that the CA could not support its Decision and Resolution on the pure conjectures and
imagination of one witness. Basic is the rule that a decision must be supported by evidence on
record.
Respondents' Consolidated Comment
Respondents aver that Bt talong became the subject of public protest in our country precisely
because of the serious safety concerns on the impact of Bt talong toxin on human and animal
health and the environment through field trial contamination. They point out that the inherent
and potential risks and adverse effects of GM crops are recognized in the Cartagena Protocol
and our biosafety regulations (EO 514 and DAO 08-2002). Contamination may occur through
pollination, ingestion by insects and other animals, water and soil run off, human error,
mechanical accident and even by stealing was inevitable in growing Bt talong in an open
environment for field trial. Such contamination may manifest even after many years and in
places very far away from the trial sites.
Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful

omission, respondents assert that, in the face of scientific uncertainties on the safety and
effects of Bt talong, petitioners omitted their crucial duties to conduct environmental impact
assessment (EIA); evaluate health impacts; get the free, prior and informed consent of the
people in the host communities; and provide remedial and liability processes in the approval of
the biosafety permit and conduct of the field trials in its five sites located in five provinces.
These omissions have put the people and the environment at serious and irreversible risks.
Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic
Crops/Foods: A Compilation of Scientific References with Abstracts" printed by Coalition for a
GMO-Free India; a study on Bt corn in the Philippines, "Socio-economic Impacts of Genetically
Modified Corn in the Philippines" published by MASIPAG in 2013; and the published report of
the investigation conducted by Greenpeace, "White Corn in the Philippines: Contaminated with
Genetically Modified Corn Varieties" which revealed positive results for samples purchased
from different stores in Sultan Kudarat, Mindanao, indicating that they were contaminated with
GM corn varieties, specifically the herbicide tolerant and Bt insect resistant genes from
Monsanto, the world's largest biotech company based in the US.
To demonstrate the health hazards posed by Bt crops, respondents cite the following sources:
the studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI
Vazquez-Padron, all from the Universidad Nacional Autonoma de Mexico; the conclusion made
by Prof. Eric-Gilles Seralini of the University of Caen, France, who is also the president of the
Scientific Council of the Committee for Independent Research and Information on Genetic
Engineering (CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's data
submitted in support of the application to grow and market Bt eggplant in India; and the
medical interpretations of Prof. Seralini's findings by Filipino doctors Dr. Romeo Quijano of the
University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's
Medical Center (Joint Affidavit).
According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier authored
by Prof. David A. Andow of the University of Minnesota, an expert in environmental assessment
in crop science. The review was made upon the request in 2010 of His Honorable Shri Jairam
Ramesh of the Ministry of Environment and Forests of India, where MAHYCO is based. MAHYCO
is the corporate creator and patent owner of the Bt gene inserted in Bt talong.
The conclusions of health hazards from the above studies were summarized 32 by respondents,
as follows:

Studies/interpretation
by

Conclusion/interpretation

Drs. L. Moreno-Fierros,
N. Garcia, R. Gutierrez,
R.

For Bt modified crops (like Bt talong),


there is concern over its potential

Lopez-Revilla, and RI
Vazquez-Padron

allergenicity. CrylAcc (the gene


inserted in Bt talong) protoxin is a
potent immunogen (triggers immune
response); the protoxin is
immunogenic by both the
intraperitoneal (injected) and
intragastric (ingested) route; the
immune response to the protoxin is
both systemic and mucosal;
and CrylAcc protoxin binds to surface
proteins in the mouse small intestine.

These suggest thatextreme caution


is required in the use of CrylAcc in
food crops.
Prof. Eric-Gilles Seralini

His key findings showed statistical


significant differences between group
of animals fed GM and non-GM
eggplant that raise food safety
concerns and warrant further
investigation.

Dr. Romeo Quijano & Dr.


Wency Kiat, Jr.

Interpreting Prof. Seralini's findings,


the altered condition of
ratssymptomatically indicate
hazards for human health.

Prof. David A. Andow

The MAHYCO dossier is inadequate to


support the needed environmental risk
assessment; MAHYCO's food safety
assessment does not comply with
international standards; and that
MAHYCO relied on dubious scientific
assumptions and disregarded real
environmental threats.

As to environmental effects, respondents said these include the potential for living modified
organisms, such as Bt talong tested in the field or released into the environment, to
contaminate non-GM traditional varieties and other wild eggplant relatives and turn them into
novel pests, outcompete and replace their wild relatives, increase dependence on pesticides, or
spread their introduced genes to weedy relatives, potentially creating superweeds, and kill
beneficial insects.
Respondents then gave the following tabulated summary33 of field trial contamination
cases drawn from various news reports and some scientific literature submitted to the court:

What happened
During 2006 and
2007, traces of three
varieties of
unapproved
genetically modified
rice owned by Bayer
Crop Science were
found in US rice
exports in over 30
countries worldwide.

Impact
In July 2011, Bayer
eventually agreed to a
$750m US dollar
settlement resolving
claims with about
11,000 US farmers for
market losses and
clean-up costs.
The total costs to the
rice industry are likely

How did it
occur
Field trials were
conducted
between the
mid-1990s and
early 2000s. The
US Department
of Agriculture
(USDA) reported
these field trials
were the likely
sources of the

to have been over $1bn contamination


worldwide.
between the
modified rice and
conventional
varieties.
However, it was
unable to
conclude [if it]
was caused by
gene flow (cross
pollination) or
mechanical
mixing.
In 2009, unauthorised
GElinseed (also
known as 'flax')
produced by a public
research institution
was discovered in
food in several EU
countries, having
been imported from
Canada.

Canada lost exports to


its main European
market worth hundreds
of millions of dollars
and non-GElinseed
farmers have faced
huge costs and market
losses.

In the late 1980s


a public research
institution, the
Crop
Development
Centre in
Saskatoon,
Saskat-chewan,
developed a
GElinseed
variety FP96
believed to be
the origin of the
contamination.

During 2004, the Thai


government found
that papaya samples
from 85 farms were
genetically modified.
The contamination
continued into 2006
and it is likely that the
GE contamination
reached the food
chain.

Exports of papaya to
Europe have been hit
because of fears that
contamination could
have spread. The Thai
government said it was
taking action to destroy
the contaminated trees.

GEpapaya is not
grown
commercially in
Thailand, so it
was clear that
the
contamination
originated from
the government
station
experimentally
breeding GE
papaya trees.
Tests that
showed that one

third of papaya
orchards tested
in the eastern
province of
Rayong and the
north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GEcontaminated
papaya seeds in
July 2005. The
owners said that
a research
station gave
them the seeds.
In the US in 2002,
seeds from a GEmaize
pharma-crop
containing a pig
vaccine grew
independently among
normal soybean
crops.

Prodigene, the
company responsible,
was fined $3m for
tainting half a million
bushels of soya bean
with a trial vaccine used
to prevent stomach
upsets in piglets.
Prodigene agreed to
pay a fine of $250,000
and to repay the
government for the cost
of incinerating the soya
bean that had been
contaminated with
genetically altered corn.

Seeds from the


GEmaize crop
sprouted
voluntarily in the
following season.

In 2005, Greenpeace
discovered that GE
rice seeds had been
illegally sold in Hubei,
China. Then, in 2006,
GE rice event Bt63
was found in baby
food sold in Beijing,
Guangzhou and Hong

The European
Commission adopted
emergency measures
(on 15 August 2008) to
require compulsory
certification for the
imports of Chinese rice
products that could
contain the

The source of
the
contamination
appears to have
been the result
of illegal planting
of GEseeds.
Seed companies
in China found to

Kong. In late 2006,


GE rice Bt63 was
found to be
contaminating exports
in Austria, France, the
UK and Germany. In
2007 it was again
found in EU imports to
Cyprus, Germany,
Greece, Italy and
Sweden.

unauthorised GE rice
Bt63.

have sold GErice


hybrid seed to
farmers operated
The Chinese
directly under
government took
the university
several measures to try developing GM
to stop the
rice. It has been
contamination, which
reported that the
included punishing seed key scientist sat
companies, confiscating on the board of
GEseed, destroying
one GEseed
GErice grown in the
company.
field and tightening
control over the food
chain.

In 2005, the
European Commission
announced that illegal
Bt10 GEmaize
produced by GEseed
company Syngenta
had entered the
European food chain.
The GEmaize Bt10
contains a marker
gene that codes for
the widely-used
antibiotic ampicillin,
while the Bt11 does
not. According to the
international Codex
Alimentarius Guideline
for Conduct of Food
Safety Assessment of
Foods Derived from
RecombinantDNA:Plants:
'Antibiotic resistance
genes used in food
production that
encode resistance to

The European
Commission blocked US
grain import unless
they could be
guaranteed free of
Bt10. The USDA fined
Syngenta $375,000.
There are no figures for
the wider costs.

The
contamination
arose because
Syngenta's
quality control
procedures did
not differentiate
between Bt10
and its sister
commercial line,
Bt11. As a
result, the
experimental
and substantially
different Bt10
line was
mistakenly used
in breeding. The
error was
detected four
years later when
one of the seed
companies
developing Bt11
varieties adopted
more

clinically used
antibiotics should not
be present in foods'
because it increases
the risk of antibiotic
resistance in the
population.

sophisticated
analytical
techniques.

Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt
talong field trial is isolated, restricted and that "each experiment per site per season consists
of a maximum net area planted to Bt eggplant of between 480 sq. meters to 1,080 sq.
meters,"34 respondents emphasize that as shown by the above, contamination knows no size
and boundaries in an open environment.
With regard to the required geographical coverage of environmental damage for the issuance
of writ of kalikasan, respondents assert that while the Bt talong field trials were conducted in
only five provinces, the environmental damage prejudicial to health extends beyond the health
of the present generation of inhabitants in those provinces.
On petitioners' insistence in demanding that those who allege injury must prove injury,
respondents said that biosafety evidence could not be readily contained in a corpus delicti to
be presented in court. Indeed, the inherent and potential risks and adverse effects brought by
GMOs are not like dead bodies or wounds that are immediately and physically identifiable to an
eyewitness and which are resulting from a common crime. Precisely, this is why the Cartagena
Protocol's foundation is on the precautionary principle and development of sound science and
its links, to social and human rights law through its elements of public awareness, public
participation and public right to know. This is also why the case was brought under the Rules of
Procedure for Environmental Cases and not under ordinary or other rules, on the grounds of
violation of the rights of the Filipino people to health, to a balanced and healthful ecology, to
information on matters of national concern, and to participation. The said Rules specifically
provides that the appreciation of evidence in a case like this must be guided by the
precautionary principle.
As to the non-exhaustion of administrative remedies being raised by petitioners as ground to
dismiss the present petition, respondents said that nowhere in the 22 sections of DAO 08-2002
that one can find a remedy to appeal the decision of the DA issuing the field testing permit.
What is only provided for is a mechanism for applicants of a permit, not stakeholders like
farmers, traders and consumers to appeal a decision by the BPI-DA in case of denial of their
application for field testing. Moreover, DAO 08-2002 is silent on appeal after the issuance of
the biosafety permit.
Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514
explicitly states that the application of biosafety regulations shall be made in accordance
with existing laws and the guidelines therein provided. Hence, aside from risk assessment
requirement of the biosafety regulations, pursuant to the PEISS law and Sections 12 and 13 of
the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is required
and an environmental compliance certificate (ECC) is necessary before such Bt crop field trials
can be conducted.
Petitioners' Replies
G.R. No. 209271
ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental
Cases do not empower courts to adjudicate a controversy that is moot and academic. It points
out that respondents failed to satisfy all the requirements of the exception to the rule on actual
controversies. The Biosafety Permit is valid for only two years, while the purported stages in
the commercialization, propagation and registration of Bt talong still cannot confer jurisdiction
on the CA to decide a moot and academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public
petitioners do not have "mandatory" and "ministerial" duty to re-examine and reform the
biosafety regulatory system, and to propose curative legislation. The law (EO 514) cited by
respondents does not impose such duty on public petitioners. As for the Cartagena Protocol, it
laid down a procedure for the evaluation of the Protocol itself, not of the Philippine biosafety
regulatory system. ISAAA stresses that the CA is without jurisdiction to review the soundness
and wisdom of existing laws, policy and regulations. Indeed, the questions posed by the
respondents are political questions, which must be resolved by the executive and legislative
departments in deference to separation of powers.
On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in
saying that these are limited to appeals. The concerned public may invoke Section 8 (G) of
DAO 08-2002 which grants them the right to submit their written comments on the BPI
regarding the field testing permits, or Section 8 (P) for the revocation and cancellation of a
field testing permit. Respondents' failure to resort to the internal mechanisms provided in DAO
08-2002 violates the rule on exhaustion of administrative remedies, which warrants the
dismissal of respondents' petition.
ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for
field testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of
1987, the DA through the BPI, is responsible for the production of improved planting materials
and protection of agricultural crops from pests and diseases. In bypassing the administrative
remedies available, respondents not only failed to exhaust a less costly and speedier remedy, it
also deprived the parties of an opportunity to be heard by the BPI which has primary
jurisdiction and knowledgeable on the issues they sought to raise.
Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are
hearsay. Majority of those records contain incomplete information and none of them pertain to
the Bt talong. Respondents likewise presented two misleading scientific studies which have
already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study by Prof.
Seralini in 2012. Petitioner notes that both articles have been withdrawn from publication.
ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only
126 usable records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A.,
A. Manzo, F. Veronesi, and D. Rosellini, entitled "An overview of the last 10 years of genetically
engineered crop safety research." The authors evaluated 1,783 scientific records of GE crop
safety research papers, reviews, relevant opinions and scientific reports from 2002-2012. Their
findings concluded that "the scientific research conducted so far has not detected any
significant hazards directly connected with the use of GE crops." In the article "Impacts of GM
crops on biodiversity," in which scientific findings concluded that "[o]verall, x x x currently
commercialized GM crops have reduced the impacts of agriculture on biodiversity, through
enhanced adoption of conservation tillage practices, reduction of insecticide use and use of
more environmentally benign herbicides and increasing yields to alleviate pressure to convert
additional land into agricultural use."
Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR
24473-A decade of EU-funded GMO research (2001-2010), concluded from more than 130
research projects, covering a period of 25 years of research, and involving more than 500
independent research groups, that "biotechnology, and in particular GMOs, are not per se more
risky than e.g. conventional plant breeding technologies." Another article cited is "Assessment
of the health impact of GM plant diets in long-term and multigenerational animal feeding trials:
A literature review" which states that scientific findings show that GM crops do not suggest any
health hazard, and are nutritionally equivalent to their non-GM counterparts and can be safely
used in food and feed.
Addressing the studies relied upon by respondents on the alleged adverse environmental
effects of GM crops, petitioner cites the article "Ecological Impacts of Genetically Modified
Crops: Ten Years of Field Research and Commercial Cultivation" which concluded that "[T]he
data available so far provide no scientific evidence that the cultivation of the presently
commercialized GM crops has caused environmental harm." A related article, "A Meta-Analysis

of Effects of Bt Cotton and Maize on Non-target Invertebrates" states that scientific findings
show that non-target insects are more abundant in GM crop fields like Bt cotton and Bt maize
fields than in non-GM crops that are sprayed with insecticides.
The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA,
which presented the following comments and criticisms on each of the paper/article cited,
thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected
considering that this was not formally offered as evidence by respondents. Hence, the same
may not be considered by the Honorable Court. (Section 34, Rule 132 of the Rules of
Court;Heirs of Pedro Pasag v. Spouses Parocha, supra)
Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the
study was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation
and conclusion of this study to Bt talong is grossly erroneous and calculated to mislead and
deceive the Honorable Court.
Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L.
Moreno-Fierros, et al., which was published in an article entitled A Review of the Food Safety
of Bt Crops, the authors reported that Adel-Patient, et al. tried and failed to reproduce the
results obtained by the study made by L. Moreno-Fierros, et al. The reason is because of
endotoxin contamination in the preparation of theCrylAc protein. Further, when purified Cry
protein was injected to mice through intra-gastric administration, there was no impact on the
immune response of the mice.
In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing
potential health risks from human consumption of foods derived from Bt crops can be
questioned because the doses tested in mice is irrelevant to human dietary exposure,i.e., the
doses given were "far in excess of potential human intakes".
With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to
any weight and consideration because his sworn statement was not admitted in evidence by
the Court of Appeals.
Further, Seralini's findings are seriously flawed. Food safety experts explained the differences
observed by Seralini's statistical analysis as examples of random biological variation that
occurs when many measurements are made on test animals, and which have no biological
significance. Hence, there are no food safety concerns. Further, petitioner ISAAA presented in
evidence the findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert
Seralini's findings. The EFSA and the FSANZ rejected Seralini's findings because the same were
based on questionable statistical procedure employed in maize in 2007.
In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised
its earlier decision approving the safety of Bteggplant notwithstanding the findings of Seralini's
assessment. In effect, Seralini's findings and interpretation were rejected by the Indian
regulatory agency.
With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is
not entitled to any weight and consideration because the Court of Appeals did not admit their
sworn statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously
flawed study, making their sworn statements equally flawed.
In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof.
David A. Andow as the work of the National Academy of Sciences of the USA. Such claim is
grossly misleading. In truth, as Prof. David A. Andow indicated in the preface, the report was
produced upon the request of Aruna Rodriguez, a known anti-GM campaigner.
Further, Prof. David A. Andow's review did not point to any negative impact to the environment
of Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field
trials all over the country. He concluded, however, that the dossier is inadequate for ERA. This
is perplexing considering this is the same gene that has been used in Bt cotton since 1996.

Scores of environmental and food safety risk assessment studies have been conducted and
there is wealth of information and experience on its safety. Various meta-analyses indicate that
delaying the use of this already effective Bt brinjal for managing this devastating pest only
ensures the continued use of frequent insecticide sprays with proven harm to human and
animal health and the environment and loss of potential income of resource-poor small
farmers.
Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the
Indian regulatory body, GEAC, has not revised its earlier decision approving the safety
of Bt eggplant based on the recommendation of two expert committees which found the
Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In
effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian
regulatory agency.35
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all
significant risks not only to the environment but also to human health. The requirements under
Sections 26 and 27 of the Local Government Code are also inapplicable because the field
testing is not among the six environmentally sensitive activities mentioned therein; the public
consultations and prior local government unit (LGU) approval, were nevertheless complied
with. Moreover, the field testing is an exercise of academic freedom protected by the
Constitution, the possibility of Bt talong's commercialization in the future is but incidental to,
and fruit of the experiment.
ChanRoblesVirtualawlibrary

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these
are inadmissible, hearsay and unreliable. These were not formally offered in evidence; selfserving as it was conducted by respondents Greenpeace and MASIPAG themselves; the
persons who prepared the same were not presented in court to identify and testify on its
findings; and the methods used in the investigation and research were not scientific. Said
studies failed to establish any correlation between Bt corn and the purported environmental
and health problems.
G.R. No. 209276
EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for
the same reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint
affidavit of Dr. Kiat and Dr. Quijano were denied admission by the CA. Given the failure of the
respondents to present scientific evidence to prove the claim of environmental and health
damages, respondents are not entitled to the writ of kalikasan.
Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that
the latter complied with all the requirements under DAO 08-2002, including the conduct of risk
assessment. The applications for field testing of Bt talong thus underwent the following
procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several
applications for issuance of Biosafety Permits to conduct multi-locational field testing of Bt
talong. Even before the proponent submitted its application, petitioner BPI conducted a
consultative meeting with the proponent to enlighten the latter about the requirements set out
by DA AO No. 8.
Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8
of DA AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information
as required in Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the
regulated article has undergone satisfactory testing under contained conditions in the
Philippines, (ii) technical dossier consisting of scientific literature and other scientific materials
relied upon by the applicant showing that Bt talong will not pose any significant risks to human
health and the environment, and (iii) copy of the proposed PIS for Field Testing as prescribed
by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved

by the majority of all the members of the respective Institutional Biosafety Committees (IBC),
including at least one community representative, as required by Section 8 (E) of DA AO No. 08.
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial
evaluation of the risk assessment and risk management strategies of the applicant for field
testing using the NCBP guidelines. The IBC shall determine if the data obtained under
contained conditions provide sufficient basis to authorize the field testing of the
regulated article.In making the determination, the IBC shall ensure that field testing
does not pose any significant risks to human health and the environment. The IBC
may, in its discretion, require the proponent to perform additional experiments under
contained conditions before acting on the field testing proposal. The IBC shall either endorse
the field testing proposal to the BPI or reject it for failing the scientific risk assessment.
b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires
an applicant for field testing to establish an IBC in preparation for the field testing of a
regulated article and whose membership has been approved by the BPI. Section 1 (L) of DA
AO No. 08, requires that the IBC shall be composed of at least five (5) members, three (3) of
whom shall be designated as "scientist-members" who shall possess scientific and
technological knowledge and expertise sufficient to enable them to evaluate and monitor
properly any work of the applicant relating to the field testing of a regulated article, and the
other members are designated as "community representatives" who are in a position to
represent the interest of the communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section
8 (F) of DA AO No. 08, forwarded the complete documents to three (3) independent Scientific
Technical Review Panel (STRP) members. Pending receipt of the risk assessment reports of the
three STRP members, petitioner BPI conducted its own risk assessment.
Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of
the three STRP members recommending the grant of Biosafety Permits to UPLB after a
thorough risk assessment and evaluation of UPLB's application for field trial of Bt talong.
Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in
each concerned barangays and city/municipal halls of the localities having jurisdiction over its
proposed field trial sites.
In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative
meetings and public seminars in order to provide public information and in order to give an
opportunity to the public to raise their questions and/or concerns regarding the Bt talongfield
trials.36
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to
the Bt talong field testing considering that its subject matter is not mass production for human
consumption. The project entails only the planting of Bt eggplants and cultivation in a
controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt
talong will be commercialized and allowed for cultivation in the Philippines.
ChanRoblesVirtualawlibrary

On the non-exhaustion of administrative remedies by the respondents, petitioners note that


during the period of public consultation under DAO 08-2002, it is BPI which processes written
comments on the application for field testing of a regulated article, and has the authority to
approve or disapprove the application. Also, under Section 8 (P), BPI may revoke a biosafety
permit issued on the ground of, among others, receipt of new information that the field testing
poses significant risks to human health and the environment. Petitioners assert they were
never remiss in the performance of their mandated functions, as shown by their immediate
action with respect to the defective certification of posting of PIS in Kabacan, North Cotabato.
Upon receiving the letter-complaint on January 24, 2012, BPI readily ordered their re-posting.
The same incident occurred in Davao City, where BPI refused to lift the suspension of biosafety
permits until "rectification of the conditions for public consultation is carried out."
To underscore respondents' blatant disregard of the administrative process, petitioners refer to
documented instances when respondents took the law in their own hands. Greenpeace barged
into one of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the
entrance gate through the use of a bolt cutter, and then proceeded to uproot the experimental
crops without permission from BPI or the project proponents. Petitioners submit that the non-

observance of the doctrine of exhaustion of administrative remedies results in lack of cause of


action, one of the grounds under theRules of Court justifying the dismissal of a complaint.
Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)
Crop Life is an association of companies which belongs to a global (Crop Life International) as
well as regional (Crop Life Asia) networks of member-companies representing the plant science
industry. It aims to "help improve the productivity of Filipino farmers and contribute to
Philippine food security in a sustainable way." It supports "innovation, research and
development in agriculture through the use of biology, chemistry, biotechnology, plant
breeding, other techniques and disciplines."
On procedural grounds, Crop Life assails the CA in rendering judgment in violation of
petitioners' right to due process because it was prevented from cross-examining the
respondents' expert witnesses and conducting re-direct examination of petitioners' own
witnesses, and being an evidently partial and prejudiced court. It said the petition for writ
of kalikasan should have been dismissed outright as it effectively asks the Court to engage in
"judicial legislation" to "cure" what respondents feel is an inadequate regulatory framework for
field testing of GMOs in the Philippines. Respondents also violated the doctrine of exhaustion of
administrative remedies, and their petition is barred by estoppel and laches.
Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege
and prove the particular environmental damage resulting from the Bt talong field testing. It
cites the scientific evidence on record and the internationally accepted scientific standards on
GMOs and GMO field testing, and considering the experience of various countries engaged in
testing GMOs, telling us that GMO field testing will not damage the environment nor harm
human health and more likely bring about beneficial improvements.
Crop Life likewise assails the application of the Precautionary Principle by the CA which
erroneously equated field testing of Bt talong with Bt talong itself; failed to recognize that in
this case, there was no particular environmental damage identified, much less proven; relied
upon the article of Prof. Seralini that was retracted by the scientific journal which published it;
there is no scientific uncertainty on the adverse effects of GMOs to environment and human
health; and did not consider respondents' failure to prove the insufficiency of the regulatory
framework under DAO 08-2002.
On policy grounds, Crop Life argues that requiring all organisms/plants to be considered
absolutely safe before any field testing may be allowed, would result in permanently placing
the Philippines in the shadows of more developed nations (whose economies rest on emerging
markets importing products from them). It points out that the testing of Bt talong specifically
addresses defined problems such as the need to curb the misuse of chemical pesticides.
Biotechnology Coalition of the Philippines (BCP)
BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition
of advocates of modern biotechnology in the Philippines.
Reversal of the CA ruling is sought on the following grounds:
I.
THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN
THE ABSENCE OF ANY JUSTICIABLE CONTROVERSY.
II.
EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE
PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.
III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY


PRINCIPLE.
IV.
THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF
SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTITECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE. 37
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt
talong field trials having been terminated, the CA entertained a prohibited collateral attack on
the sufficiency of DAO 08-2002. Though not invalidating the issuance, which the CA knew was
highly improper, it nonetheless granted the petition for writ of kalikasan on the theory that
"mere biosafety regulations" were insufficient to guarantee the safety of the environment and
the health of the people.
ChanRoblesVirtualawlibrary

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to
exhaust administrative remedies and finality of findings of administrative agencies.
BCP further asserts that the application of a stringent "risk assessment" process to regulated
articles prior to any release in the environment for field testing mandated by AO No. 8
sufficiently complies with the rationale behind the development of the precautionary principle.
By implementing the stringent provisions of DAO 08-2002, in conjunction with the standards
set by EO 514 and the NBF, the government preemptively intervenes and takes precautionary
measures prior to the release of any potentially harmful substance or article into the
environment. Thus, any potential damage to the environment is prevented or negated.
Moreover, international instruments ratified and formally adopted by the Philippines (CBD and
the Cartagena Protocol) provide additional support in the proper application of the
precautionary principle in relation to GMOs and the environment.
On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic
premise for its application is the existence of threat of harm or damage to the environment,
which must be backed by a reasonable scientific basis and not based on mere hypothetical
allegation, before the burden of proof is shifted to the public respondents in a petition for writ
of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt talongcould
not be declared ... as safe to human health and to ecology, with full scientific certainty, being
an alteration of an otherwise natural state of affairs in our ecology" and "introducing a
genetically modified plant in our intricate world of plants by humans certainly appears to be an
ecologically imbalancing act," among others. BCP finds that this pronouncement of the CA
constitutes an indictment not only against Bt talong but against all GMOs as well. The appellate
court's opinion is thus highly speculative, sweeping and laced with obvious bias.
There being no credible showing in the record that the conduct of Bt talong field trials entails
real threats and that these threats pertain to serious and irreversible damage to the
environment, BCP maintains that the precautionary principle finds no application in this case.
While Rule 20 of the Rules of Procedure for Environmental Cases states that "[w]hen there is a
lack of full scientific certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle in resolving the case
before it," the CA failed to note that the element of lack of full scientific certainty pertains
merely to the causal link between human activity and environmental effect, and not the
existence or risk of environmental effect.
BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against
technological advancements, especially those in agriculture. Affirming the CA decision thus sets
a dangerous precedent where any and all human activity may be enjoined based on unfounded
fears of possible damage to health or the environment.
Issues
From the foregoing submissions, the Court is presented with the following issues for
resolution:

1.

Legal standing of respondents;

2.

Mootness;

3.

Violation of the doctrines of primary jurisdiction and exhaustion of administrative


remedies;

4.

Application of the law on environmental impact statement/assessment on projects


involving the introduction and propagation of GMOs in the country;

5.

Evidence of damage or threat of damage to human health and the environment in two
or more provinces, as a result of the Bt talong field trials;

6.

Neglect or unlawful omission committed by the public respondents in connection with


the processing and evaluation of the applications for Bt talong field testing; and

7.

Application of the Precautionary Principle.


The Court's Ruling

Legal Standing
Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers
particularly to "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."39
However, the rule on standing is a matter of procedure which 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.40 The Court thus had invariably adopted a liberal policy
on standing to allow ordinary citizens and civic organizations to prosecute actions before this
Court questioning the constitutionality or validity of laws, acts, rulings or orders of various
government agencies or instrumentalities.41
Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits.
In said case, we recognized the "public right" of citizens to "a balanced and healthful ecology
which, for the first time in our nation's constitutional history, is solemnly incorporated in the
fundamental law." We held that such right need not 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. Such right carries with it the correlative duty to refrain from impairing the
environment.
Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the
enforcement of environmental rights, they can do so in representation of their own and future
generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet
unborn. We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their personality to sue in
behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful
ecology is concerned. Such a right, as hereinafter expounded, considers the "rhythm and
harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony
indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their exploration, development and
utilization be equitably accessible to the present as well as future generations. 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. 43(Emphasis
supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in environmental cases. 44 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," and aims to "further encourage the protection of the
environment."45
There is therefore no dispute on the standing of respondents to file before this Court their
petition for writ of kalikasan and writ of continuing mandamus.
Mootness
It is argued that this case has been mooted by the termination of all field trials on August 10,
2012. In fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.
An action is considered 'moot' when it no longer presents a justiciable controversy because the
issues involved have become academic or dead, or when the matter in dispute has already
been resolved and hence, one is not entitled to judicial intervention unless the issue is likely to
be raised again between the parties.46 Time and again, courts have refrained from even
expressing an opinion in a case where the issues have become moot and academic, there
being no more justiciable controversy to speak of, so that a determination thereof would be of
no practical use or value.47
Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the
paramount public interest is involved; third, when the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar and the public; and fourth, the
case is capable of repetition yet evading review.48 We find that the presence of the second and
fourth exceptions justified the CA in not dismissing the case despite the termination of Bt
talong field trials.
While it may be that the project proponents of Bt talong have terminated the subject field
trials, it is not certain if they have actually completed the field trial stage for the purpose of
data gathering. At any rate, it is on record that the proponents expect to proceed to the next
phase of the project, the preparation for commercial propagation of the Bt eggplants. Biosafety
permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not only does this
case fall under the "capable of repetition yet evading review" exception to the mootness
principle, the human and environmental health hazards posed by the introduction of a
genetically modified plant, a very popular staple vegetable among Filipinos, is an issue of
paramount public interest.
Primary Jurisdiction and Exhaustion of Administrative Remedies
In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and
exhaustion of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first
avail of all the means afforded him by administrative processes. The issues which
administrative agencies are authorized to decide should not be summarily taken from them
and submitted to a court without first giving such administrative agency the opportunity to
dispose of the same after due deliberation.
Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary
jurisdiction; that is, courts cannot or will not determine a controversy involving a question
which is within the jurisdiction of the administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the question demands the exercise of sound
administrative discretion requiring the special knowledge, experience and services of the
administrative tribunal to determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine
of primary jurisdiction, which are based on sound public policy and practical considerations, are
not inflexible rules. There are many accepted exceptions, such as: (a) where there is
estoppel on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d)
where the amount involved is relatively small so as to make the rule impractical and
oppressive; (e) where the question involved is purely legal and will ultimately have to be
decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted acts violate
due process; (i) when the issue of non-exhaustion of administrative remedies has been
rendered moot; (j) when there is no other plain, speedy and adequate remedy;
(k) when strong public interest is involved; and, (1) in quo warranto proceedings. x x x
(Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI
after public information sheets have been posted (Section 7[G]). Section 7(P) also provides for
revocation of field testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the
following grounds:
1.

Provision of false information in the Application to Field Test;

2.

Violation of SPS or biosafety rules and regulations or of any conditions specified in the
permit;

3.

Failure to allow the inspection of the field testing site;

4.

Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;

5.

Whether the regulated article was imported, misdeclaration of shipment; or

6.

Such other grounds as BPI may deem reasonable to prevent significant risks to human
health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming
serious health and environmental adverse effects of the Bt talong field trials due to "inherent
risks" associated with genetically modified crops and herbicides. They sought the immediate
issuance of a TEPO to enjoin the processing for field testing and registering Bt talong as
herbicidal product in the Philippines, stopping all pending field trials of Bt talonganywhere in
the country, and ordering the uprooting of planted Bt talong in the field trial sites.
In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of
continuing mandamus commanding the respondents to: (1) comply with the requirement of
environmental impact statement; (2) submit comprehensive risk assessments, field test
reports, regulatory compliance reports and other material documents on Bt talong including
issued certifications on public consultation with LGUs; (3) work with other agencies to submit a
draft amendment to biosafety regulations; and (4) BPI, in coordination with relevant
government agencies, conduct balanced nationwide public information on the nature of Bt
talong field trial, and a survey of its social acceptability.
Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the
respondents "to determine the questions of unique national and local importance raised here
that pertain to laws and rules for environmental protection, thus [they were] justified in
coming to this Court."50 We take judicial notice of the fact that genetically modified food is an
intensely debated global issue, and despite the entry of GMO crops (Bt corn) into the
Philippines in the last decade, it is only now that such controversy involving alleged damage or
threat to human health and the environment from GMOs has reached the courts.

Genetic Engineering
Genetic manipulation has long been practiced by conventional breeders of plant or animal to
fulfill specific purposes. The basic strategy employed is to use the sexual mechanism to
reorganize the genomes of two individuals in a new genetic matrix, and select for individuals in
the progeny with the desirable combination of the parental characteristics. Hybridization is the
conventional way of creating variation. In animals, mating is effected by introducing the
desired sperm donor to the female at the right time. In plants, pollen grains from the desired
source are deposited on the stigma of a receptive female plant. Pollination or mating is
followed by fertilization and subsequently development into an embryo. The effect of this
action is the reorganization of the genomes of two parents into a new genetic matrix to create
new individuals expressing traits from both parents. The ease of crossing of mating varies from
one species to another. However, conventional breeding technologies are limited by their long
duration, need for sexual compatibility, low selection efficiency, and restricted gene pool. 51
Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows
scientists to transfer genes from one organism to any other, circumventing the sexual process.
For example, a gene from a bacterium can be transferred to corn. Consequently, DNA
technology allowed scientists to treat all living things as belonging to one giant breeding pool.
Unlike other natural genome rearrangements phenomena, rDNA introduces alien DNA
sequences into the genome. Even though crossing of two sexually compatible individuals
produces recombinant progeny, the term recombinant DNA is restricted to the product of the
union of DNA segments of different biological origins. The product of recombinant DNA
manipulation is called a transgenic organism. rDNA is the core technology of biotechnology.52
The organism that is created through genetic engineering is called a genetically modified
organism (GMO). Since the production of the first GMOs in the 1970s, genes have been
transferred between animal species, between plant species, and from animal species to plant
species. Some genes can make an animal or plant grow faster or larger, or both. A gene
produced by flounder (anti-freeze) was transplanted into salmon so that salmon can be farmed
in colder climates. Many species offish are genetically engineered to speed growth, to alter
flesh quality, and to increase cold and disease resistance. In farm animals such as cattle,
genes can be inserted to reduce the amount of fat in meat, to increase milk production, and to
increase superior cheese-making proteins in milk. Biotechnology has also modified plants to
produce its own pesticide, resist common diseases or to tolerate weed-killing herbicide
sprays.53
Despite these promising innovations, there has been a great deal of controversy over
bioengineered foods. Some scientists believe genetic engineering dangerously tampers with
the most fundamental natural components of life; that genetic engineering is scientifically
unsound; and that when scientists transfer genes into a new organism, the results could be
unexpected and dangerous. But no long-term studies have been done to determine what
effects GMO foods might have on human health.54
Genetically Modified Foods
The term GM food refers to crop plants created for human or animal consumption using the
latest molecular biology techniques. These plants are modified in the laboratory to enhance
desired traits such as increased resistance to herbicides or improved nutritional
content.55 Genetic modification of plants occurs in several stages:
1.

An organism that has the desired characteristic is identified and the specific gene
producing this characteristic is located and the DNA is cut off.

2.

The gene is then attached to a carrier in order to introduce the gene into the cells of
the plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3.

Along with the gene and carrier a 'promoter' is also added to ensure that the gene
works adequately when it is introduced into the plant.

4.

The gene of interest together with carrier and promoter is then inserted into

bacterium, and is allowed to reproduce to create many copies of the gene which are
then transferred into the plant being modified.
5.

The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.

6.

The genetically modified plants are bred with conventional plants of the same variety
to produce seed for further testing and possibly for future commercial use. The entire
process from the initial gene selection to commercial production can take up to ten
years or more.56

Benefits of GM Foods
The application of biotechnology in agricultural production promises to overcome the major
constraints being faced in farming such as insect pest infestation and diseases which lead to
substantial yield losses. Pest-resistant crops could substantially improve yields in developing
countries where pest damage is rampant and reduce the use of chemical pesticides. Crop
plants which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not costeffective physical removal of weeds by tilling. The herbicides to which the GM crops are
tolerant are "broad spectrum" weedkillers, which means they can be sprayed over the entire
field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes
providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides
kill nearly all kinds of plants except those that have the tolerance gene. Another important
benefit is that this class of herbicides breaks down quickly in the soil, eliminating residue
carryover problems and reducing adverse environmental impacts.58
Some plants are genetically engineered to withstand cold climates such as GM strawberries or
soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco and potato with anti-freeze gene from cold
water fish. Crops could also be genetically modified to produce micronutrients vital to the
human diet such as the "golden rice" genetically modified to produce beta-carotene, which can
solve Vitamin A deficiency and prevent night blindness in pre-school children. Other efforts to
enhance nutritional content of plants include the genetic modification of canola to enhance
Vitamin E content or better balance fatty acids, cereals for specific starch or protein, rice for
increased iron to reduce anemia, and plant oils to adjust cholesterol levels. There are also food
crops engineered to produce edible vaccines against infectious diseases that would make
vaccination more readily available to children around the world. For example, transgenic
bananas containing inactivated viruses protecting against common developing world diseases
such as cholera, hepatitis B and diarrhea, have been produced. These vaccines will be much
easier to ship, store and administer than traditional injectable vaccines. 59
Overall, biotechnology is perceived as having the potential to either help or hinder reconciling
of the often opposing goals of meeting the human demand for food, nutrition, fiber, timber, and
other natural resources. Biotech crops could put more food on the table per unit of land and
water used in agriculture, thus resulting in decreased land and water diverted to human uses.
Increasing crop yields and reducing the amount of cultivated land necessary would also reduce
the area subject to soil erosion from agricultural practices, which in turn would limit associated
environmental effects on water bodies and aquatic species and would reduce loss of carbon
sinks and stores into the atmosphere.60
Adverse Health Effects of GMOs
Along with the much heralded benefits of GM crops to human health and environment, there
emerged controversial issues concerning GM foods.
In 1999, it was found that genetically engineered foods can have negative health effects.
Based on scientific studies, these foods can unleash new pathogens, contain allergens and
toxins, and increase the risk of cancer, herbicide exposure, and harm to fetuses and
infants.61 Independent studies conducted went as far to conclude that GM food and feed are

"inherently hazardous to health."62


A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase
the methionine content for animal feed. The protein was subsequently shown to be an allergen
and the product was never marketed. Genetically modified foods can introduce novel proteins
into the food supply from organisms that are never consumed as foods, which may pose a
health risk. This may elicit potentially harmful immunological responses, including allergic
hypersensitivity.63
A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes
genetically altered to produce lectins, natural insecticides, to protect them against aphids,
damaged the animals' gut, other organs, and immune system. Dr. Pusztai found that "the
damage originated not from the transgene and its expressed product but from the damage
caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If
confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create
new toxins; it will also implicate the toxin commonly used in other genetically engineered crops
- the Bt toxin which, Pusztai says, is also a lectin.65
The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully spliced into the host organism, is another cause
of grave concern among scientists. These arm genes might unexpectedly recombine with
disease-causing bacteria or microbes in the environment or in the guts of animals or humans
who eat GM food, thus contributing to the growing public health danger of antibiotic-resistance
of infections that cannot be cured with traditional antibiotics (e.g., new strains of salmonella,
e-coli, campylobacter and enterococci).66However, recent advances in genetic engineering
indicate that use of such selection markers is likely to diminish with the anticipated
development of alternative types of marker genes.67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth
hormone genetically modified to stimulate milk production in cows was found to elevate levels
of IGF-1 (insulin-like Growth Factor-1, identical versions of which occurs in cows and humans)
in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer, breast cancer
and lung cancer.68 Dr. Samuel Epstein of the University of Illinois warned of the danger of high
levels of IGF-1 contained in milk cows injected with synthetic bovine growth hormone (rBGH),
which could be a potential risk factor for breast and gastrointestinal cancers. 69
Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to
worsen modern diseases. A report published in the journalEntropy argues that glyphosate
residues, found in most commonly consumed foods in the Western diet courtesy of genetically
engineered sugar, corn, soy and wheat, "enhance the damaging effects of other food-borne
chemical residues and toxins in the environment to disrupt normal body functions and induce
disease." Another research demonstrated a connection between increased use of Roundup with
rising autism rates in the US.70
Adverse Effects of GMOs to the Environment
Genetically modified crops affect the environment in many ways such as contaminating nonGMO plants, creating super weeds and super pests, harming non-target species, changing soil
microbial and biochemical properties, and threatening biodiversity.
There are two primary types of technology so far deployed: insect resistance (Bt) and
herbicide tolerance (HT). Both have drastic modes of action to kill the target species at high
efficiency. Bt crops contain a toxin lethal to certain insects, and Bt sprays have been used by
organic farmers as a last option to deal with certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up resistance to Bt, thereby rendering the organic
spray ineffective.71 Lab and field tests also indicate that common plant pests such as cotton
bollworms, living under constant pressure from GE crops, will soon evolve into "superpests"
completely immune to Bt sprays and other environmentally sustainable biopesticides. 72 In the
case of HT, the technology involves the combined use of a chemical herbicide and a GM plant.
The herbicide is generally a broad spectrum herbicide (commonly glyphosate or glufosinate)
which kills weeds while leaving the crop plant alive as it is genetically engineered to be
resistant to the herbicide. The herbicide acts to inhibit an essential enzyme that is found in all

plants and as a result is able to eliminate all weeds whereas most conventional herbicides are
selective in their action and target a limited number of weeds. Concern has been raised
regarding over-reliance on use of one or two herbicides in increased amounts over time which
leads to the emergence of herbicide resistant weeds. Also, the transfer of an herbicideresistance gene into a weed can convert it into a superweed. Pests and weeds will emerge that
are pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be
needed to get rid of the pests.73
It is a well-accepted fact that genetically engineered plants can move beyond the field sites
and cross with wild relatives.74 It is by nature a design of plants to cross pollinate to spread
genes further afield. Maize, oil seed rape, sugar beet, barley, among others, are wind and
insect pollinated, allowing pollen to travel large distances. In GM crop fields, pollen drift and
insect pollination create obvious problems for nearby non-GM or organic crops. 75 GM maize
could cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at
least 500-700 meters and still be viable and distances of several kilometers have even been
reported.76 But many experiments showed varying results and actual cross-pollinations were
observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop
species that are outcrossers, many environmental factors influence the maximum pollination
distance such as the size of pollen grains, the humidity in the air, and the wind
speed.77Brinjal is usually self-pollinated, but the extent of cross-pollination has been reported
as high as 48% and hence it is classified as cross-pollinated crop. The cone-like formation of
anthers favors self-pollination; but since the stigma ultimately projects beyond the anthers,
there is an ample opportunity for cross-pollination. The rates of natural cross-pollination may
vary depending on genotype, location, and insect activity. The extent of outcrossing has been
reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable
Research Development Centre; however the Indian researchers have reported 2 to 48%
outcrossing in brinjal varieties in India. Outcrossing primarily takes place with the help of
insects.78
The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically
modified yellow corn which contains the pesticide Bt in every cell, was found in white corn
tortilla chips in Florida, USA. Starlink had been approved for animal feed but not for human
consumption due to concerns about dangerous allergic reactions. The Starlink incident is often
cited to illustrate how difficult it is to keep genetically modified crops from spreading. 79
This gene flow to wild species is particularly alarming to environmentalists. The wild species
from which our agricultural plants originate are an important genetic resource for further plant
breeding if, for example, there is a requirement for improved resistance to climate change or
plant pests. Future plant breeding could be jeopardized if transgenes spread into these
resources. Similarly, agriculture in the centers of origin could be permanently damaged if
transgenes spread into regional landraces.80 Invasive species can replace a single species or a
whole range of species, and they can also change the conditions within ecological systems.
Crossing can cause losses in the genetic information of the original species, a reduction in
genetic diversity and an ongoing incremental change of genetic identity in the original plants.
It is hard to predict which species will become invasive. 81 Indeed, GM crops could threaten the
centers of crop biodiversity or outgrow a local flora to the detriment of native species. 82
Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees.
Concern has been expressed about the potential toxicity of the Bt toxin in corn pollen to the
monarch butterfly because initial laboratory studies showed increased mortality in larvae.
However, in another study it was believed that it is unlikely that a significant risk to those
butterflies exists.83
On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and
their effects on microbial properties and enzyme activities. Results showed that there was
persistence of said proteins in soil under 4-year consecutive cultivation of transgenic cottons.
Soil microbial biomass carbon, microbial activities, and soil enzyme activities (except urease
and phosphodiesterase) significantly decreased in soil under transgenic cottons. 84
In another review, it was stated that the direct effects of the plant that has been modified is of
the most concern since the introduction of transgenic proteins for pest and disease resistance

can involve the production of chemical substances that are potentially toxic to non-target soil
organisms, including mycorrhizal fungi and soil microfauna that are involved in organic matter
decomposition. Experimental studies have shown that the transgenic proteins Bt crystal toxin
and T4 lysozyme, though used to prevent insect damage to the above ground plant parts, are
not only present in root exudates but that they maintain biological activity after entering the
soil.85
As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which
include compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the
exhaustion of necessary minerals and nutrients that plants require. It was found that
glyphosate "locks up" manganese and other minerals in the soil so that they can't be utilized
by the plants that need them, and that it is toxic to rhizobia, the bacterium that fixes nitrogen
in the soil. There is likewise evidence showing that glyphosates can make their way to
groundwater supplies.86 In a study which tested the effects of the herbicide Roundup on six
species of larval amphibians from North America, it was demonstrated that when we "use
realistic exposure times and the frequently occurring stress of predators found in natural
ecologic communities, one of our most widely applied herbicides (Roundup) has the potential
to kill many species of amphibians." At the same time, the study noted that Monsanto
Corporation has recently released "an additional formulation of glyphosate (Roundup Biactive),
which contains a different (but unspecified) surfactant that is reported to be less toxic." 87
Evidence of Damage or Threat of Damage to Human Health and the Environment
Both petitioners and respondents submitted documentary evidence consisting of reports of
scientific studies and articles in support of their respective positions on the benefits and risks
of GM plants.
Further, the parties presented their respective expert witnesses who testified on the allegations
raised in the petition concerning damage or threat of damage to human health and the
environment resulting from the conduct of Bt talong field trials in the Philippines. The CA
conducted "hot tubbing," the colloquial term for concurrent expert evidence, a method used for
giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge can hear all the
experts discussing the same issue at the same time to explain each of their points in a
discussion with a professional colleague. The objective is to achieve greater efficiency and
expedition, by reduced emphasis on cross-examination and increased emphasis on professional
dialogue, and swifter identification of the critical areas of disagreement between the experts. 88
On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the
chairman and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina
and Dr. Malayang were presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and
Dr. Cario appeared for the respondents.
The following are summaries of the expert witnesses' judicial affidavits:
For Petitioners
DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow
serving as senior science advisor on agricultural biotechnology in the US Department of State,
and editor for plant physiology for McGraw-Hill Encyclopedia of Science and Technology.
In his review of agricultural biotechnology around the world, he has not encountered any
verifiable report of a field trial of any GM crop that caused damage to the environment and to
human health. This involves more than 25,000 field trials in 20 years with crops such
as Bteggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation
of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and
now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects
covering a period of more than 25 years of research involving more than 500 independent
research groups, show that consuming foods containing ingredients derived from GM crops is
no riskier than consuming the same foods containing ingredients from conventional crops. The
World Health Organization (WHO), American Medical Association, US National Academy of
Sciences, European Food Safety Authority (EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number
of poorly done studies purportedly claiming negative effects, should be viewed with great
caution and have been highly criticized for their veracity by the overwhelming majority of
highly respected scientists. Many hundreds of studies show no harmful effects. To date, not a
single rigorous study of GM foods in animals has revealed any adverse effect; not a single case
of allergy, illness, cancer, or death have been shown to be associated with foods derived from
GM crops, despite the fact that they have been consumed by Americans for 16 years.
Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding
those where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China
results in an increase in insect diversity and abundance and a decrease in crop damaging
insects not only in Bt crop fields but also in surrounding non-Bt fields.
GM crops deliver significant yield increases, result in less exposure to pesticides, improve food
security worldwide, protect against devastating crop losses and famine, improve nutrition, and
some GM crop techniques help combat climate change. 89
DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in
Agronomy (Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science
Research Specialist, Research Director at UPLB, UP Diliman, De La Salle University, Forest
Research Institute now Ecosystems Research and Development Bureau of DENR and the
Biotechnology Coalition of the Philippines.
From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton
that is also in Bt eggplant has been found safe by many food and environmental safety
regulatory agencies such as those in Australia, New Zealand, USA, Canada, Brazil, China,
India, Mexico, Argentina, South Africa, Japan and EU.
Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits
were for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials
have been reported. No report of adverse effects of Bt crop field trial exists. All claims of
adverse health and environmental effects of Bt crops has not been scientifically validated. The
yearly expansion of GM crop areas in both the developing and industrialized countries is an
attestation of the preference of farmers and the economic benefits that accrue to them.
GM crops have positive environmental impact. Currently commercialized GM crops have
reduced the adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly
reduced the use of pesticides, and also increased farmer incomes. 90
DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S.
Entomology (Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in
microbiology and biotechnology, Osaka University, Japan, and Intellectual Property
Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA. Director,
and Research Associate Professor, National Institute of Molecular Biology and Biotechnology
(BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems; former
Executive Director, Philippine Council for Industry, Energy and Emerging Technology Research
and Development, DOST; former Chair, Biosafety Committee, DOST; and was a Member of the
Institutional Biosafety Committees of UPLB and International Rice Research Institute (IRRI);
and was extensively involved in the isolation, bioassay or efficacy testing and development
of Bt as microbial insecticides for the control of Asian corn borer and mosquito larvae at
BIOTECH.
The contained field trial experiments, among others, were designed to address concerns on
cross-pollination or horizontal gene transfer, pollination distances, harm to beneficial
organisms, and development of insect resistance. To prevent cross-pollination, an isolation
distance of 200 meters from other areas where eggplants are grown or wild relatives are
present, was observed, and with five (5) rows of non-transgenic eggplants that serve as pollen
trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was not
mentioned is the viability of pollen after it was shed and travelled at a certain distance.
Numerous literatures have shown that isolation distances much less than 200 meters is
sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted

that cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable
Research and Development Center (AVRDC) indicated that eggplants produce perfect flowers
which may be cross-pollinated but self-pollination is more common, the extent of natural
crossing depends upon insect activity and this can be avoided by isolating each variety by 20
meters or with another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox
the recommended isolation distance; the 200 meters distance was found sufficient for pure
seed production in India (the same recommendation by Chen [2001] of AVRDC foundation for
seed production purity standards); field studies in 2 locations in India have shown that at a
distance beyond 30 meters no more outcrossing could be detected. Taking all these data into
account, the 48% outcrossing being raised by petitioners is most likely for adjacent plants and
therefore not a valid argument for the on-going field trials.
The Bt talong will not directly affect beneficial organisms like pollinators, predators and
parasites of insect pests because it is toxic only to caterpillars or insects belonging to Order
Lepidoptera (butterfly and moths). The selective toxicity of Bt protein in Bt talong is partly due
to the fact that the gut physiology of these insects is very different from caterpillars, and not
all caterpillars are affected by it. There is a significant number of literature on Bt protein's
selectivity and specificity.
As to the development of insect resistance, this is not possible during the multi-location field
trials for Bt talong because of low selection pressure and limited exposure of the insect pest
to Bt talong. Insect resistance is not unique to GM crops as it is a commonly observed
biological reaction of insect pests to control measures like insecticides. In the event Bt
talong is approved for commercialization and will be widely used by fanners, this concern could
be addressed by insect resistance management (IRM); an IRM strategy should be required
prior to the commercial release of Bt talong.
There is no compelling reason to stop the field trials; on the contrary they should be allowed to
proceed so that scientists and researchers will be able to generate valuable data and
information which will be helpful in making informed decisions regarding the usefulness of the
technology.91
For Respondents
DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley;
M.A. Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio
University; AB Philosophy, UP Diliman; former Undersecretary of Environment and Natural
Resources; served as Environmental Science representative in the National Biosafety
Committee of the Philippines and participated in the drafting of the Philippines Biosafety
Framework; and student, lecturer and advocate of biodiversity, food security, biosafety and
environmental policy.
He is concerned with how GMOs are being introduced for commercial-scale use (as against
being used for academic research) in the Philippines on the following grounds: (a) how they
might contaminate the indigenous genetic resources of the country; (b) how they may cause
an imbalance of predator-prey relationships in ecosystems, so that certain species might
dominate ecological niches and erode their biodiversity and ecological stability; (c) how they
may erode the ability of farmers to control their genetic resources to sustain their cropping
systems; and (d) how much are present biosafety protocols able to safeguard the long-term
ecological and economic interests of the Philippines as a particularly biodiversity-rich country
and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity
is its long-term equity to advances in biotechnology, the most robust measures must be taken
so that such resources will not be lost.
Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted
using a 3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first,
adopt a set of standards for determining the level of robustness of biosafety measures and
protocols that would be acceptable in the particular case of the Philippines; include required
scoping and internal and external validity requirements of impact and safety assessments;
Stage 2 - Using the criteria produced in Stage 1, develop biosafety measures and protocols to
be adopted in the Philippines; and Stage 3 - Apply the protocol with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country;
biosafety must be based on an enactment of Congress and open to challenge and adjudication
against international laws; provisions must be made to make it a crime against humanity to
recklessly erode and weaken genetic resources of our people. 92
DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and
Plant Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as
resource person in more than a hundred trainings and seminars, both local and abroad; served
as member in international agricultural assessment sponsored by Food and Agriculture
Organization (FAO), United Nations Environment Program (UNEP), WHO, and the World Bank;
worked on a project for development of resistance to corn borer in 1981 at the Institute of
Plant Breeding in UPLB, and served as researcher and later Associate Professor of
Environmental Management of the UP Open University.
Based on her studies and extensive experience, the Bt talong field testing poses the following
risks or hazards: (a) While natural Bt sprays used in organic farming have little effect on nontarget organisms because the bacterial 'pro-toxin' is in an inactive state and only becomes
toxic when processed and reduced in the gut of certain (targeted) species of insect larvae, in
contrast, Bt plants contain an artificial, truncated Bt gene and less processing is required to
generate the toxin because the toxin is already in its active form. It is therefore less selective,
and may harm non-target insects that do not have the enzymes to process the pro-toxin, as
well as the pests for which it is intended; (b) Bt proteins from natural Bt sprays degrade
relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within
several days to two weeks after application. In Bt crops, however, the Bt toxin is produced by
the internal system of the plants thus non-degradable by mere exposure to sunlight and
generated throughout the entire lifespan of the plant; (c) Bt talong can also affect the
environment by harming important or beneficial insects directly or indirectly. Genetically
engineered Bt eggplant, like other Btcrops, could be harmful to non-target organisms if they
consume the toxin directly in pollen or plant debris. This could cause harm to ecosystems by
reducing the numbers of important species, or reducing the numbers of beneficial organisms
that would naturally help control the pest species; (c) The evolution of resistance to Bt crops is
a real risk and is treated as such in ecological science throughout the world. If enough
individuals become resistant then the pest control fails; the pest becomes abundant and
affects crop yield. Granting the pest control practice is successful, it may also simply swap one
pest for another, a phenomenon known as secondary pest outbreak. Several studies have
shown that other pest insects are filling the void left by the absence of the one (or very few)
insect pests that Btcrops target, and this is now the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically
modified Bt talong will eventually lead to contamination of non-genetically modified eggplant
varieties. Insects, particularly honeybees, can fly as far as 4 kilometers and therefore the 200
meters perimeter pollen trap area in the confined field testing set by BPI is not sufficient. And
once contamination occurs, genetic cleanup of eggplant or any other plant is impossible.
Moreover, intra-specific gene flow from Bt talong to other varieties and populations of
eggplants should be examined, as cultivated eggplant (Solanum melongena) can cross breed
with feral populations of S. melongena, and it is possible that cultivated varieties can revert to
wild phenotypes. Additionally, there is likely to be natural crossing between Bt talong and wild
relatives. Hybridization with perhaps as many as 29 wild relative species needs to be evaluated
carefully and the consequences of any hybridization that occurs needs to be evaluated.
In 2010, the Minister of Environment and Forests of the Government of India, in his decision
for moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the
reasons why the release of Bt Brinjal was not allowed. Dr. Andow of the University of
Minnesota also published an 84-pages report on the Environmental Risk Assessment of Bt
Brinjal, and among his conclusions is that several environmental risks were not considered and
nearly all the risk assessment done were inadequate. He concluded that until the risks were
understood or managed, there seems to be little reason to approve Bt Brinjal release.93
DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta
University; Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation
Laboratory in the Council of Scientific and Industrial Research - Indian Institute of Chemical

Biology (CSIR-IICB); Member, Governing Body and Executive Committee of the state council of
Biotechnology, Government of West Bengal and Chairman of the Biotechnology group of the
state council of Science and Technology, Government of West Bengal; Visiting Professor of the
National Institute of Science, Technology and Development (CSIR-NISTAD); citizen of India
and resident of Kolkata, India.
GMO is a classic example of "paradoxes of consequences", where human actions have
unintended consequences, which are in direct opposition to what was intended. The difference
in controlled laboratory condition and standards, and real life open field level micro and macroenvironment pushes the advantage towards the target and non-target living system, with time.
The pest resistance to Bt toxin and development of herbicide tolerance (HT) in weeds is just a
matter of time. The decade long experience in Bt and Ht genes amply proves this point. If we
ignore this now - we are manufacturing a global environmental disaster - which will be a crime
against humanity. There is no way to recall these GMO from the environment.
Even the short term benefits of GM agriculture are not scale neutral, or location-independent.
It will help the monopoly agribusiness and the expenses of monopolistic competition or
cooperative organic farming. Hot climate and rich biodiversity is detrimental towards the
effectiveness of Bt constructs, and helpful towards unintended gene flow. Moreover, the genetic
manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided by
focused laboratory based screen of traits - rather than the host or the full natural product. The
GM labeling is avoided to cover up this major fault.
The tendency to avoid the available risk assessment, and test is very clear in the GM
agribusiness. Before going ahead with spread of this technology, even in a batter form, the
foremost task is to establish rigorous test and assessment procedures. There are excellent
available tools of preteomics, transcriptomics, and metabolomics for detailed compositional
analysis in our hand to do this. Please ask, why they are not being employed? In fact, there is
not a single centre to test GM products on behalf of the corporate GM Agribusiness house.
Thus, low level, long term toxicity of GM foods are yet to be tested. I believe the time has
come to establish a standardization facility to carry out such test facility in any country before
giving permission to GM trial or cultivation.94
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein
reproduced:
Dr. Cario:
ChanRoblesVirtualawlibrary

chanRoble svirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is
not supposed to be consumed at the moment still under field trial, so it is not supposed to be
eaten at the moment. It has not been released for food nor for feed and so in the context of a
confined field test, it has supposed to have it out in the field in a very controlled manner and
any produce that comes out from that area is supposed to be destroyed or kept from further
safety and analysis only.
Chairperson:

chanRoble svirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to
health?
Dr. Cario:

chanRoble svirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If
reporting of the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been
actually published on relative safety of CrylAcc protein and it is actually considered as an
additional protein and the various reviews can be seen in the OECD Digest of risk assessments
on CrylAcc protein. Alternatively, if you are looking at the possibility of harm coming from the
introduced protein as yet, we have not done a full blown assessment of it as of the moment.
But we look at the protein sequence and with a comparison of its sequence with other
sequences in the data basis to see if it is similar to this amino acid sequence of other known
toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that it is
not closely related to any of the known toxins that are found into its system.
Chairperson:

chanRoble svirtualLawlibrary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?
Dr. Cario:

chanRoble svirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify one point.
When any GM material is supposed to be introduced for food and for feed and before it is
actually utilized for life skill production, it goes through several steps. The first step is actually
the "lab", laboratory work and it is actually tested in this clean-houses, rolled-out confined
limited field test and then it goes tobutyl abyss of field tests where it is like generating more
and more informations. We are still early on in this pathway, so we are only in the confined
field test and, at the moment, the thing is that it is still being tested. The focus is on its
efficacy after doing a preliminary assessment of the possible pathological and ecological effect,
and that is the pathway that has been recommended by so many academics as well as
scientific institutions as well. And, that has been a tract followed by almost all the genetically
modified crops that is being introduced in the market today, but at the moment BT Talong is
not yet a commodity. It is not yet being evaluated as a commodity.
Chairperson:

chanRoble svirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?


Dr. Cario:

chanRoble svirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by human
beings because it has not been introduced as a commodity.
Chairperson:

chanRoble svirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of
course?
Dr. Cario:

chanRoble svirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it would not
to be evaluated in a step of the way much like to evaluate any new product that is coming into
the market evaluation, goes on a step-by-step and at least day-to-day basis.
Dr. Davies:

chanRoble svirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to make a
little bit of explanation.
Chairperson:

chanRoble svirtualLawlibrary

Proceed.
Dr. Davies:

chanRoble svirtualLawlibrary

I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of
all, I think of the name BT toxin is very fortunate. It is really a protein. A protein is an
essential constituent of life. It is an essential constituent of our food. In the human body, and
in the body of other animals, this protein is under the same as any other protein in food. It has
no effect on the human body. This has been shown for many, many years, knowing BT
Talong but BT has been a constituent of "maize" in commercial production for 16 years.
xxxx
Dr. Davies:

chanRoble svirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by
Americans in corn products and by any other people who in[g]est American maize corn

products x x x. There is not a single case of illness or toxicity or allergenicity that can be or
that has been associated with this protein and, therefore, any food containing this protein has
been declared by authorities in all the countries that was mentioned by my colleagues,
including the European Union and the United States x x x to be as safe as any food derived
from the same plant species not containing this gene. I hope that explains a little bit about
what it is.
Chairperson:

chanRoble svirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that
Monsanto's genetically modified corn is linked to cancer?
Dr. Davies:

chanRoble svirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric
Seralini? I think this is one of the publications by Seralini's group. Dr. Seralini's work has been
refuted by International committees of scientists...
xxxx
Dr. Chakraborty:

chanRoble svirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake
venoms. They are poisons, so whether it is protein or not that is not the question. So proteins
obviously venoms and proteins and enzymes and they are poisons so protein can be a poison
so that is now the point at all to be considered. The second thing is, yeah, low level toxins long
term in[g]estion of this BT toxin in human or in any other animal have not been tested. So that
is true so we do not know direct consumption of this, because notice have been turned down,
that is the objective fact. The third point is about the "American Corn", and if I can give you
such anecdotes, "American GM Corn" are not labelled, how do you know that? What is its
effect? What is its toxicity? And, obviously, there are more than a hundred of papers showing
and published in very good journals. I can give many references which have shown the
detrimental effect of BT Toxin.
xxxx
Chairperson:

chanRoble svirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper that it
should be first determined whether this food product is really safe for eating or not?
Dr. Cario:

chanRoble svirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex Alimentarius
of the WHO, the thing that you do at this early stage of development is to compare the
sequence of the protein that is being introduced with published sequence of allergens, as well
as toxicants and toxins. So that has been done. Then you have to look for instability under
heat conditions because there is seldom do we heat grow eggplants, so is it stable under
heating. Is it stable in the presence of digestive juices? And, if the answer is "yes", there is at
least fair certainty, a fair assurance that it is likely to be safe but then you start thinking of
what other component not present in the product, does this. For example, any product that we
consume today has something that is bad for you, otherwise, you will not see it right now.
Otherwise all the different herbivores will be eating it up, right? It will be extinct if it does not
have anything to protect itself and, so, the thing is one, to quantify how much of that has
changed when you lead the genetic modification. So "Talong" has been known to have
Solanine and glycoalkaloids whose level well have to quantify. We have not done that yet. They
have not submitted the data for that and this as secondary metabolize whose relative
concentration will change depending on the environment to which you actually place the
system.
Dr. Chakraborty:

chanRoble svirtualLawlibrary

x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton.
You known that BT Cotton was introduced in India through the back door black market entry.
During the field trial, some of those seeds were taken out and given to the farmers for
commercial cultivation to black market. Monsanto goes well, Monsanto's BT Cotton, like
Monsanto, did not sue now apparently sue the company and they compelled the government
that farmers wanted those things and there was high ... how they pressurized the government.
Now, in case of BT cotton is one thing, but BT Eggplant is completely a different thing. That is
why [the] Supreme Court in India has taken a very strong stand and, now, the parliamentary
committee in India. The Supreme Court has also taken steps stand with the field trial. The first
thing in field trial we had to see that whether there is a definite need of this kind of
intervention, because the eggplant is a very common vegetable in this part of the world. There
are so many hundreds of varieties here, these are the origins of these varieties of this kind of
vegetable. It is cheap. It is available everyday. So why you go on changing if there is no crisis
in cultivating the eggplants at present. Therefore, when you give it to this patented seeds
technology, its prices will increase, lot of restrictions had to be deal. So, who will consume this
high price eggplant. Many will be exported, that was why the proponents are looking into it.
But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being given.
There is a moratorium in India from the Supreme Court and from the government side on field
trial of BT Brinjal. Now, if x x x the BT Eggplant is being taken to the Philippines, we guess, to
get in as a bypass, and who will guarantee that it will not go to the farmers?
xxxx
Justice Antonio-Valenzuela:

chanRoble svirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the
effect of the planting .... of the existence of the genetically modified organism, for example, on
insects, on the soil, on the air? And then I was thinking, does this have this particular protein
that result[s] due to the genetic modification? Is it ... how is it expelled, for example how does
it go into the environment? Or, on the other hand, how does it go inside and out of human
system so that does it disintegrate or is it just there forever? I am very curious, sir. You have
to educate me.
Dr. Davies:

chanRoble svirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein
produced by each cell will be this BT protein. It does not get into the environment in general. A
very small amount might be in the pollen or in the leaves that fall to the ground but it has
been shown to be broken down in the soil by organisms so it will not exist in the environment.
The only way that it is going to get into animals or insects is if they eat the fruit and this is
what an insect that the "talong" fruit and shoot borer will be trying to. But, if it eats it, it reacts
with its intestine so that they become toxic to the caterpillar but this is very specific to the
digestive system of the caterpillar. It does not affect bees. It does not affect animals. It does
not affect humans.
xxxx
Dr. Davies:

chanRoble svirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific
receptors of the cells of the walls of the insect gut. But, this is very specific to the gut of these
insects namely the "Lepidoptera" and some "coleoptera" which are the butterflies and the
beetles but it will only affect if they try to eat the plant. Now, you are asking us if what is the
effect on the environment. x x x I would like to cite x x x a recent paper published in the
journal "Nature" x x x the most prestigious scientific journal in the world, x x x published in
"Nature" in June this year and this is the result of a study of "insects" in BT Cotton fields in
China in 17 locations for 14 years of a long period study. And these scientists revolt that they
show a marked increase in the abundance of three types of generalist arthropod predators
(ladywings, lacewings and spiders) and a decrease in abundance of aphid pests associated with
widespread adoption of Btcotton. And they are referring to China and they conclude that such
crops, x x x BT crops, can promote beneficial control services in agricultural landscapes. And, it
also showed that these effects extend beyond the field. So, essentially x x x they found that

there were more insects than in conventionally grown cotton and the insect diversity was
greater surrounded than being detrimental to an agriculture ecosystem such BT cotton falls
beneficial.
Dr. Chakraborty:

chanRoble svirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was
another news article, "Battlefield". One stream ecologist in United States itself, in a university,
she has studied the effect of growing BT Corn in the field and what is the effect on the stream
ecology, the west water, what is happening to other insects, insects in which it is getting
that BT toxin will not go. Yes, she has found that stream ecology...
xxxx
Dr. Chakraborty:

chanRoble svirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in
Illinois published that paper, published that article in PNAS or Proceedings of the National
Academy of Sciences, a prestigious journal? Now, they have to desert her. She was abused, so
her file was taken out. So people started e-mailing, threatening her. So "Nature" has to publish
that. How dirty the field has become so they entitled it "Battelfield." If anybody produces any
evidence that BT Toxin or GM Technology is doing any harm to the environment then it will be
battered by the entire English lobby so there is worst the situation. But National Academy of
Sciences in United States has taken a strong decision and, in last year, there were six
publications that published where strong evidences are being produced about the
environmental and ecological damage cause[d] by this technology. So, that is the case.
Dr. Davies:

chanRoble svirtualLawlibrary

Can I respond to that, your Honors?


Dr. Malayang:

chanRoblesvirtualLa wlibrary

I think Filipinos should be able to talk also here.


Chairperson:

chanRoble svirtualLawlibrary

Can we give a chance to Dr. Malayang?


Dr. Malayang:

chanRoblesvirtualLa wlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops, not
necessarily the intricacies of the science involved in genetic modification per se which, I think
our international friends, would like to focus on. x x x
One, I am concerned with the fallibility of technology, x x x even if it is much founded on or
produced from the most robust sciences, a technology could fail to be as useful as it was
intended or its use lead to an [unintended harm to humans and the environment. This is so
because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the best
technology did not necessarily translate to absolute safety.
Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced
production ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set
up a plant to take advantage of a large pesticide market in India to help the country's farmers
led to a massive and deadly safety failure.
The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic
chemicals for fertilizer and pesticides that were [at] the time hailed as wonder technologies.
Many scientists in the world at that time argued for their wider use but they later turned out to
harm people, soils and water. They prove good then bad, so bad that scientists today are using

their ill effects as justification for adopting alternative technologies to get us out of the
synthetic chemical regime in agriculture.
And finally, the most common example would be the unintended effects of medicine. x x x
Medicines are technologies intended to do good but, with even the best science and the vetting
processes using rigid safety and risk assessment methods, they still could cause side effects
entirely undesired and many of which can cause chronic or acute threats to human life. This
includes the use of "DDT" that was used to control lice among soldiers after the II World War
which, after all, proved to be very bad.
x x x I am also concerned with the fragility, fragility of the Philippine environment as the place
and context, the particular place and context of the introduction of BT crops like BT talong. x x
x the Philippines is among the world's biologically rich countries. x x x So, many of our insects
are not even fully known. We do not know how they all behave to influence the transfer of
genetic materials from plants to other plants. We do not fully know what we do not know about
the intricate interactions between plants and between insects and other living things that
define the universe of our healthful and balanced ecology. The universe of our healthful and
balanced ecology certainly go beyond specific crops. I am concerned that, absent a full as
against partial understanding of the intricate web of genetic flows and interactions among
plants, animals and other living things in our wet and tropical ecosystems, it will require
extraordinary care to tamper with any one element of this swirl of interrelationships. This is
notwithstanding the seeming preponderance of evidence of safety in other countries and
environment that are certainly not the same as ours. x x x we must be extra careful because
the effects might be irreversible. Introducing a genetically modified plant x x x could cause a
string of changes across many plants that, like the green revolution or in the case of medicine
and the two other cases cited above, could turn out and only to be realized much later to be
harmful to humans and the environment more than they were intended to be useful. x x x let
us ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our
high biodiversity this is a particular condition in the Philippines; and (2) tested for error levels
that are acceptable to or which can be tolerated by our people. My affidavit states a threestage approach to this. x x x the tests that we will be doing is a test process acceptable to all
as well rather than merely concocted or designed by just a few people x x x must be a product
of wider citizens' participation and reflect both scientific and traditional knowledge and cultural
sensitivity of our people. It is in the NBF after all, x x x introducing BT Talong in the Philippines
must be decided on the grounds of both science and public policy and public policy, in this
case, must involve full public disclosure and participation in accepting both the potential gains
and possible pains of BT Talong. The stakes, both positive and negative, are so high that I
believe BT Talong would require more public scrutiny and wider democratic decision making
beyond the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x
prudence requires that maximum efforts be exerted to ensure its safety beyond the
parameters of science and into the sphere of public policy. For to fail in doing so what might be
highly anticipated to be beneficial may in some twist of failure or precaution and prudence and
failure for due diligence to establish the safety of Bt Talong beyond reasonable doubt, the BT
Talong may turn out to be harmful after all. This we certainly do not want to do. I submit these
views to the Court.
xxxx
Dr. Davies:

chanRoble svirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market in the
Philippines and you see nice Talong, it has probably been treated with various insecticides. So,
there has been insecticide spray on your tips in your crops which are going to be harm on your
farmers, your farmer's children, the insect populations and also dangerous to the consumers
as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be beneficial to the
insects and the environment and also has been shown not to be toxic in food. Therefore, we
are changing a highly toxic chemical application for a much more benign modern technique
that is beneficial to the environment and beneficial to the consumers. That is my comment
with the views just made by my Filipino colleagues, your Honors.
Dr. Malayang:

chanRoblesvirtualLa wlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone
population or a reduction of that population it would still be both not beneficial to the healthful
and balanced ecological health of the ecosystem. So to say that because the population of
insects are exploded and the diversity of insects exploded as a result of this particular
intervention is not necessarily good. That is my first point. The second one, you mentioned x x
x the "talong" is laden with pesticide. The same pesticide were advised by scientists from the
USAID before for us to use in this country because this is how to expand our production of
food. This was part of the green revolution, the systemic use of pesticides and fertilizer. Now,
of course, they were misused, I can guarantee that but, again, if that be the case, in the case
of pesticide why can it not be in the case of BT that it can also be misused? x x x we are
talking here not of the science or of the technology but on the policy aspect of the adoption of
the technology. As I said, I am talking about the bakery not of a baked-bread.
Dr. Saturnina Halos:

chanRoble svirtualLawlibrary

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of
the use of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the
Philippines, we have a very strict highly monitored field testing and I think Dr. Malayang knows
about that because he was one of those who prepared the guidelines for the field testing. So
that is not going to happen, it is a very strict regulatory system. We are known for that,
actually, and...
xxxx
Dr. Saturnina Halos:

chanRoble svirtualLawlibrary

No, no. It does not happen because we have a risk management plan x x x.
xxxx
Dr. Halos:

chanRoblesvirtualLa wlibrary

x x x As far as do we know what is happening after we have given approval, yes, we are
monitoring. We are monitoring as far as BT cornis concerned. We are monitoring, continuously
monitoring, not only for the beneficial insects but also the effects that is continuing, we are
also continuing to monitor the weeds, weed population. In weed we decide to spray...
Dr. Malayang:

chanRoblesvirtualLa wlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?
Dr. Halos:

chanRoblesvirtualLa wlibrary

No we have to know what is happening.


Dr. Malayang:

chanRoblesvirtualLa wlibrary

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why
monitor?
Dr. Halos:

chanRoblesvirtualLa wlibrary

Well, we are going to give you the data for that because you keep on asking, you know, you
asked for a long term and we are going to give you that complete data.
xxxx
Dr. Medina:

chanRoble svirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies
mentioned that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins
are safe, Dr. Davies? Are you aware of anti-nutrients and allergens and other kinds of protein x

x x it is a misleading generalization. Secondly, I would like to say also that, when you say
that BT crops is beneficial to insect population but, how about humans? But, let me tell and
inform the Honorable Justices also that, in agriculture, there can be, the pests are there to
reduce the yield. There are also diseases so, that this Bt is only controlling one kind of pest
and, in my monitoring of BT corn as an example to this 2 years after the commercialization in
2003, at first planting in 2003, the corn is attacked by about a dozen insect pests and six
major diseases. The Bt corn was attacked a "stem rot", a fungal disease. And, in this case in
eggplant, there are many fungal diseases, "phomopsis" x x x So in that case it is not field safe
that you will not be using pesticide anymore with BT eggplant. When you use the BT eggplant,
assuming that there is no more insect pests x x x There are many other methods of control
and, therefore, do not assume that you do not use pesticide therefore, BT is the only
solution. That is also a risky and wrong generalization or statement, x x x Dr. Halos x x x says
that field tests are safe. I intend to disagree with that. Safe to what? Especially to
contamination. If I may use this picture of the field testing of the Bt eggplant x x x it was
encircled with cyclone wire with a diameter of something like approximately 10 cm. by 7 cm.
hole. While bees that can pollinate that, the size is about 1 cm. in length and .5 cm. in
diameter of the insect. The bees and, in that case, they can easily get in and get out and when
they settle into the flowers and snip nectars and the fall of the pollen then they can bring out
the pollen to contaminate outside that. In fact, even assuming that the fence is very small in
size of the mess, the holes, still the insects can fly above that fence because the fence is only
about 5 feet in height. So, in that case it is not safe. Some arguments say that "well the pollen
will be dead" but, according to this technical manual of the Training Workshop On Data
Collection for Researchers And Collaborators of Multi-Location Trials of Fruit and Shoot Borers
Resistant Eggplant, that is the Bt Eggplant produced by the Institute of Plant Breeding in UPLB
who is one of the main researchers the datas, here say according to "Rasco", cited by Dr.
Narciso, is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees
centigrade, with a relative humidity of 50 to 55. x x x Meaning to say, that pollen can survive.
This can fly as fast as something like 60 kilometers per hours so it just take may be 3 minutes
and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a bee in their
normal foraging.
xxxx
Dr. Medina:

chanRoble svirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they conclude
that it is safe when they have not monitored any potential pollen flow by insect mitigated or
insect mediated flow pollen? So, in that case, the conclusion or the statement is really beyond
what their data may be is if their data is about safety.
xxxx
Dr. Ebora:

chanRoble svirtualLawlibrary

xxxx
x x x I hope that we will be able to look at the experimental design and you will see that all the
things are properly addressed, our risk assessment was done step by step, x x x I beg to
disagree with my friend Dr. Medina because it is becoming ... we are confusing 2 things. We
are not referring to contained trial. We are referring to confined field trial and in the design of
this particular experiment, you have yourBT eggplant, your non-BT eggplant so that you can
compare the performance with the 2 crops. And, on design, you have 5 rows of
plantBT eggplants that will serve as a pollen trap. When we say pollen trap is that it just open
the pollen from the transgenic. It is going to be trapped by those plants, 5 rows, and then,
after that, you have a space of 200 meters surrounding the field which is the isolation
distance. That means no eggplant should be present in that particular distance because that is
the isolation distance that is found to be safe, x x x we know that Bt protein is very specific x x
x effective only against caterpillar x x x if they are eaten by other organism, they are not
affected because it is very specific. The gut of the larva is very alkaline while the gut of other
insects is likely acidic and, in that case, it does not have any harmful effect, x x x So another
thing is we are saying that it seems to be ridiculous that you are saying that honeybee is going
to fly from the fence and the size were even indicated. I would like to indicate that, that is not

the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is
quite, unfortunately, being done by other groups who are against the technology. x x x We
should be able to have our own space, our own time, considering the given regulation. Follow
them. But our experimentation not be destroyed because it is only then that we will be able to
get the valuable data that is needed for an informed decision. Without that we will not be able
to proceed and I hope we can discuss this based on the merits of the field trial, not from any
other concern because the writ ofkalikasan is about the effect of field trial in the environment.
Dr. Medina:

chanRoble svirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said
that the "CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some
species, if you can read by chemical and by physical research communications this is Volume
271, pages 54-58, authored by Vasquez Pardonnet, published in 2000, publication under letter
(b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small intestine. Small
intestine ay mammal po iyan so, meaning, it is a proxy animal for safety [testing] to humans
because we are also mammals so, the mice are usually the mammals 12 years ago, the data
has been already there that there is binding site, therefore it is not only specific to insects but
also to mammals. x x x he is saying that, by working on the natural BT is the same as the
transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids.
And the transformed GM Crop contains a fragment of that BT gene which is only half of that.
And the mechanism, by the way, x x x the natural toxin is broken into smaller pieces inside the
intestine of the insects because it is alkaline in terms of its system "ph" and for humans acidic.
So it does not work. But, because the transformed BT is already half, almost half of the normal
or natural[ly] occurring BT protein, it is already activatedand, in that case, that is the reason
why there is a test and immediate effect to non-insect, meaning, to mammal, so that is the
explanation of scientist doing studies on that aspect.
x x xx
Dr. Chakraborty:

chanRoble svirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear
vision; x x x I will give some example. Yes, BTtoxin, was it really good biological control agent?
But it is a completely different gene when you produce it into an edible plant inside genetically.
So, these are 2 different things. What will happen? We are scared that the efficacy, the use
of BT toxin as a spray, as biological control agent, will be vanished because now there will be
resistance against those in BT toxin, x x x resistance is coming very quickly, just like antibiotic
resistance, x x x The second thing, I have asked many plant biologists this simple question,
simple honest question. Do you know any plant that can kill a bee or a moth? No! There is no
way, why? Because those are the "pollinators". Plant never kills a bee or a moth that goes
against nature, x x x So, nature, for thousands of years, farmers help select or adopt edible
non-toxic plants. And, now, with the high science we are converting them, non-toxic edible
plant into a toxic plant. So not only toxic for the human, for the root microorganisms, x x x
Those eggplants are not only for humans to consume. So human effect, we do not know but
what will be the effect? Who will mind the effect? Is it the animal which goes through it? x x x
in India, x x x farmers x x x while growing BT cotton x x x the leaves and other they use to
attract animals to eat. x x x they found suddenly one thing that the BT cotton plants are not
touched by those buffalos, those cows, those [boars], but they can distinguish which is BT and
non-BT. x x x and when their animals started dying in some cases, they always blame, it is this
animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed
plants are there and we are converting one safest plant into a poisonous and toxic plant and
what is the effect on the root microorganisms on the degrading animals and other? We do not
know. That hard thing is the tunnel vision, the confined field trial, x x x why implement this
confined field trial? Is this safe? Why do they have to do this x x x these things do good for a
normal hybrid that is something but for the gene concept we cannot follow the same
separation rules, same rules? So those are used, those separation distincts, those parameters
are used not for the gene. So, which is the safe field trial protocol for the gene plants? We do
not know. So there goes against [the] writ ofkalikasan.
xxxx

Justice Antonio-Valenzuela:

chanRoble svirtualLawlibrary

How much is the increase in crop yield? x x x


Dr. Halos:

chanRoblesvirtualLa wlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is actually
taken by our own Filipino scientists, Dr. Lluroge and Dr. Gonzales.
xxxx
Dr. Malayang:

chanRoblesvirtualLa wlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of
corn so, you mean to say that corn production in the country has gone up and, because of
that, you are saying that 24% and the income of farmers had gone up as well? Do you mean
to say that the price of com had also gone up as a result of the increase in the volume of com
production in the Philippines?
Dr. Halos:

chanRoblesvirtualLa wlibrary

Well, the price is dictated by the market.


Dr.Malayang:

chanRoblesvirtualLa wlibrary

That is precisely the point.


Dr. Halos:

chanRoblesvirtualLa wlibrary

Yes.
Dr. Malayang:

chanRoblesvirtualLa wlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a
technology such as GM Com or GM Talong affecting market there is also not only the
regulatory but economic regime that is attendant to it that makes adjustments. So it may not
be harmful to humans because we will not come out when we eat it but it might be harmful to
the economy of a particular agricultural crop. x x x
xxxx
Dr. Ebora:

chanRoble svirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and
those are independent studies. And, precisely, this is to determine the effect on natural
enemies and the different insects x x x and some of those are already available, x x x you will
be able to protect the environment only if you know how to have a proper information in
making the decision. So, again, I am saying that, in field trial, you will be generating a lot of
information that you will be able to use in making a wise decision and informed decision.
x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty
regarding butterflies and moths. Because they are not affected by BT because they are adult
insects. The only one that is affected are actually the larva, not even the pupa. So, we would
like that to be clear because it might create confusion.
The other thing in resistance, x x x even conventionally bred plant [loses] resistance after
sometime and that is the reason why we have a continuous breeding program. So, it is a
natural mechanism by an organism as mode of ad[a]potation. x x x are you telling us that we
are going to stop our breeding work because, anyway, they are going to develop resistance. I
think it is a wrong message x x x.
The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In

toxicology, you can have the effect if you have, for example, the insects, you have a receptor.
The toxin will bind into the receptor. Toxin has to fall and then the toxin has re-insert into the
membrane. If you eliminate one of those steps you do not have any toxicity. So, that means
binding by itself will not be toxicity. It is a wrong impression that, since you have binding,
there will be toxicity. It is simply wrong because, the actuality that it should bind, it should fall
then, it should insert, and it is a very common x x x. To say that binding is equivalent to
toxicity is simply not true.
The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin
is basically the entire crystal protein. If it is already inside the gut of the insect it has to be
clipped by the purchase coming from the gut and you have it activated and you have the toxin.
So what you have in plant is already the toxin since the anther and the toxin, and the toxin in
microorganisms, the anther which are already clipped by a purchase are the same. So, to say
that they are different is actually wrong. You are comparing protoxin and toxin.
x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and
that is why you have to characterize them and you have to separate the protein that are
causing problem and protein that are not causing problem. That is why you have allergen and,
as explained by Dr. Cario, you have to check the sequence. x x x
xxxx
Dr. Chakraborty:

chanRoble svirtualLawlibrary

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of
the production not that much into the safety. You have to look into it carefully that how much
will get this efficacy, not the safety to that extent x x x. Second point x x x there is this already
mentioned that European Union there is no consensus, x x x they have published and
submitted the systemic list of genetically modified crop need for new approach in risk
assessment. So that is what is needed. There is another article, how does scientific risk
assessment of GM crop fit within wider risk analysis, x x x This is genetic engineering. The
production process is very precise in selecting the inserted gene but not in its enhancement, x
x x they are never looking into it. The second thing, they do not look into that from the
laboratory condition to what is the real life situation. They do not take that into account x x x
so this assessment protocol has to be modified or changed, x x x in the IAASTD or
International Assessment of Agricultural Knowledge, Science and Technology for Development.
There is a supreme body, so many nations, so many experts, scientists x x x. Only sustainable
agricultural practice and that is the only alternative. This GM technology is not going to help
them x x x In my country also, when the BT toxin evaluation was there, everybody was telling
that this is pro-poor, this is scale neutral so, everybody will be benefitted by that. So, we
started questioning, x x x "What are the actual economic analysis indeed? Just show me".
Then, they come up with an answer. Scale neutral means that even small farmers initially
wanted BT cotton and big farmers also wanted BT cotton. They are partisans. It is not the
economic benefit because, economically, it is not going to be beneficial so it is very much scale
dependent its benefit. So, only the big farmers, large farmers and x x x the vegetable field you
never can give separation. Chances you never can give refuge. The 1/5 of the land given for
growing pests so that you cannot do. So it cannot help technology. They have developed this
technology for partisan large scale farming to completely automated for BT technology where
no label will be there. But the failed experiments, the contracts whose patent will be over
within 2-3 years, they are testing them in our country. So that is the bottom line.
xxxx
Chairperson:

chanRoble svirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.


The issue that the Court is really interested to resolve is whether or not the conduct of the field
trial of BT Talong by the respondents has violated or has threatened to violate the right of the
people to a balanced and healthful ecology. Is there absolute certainty that it has not so
violated such right. Because that is the requirement for applying or not applying the
precautionary principle, x x x

Dr. Cario:

chanRoble svirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...
Chairperson:

chanRoble svirtualLawlibrary

But there is no absolute certainty?


Dr. Cario:

chanRoble svirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures and they
did not show us, you know, there is no evidence of harm that has been shown to this Court.
There is no evidence at all.
Chairperson:

chanRoble svirtualLawlibrary

That is your opinion.95


As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of
contention between the expert witnesses, i.e., the safety of Bt talong to humans and the
environment. Evidently, their opinions are based on contrasting findings in hundreds of
scientific studies conducted from the time Bt technology was deployed in crop farming. These
divergent views of local scientists reflect the continuing international debate on GMOs and the
varying degrees of acceptance of GM technology by states especially the developed countries
(USA, EU, Japan, China, Australia, etc.).
ChanRoblesVirtualawlibrary

Before proceeding to the current state of global GMO research, we briefly address the strong
objection of petitioners to the CA's reliance on the research conducted by Prof. Seralini, the
French scientist whose study was published in September 2012 in Food and Chemical
Toxicology, which was criticized as a "controversial feeding study." Seralini studied rats
consuming Monsanto's Roundup Ready treated corn for two years (using the same kind of rats
prone to tumors used by Monsanto in obtaining original approval for its product and the same
methodologies, but did it for 2 years which is longer than the 90-day experiment period done
by Monsanto). The rats formed massive cancerous tumors. All three test groups of rats, with
10 rats in each group, died more frequently, suffered from liver problems, and had a
pronounced number of tumors specifically with grotesque mammary and testicular tumors. 96
Seralini's findings created an uproar and the study was expunged from the publication in
November 2013 even though the Editor-in-Chief found no evidence of fraud or intentional
misrepresentation of the data. Seralini stood by his work and further conducted similar
laboratory experiments. Critics faulted the experimental method, saying the number of rats
studied was too small and their diet was skewed when compared with their natural food intake.
But over 300 scientists condemned the retraction, they said that the retraction lacked scientific
integrity and requested to reinstate the study. Last June 2014, Seralini's controversial study
was republished and has passed a third peer review arranged by the journal that is
republishing the study,Environmental Sciences Europe. The republished version contains extra
material addressing criticisms of the original publication and the raw data underlying the
study's findings, and accompanied by a separate commentary by Prof. Seralini's team
describing the lobbying efforts of GMO crop supporters to force the editor of the Food and
Chemical Toxicology to retract the original publication.97
The aforesaid incident serves to underscore the crucial role of scientists in providing relevant
information for effective regulation of GMOs. There can be no argument that "[s]ince scientific
advice plays a key role in GMO regulations, scientists have a responsibility to address and
communicate uncertainty to policy makers and the public." 98
GMOs: The Global Debate
The uncertainties generated by conflicting scientific findings or limited research is not
diminished by extensive use at present of GM technology in agriculture. The global area of GM
crops has reached over 175 million hectares in 2013, more than a hundredfold increase from
1.7 million hectares in 1996.99 However, the worldwide debate on safety issues involving GM

foods continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very
nature of the technology itself. The process of combining inter-species genes, which is called
recombinant DNA technology, does not have the checks and balances that are imposed by
nature in traditional breeding. Because of this there is a risk of genetic instability. This means
that no one can make any accurate predictions about the long-term effects of GMOs on human
beings and the environment. Extensive testing in this regard is either very expensive or
impractical, and there is still a great deal about the process that scientists do not
understand.100
The basic concepts for the safety assessment of foods derived from GMOs have been
developed in close collaboration under the auspices of the Organization for Economic Cooperation and Development (OECD) and the United Nations World Health Organization (WHO)
and Food and Agricultural Organization (FAO). The OECD's group of experts on biosafety
recommended conducting the safety assessment of a GM food on case-by-case basis through
comparison to an existing food with a long history of safe use. Thus, the concept of substantial
equivalence was developed that is widely used by national and international agencies,
including the US Food and Drug Administration (FDA), the WHO, OECD and the FAO. 101
"Substantial equivalence embodies the concept that if a new food or food component is found
to be substantially equivalent to an existing food or food component, it can be treated in the
same manner with respect to safety (i.e., the food or food component can be concluded to be
as safe as the conventional food or food component)."102 The safety assessment of a
genetically modified food is directed by the results of a comparison between the genetically
modified food and its conventional counterpart. It follows a stepwise process aided by a series
of structured questions. Factors taken into account in the safety assessment include:
identity;
source;
composition;
effects of processing/cooking;
transformation process;
the recombinant DNA (e.g. stability of insertion, potential for gene transfer);
protein expression product of the novel DNA:
effects on function;
potential toxicity;
potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or
metabolic pathways, including composition of critical macro, micro-nutrients, anti-nutrients,
endogenous toxicants, allergens, and physiologically active substances; and,
potential intake and dietary impact of the introduction of the genetically modified food. 103
The above factors are particularly pertinent to the assessment of foods derived from
genetically modified plants.104 However, the concept of substantial equivalence as the starting
point of risk assessment was criticized for being "unscientific and arbitrary" and "intentionally
vague and ill-defined to be as flexible, malleable, and open to interpretation as possible." It is
likewise argued that "comparisons are designed to conceal significant changes resulting from
genetic modifications," "the principle is weak and misleading even when it does not apply,
effectively giving producers carte blanche", and that there is insufficiency of background
information for assessing substantial equivalence. A paper presented at a WHO workshop
pointed out that the main difficulty associated with the biosafety assessment of transgenic
crops is the unpredictable nature of transformation. This unpredictability raises the concern
that transgenic plants will behave in an inconsistent manner when grown commercially.105

ChanRoblesVirtualawlibrary

The method of testing GM foods was further described as inadequate, as currently the testing
procedures consist almost exclusively of specific chemical and biochemical analytical
procedures designed to quantitate a specific nutrient or a specific toxin or allergen. It was
noted that in actual practice, the investigator compares only selected characteristics of the
genetically engineered food to those of its non-genetically engineered counterpart. These
testing schemes are viewed as completely incapable of detecting unsuspected or unanticipated
health risks that are generated by the process of genetic engineering itself. Hence, clinical
tests are recommended because only such tests have the broad specificity and relevance to
human physiology needed to detect the wide range of allergens and toxins that might result
from unexpected side-effects of the genetic engineering process. 106
In another review article, it was pointed out that since a genetic modification is aimed at
introducing new traits into organisms, the result will always be a different composition of genes
and proteins. The most reasonable interpretation therefore is that a food derived from a GMO
is considered substantially equivalent to its traditional counterpart if the genetic modification
has not resulted in intended or unintended alterations in the composition of relevant nutrients
and inherent toxicants of the organism, and that the new genes and proteins have no adverse
impact on the dietary value of the food and do not therefore pose any harm to the consumer
or the environment. It was thus concluded that establishing substantial equivalence is not a
safety assessment in itself, but is a pragmatic tool to analyze the safety of a new food, and
hence in the testing of new foods, the latest scientific methods have to be used. All conceivable
efforts to protect consumers from health risks should thus be made, and at the same time,
consumers should be adequately informed about the real extent of risks and hazards. 107
The GMO global debate has so intensified that each side has accused the other camp of
mounting "paid advocacy" and criticizing studies adverse to their respective positions as flawed
or unscientific. Both the agri-business industry, and groups opposed to GMOs including the
organic farming industry, had utilized enormous resources and funds for lobbying and media
campaigns locally and internationally.
What appears to be highlighted in the promotion of GM crop production is the marked
reduction in the use of harmful chemical pesticides. 108 The resulting increase in crop yields
grown on relatively small parcels of land is also regarded as a solution to the problem of
feeding a fast growing world population. Proponents of GM biotechnology insist that GM foods
are safe to humans and the environment based on scientific studies. On the other hand, antiGM activists disseminate adverse results of recent studies confirming the health and
environmental hazards of genetically engineered crop farming. Also, some countries have
maintained a firm stance against genetically engineered crops or GM foods, such as France and
Austria. Over the years, however, accumulated evidence of the dangers of GMOs, as well as
unrealized socio-economic benefits, has been increasingly recognized by the scientific
community.
That GE farming increases crop yield has been debunked by new studies proving the contrary.
In the article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible
Technology cited reports from actual field studies in different countries revealing downward
figures for Bt crops, as summarized below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.
Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade
- with the disruptive effect of the GM transformation process accounting for approximately half
the drop in yield.
Based on a comprehensive evaluation of yield since the introduction of commercial GM crops,
the International Assessment of Agricultural Knowledge, Science and Technology (IAASTD)
noted that GM crop yields were "highly variable" and in some cases, "yields declined".
The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peerreviewed studies conducted by academic scientists using adequate controls, concluded that
genetically engineered herbicide tolerant soybeans and herbicide-tolerant corn has not
increased yields while insect-resistant corn has only marginally improved yields. Traditional
breeding outperforms genetic engineering hands down.

In developing countries, crop failure can have severe consequences as illustrated in India,
where a large number of cotton farmers, unable to pay back high interest loans, have
committed suicide. Several investigations have implicated the unreliable performance
of Btcotton as a major contributor.
Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest
problems and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to
22,500 by 2002. As of 2004, 85% of the original Bt cotton farmers had given up while those
remaining had to be subsidized by the government. Similarly in the US, Bt cotton yields are
not necessarily consistent or more profitable.109
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports
corporate control and impedes common persons' access to adequate food. The root cause of
hunger is not a lack of food, GM critics say, but a lack of access to food. The poor lack money
to buy food and lack of land on which to grow it. It is essential to follow sustainable traditional
farming practices that keeps food production in the hands of small-scale farmers, thereby
reducing corporate control.110
ChanRoblesVirtualawlibrary

As regards the existing uncertainties of potential long-term effects of the release into the
environment of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term
Effects) study of 2009,111 made for the European Commission, analyzed more than 700
scientific publications from all over the world about GMOs and their potential effects on
environment including biodiversity, and received contributions to online surveys from 100 to
167 invited environmental experts. This study declared the following uncertainties:
increased fitness of GM plants;
outbreeding depression after hybridization with wild relatives;
outcrossing between related species and the fate of a transferred GM trait;
altered flower phenology;
altered fecundity, increasing seed (gene) flow;
increased frequency of horizontal gene flow;
resistance development of pests;
effects on non-target organisms;
effects on non-target organisms due to altered nutritional composition of the GM plant;
effects on non-target organisms due to accumulation of toxic compounds;
effects on rhizo sphere microbiota;
effects on symbiotic non-target organisms;
changes in soil functions caused by GM traits;
effects on biological control;
altered use of agrochemicals;
indirect changes in susceptibility of crops against pathogens;
adverse effects on agro-biodiversity;
indirect effects in fertilizer use;
potential changes in landscape structure;

increased production of greenhouse gases;


increased mineral nutrient erosion and fertilizer leaching;
altered chemical attributes of soil fraction;
emerging of stacked events;
the necessity of regional differentiation of risk assessments. 112
A critical observation was made on the argument that there is not enough evidence to reject
the hypothesis that GMO and GM food is safe. The fact emphasized was that experiments
designed to clarify potential adverse effects on health or the environment are nearly absent in
peer-reviewed journals. Scientific uncertainty, omitted research areas, and lack of basic
knowledge crucial to risk assessments have become apparent. The present uncertainty
warrants further research and it has been demonstrated that there is a risk of bias relying on
hypotheses that dominate mainstream science. There is therefore a need for independent
research that is without prejudice and unbiased by economic and professional interests. 113 In
another article it was noted that the clinical trials carried out to ensure that negative
externalities do not affect humans and the environment are conducted by the same private
firms that created the products, raising conflict of interest concerns. 114
ChanRoblesVirtualawlibrary

While existing literature on health effects of GM foods indicates that they are generally safe,
and similar conclusions have been drawn by government agencies and scientific organizations
such as FAO/WHO and Society of Toxicology, a growing number of independent scientists have
spoken strongly against such generalizations from limited research mostly sponsored by
biotech companies.
In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists
from 82 countries expressed that they are extremely concerned about the hazards of GMOs to
biodiversity, food safety, human and animal health, and demanded a moratorium on
environmental releases in accordance with the precautionary principle. They are opposed to
GM crops that will intensify corporate monopoly, exacerbate inequality and prevent the
essential shift to sustainable agriculture that can provide food security and health around the
world, and called a ban on patents of life forms and living processes which threaten food
security, sanction biopiracy of indigenous knowledge and genetic resources and violate basic
human rights and dignity.115
On May 10, 2003, dozens of prominent scientists from various disciplines banded together as
an Independent Science Panel on GM at a public conference in London. On June 15, 2003, they
released a Final Report116 as their contribution to the National GM Debate in UK. In a
summary117 of the final report, these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?
1. GM crops failed to deliver promised benefits
o No increase in yields or significant reduction in herbicide and pesticide use
o United States lost an estimated $12 billion over GM crops amid worldwide rejection
o Massive crop failures of up to 100% reported in India
o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for
investors"
2. GM crops posing escalating problems on the farm
o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"
o Triple herbicide-tolerant volunteers and weeds emerged in North America
o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests


3. Extensive transgenic contamination unavoidable
o Extensive transgenic contamination found in maize landraces in remote regions of Mexico
o 32 out of 33 commercial seed stocks found contaminated in Canada
o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional
o There can be no co-existence of GM and non-GM crops
4. GM crops not safe
o GM crops have not been proven safe: regulation was fatally flawed from the start
o The principle of 'substantial equivalence', vague and ill defined, gave companies complete
licence in claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'
5. GM food raises serious safety concerns
o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed
to the transgenic process or the transgenic construct, and may hence be general to all GM food
6. Dangerous gene products are incorporated into food crops
o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many nontarget insects, and some are potent immunogens and allergens for humans and other
mammals
o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines
known to suppress the immune system, or linked to dementia, neurotoxicity and mood and
cognitive side effects; vaccines and viral sequences such as the 'spike' protein gene of the pig
coronavirus, in the same family as the SARS virus linked to the current epidemic; and
glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system and
recombine with viruses and bacteria to generate new and unpredictable pathogens.
7. Terminator crops spread male sterility
o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing
the spread of transgenes, actually spread both male sterility and herbicide tolerance traits via
pollen.
8. Broad-spectrum herbicides highly toxic to humans and other species
o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently
account for 75% of all GM crops worldwide, are both systemic metabolic poisons
o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and
haematological toxicities, and birth defects in humans and mammals; also toxic to butterflies
and a number of beneficial insects, to larvae of clams and oysters,Daphnia and some
freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and fungi,
especially those that fix nitrogen.
o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and
disturbances to many body functions have been reported after exposures at normal use levels;
glyphosate exposure nearly doubled the risk of late spontaneous abortion, and children born to
users of glyphosate had elevated neurobehavioral defects; glyphosate retards development of
the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is genotoxic in

mammals, fish and frogs; field dose exposure of earthworms caused at least 50 percent
mortality and significant intestinal damage among surviving worms; Roundup (Monsanto's
formulation of glyphosate) caused cell division dysfunction that may be linked to human
cancers.
9. Genetic engineering creates super-viruses
o The most insidious dangers of genetic engineering are inherent to the process; it greatly
enhances the scope and probability of horizontal gene transfer and recombination, the main
route to creating viruses and bacteria that cause disease epidemics.
o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes
in the laboratory millions of recombinant viruses that have never existed in billions of years of
evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant
materials and tools of genetic engineering, as much as for the intentional creation of bioweapons.
10. Transgenic DNA in food taken up by bacteria in human gut
o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of
human volunteers; antibiotic resistance marker genes can spread from transgenic food to
pathogenic bacteria, making infections very difficult to treat.
11. Transgenic DNA and cancer
o Transgenic DNA known to survive digestion in the gut and to jump into the genome of
mammalian cells, raising the possibility for triggering cancer
o Feeding GM products such as maize to animals may carry risks, not just for the animals but
also for human beings consuming the animal products
12. CaMV 35S promoter increases horizontal gene transfer
o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be
especially unstable and prone to horizontal gene transfer and recombination, with all the
attendant hazards: gene mutations due to random insertion, cancer, re-activation of dormant
viruses and generation of new viruses.
13. A history of misrepresentation and suppression of scientific evidence
o There has been a history of misrepresentation and suppression of scientific evidence,
especially on horizontal gene transfer. Key experiments failed to be performed, or were
performed badly and then misrepresented. Many experiments were not followed up, including
investigations on whether the CaMV 35S promoter is responsible for the 'growth-factor-like'
effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating
problems on the farm. Transgenic contamination is now widely acknowledged to be
unavoidable, and hence there can be no co-existence of GM and non-GM agriculture.
Most important of all, GM crops have not been proven safe. On the contrary,
sufficient evidence has emerged to raise serious safety concerns, that if ignored
could result in irreversible damage to health and the environment. GM crops should
therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all
aspects relevant to health and the environment. In addition, they bring food security and social
and cultural well being to local communities everywhere. There is an urgent need for a
comprehensive global shift to all forms of sustainable agriculture. 118
In 2008, a Global Report119 was released by the International Assessment of Agricultural
Knowledge, Science and Technology for Development (IAASTD), a three-year international
collaborative effort (2005-2007) developed out of a consultative process involving 900

participants and 110 countries from all over the world. This global initiative assessed
agricultural knowledge, science and technology (AKST) in relation to meeting development and
sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health and
rural livelihoods; and (3) facilitating social and environmental sustainability. The report
concluded that a radical transformation of the world's food and farming systems - especially
the policies and institutions that affect them - is necessary if we are to overcome converging
economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have
primarily benefited the better-resourced groups in society and transnational corporations,
rather than the most vulnerable ones. In general, the IAASTD found little evidence to support
a conclusion that modern biotechnologies are well suited to meeting the needs of small-scale
and subsistence farmers, particularly under the increasingly unpredictable environmental and
economic conditions tha they face.120
More recently, in 2013, the European Network of Scientists for Social and Environmental
Responsibility (ENSSER), an international group of more than 90 scientists, academics and
physicians, released a statement that there is no scientific consensus on the safety of GM
foods and crops.121 The statement122 is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety
As scientists, physicians, academics, and experts from disciplines relevant to the scientific,
legal, social and safety assessment aspects of genetically modified organisms (GMOs), we
strongly reject claims by GM seed developers and some scientists, commentators, and
journalists that there is a "scientific consensus" on GMO safety and that the debate on this
topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety does
not exist. The claim that it does exist is misleading and misrepresents the currently available
scientific evidence and the broad diversity of opinion among scientists on this issue. Moreover,
the claim encourages a climate of complacency that could lead to a lack of regulatory and
scientific rigour and appropriate caution, potentially endangering the health of humans,
animals, and the environment.
Science and society do not proceed on the basis of a constructed consensus, as current
knowledge is always open to well-founded challenge and disagreement. We endorse the need
for further independent scientific inquiry and informed public discussion on GM product safety
and urge GM proponents to do the same.
Some of our objections to the claim of scientific consensus are listed below.
1. There is no consensus on GM food safety
Regarding the safety of GM crops and foods for human and animal health, a comprehensive
review of animal feeding studies of GM crops found "An equilibrium in the number [of]
research groups suggesting, on the basis of their studies, that a number of varieties of GM
products (mainly maize and soybeans) are as safe and nutritious as the respective
conventional non-GM plant, and those raising still serious concerns". The review also found
that most studies concluding that GM foods were as safe and nutritious as those obtained by
conventional breeding were "performed by biotechnology companies or associates, which are
also responsible [for] commercializing these GM plants".
A separate review of animal feeding studies that is often cited as showing that GM foods are
safe included studies that found significant differences in the GM-fed animals. While the review
authors dismissed these findings as not biologically significant, the interpretation of these
differences is the subject of continuing scientific debate and no consensus exists on the topic.
Rigorous studies investigating the safety of GM crops and foods would normally involve animal
feeding studies in which one group of animals is fed GM food and another group is fed an
equivalent non-GM diet. Independent studies of this type are rare, but when such studies have
been performed, some have revealed toxic effects or signs of toxicity in the GM-fed animals.
The concerns raised by these studies have not been followed up by targeted research that

could confirm or refute the initial findings.


The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent
research calls of the European Union and the French government to investigate the long-term
health impacts of GM food consumption in the light of uncertainties raised by animal feeding
studies. These official calls imply recognition of the inadequacy of the relevant existing
scientific research protocols. They call into question the claim that existing research can be
deemed conclusive and the scientific debate on biosafety closed.
2. There are no epidemiological studies investigating potential effects of GM food
consumption on human health
It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects.
However, no epidemiological studies in human populations have been carried out to establish
whether there are any health effects associated with GM food consumption. As GM foods are
not labelled in North America, a major producer and consumer of GM crops, it is scientifically
impossible to trace, let alone study, patterns of consumption and their impacts. Therefore,
claims that GM foods are safe for human health based on the experience of North American
populations have no scientific basis.
3. Claims that scientific and governmental bodies endorse GMO safety are
exaggerated or inaccurate
Claims that there is a consensus among scientific and governmental bodies that GM foods are
safe, or that they are no more risky than non-GM foods, are false.
For instance, an expert panel of the Royal Society of Canada issued a report that was highly
critical of the regulatory system for GM foods and crops in that country. The report declared
that it is "scientifically unjustifiable" to presume that GM foods are safe without rigorous
scientific testing and that the "default prediction" for every GM food should be that the
introduction of a new gene will cause "unanticipated changes" in the expression of other
genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of
these changes identified in the report included the presence of new or unexpected allergens.
A report by the British Medical Association concluded that with regard to the long-term effects
of GM foods on human health and the environment, "many unanswered questions remain" and
that "safety concerns cannot, as yet, be dismissed completely on the basis of information
currently available". The report called for more research, especially on potential impacts on
human health and the environment.
Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology.
For example, a statement by the American Medical Association's Council on Science and Public
Health acknowledged "a small potential for adverse events ... due mainly to horizontal gene
transfer, allergenicity, and toxicity" and recommended that the current voluntary notification
procedure practised in the US prior to market release of GM crops be made mandatory. It
should be noted that even a "small potential for adverse events" may turn out to be significant,
given the widespread exposure of human and animal populations to GM crops.
A statement by the board of directors of the American Association for the Advancement of
Science (AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to
represent the view of AAAS members as a whole and was challenged in an open letter by a
group of 21 scientists, including many long-standing members of the AAAS. This episode
underlined the lack of consensus among scientists about GMO safety.
4. EU research project does not provide reliable evidence of GM food safety
An EU research project has been cited internationally as providing evidence for GM crop and
food safety. However, the report based on this project, "A Decade of EU-Funded GMO
Research", presents no data that could provide such evidence, from long-term feeding studies
in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus on
"the development of safety assessment approaches". Only five published animal feeding
studies are referenced in the SAFOTEST section of the report, which is dedicated to GM food
safety. None of these studies tested a commercialised GM food; none tested the GM food for
long-term effects beyond the subchronic period of 90 days; all found differences in the GM-fed
animals, which in some cases were statistically significant; and none concluded on the safety
of the GM food tested, let alone on the safety of GM foods in general. Therefore the EU
research project provides no evidence for sweeping claims about the safety of any single GM
food or of GM crops in general.
5. List of several hundred studies does not show GM food safety
A frequently cited claim published on an Internet website that several hundred studies
"document the general safety and nutritional wholesomeness of GM foods and feeds" is
misleading. Examination of the studies listed reveals that many do not provide evidence of GM
food safety and, in fact, some provide evidence of a lack of safety. For example:
chanRoble svirtualLawlibrary

Many of the studies are not toxicological animal feeding studies of the type that can provide
useful information about health effects of GM food consumption. The list includes animal
production studies that examine parameters of interest to the food and agriculture industry,
such as milk yield and weight gain; studies on environmental effects of GM crops; and
analytical studies of the composition or genetic makeup of the crop.
Among the animal feeding studies and reviews of such studies in the list, a substantial
number found toxic effects and signs of toxicity in GM-fed animals compared with controls.
Concerns raised by these studies have not been satisfactorily addressed and the claim that the
body of research shows a consensus over the safety of GM crops and foods is false and
irresponsible.
Many of the studies were conducted over short periods compared with the animal's total
lifespan and cannot detect long-term health effects.
We conclude that these studies, taken as a whole, are misrepresented on the Internet website
as they do not "document the general safety and nutritional wholesomeness of GM foods and
feeds". Rather, some of the studies give serious cause for concern and should be followed up
by more detailed investigations over an extended period of time.
6. There is no consensus on the environmental risks of GM crops
Environmental risks posed by GM crops include the effects of Bt insecticidal crops on nontarget organisms and effects of the herbicides used in tandem with herbicide-tolerant GM
crops.
As with GM food safety, no scientific consensus exists regarding the environmental risks of GM
crops. A review of environmental risk assessment approaches for GM crops identified
shortcomings in the procedures used and found "no consensus" globally on the methodologies
that should be applied, let alone on standardized testing procedures.
Some reviews of the published data on Bt crops have found that they can have adverse effects
on non-target and beneficial organisms - effects that are widely neglected in regulatory
assessments and by some scientific commentators. Resistance to Bt toxins has emerged in
target pests, and problems with secondary (non-target) pests have been noted, for example,
in Bt cotton in China.
Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual
studies have associated them with increased herbicide use, the rapid spread of herbicideresistant weeds, and adverse health effects in human and animal populations exposed to
Roundup, the herbicide used on the majority of GM crops.
As with GM food safety, disagreement among scientists on the environmental risks of GM crops
may be correlated with funding sources. A peer-reviewed survey of the views of 62 life
scientists on the environmental risks of GM crops found that funding and disciplinary training

had a significant effect on attitudes. Scientists with industry funding and/or those trained in
molecular biology were very likely to have a positive attitude to GM crops and to hold that they
do not represent any unique risks, while publicly-funded scientists working independently of
GM crop developer companies and/or those trained in ecology were more likely to hold a
"moderately negative" attitude to GM crop safety and to emphasize the uncertainty and
ignorance involved. The review authors concluded, "The strong effects of training and funding
might justify certain institutional changes concerning how we organize science and how we
make public decisions when new technologies are to be evaluated."
7. International agreements show widespread recognition of risks posed by GM foods
and crops
The Cartagena Protocol on Biosafety was negotiated over many years and implemented in
2003. The Cartagena Protocol is an international agreement ratified by 166 governments
worldwide that seeks to protect biological diversity from the risks posed by GM technology. It
embodies the Precautionary Principle in that it allows signatory states to take precautionary
measures to protect themselves against threats of damage from GM crops and foods, even in
case of a lack of scientific certainty.
Another international body, the UN's Codex Alimentarius, worked with scientific experts for
seven years to develop international guidelines for the assessment of GM foods and crops,
because of concerns about the risks they pose. These guidelines were adopted by the Codex
Alimentarius Commission, of which over 160 nations are members, including major GM crop
producers such as the United States.
The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in
that they agree that genetic engineering differs from conventional breeding and that safety
assessments should be required before GM organisms are used in food or released into the
environment.
These agreements would never have been negotiated, and the implementation processes
elaborating how such safety assessments should be conducted would not currently be
happening, without widespread international recognition of the risks posed by GM crops and
foods and the unresolved state of existing scientific understanding.
Concerns about risks are well-founded, as has been demonstrated by studies on some GM
crops and foods that have shown adverse effects on animal health and non-target organisms,
indicated above. Many of these studies have, in fact, fed into the negotiation and/or
implementation processes of the Cartagena Protocol and Codex. We support the application of
the Precautionary Principle with regard to the release and transboundary movement of GM
crops and foods.
Conclusion
In the scope of this document, we can only highlight a few examples to illustrate that the
totality of scientific research outcomes in the field of GM crop safety is nuanced, complex,
often contradictory or inconclusive, confounded by researchers' choices, assumptions, and
funding sources, and in general, has raised more questions than it has currently answered.
Whether to continue and expand the introduction of GM crops and foods into the human food
and animal feed supply, and whether the identified risks are acceptable or not, are decisions
that involve socioeconomic considerations beyond the scope of a narrow scientific debate and
the currently unresolved biosafety research agendas. These decisions must therefore involve
the broader society. They should, however, be supported by strong scientific evidence on the
long-term safety of GM crops and foods for human and animal health and the environment,
obtained in a manner that is honest, ethical, rigorous, independent, transparent, and
sufficiently diversified to compensate for bias.
Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO safety.123
One of the most serious concerns raised against GM crops is that expressed by one of our
political analysts now serving in Congress, viz:
ChanRoblesVirtualawlibrary

x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future
Council put it, "While profitable to the few companies producing them, GMO seeds reinforce a
model of farming that undermines sustainability of cash-poor farmers, who make up most of
the world's hungry. GMO seeds continue farmers' dependency on purchased seed and chemical
inputs. The most dramatic impact of such dependency is in India, where 270,000 farmers,
many trapped in debt for buying seeds and chemicals, committed suicide between 1995 and
2012."124
In sum, current scientific research indicates that the biotech industry has not sufficiently
addressed the uncertainties over the safety of GM foods and crops.
ChanRoblesVirtualawlibrary

Bt Brinjal Controversy in India


Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important
ingredient in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver
problems. The attempted commercial propagation of Bt brinjal spawned intense debate and
suffered obstacles due to sustained opposition from local scientists, academicians and nongovernment organizations in India.
As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of
eggplant's diversity, said that if the new technology is adopted, decrease in the use of
insecticides, substantial increase in crop yields and greater food availability, can be expected.
But opponents argued, alongside food safety concerns, that there is a potential for toxic effects
on populations of non-target invertebrates, and potential replacement of traditional landraces
as farmers may move towards cultivation of a restricted number of GE forms. In addition to
these issues, there was the additional concern raised over the transfer of Bt transgenes to nonGE brinjal or its wild relatives, and the consequences for plant biodiversity.125
Writ petitions were lodged before the Supreme Court of India to stop the release into the
environment of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed
a Technical Evaluation Committee (TEC) composed of experts nominated by the parties to
undertake a comprehensive evaluation of the feasibility of allowing the open field trials of Bt
brinjal and submit a final report, and in the event the TEC is unable to submit said final report,
it was directed instead to submit an interim report within the period set by the Court on the
following issue: Whether there should or should not be any ban, partial or otherwise, upon
conducting of open field tests of the GMOs? In the event open field trials are permitted, what
protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to
review report or studies authored by national and international scientists if it was necessary.
In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its
findings, all field trials should be stopped until certain conditions have been met. A Final
Report126 was eventually submitted to the Court which noted weaknesses in the conditions
imposed by the regulatory agencies for conduct of field trials, as follows: 1) post-release
monitoring, an important aspect of environmental and health safety (if the GE crop is
consumed as food) is not given adequate attention; 2) the importance of need and socioeconomic impact assessment of GM products as one of the criteria that should be applied in
the evaluation at an early stage; and 3) need for additional tests not currently done such as
long-term feeding studies for assessment of chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the toxicity studies to screen for possible
unintended effects on host physiology. It was recommended that a moratorium on field trials of
herbicide tolerant crops until the issue had been examined by an independent committee, and
also noted that said technology may not be suitable in the Indian socio-economic context due
to possible impact of extensive use of broad spectrum herbicides on the environmental
biodiversity and smaller average farm size. Examination of the safety dossier of Bt
brinjal indicated certain concerns on the data, which had not been addressed in the course of
regulatory testing leading to approval due to lack of full-time qualified personnel for the
purpose. Overall, it was found that the quality of information in several of the applications is
far below what would be expected and required for rigorous evaluation by a regulatory body
and is unlikely to meet international regulatory guidelines.
On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under

certain conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it
is generally believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack
the receptor for Cry toxins, two studies (one in mice and the other in cows) have provided
evidence that Cry proteins can bind to mammalian intestinal epithelial cells. The report also
discussed the emergence of resistance in insect pests, health and food safety
of Bt transgenics, and herbicide tolerant crops and their effect on biodiversity and the
environment. Specific recommendations were made to address the foregoing issues and the
report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and
potential for negative impact than for other species. To justify this, there needs to be
extraordinarily compelling reasons and only when other choices are not available. GM crops
that offer incremental advantages or solutions to specific and limited problems are not
sufficient reasons to justify such release. The TEC did not find any such compelling reasons
under the present conditions. The fact is that unlike the situation in 1960s there is no
desperate shortage of food and in fact India is in a reasonably secure position. The TEC
therefore recommends that release of GM crops for which India is a centre of origin or diversity
should not be allowed.127
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former
environment minister Jairam Ramesh placed an indefinite moratorium on its further field
testing. This was done after discussions with scientists, both pro and anti-GM crops, activists
and farmers across the country.
ChanRoblesVirtualawlibrary

GMO Field Trials in the Philippines


As earlier mentioned, the conduct of field trials for GE plants and crops in our country is
governed primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners
EMB, BPI and FPA all maintain there was no unlawful deviation from its provisions and that
respondents so far failed to present evidence to prove their claim that Bt talong field trials
violated environmental laws and rules.
Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory
body, was tasked to "evaluate the potential risks of the proposed activity to human health and
the environment based on available scientific and technical information." Under DA Special
Order 241 and 384 (2002) the STRP membership was expanded to include "an independent
pool of experts...tapped by the [BPI] to evaluate the potential risks of the proposed release of
GMOs for field testing, propagation, food, feed to human health and the environment based on
available scientific and technical information."
DAO 08-2002 supplements the existing guidelines on the importation and release into the
environment of products of modern biotechnology by institutionalizing existing operational
arrangements between DA-BPI and the NCBP. Effective July 2003, applications for field test are
received and processed by DA-BPI, but the approval process for projects on contained use
remains under the supervision of NCBP. A mandatory risk assessment of GM plant and plant
products is required prior to importation or release into the environment. Experiments must
first be conducted under contained conditions, then the products are tested in field trials the
product is reviewed for commercial release. Risk assessment is done according to the
principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is sciencebased, carried out on a case by case manner, targets a specific crop and its transformation
event, adopts the concept of substantial equivalence in identifying risk, allows review, and
provides that the absence of scientific information or consensus should not be interpreted to
indicate the absence or presence and level of risk.128
Greenpeace, however, claims there is actually only a committee of three to five members
which conducts the risk assessment, and is aided by an informal group, the DA's Biotech
Advisory Team (BAT), of representatives from government biotech regulatory agencies: BPI,
BAI, FPA, DENR, DOH and DOST. It also assails the government regulatory agencies for their
refusal to open to scrutiny the names and qualifications of those incharge of regulation and
risk assessment, and for allowing the entry and use of all GMO applications requested by
multinational companies.129
It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for
regulating field trials of GM plants and plant products. EO 514 130 establishing the National

Biosafety Framework (NBF) clearly provides that the NBF shall apply to the development,
adoption and implementation of all biosafety policies, measures and guidelines and in making
biosafety decisions concerning the research, development, handling and use, transboundary
movement, release into the environment and management of regulated articles.131 The
objective of the NBF is to "[e]nhance the decision-making system on the application of
products of modern biotechnology to make it more efficient, predictable, effective, balanced,
culturally appropriate, ethical, transparent and participatory". 132 Thus, "the socio-economic,
ethical, and cultural benefit and risks of modern biotechnology to the Philippines and its
citizens, and in particular on small farmers, indigenous peoples, women, small and medium
enterprises and the domestic scientific community, shall be taken into account in implementing
the NBF."133 The NBF also mandates that decisions shall be arrived at in a transparent and
participatory manner, recognizing that biosafety issues are best handled with the participation
of all relevant stakeholders and organizations who shall have appropriate access to information
and the opportunity to participate responsibly and in an accountable manner in biosafety
decision-making process.134
Most important, the NBF requires the use of precaution, as provided in Section 2.6 which
reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the
relevant provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6)
and 11 (par. 8), the precautionary approach shall guide biosafety decisions. The principles and
elements of this approach are hereby implemented through the decision-making system in the
NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are
expected to follow and which their respective rules and regulations must conform with. In
cases of conflict in applying the principles, the principle of protecting public interest and
welfare shall always prevail, and no provision of the NBF shall be construed as to limit the legal
authority and mandate of heads of departments and agencies to consider the national interest
and public welfare in making biosafety decisions.135
As to the conduct of risk assessment to identify and evaluate the risks to human health and
the environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when
performing a RA to determine whether a regulated article poses significant risks to human
health and the environment:
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5.2.1.1 The RA shall be carried out in a scientifically sound and


transparent manner based on available scientific and
technical information. The expert advice of and
guidelines developed by, relevant international
organizations, including intergovernmental bodies,
and regulatory authorities of countries with
significant experience in the regulatory
supervision of the regulated article shall be taken
into account in the conduct of risk assessment;
5.2.1.2 Lack of scientific knowledge or scientific
consensus shall not be interpreted as indicating a
particular level of risk, an absence of risk, or an
acceptable risk;
5.2.1.3 The identified characteristics of a regulated article and its

use which have the potential to pose significant risks to


human health and the environment shall be compared to
those presented by the non-modified organism from
which it is derived and its use under the same
conditions;
5.2.1.4 The RA shall be carried out case-by-case and on the
basis of transformation event. The required information
may vary in nature and level of detail from case to case
depending on the regulated article concerned, its
intended use and the receiving environment; and,
5.2.1.5 If new information on the regulated article and its effects
on human health and the environment becomes
available, and such information is relevant and
significant, the RA shall be readdressed to determine
whether the risk has changed or whether there is a need
to amend the risk management strategies accordingly.
5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and
agencies shall be in accordance with the policies and standards on RA issued by the NCBP.
Annex III of the Cartagena Protocol shall also guide RA. As appropriate, such department and
agencies may issue their own respective administrative issuances establishing the appropriate
RA under their particular jurisdictions.
5.3 Role of Environmental Impact Assessment. - The application of the EIA System to
biosafety decisions shall be determined by concerned departments and agencies
subject to the requirements of law and the standards set by the NCBP. Where
applicable and under the coordination of the NCBP, concerned departments and agencies shall
issue joint guidelines on the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national
biosafety regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient.
Notably, Section 7 of the NBF mandates a more transparent, meaningful and participatory
public consultation on the conduct of field trials beyond the posting and publication of notices
and information sheets, consultations with some residents and government officials, and
submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION
The concerned government departments and agencies, in developing and adopting biosafety
policies, guidelines and measures and in making biosafety decisions, shall promote, facilitate,
and conduct public awareness, education, meaningful, responsible and accountable
participation. They shall incorporate into their respective administrative issuances and
processes best practices and mechanisms on public participation in accordance with the
following guidelines:
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7.1 Scope of Public Participation. - Public participation shall apply to all stages of the
biosafety decision-making process from the time the application is received. For
applications on biotechnology activities related to research and development, limited primarily
for contained use, notice of the filing of such application with the NCBP shall be sufficient,
unless the NCBP deems that public interest and welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation


processes, the following minimum requirements shall be followed:
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7.2.1 Notice to all concerned stakeholders, in a lan