G.R. No.
L-49112 February 2, 1979 Two motions for extension were filed by the Office of the Solicitor General
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner;
Agustin is the owner of a Volkswagen Beetlle Car, already properly equipped
when it came out from the assembly lines with blinking lights fore and aft
President Marcos, issued on December 2, 1974, the assailed Letter of
Instruction No. 229 . All owners, users or drivers of motor vehicles shall have
at all times in their motor vehicles at least one (1) pair of early warning device
consisting of triangular, collapsible reflectorized plates in red and yellow
colors at least 15 cms. at the base and 40 cms. at the sides Said LOI was
amended by Letter of Instruction No. 479 providing that the Land
transportation Commissioner shall require every motor vehicle owner to
procure from any and present at the registration of his vehicle, one pair of a
reflectorized early warning device, as d bed of any brand or make chosen by
mid motor vehicle. The Land Transportation Commissioner shall also
promulgate such rule and regulations as are appropriate to effectively
implement this order. Agustin alleged that said LOI clearly violates the
provisions and delegation of police power.
Agustins argument: [sic] * * *: " For him they are "oppressive, unreasonable,
arbitrary, confiscatory, nay unconstitutional and contrary to the precepts of
our compassionate New Society." 12 He contended that they are "infected
with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;" 13 are "one-sided, onerous and patently illegal and immoral
because [they] will make manufacturers and dealers instant millionaires at
the expense of car owners who are compelled to buy a set of the so-called
early warning device at the rate of P 56.00 to P72.00 per set." 14 are
unlawful and unconstitutional and contrary to the precepts of a
compassionate New Society [as being] compulsory and confiscatory on the
part of the motorists who could very well provide a practical alternative road
safety device, or a better substitute to the specified set of EWD's." 15 He
therefore prayed for a judgment both the assailed Letters of Instructions and
Memorandum Circular void and unconstitutional and for a restraining order in
the meanwhile.
A resolution to this effect was handed down by this Court on October 19,
1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo F. Edu, etc., et al.)
Considering the allegations contained, the issues raised and the arguments
adduced in the petition for prohibition with writ of p prohibitory and/or
mandatory injunction, the Court Resolved to (require) the respondents to file
an answer thereto within ton (10) days from notice and not to move to
dismiss the petition. The Court further Resolved to [issue] a [temporary
restraining order] effective as of this date and continuing until otherwise
ordered by this Court.16
and granted. Then on November 15, 1978, he Answer for respondents was
submitted. After admitting the factual allegations and stating that they lacked
knowledge or information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle car," they "specifically deny the allegations and stating
they lacked knowledge or information sufficient to form a belief as to
petitioner owning a Volkswagen Beetle Car, 17 they specifically deny the
allegations in paragraphs X and XI (including its subparagraphs 1, 2, 3, 4) of
Petition to the effect that Letter of Instruction No. 229 as amended by Letters
of Instructions Nos. 479 and 716 as well as Land transportation Commission
Administrative Order No. 1 and its Memorandum Circular No. 32 violates the
constitutional provisions on due process of law, equal protection of law and
undue delegation of police power, and that the same are likewise oppressive,
arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis and
for the reasons alleged in the Special and Affirmative Defenses of this
Answer."18 Unlike petitioner who contented himself with a rhetorical recital of
his litany of grievances and merely invoked the sacramental phrases of
constitutional litigation, the Answer, in demonstrating that the assailed Letter
of Instruction was a valid exercise of the police power and implementing
rules and regulations of respondent Edu not susceptible to the charge that
there was unlawful delegation of legislative power, there was in the portion
captioned Special and Affirmative Defenses, a citation of what respondents
believed to be the authoritative decisions of this Tribunal calling for
application. They are Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v.
Ericta. 21 Reference was likewise made to the 1968 Vienna Conventions of
the United Nations on road traffic, road signs, and signals, of which the
Philippines was a signatory and which was duly ratified. 22 Solicitor General
Mendoza took pains to refute in detail, in language calm and dispassionate,
the vigorous, at times intemperate, accusation of petitioner that the assailed
Letter of Instruction and the implementing rules and regulations cannot
survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality
cannot be denied.
This Court thus considered the petition submitted for decision, the issues
being clearly joined. As noted at the outset, it is far from meritorious and
must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the
police power. That is conceded by petitioner and is the main reliance of
respondents. It is the submission of the former, however, that while
embraced in such a category, it has offended against the due process and
equal protection safeguards of the Constitution, although the latter point was
mentioned only in passing. The broad and expansive scope of the police
power which was originally Identified by Chief Justice Taney of the American
Supreme Court in an 1847 decision as "nothing more or less than the powers
of government inherent in every sovereignty" 23 was stressed in the
aforementioned case of Edu v. Ericta thus: "Justice Laurel, in the first leading
decision after the Constitution came into force, Calalang v. Williams,
Identified police power with state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general
welfare. Persons and property could thus 'be subjected to all kinds of
restraints and burdens in order to we the general comfort, health and
prosperity of the state.' Shortly after independence in 1948, Primicias v.
Fugoso reiterated the doctrine, such a competence being referred to as 'the
power to prescribe regulations to promote the health, morals, peace,
education, good order or safety, and general welfare of the people. The
concept was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as 'that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety and welfare
of society. In that sense it could be hardly distinguishable as noted by this
Court in Morfe v. Mutuc with the totality of legislative power. It is in the above
sense the greatest and most powerful at. tribute of government. It is, to quote
Justice Malcolm anew, 'the most essential, insistent, and at least table
powers, I extending as Justice Holmes aptly pointed out 'to all the great
public needs.' Its scope, ever-expanding to meet the exigencies of the times,
even to anticipate the future where it could be done, provides enough room
for an efficient and flexible response to conditions and circumstances thus
assuring the greatest benefits. In the language of Justice Cardozo: 'Needs
that were narrow or parochial in the past may be interwoven in the present
with the well-being of the nation. What is critical or urgent changes with the
time.' The police power is thus a dynamic agency, suitably vague and far
from precisely defined, rooted in the conception that men in organizing the
state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual citizen or a
group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order, and welfare."
24
2. It was thus a heavy burden to be shouldered by petitioner, compounded by
the fact that the particular police power measure challenged was clearly
intended to promote public safety. It would be a rare occurrence indeed for
this Court to invalidate a legislative or executive act of that character. None
has been called to our attention, an indication of its being non-existent. The
latest decision in point, Edu v. Ericta, sustained the validity of the Reflector
Law, 25 an enactment conceived with the same end in view. Calalang v.
Williams found nothing objectionable in a statute, the purpose of which was:
"To promote safe transit upon, and. avoid obstruction on roads and streets
designated as national roads * * *. 26 As a matter of fact, the first law sought
to be nullified after the effectivity of the 1935 Constitution, the National
Defense Act, 27 with petitioner failing in his quest, was likewise prompted by
the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and
the implementing rules and regulations becomes even more apparent
considering his failure to lay the necessary factual foundation to rebut the
presumption of validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The rationale was
clearly set forth in an excerpt from a decision of Justice Branders of the
American Supreme Court, quoted in the opinion: "The statute here
questioned deals with a subject clearly within the scope of the police power.
We are asked to declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the plaintiff of due
process of law. As underlying questions of fact may condition the
constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of
record in overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely on such
rebutted presumption of validity. As was pointed out in his Answer "The
President certainly had in his possession the necessary statistical information
and data at the time he issued said letter of instructions, and such factual
foundation cannot be defeated by petitioner's naked assertion that early
warning devices 'are not too vital to the prevention of nighttime vehicular
accidents' because allegedly only 390 or 1.5 per cent of the supposed
26,000 motor vehicle accidents that in 1976 involved rear-end collisions (p.
12 of petition). Petitioner's statistics is not backed up by demonstrable data
on record. As aptly stated by this Honorable Court: Further: "It admits of no
doubt therefore that there being a presumption of validity, the necessity for
evidence to rebut it is unavoidable, unless the statute or ordinance is void on
its face, which is not the case here"' * * *. But even as g the verity of
petitioner's statistics, is that not reason enough to require the installation of
early warning devices to prevent another 390 rear-end collisions that could
mean the death of 390 or more Filipinos and the deaths that could likewise
result from head-on or frontal collisions with stalled vehicles?" 30 It is quite
manifest then that the issuance of such Letter of Instruction is encased in the
armor of prior, careful study by the Executive Department. To set it aside for
alleged repugnancy to the due process clause is to give sanction to
conjectural claims that exceeded even the broadest permissible limits of a
pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this
Letter of Instruction was exposed in the Answer of the Solicitor General thus:
"Such early warning device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped with 1) blinking
lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking
lights inside motor vehicles," 3) "built-in reflectorized tapes on front and rear
bumpers of motor vehicles," or 4) "well-lighted two (2) petroleum lamps (the
Kinke) * * * because: Being universal among the signatory countries to the
said 1968 Vienna Conventions, and visible even under adverse conditions at
a distance of at least 400 meters, any motorist from this country or from any
part of the world, who sees a reflectorized rectangular early seaming device
installed on the roads, highways or expressways, will conclude, without
thinking, that somewhere along the travelled portion of that road, highway, or
expressway, there is a motor vehicle which is stationary, stalled or disabled
which obstructs or endangers passing traffic. On the other hand, a motorist
who sees any of the aforementioned other built in warning devices or the
petroleum lamps will not immediately get adequate advance warning
because he will still think what that blinking light is all about. Is it an
emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such
confusion or uncertainty in the mind of the motorist will thus increase, rather
than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional deficiency go
unrefuted in the Answer of the Solicitor General "There is nothing in the
questioned Letter of Instruction No. 229, as amended, or in Administrative
Order No. 1, which requires or compels motor vehicle owners to purchase
the early warning device prescribed thereby. All that is required is for motor
vehicle owners concerned like petitioner, to equip their motor vehicles with a
pair of this early warning device in question, procuring or obtaining the same
from whatever source. In fact, with a little of industry and practical ingenuity,
motor vehicle owners can even personally make or produce this early
warning device so long as the same substantially conforms with the
specifications laid down in said letter of instruction and administrative order.
Accordingly the early warning device requirement can neither be oppressive,
onerous, immoral, nor confiscatory, much less does it make manufacturers
and dealers of said devices 'instant millionaires at the expense of car owners'
as petitioner so sweepingly concludes * * *. Petitioner's fear that with the
early warning device requirement 'a more subtle racket may be committed by
those called upon to enforce it * * * is an unfounded speculation. Besides,
that unscrupulous officials may try to enforce said requirement in an
unreasonable manner or to an unreasonable degree, does not render the
same illegal or immoral where, as in the instant case, the challenged Letter
of Instruction No. 229 and implementing order disclose none of the
constitutional defects alleged against it.32
7 It does appear clearly that petitioner's objection to this Letter of Instruction
is not premised on lack of power, the justification for a finding of
unconstitutionality, but on the pessimistic, not to say negative, view he
entertains as to its wisdom. That approach, it put it at its mildest, is
distinguished, if that is the appropriate word, by its unorthodoxy. It bears
repeating "that this Court, in the language of Justice Laurel, 'does not pass
upon questions of wisdom justice or expediency of legislation.' As expressed
by Justice Tuason: 'It is not the province of the courts to supervise legislation
and keep it within the bounds of propriety and common sense. That is
primarily and exclusively a legislative concern.' There can be no possible
objection then to the observation of Justice Montemayor. 'As long as laws do
not violate any Constitutional provision, the Courts merely interpret and apply
them regardless of whether or not they are wise or salutary. For they,
according to Justice Labrador, 'are not supposed to override legitimate policy
and * * * never inquire into the wisdom of the law.' It is thus settled, to
paraphrase Chief Justice Concepcion in Gonzales v. Commission on
Elections, that only congressional power or competence, not the wisdom of
the action taken, may be the basis for declaring a statute invalid. This is as it
ought to be. The principle of separation of powers has in the main wisely
allocated the respective authority of each department and confined its
jurisdiction to such a sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the discretion of a coordinate
branch, the judiciary would substitute its own. If there be adherence to the
rule of law, as there ought to be, the last offender should be courts of justice,
to which rightly litigants submit their controversy precisely to maintain
unimpaired the supremacy of legal norms and prescriptions. The attack on
the validity of the challenged provision likewise insofar as there may be
objections, even if valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of non-delegation of
legislative power is equally without any support well-settled legal doctrines.
Had petitioner taken the trouble to acquaint himself with authoritative
pronouncements from this Tribunal, he would not have the temerity to make
such an assertion. An exempt from the aforecited decision of Edu v. Ericta
sheds light on the matter: "To avoid the taint of unlawful delegation, there
must be a standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental policy.
Otherwise, the charge of complete abdication may be hard to repel A
standard thus defines legislative policy, marks its 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. It is the criterion by
which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard may be either
express or implied. If the former, the non-delegation objection is easily met.
The standard though does not have to be spelled out specifically. It could be
implied from the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety. What is sought
to be attained as in Calalang v. Williams is "safe transit upon the roads.' This
is to adhere to the recognition given expression by Justice Laurel in a
decision announced not too long after the Constitution came into force and
effect that the principle of non-delegation "has been made to adapt itself to
the complexities of modern governments, giving rise to the adoption, within
certain limits, of the principle of "subordinate legislation" not only in the
United States and England but in practically all modern governments.' He
continued: 'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the increased
difficulty of administering the laws, there is a constantly growing tendency
toward the delegation of greater powers by the legislature and toward the
approval of the practice by the courts.' Consistency with the conceptual
approach requires the reminder that what is delegated is authority non-
legislative in character, the completeness of the statute when it leaves the
hands of Congress being assumed." 34
9. The conclusion reached by this Court that this petition must be dismissed
is reinforced by this consideration. The petition itself quoted these two
whereas clauses of the assailed Letter of Instruction: "[Whereas], the
hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations Organization
(U.N.); [Whereas], the said Vionna Convention, which was ratified by the
Philippine Government under P.D. No. 207, recommended the enactment of
local legislation for the installation of road safety signs and devices; * * * " 35
It cannot be disputed then that this Declaration of Principle found in the
Constitution possesses relevance: "The Philippines * * * adopts the generally
accepted principles of international law as part of the law of the land * * *." 36
The 1968 Vienna Convention on Road Signs and Signals is impressed with
such a character. It is not for this country to repudiate a commitment to which
it had pledged its word. The concept of Pacta sunt servanda stands in the
way of such an attitude, which is, moreover, at war with the principle of
international morality.
10. That is about all that needs be said. The rather court reference to equal
protection did not even elicit any attempt on the Part of Petitioner to
substantiate in a manner clear, positive, and categorical why such a casual
observation should be taken seriously. In no case is there a more appropriate
occasion for insistence on what was referred to as "the general rule" in
Santiago v. Far Eastern Broadcasting Co., 37 namely, "that the
constitutionality of a law wig not be considered unless the point is specially
pleaded, insisted upon, and adequately argued." 38 "Equal protection" is not
a talismanic formula at the mere invocation of which a party to a lawsuit can
rightfully expect that success will crown his efforts. The law is anything but
that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This
decision is immediately executory. No costs.
 65 assails and seeks to nullify the Non-Surrender Agreement concluded by
and between the Republic of the Philippines (RP) and the United States of
America (USA).

The Facts

Petitioner Bayan Muna is a duly registered party-list group

established to represent the marginalized sectors of society. Respondent
BAYAN MUNA, as represented by Rep. G.R. No. 159618 Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the
SATUR OCAMPO, Rep. CRISPIN BELTRAN,
period material to this case. Respondent Alberto Romulo was impleaded in
and Rep. LIZA L. MAZA, Present:
Petitioner, his capacity as then Executive Secretary.[2]
CORONA, C.J.,
CARPIO,
CARPIO MORALES, Rome Statute of the International Criminal Court
VELASCO, JR.,
- versus - NACHURA,
LEONARDO-DE CASTRO, Having a key determinative bearing on this case is the Rome
BRION,
Statute[3] establishing the International Criminal Court (ICC) with the power
PERALTA,
BERSAMIN, to exercise its jurisdiction over persons for the most serious crimes of
DEL CASTILLO,
international concern x x x and shall be complementary to the national
ABAD,
ALBERTO ROMULO, in his capacity as VILLARAMA, JR., criminal jurisdictions.[4] The serious crimes adverted to cover those
Executive Secretary, and BLAS F. OPLE, in PEREZ,
considered grave under international law, such as genocide, crimes against
his capacity as Secretary of Foreign Affairs, MENDOZA, and
Respondents. SERENO, JJ. humanity, war crimes, and crimes of aggression.[5]

Promulgated:
On December 28, 2000, the RP, through Charge dAffaires Enrique
February 1, 2011
A. Manalo, signed the Rome Statute which, by its terms, is subject to
x-----------------------------------------------------------------------------------------x
ratification, acceptance or approval by the signatory states.[6] As of the filing
DECISION of the instant petition, only 92 out of the 139 signatory countries appear to
VELASCO, JR., J.: have completed the ratification, approval and concurrence process. The
Philippines is not among the 92.
The Case

RP-US Non-Surrender Agreement

This petition[1] for certiorari, mandamus and prohibition under Rule
 On May 9, 2003, then Ambassador Francis J. Ricciardone sent US
Embassy Note No. 0470 to the Department of Foreign Affairs (DFA)
proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.
Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N
BFO-028-03, hereinafter), the RP, represented by then DFA Secretary Ople,
agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US
government. In esse, the Agreement aims to protect what it refers to and
defines as persons of the RP and US from frivolous and harassment suits
that might be brought against them in international tribunals.[8] It is reflective
of the increasing pace of the strategic security and defense partnership
between the two countries. As of May 2, 2003, similar bilateral agreements
have been effected by and between the US and 33 other countries.[9]
The Agreement pertinently provides as follows:
1. For purposes of this Agreement, persons are
current or former Government officials, employees (including
contractors), or military personnel or nationals of one Party.
2. Persons of one Party present in the territory of the
other shall not, absent the express consent of the first Party,
(a) be surrendered or transferred by any means to
any international tribunal for any purpose, unless
such tribunal has been established by the UN
Security Council, or
(b) be surrendered or transferred by any means to
any other entity or third country, or expelled to a
third country, for the purpose of surrender to or
transfer to any international tribunal, unless such
tribunal has been established by the UN
Security Council.
3. When the [US] extradites, surrenders, or
otherwise transfers a person of the Philippines to a third
country, the [US] will not agree to the surrender or transfer of
that person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the Republic of the Philippines [GRP].
4. When the [GRP] extradites, surrenders, or
otherwise transfers a person of the [USA] to a third country,
the [GRP] will not agree to the surrender or transfer of that
person by the third country to any international tribunal,
unless such tribunal has been established by the UN
Security Council, absent the express consent of the
Government of the [US].
5. This Agreement shall remain in force until one
year after the date on which one party notifies the other of its
intent to terminate the Agreement. The provisions of this
Agreement shall continue to apply with respect to any act
occurring, or any allegation arising, before the effective date
of termination.
In response to a query of then Solicitor General Alfredo L. Benipayo
on the status of the non-surrender agreement, Ambassador Ricciardone
replied in his letter of October 28, 2003 that the exchange of diplomatic notes
constituted a legally binding agreement under international law; and that,
under US law, the said agreement did not require the advice and consent of
the US Senate.[10]
In this proceeding, petitioner imputes grave abuse of discretion to
respondents in concluding and ratifying the Agreement and prays that it be
struck down as unconstitutional, or at least declared as without force and
effect.
For their part, respondents question petitioners standing to maintain
a suit and counter that the Agreement, being in the nature of an executive
agreement, does not require Senate concurrence for its efficacy. And for
reasons detailed in their comment, respondents assert the constitutionality of D. Whether the RP-US Non-Surrender Agreement is
void and unenforceable for grave abuse of discretion
the Agreement.
amounting to lack or excess of jurisdiction in
connection with its execution.
The Issues
II. WHETHER THE RP-US NON SURRENDER
AGREEMENT IS VOID AB INITIO FOR CONTRACTING
OBLIGATIONS THAT ARE EITHER IMMORAL OR
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] OTHERWISE AT VARIANCE WITH UNIVERSALLY
SECRETARY x x x GRAVELY ABUSED THEIR RECOGNIZED PRINCIPLES OF INTERNATIONAL
DISCRETION AMOUNTING TO LACK OR EXCESS OF LAW.
JURISDICTION FOR CONCLUDING THE RP-US NON
SURRENDER AGREEMENT BY MEANS OF [E/N] III. WHETHER THE x x x AGREEMENT IS VALID,
BFO-028-03 DATED 13 MAY 2003, WHEN THE BINDING AND EFFECTIVE WITHOUT THE
PHILIPPINE GOVERNMENT HAS ALREADY SIGNED CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF
THE ROME STATUTE OF THE [ICC] ALTHOUGH THIS ALL THE MEMBERS OF THE SENATE x x x.[11]
IS PENDING RATIFICATION BY THE PHILIPPINE
SENATE.
A. Whether by entering into the x x x Agreement The foregoing issues may be summarized into two: first, whether or
Respondents gravely abused their discretion when
not the Agreement was contracted validly, which resolves itself into the
they capriciously abandoned, waived and
relinquished our only legitimate recourse through the question of whether or not respondents gravely abused their discretion in
Rome Statute of the [ICC] to prosecute and try
concluding it; and second, whether or not the Agreement, which has not
persons as defined in the x x x Agreement, x x x or
literally any conduit of American interests, who have been submitted to the Senate for concurrence, contravenes and undermines
committed crimes of genocide, crimes against
the Rome Statute and other treaties. But because respondents expectedly
humanity, war crimes and the crime of aggression,
thereby abdicating Philippine Sovereignty. raised it, we shall first tackle the issue of petitioners legal standing.
The Courts Ruling
B. Whether after the signing and pending ratification
of the Rome Statute of the [ICC] the [RP] President
and the [DFA] Secretary x x x are obliged by the
This petition is bereft of merit.
principle of good faith to refrain from doing all acts
which would substantially impair the value of the
undertaking as signed.
Procedural Issue: Locus Standi of Petitioner
C. Whether the x x x Agreement constitutes an act
which defeats the object and purpose of the Rome
Petitioner, through its three party-list representatives, contends that
Statute of the International Criminal Court and
contravenes the obligation of good faith inherent in the issue of the validity or invalidity of the Agreement carries with it
the signature of the President affixed on the Rome
constitutional significance and is of paramount importance that justifies its
Statute of the International Criminal Court, and if so
whether the x x x Agreement is void and standing. Cited in this regard is what is usually referred to as the emergency
unenforceable on this ground.
powers cases,[12] in which ordinary citizens and taxpayers were accorded
the personality to question the constitutionality of executive issuances.
 Locus standi is a right of appearance in a court of justice on a given assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or
question.[13] Specifically, it is a partys personal and substantial interest in a
any government act is invalid, but also that he sustained or
case where he has sustained or will sustain direct injury as a result[14] of the is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers
act being challenged, and calls for more than just a generalized
thereby in some indefinite way. It must appear that the
grievance.[15] The term interest refers to material interest, as distinguished person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is
from one that is merely incidental.[16] The rationale for requiring a party who
about to be subjected to some burdens or penalties by
challenges the validity of a law or international agreement to allege such a reason of the statute or act complained of. In fine, when the
proceeding involves the assertion of a public right, the mere
personal stake in the outcome of the controversy is to assure the concrete
fact that he is a citizen satisfies the requirement of personal
adverseness which sharpens the presentation of issues upon which the court interest.[21]
so largely depends for illumination of difficult constitutional questions.[17]
In the case at bar, petitioners representatives have complied with the
qualifying conditions or specific requirements exacted under the locus standi
Locus standi, however, is merely a matter of procedure and it has
rule. As citizens, their interest in the subject matter of the petition is direct
been recognized that, in some cases, suits are not brought by parties who
and personal. At the very least, their assertions questioning the Agreement
have been personally injured by the operation of a law or any other
are made of a public right, i.e., to ascertain that the Agreement did not go
government act, but by concerned citizens, taxpayers, or voters who actually
against established national policies, practices, and obligations bearing on
sue in the public interest.[18] Consequently, in a catena of cases,[19] this
the States obligation to the community of nations.
Court has invariably adopted a liberal stance on locus standi.

At any event, the primordial importance to Filipino citizens in general

Going by the petition, petitioners representatives pursue the instant
of the issue at hand impels the Court to brush aside the procedural barrier
suit primarily as concerned citizens raising issues of transcendental
posed by the traditional requirement of locus standi, as we have done in a
importance, both for the Republic and the citizenry as a whole.
long line of earlier cases, notably in the old but oft-cited emergency powers
cases[22] and Kilosbayan v. Guingona, Jr.[23] In cases of transcendental
When suing as a citizen to question the validity of a law or other
importance, we wrote again in Bayan v. Zamora,[24] The Court may relax the
government action, a petitioner needs to meet certain specific requirements
standing requirements and allow a suit to prosper even where there is no
before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit na
direct injury to the party claiming the right of judicial review.
mga Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on
this requirement, thus:
Moreover, bearing in mind what the Court said in Taada v. Angara,
that it will not shirk, digress from or abandon its sacred duty and authority to
In a long line of cases, however, concerned citizens,
uphold the Constitution in matters that involve grave abuse of discretion
taxpayers and legislators when specific requirements have
been met have been given standing by this Court. brought before it in appropriate cases, committed by any officer, agency,
When suing as a citizen, the interest of the petitioner
instrumentality or department of the government,[25] we cannot but resolve
head on the issues raised before us. Indeed, where an action of any branch
of government is seriously alleged to have infringed the Constitution or is
done with grave abuse of discretion, it becomes not only the right but in fact
the duty of the judiciary to settle it. As in this petition, issues are precisely
raised putting to the fore the propriety of the Agreement pending the
ratification of the Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its
threshold posture being that E/N BFO-028-03 cannot be a valid medium for
concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-
recognized international doctrines, practices, and jargonsis untenable. One
of these is the doctrine of incorporation, as expressed in Section 2, Article II
of the Constitution, wherein the Philippines adopts the generally accepted
principles of international law and international jurisprudence as part of the
law of the land and adheres to the policy of peace, cooperation, and amity
with all nations.[26] An exchange of notes falls into the category of inter-
governmental agreements,[27] which is an internationally accepted form of
international agreement. The United Nations Treaty Collections (Treaty
Reference Guide) defines the term as follows:
An exchange of notes is a record of a routine
agreement, that has many similarities with the private law
contract. The agreement consists of the exchange of two
documents, each of the parties being in the possession of
the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative
approval.[28]
In another perspective, the terms exchange of notes and executive
agreements have been used interchangeably, exchange of notes being
considered a form of executive agreement that becomes binding through
executive action.[29] On the other hand, executive agreements concluded by
the President sometimes take the form of exchange of notes and at other
times that of more formal documents denominated agreements or
protocols.[30] As former US High Commissioner to the Philippines Francis B.
Sayre observed in his work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between
this and other governments ends and agreements whether
denominated executive agreements or exchange of notes or
otherwise begin, may sometimes be difficult of ready
ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-
03be it viewed as the Non-Surrender Agreement itself, or as an integral
instrument of acceptance thereof or as consent to be boundis a recognized
mode of concluding a legally binding international written contract among
nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a
treaty as an international agreement concluded between states in written
form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular
designation.[32] International agreements may be in the form of (1) treaties
that require legislative concurrence after executive ratification; or (2)
executive agreements that are similar to treaties, except that they do not
require legislative concurrence and are usually less formal and deal with a
narrower range of subject matters than treaties.[33]
 Under international law, there is no difference between treaties and
executive agreements in terms of their binding effects on the contracting
states concerned,[34] as long as the negotiating functionaries have remained
within their powers.[35] Neither, on the domestic sphere, can one be held
valid if it violates the Constitution.[36] Authorities are, however, agreed that
one is distinct from another for accepted reasons apart from the
concurrence-requirement aspect.[37] As has been observed by US
constitutional scholars, a treaty has greater dignity than an executive
agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the
people;[38] a ratified treaty, unlike an executive agreement, takes
precedence over any prior statutory enactment.[39]
Petitioner parlays the notion that the Agreement is of dubious
validity, partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the following
observations made by US legal scholars: [I]nternational agreements involving
political issues or changes of national policy and those involving international
arrangements of a permanent character usually take the form of treaties
[while] those embodying adjustments of detail carrying out well established
national policies and traditions and those involving arrangements of a more
or less temporary nature take the form of executive agreements. [40]
Pressing its point, petitioner submits that the subject of the
Agreement does not fall under any of the subject-categories that are
enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored
nation rights, patent rights, trademark and copyright protection, postal and
navigation arrangements and settlement of claims.
In addition, petitioner foists the applicability to the instant case of
Adolfo v. CFI of Zambales and Merchant,[41] holding that an executive
agreement through an exchange of notes cannot be used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by
international agreements mentioned in Eastern Sea Trading is not cast in
stone. There are no hard and fast rules on the propriety of entering, on a
given subject, into a treaty or an executive agreement as an instrument of
international relations. The primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an international agreement
in the form they so wish to further their respective interests. Verily, the matter
of form takes a back seat when it comes to effectiveness and binding effect
of the enforcement of a treaty or an executive agreement, as the parties in
either international agreement each labor under the pacta sunt servanda[42]
principle.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of
foreign affairs has become more complex and the domain of international law
wider, as to include such subjects as human rights, the environment, and the
sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation,
peace corps, arms limitation, and nuclear safety, among others.[43] Surely,
the enumeration in Eastern Sea Trading cannot circumscribe the option of
each state on the matter of which the international agreement format would
be convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
 x x x It would be useless to undertake to discuss
here the large variety of executive agreements as such
Considering the above discussion, the Court need not belabor at
concluded from time to time. Hundreds of executive
agreements, other than those entered into under the trade- length the third main issue raised, referring to the validity and effectivity of
agreement act, have been negotiated with foreign
the Agreement without the concurrence by at least two-thirds of all the
governments. x x x They cover such subjects as the
inspection of vessels, navigation dues, income tax on members of the Senate. The Court has, in Eastern Sea Trading,[48] as
shipping profits, the admission of civil air craft, custom
reiterated in Bayan,[49] given recognition to the obligatory effect of executive
matters and commercial relations generally, international
claims, postal matters, the registration of trademarks and agreements without the concurrence of the Senate:
copyrights, etc. x x x

x x x [T]he right of the Executive to enter into binding

And lest it be overlooked, one type of executive agreement is a agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage.
treaty-authorized[44] or a treaty-implementing executive agreement,[45]
From the earliest days of our history, we have entered
which necessarily would cover the same matters subject of the underlying executive agreements covering such subjects as commercial
and consular relations, most favored-nation rights, patent
treaty.
rights, trademark and copyright protection, postal and
navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our
But over and above the foregoing considerations is the fact thatsave
courts.
for the situation and matters contemplated in Sec. 25, Art. XVIII of the
Constitution[46]when a treaty is required, the Constitution does not classify
The Agreement Not in Contravention of the Rome Statute
any subject, like that involving political issues, to be in the form of, and
ratified as, a treaty. What the Constitution merely prescribes is that treaties
It is the petitioners next contention that the Agreement undermines
need the concurrence of the Senate by a vote defined therein to complete
the establishment of the ICC and is null and void insofar as it unduly restricts
the ratification process.
the ICCs jurisdiction and infringes upon the effectivity of the Rome Statute.
Petitioner posits that the Agreement was constituted solely for the purpose of
Petitioners reliance on Adolfo[47] is misplaced, said case being
providing individuals or groups of individuals with immunity from the
inapplicable owing to different factual milieus. There, the Court held that an
jurisdiction of the ICC; and such grant of immunity through non-surrender
executive agreement cannot be used to amend a duly ratified and existing
agreements allegedly does not legitimately fall within the scope of Art. 98 of
treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not
the Rome Statute. It concludes that state parties with non-surrender
require the concurrence of the Senate for its ratification may not be used to
agreements are prevented from meeting their obligations under the Rome
amend a treaty that, under the Constitution, is the product of the ratifying acts
Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and
of the Executive and the Senate. The presence of a treaty, purportedly being
90[53] thereof.
subject to amendment by an executive agreement, does not obtain under the
Petitioner stresses that the overall object and purpose of the Rome
premises.
Statute is to ensure that those responsible for the worst possible crimes are
brought to justice in all cases, primarily by states, but as a last resort, by the shall be governed by the provisions of this Statute.
(Emphasis ours.)
ICC; thus, any agreementlike the non-surrender agreementthat precludes the
ICC from exercising its complementary function of acting when a state is
Significantly, the sixth preambular paragraph of the Rome Statute
unable to or unwilling to do so, defeats the object and purpose of the Rome
declares that it is the duty of every State to exercise its criminal jurisdiction
Statute.
over those responsible for international crimes. This provision indicates that
primary jurisdiction over the so-called international crimes rests, at the first
Petitioner would add that the President and the DFA Secretary, as
instance, with the state where the crime was committed; secondarily, with the
representatives of a signatory of the Rome Statute, are obliged by the
ICC in appropriate situations contemplated under Art. 17, par. 1[55] of the
imperatives of good faith to refrain from performing acts that substantially
Rome Statute.
devalue the purpose and object of the Statute, as signed. Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has an
Of particular note is the application of the principle of ne bis in
immoral purpose or is otherwise at variance with a priorly executed treaty.
idem[56] under par. 3 of Art. 20, Rome Statute, which again underscores the
primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
Contrary to petitioners pretense, the Agreement does not contravene
relevant, the provision states that no person who has been tried by another
or undermine, nor does it differ from, the Rome Statute. Far from going
court for conduct x x x [constituting crimes within its jurisdiction] shall be tried
against each other, one complements the other. As a matter of fact, the
by the [International Criminal] Court with respect to the same conduct x x x.
principle of complementarity underpins the creation of the ICC. As aptly
pointed out by respondents and admitted by petitioners, the jurisdiction of the
The foregoing provisions of the Rome Statute, taken collectively,
ICC is to be complementary to national criminal jurisdictions [of the signatory
argue against the idea of jurisdictional conflict between the Philippines, as
states].[54] Art. 1 of the Rome Statute pertinently provides:
party to the non-surrender agreement, and the ICC; or the idea of the
Agreement substantially impairing the value of the RPs undertaking under
the Rome Statute. Ignoring for a while the fact that the RP signed the Rome
Statute ahead of the Agreement, it is abundantly clear to us that the Rome
Article 1
Statute expressly recognizes the primary jurisdiction of states, like the RP,
The Court over serious crimes committed within their respective borders, the
complementary jurisdiction of the ICC coming into play only when the
An International Crimininal Court (the Court) is
hereby established. It x x x shall have the power to signatory states are unwilling or unable to prosecute.
exercise its jurisdiction over persons for the most serious
crimes of international concern, as referred to in this Statute,
and shall be complementary to national criminal Given the above consideration, petitioners suggestionthat the RP, by
jurisdictions. The jurisdiction and functioning of the Court
entering into the Agreement, violated its duty required by the imperatives of
good faith and breached its commitment under the Vienna Convention[57] to
refrain from performing any act tending to impair the value of a treaty, e.g.,
the Rome Statutehas to be rejected outright. For nothing in the provisions of
the Agreement, in relation to the Rome Statute, tends to diminish the efficacy
of the Statute, let alone defeats the purpose of the ICC. Lest it be
overlooked, the Rome Statute contains a proviso that enjoins the ICC from
seeking the surrender of an erring person, should the process require the
requested state to perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2) of the Rome Statute,
which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a
request for surrender which would require the requested
State to act inconsistently with its obligations under
international agreements pursuant to which the consent
of a sending State is required to surrender a person of
that State to the Court, unless the Court can first obtain
the cooperation of the sending State for the giving of
consent for the surrender.
Moreover, under international law, there is a considerable difference
between a State-Party and a signatory to a treaty. Under the Vienna
Convention on the Law of Treaties, a signatory state is only obliged to refrain
from acts which would defeat the object and purpose of a treaty;[58] whereas
a State-Party, on the other hand, is legally obliged to follow all the provisions
of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a
signatory to the Rome Statute and not a State-Party for lack of ratification by
the Senate. Thus, it is only obliged to refrain from acts which would defeat
the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-
surrender agreements are prevented from meeting their obligations under the
Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles
are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the
Agreement is not incompatible with the Rome Statute. Specifically, Art. 90(4)
provides that [i]f the requesting State is a State not Party to this Statute the
requested State, if it is not under an international obligation to extradite the
person to the requesting State, shall give priority to the request for surrender
from the Court. x x x In applying the provision, certain undisputed facts
should be pointed out: first, the US is neither a State-Party nor a signatory to
the Rome Statute; and second, there is an international agreement between
the US and the Philippines regarding extradition or surrender of persons, i.e.,
the Agreement. Clearly, even assuming that the Philippines is a State-Party,
the Rome Statute still recognizes the primacy of international agreements
entered into between States, even when one of the States is not a State-
Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement,
abdicated its sovereignty by bargaining away the jurisdiction of the ICC to
prosecute US nationals, government officials/employees or military personnel
who commit serious crimes of international concerns in the Philippines.
Formulating petitioners argument a bit differently, the RP, by entering into the
Agreement, does thereby abdicate its sovereignty, abdication being done by
its waiving or abandoning its right to seek recourse through the Rome Statute Nothing in the Constitution prohibits such
agreements recognizing immunity from jurisdiction or some
of the ICC for erring Americans committing international crimes in the
aspects of jurisdiction (such as custody), in relation to long-
country. recognized subjects of such immunity like Heads of State,
diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. x x x
We are not persuaded. As it were, the Agreement is but a form of
To be sure, the nullity of the subject non-surrender agreement
affirmance and confirmance of the Philippines national criminal jurisdiction.
cannot be predicated on the postulate that some of its provisions constitute a
National criminal jurisdiction being primary, as explained above, it is always
virtual abdication of its sovereignty. Almost every time a state enters into an
the responsibility and within the prerogative of the RP either to prosecute
international agreement, it voluntarily sheds off part of its sovereignty. The
criminal offenses equally covered by the Rome Statute or to accede to the
Constitution, as drafted, did not envision a reclusive Philippines isolated from
jurisdiction of the ICC. Thus, the Philippines may decide to try persons of the
the rest of the world. It even adheres, as earlier stated, to the policy of
US, as the term is understood in the Agreement, under our national criminal
cooperation and amity with all nations.[60]
justice system. Or it may opt not to exercise its criminal jurisdiction over its
erring citizens or over US persons committing high crimes in the country and
By their nature, treaties and international agreements actually have a
defer to the secondary criminal jurisdiction of the ICC over them. As to
limiting effect on the otherwise encompassing and absolute nature of
persons of the US whom the Philippines refuses to prosecute, the country
sovereignty. By their voluntary act, nations may decide to surrender or waive
would, in effect, accord discretion to the US to exercise either its national
some aspects of their state power or agree to limit the exercise of their
criminal jurisdiction over the person concerned or to give its consent to the
otherwise exclusive and absolute jurisdiction. The usual underlying
referral of the matter to the ICC for trial. In the same breath, the US must
consideration in this partial surrender may be the greater benefits derived
extend the same privilege to the Philippines with respect to persons of the
from a pact or a reciprocal undertaking of one contracting party to grant the
RP committing high crimes within US territorial jurisdiction.
same privileges or immunities to the other. On the rationale that the
Philippines has adopted the generally accepted principles of international law
as part of the law of the land, a portion of sovereignty may be waived without
violating the Constitution.[61] Such waiver does not amount to an
In the context of the Constitution, there can be no serious objection
unconstitutional diminution or deprivation of jurisdiction of Philippine
to the Philippines agreeing to undertake the things set forth in the
courts.[62]
Agreement. Surely, one State can agree to waive jurisdictionto the extent
agreed uponto subjects of another State due to the recognition of the
Agreement Not Immoral/Not at Variance
principle of extraterritorial immunity. What the Court wrote in Nicolas v.
with Principles of International Law
Romulo[59]a case involving the implementation of the criminal jurisdiction
provisions of the RP-US Visiting Forces Agreementis apropos:
Petitioner urges that the Agreement be struck down as void ab initio
for imposing immoral obligations and/or being at variance with allegedly
universally recognized principles of international law. The immoral aspect
proceeds from the fact that the Agreement, as petitioner would put it, leaves
criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from
delivering an American criminal to the [ICC] x x x.[63]
The above argument is a kind of recycling of petitioners earlier
position, which, as already discussed, contends that the RP, by entering into
the Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to
international law principles.[64]
The Court is not persuaded. Suffice it to state in this regard that the
non-surrender agreement, as aptly described by the Solicitor General, is an
assertion by the Philippines of its desire to try and punish crimes under its
national law. x x x The agreement is a recognition of the primacy and
competence of the countrys judiciary to try offenses under its national
criminal laws and dispense justice fairly and judiciously.
Petitioner, we believe, labors under the erroneous impression that
the Agreement would allow Filipinos and Americans committing high crimes
of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under
the Rome Statute can be prosecuted and punished in the Philippines or in
the US; or with the consent of the RP or the US, before the ICC, assuming,
for the nonce, that all the formalities necessary to bind both countries to the
Rome Statute have been met. For perspective, what the Agreement
contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party,
which may desire to prosecute the crime under its existing laws. With the
view we take of things, there is nothing immoral or violative of international
law concepts in the act of the Philippines of assuming criminal jurisdiction
pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates
concurrence in the Agreement. And without specifically saying so, petitioner
would argue that the non-surrender agreement was executed by the
President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the
above posture of petitioner, the same having been discussed at length earlier
on. As to the second portion, We wish to state that petitioner virtually faults
the President for performing, through respondents, a task conferred the
President by the Constitutionthe power to enter into international
agreements.
By constitutional fiat and by the nature of his or her office, the
President, as head of state and government, is the sole organ and authority
in the external affairs of the country.[65] The Constitution vests in the
President the power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the Senate. But as
earlier indicated, executive agreements may be validly entered into without
such concurrence. As the President wields vast powers and influence, her
conduct in the external affairs of the nation is, as Bayan would put it,
executive altogether. The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.[66]
In thus agreeing to conclude the Agreement thru E/N BFO-028-03,
then President Gloria Macapagal-Arroyo, represented by the Secretary of
Foreign Affairs, acted within the scope of the authority and discretion vested
in her by the Constitution. At the end of the day, the Presidentby ratifying, Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine
thru her deputies, the non-surrender agreementdid nothing more than
authorities may dispense with the investigation or
discharge a constitutional duty and exercise a prerogative that pertains to her prosecution of a crime punishable under this Act if another
court or international tribunal is already conducting the
office.
investigation or undertaking the prosecution of such crime.
Instead, the authorities may surrender or extradite
suspected or accused persons in the Philippines to the
While the issue of ratification of the Rome Statute is not
appropriate international court, if any, or to another
determinative of the other issues raised herein, it may perhaps be pertinent State pursuant to the applicable extradition laws and
treaties. (Emphasis supplied.)
to remind all and sundry that about the time this petition was interposed,
such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the
A view is advanced that the Agreement amends existing municipal
Executive Secretary.[67] As the Court emphasized in said case, the power to
laws on the States obligation in relation to grave crimes against the law of
ratify a treaty, the Statute in that instance, rests with the President, subject to
nations, i.e., genocide, crimes against humanity and war crimes. Relying on
the concurrence of the Senate, whose role relative to the ratification of a
the above-quoted statutory proviso, the view posits that the Philippine is
treaty is limited merely to concurring in or withholding the ratification. And
required to surrender to the proper international tribunal those persons
concomitant with this treaty-making power of the President is his or her
accused of the grave crimes defined under RA 9851, if it does not exercise
prerogative to refuse to submit a treaty to the Senate; or having secured the
its primary jurisdiction to prosecute them.
latters consent to the ratification of the treaty, refuse to ratify it.[68] This
The basic premise rests on the interpretation that if it does not
prerogative, the Court hastened to add, is the Presidents alone and cannot
decide to prosecute a foreign national for violations of RA 9851, the
be encroached upon via a writ of mandamus. Barring intervening events,
Philippines has only two options, to wit: (1) surrender the accused to the
then, the Philippines remains to be just a signatory to the Rome Statute.
proper international tribunal; or (2) surrender the accused to another State if
Under Art. 125[69] thereof, the final acts required to complete the treaty
such surrender is pursuant to the applicable extradition laws and treaties. But
process and, thus, bring it into force, insofar as the Philippines is concerned,
the Philippines may exercise these options only in cases where another court
have yet to be done.
or international tribunal is already conducting the investigation or undertaking
the prosecution of such crime; otherwise, the Philippines must prosecute the
Agreement Need Not Be in the Form of a Treaty
crime before its own courts pursuant to RA 9851.

On December 11, 2009, then President Arroyo signed into law

Posing the situation of a US national under prosecution by an
Republic Act No. (RA) 9851, otherwise known as the Philippine Act on
international tribunal for any crime under RA 9851, the Philippines has the
Crimes Against International Humanitarian Law, Genocide, and Other Crimes
option to surrender such US national to the international tribunal if it decides
Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph
not to prosecute such US national here. The view asserts that this option of
thereof, provides:
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the
US, and any derogation of Sec. 17 of RA 9851, such as requiring the consent
of the US before the Philippines can exercise such option, requires an
amendatory law. In line with this scenario, the view strongly argues that the
Agreement prevents the Philippineswithout the consent of the USfrom
surrendering to any international tribunal US nationals accused of crimes
covered by RA 9851, and, thus, in effect amends Sec. 17 of RA 9851.
Consequently, the view is strongly impressed that the Agreement cannot be
embodied in a simple executive agreement in the form of an exchange of
notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the
Constitution, where the Philippines adopts, as a national policy, the
generally accepted principles of international law as part of the law of
the land, the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute
embodies principles of law which constitute customary international law or
custom and for which reason it assumes the status of an enforceable
domestic law in the context of the aforecited constitutional provision. As a
corollary, it is argued that any derogation from the Rome Statute principles
cannot be undertaken via a mere executive agreement, which, as an
exclusive act of the executive branch, can only implement, but cannot amend
or repeal, an existing law. The Agreement, so the argument goes, seeks to
frustrate the objects of the principles of law or alters customary rules
embodied in the Rome Statute.
Prescinding from the foregoing premises, the view thus advanced considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified
with the concurrence of the Senate, the theory being that a Senate- ratified
treaty partakes of the nature of a municipal law that can amend or supersede
another law, in this instance Sec. 17 of RA 9851 and the status of the Rome
Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of the
Constitution.
We are unable to lend cogency to the view thus taken. For one, we
find that the Agreement does not amend or is repugnant to RA 9851. For
another, the view does not clearly state what precise principles of law, if any,
the Agreement alters. And for a third, it does not demonstrate in the concrete
how the Agreement seeks to frustrate the objectives of the principles of law
subsumed in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine
the Rome Statute as the former merely reinforces the primacy of the national
jurisdiction of the US and the Philippines in prosecuting criminal offenses
committed by their respective citizens and military personnel, among others.
The jurisdiction of the ICC pursuant to the Rome Statute over high crimes
indicated thereat is clearly and unmistakably complementary to the national
criminal jurisdiction of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes
against international humanitarian law, genocide and other crimes against
humanity;[70] (2) provides penal sanctions and criminal liability for their
commission;[71] and (3) establishes special courts for the prosecution of
these crimes and for the State to exercise primary criminal jurisdiction.[72]
Nowhere in RA 9851 is there a proviso that goes against the tenor of the
Agreement.
The view makes much of the above quoted second par. of Sec. 17,
RA 9851 as requiring the Philippine State to surrender to the proper
international tribunal those persons accused of crimes sanctioned under said
law if it does not exercise its primary jurisdiction to prosecute such persons.
This view is not entirely correct, for the above quoted proviso clearly provides
discretion to the Philippine State on whether to surrender or not a person
accused of the crimes under RA 9851. The statutory proviso uses the word
may. It is settled doctrine in statutory construction that the word may denotes
discretion, and cannot be construed as having mandatory effect.[73] Thus,
the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive
on the part of the Philippine State.
 Besides, even granting that the surrender of a person is mandatorily
required when the Philippines does not exercise its primary jurisdiction in
cases where another court or international tribunal is already conducting the
investigation or undertaking the prosecution of such crime, still, the tenor of
the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal proviso
aptly provides that the surrender may be made to another State pursuant to
the applicable extradition laws and treaties. The Agreement can already be
considered a treaty following this Courts decision in Nicolas v. Romulo[74]
which cited Weinberger v. Rossi.[75] In Nicolas, We held that an executive
agreement is a treaty within the meaning of that word in international law and
constitutes enforceable domestic law vis--vis the United States.[76]
Likewise, the Philippines and the US already have an existing
extradition treaty, i.e., RP-US Extradition Treaty, which was executed on
November 13, 1994. The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13, 1977. Thus, the
Agreement, in conjunction with the RP-US Extradition Treaty, would neither
violate nor run counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda[77] is similarly improper. In
that case, several petitions were filed questioning the power of the President
to enter into foreign loan agreements. However, before the petitions could be
resolved by the Court, the Office of the Solicitor General filed a Manifestation
and Motion averring that the Philippine Government decided not to continue
with the ZTE National Broadband Network Project, thus rendering the petition
moot. In resolving the case, the Court took judicial notice of the act of the
executive department of the Philippines (the President) and found the petition
to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed
the legal implications of an executive agreement. He stated that an executive
agreement has the force and effect of law x x x [it] cannot amend or repeal
prior laws.[78] Hence, this argument finds no application in this case seeing
as RA 9851 is a subsequent law, not a prior one. Notably, this argument
cannot be found in the ratio decidendi of the case, but only in the dissenting
opinion.
The view further contends that the RP-US Extradition Treaty is
inapplicable to RA 9851 for the reason that under par. 1, Art. 2 of the RP-US
Extradition Treaty, [a]n offense shall be an extraditable offense if it is
punishable under the laws in both Contracting Parties x x x,[79] and
thereby concluding that while the Philippines has criminalized under RA 9851
the acts defined in the Rome Statute as war crimes, genocide and other
crimes against humanity, there is no similar legislation in the US. It is further
argued that, citing U.S. v. Coolidge, in the US, a person cannot be tried in the
federal courts for an international crime unless Congress adopts a law
defining and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing
the high crimes mentioned earlier. In fact, as early as October 2006, the US
enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part I,
Title 18 of the United States Code Annotated (USCA) provides for the
criminal offense of war crimes which is similar to the war crimes found in both
the Rome Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United
States, commits a war crime, in any of the
circumstances described in subsection (b), shall be fined
under this title or imprisoned for life or any term of years,
or both, and if death results to the victim, shall also be
subject to the penalty of death.
 (b) Circumstances The circumstances referred to in (4) subjects the group to conditions of life that
subsection (a) are that the person committing such war are intended to cause the physical destruction of
crime or the victim of such war crime is a member of the the group in whole or in part;
Armed Forces of the United States or a national of the (5) imposes measures intended to prevent
United States (as defined in Section 101 of the births within the group; or
Immigration and Nationality Act). (6) transfers by force children of the group to
(c) Definition As used in this Section the term war crime another group;
means any conduct shall be punished as provided in subsection (b).[81]
(1) Defined as a grave breach in any of the
international conventions signed at Geneva 12
Arguing further, another view has been advanced that the current US
August 1949, or any protocol to such convention to
which the United States is a party; laws do not cover every crime listed within the jurisdiction of the ICC and that
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex
there is a gap between the definitions of the different crimes under the US
to the Hague Convention IV, Respecting the Laws
and Customs of War on Land, signed 18 October laws versus the Rome Statute. The view used a report written by Victoria K.
1907;
Holt and Elisabeth W. Dallas, entitled On Trial: The US Military and the
(3) Which constitutes a grave breach of common Article
3 (as defined in subsection [d]) when committed in International Criminal Court, as its basis.
the context of and in association with an armed
conflict not of an international character; or
(4) Of a person who, in relation to an armed conflict At the outset, it should be pointed out that the report used may not
and contrary to the provisions of the Protocol on
have any weight or value under international law. Article 38 of the Statute of
Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as amended at the International Court of Justice (ICJ) lists the sources of international law,
Geneva on 3 May 1996 (Protocol II as amended on
as follows: (1) international conventions, whether general or particular,
3 May 1996), when the United States is a party to
such Protocol, willfully kills or causes serious injury establishing rules expressly recognized by the contesting states; (2)
to civilians.[80]
international custom, as evidence of a general practice accepted as law; (3)
the general principles of law recognized by civilized nations; and (4) subject
Similarly, in December 2009, the US adopted a law that criminalized
to the provisions of Article 59, judicial decisions and the teachings of the
genocide, to wit:
most highly qualified publicists of the various nations, as subsidiary
1091. Genocide means for the determination of rules of law. The report does not fall under
any of the foregoing enumerated sources. It cannot even be considered as
(a) Basic Offense Whoever, whether in the
time of peace or in time of war and with specific the teachings of highly qualified publicists. A highly qualified publicist is a
intent to destroy, in whole or in substantial part, a
scholar of public international law and the term usually refers to legal
national, ethnic, racial or religious group as such
(1) kills members of that group; scholars or academic writers.[82] It has not been shown that the authors[83]
(2) causes serious bodily injury to members of
of this report are highly qualified publicists.
that group;
(3) causes the permanent impairment of the
mental faculties of members of the group
Assuming arguendo that the report has weight, still, the perceived
through drugs, torture, or similar techniques;
gaps in the definitions of the crimes are nonexistent. To highlight, the table
below shows the definitions of genocide and war crimes under the Rome
Statute vis--vis the definitions under US laws:
Rome Statute
Article 6
Genocide
For the purpose of this Statute,
genocide means any of the following
acts committed with intent to
destroy, in whole or in part, a
national, ethnical, racial or religious
group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the
group conditions of life
calculated to bring about its
physical destruction in whole or
in part;
(d) Imposing measures intended to
prevent births within the group;
(e) Forcibly transferring children of
the group to another group.
Article 8
War Crimes
2. For the purpose of this Statute,
war crimes means:
(a) Grave breaches of the Geneva
Conventions of 12 August 1949,
namely, any of the following acts
against persons or property
protected under the provisions of the
relevant Geneva Convention: x x
x[84]
US Law
1091. Genocide
(a) Basic Offense Whoever,
whether in the time of peace or in
time of war and with specific intent to
destroy, in whole or in substantial
part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to
members of that group;
(3) causes the permanent
impairment of the mental
faculties of members of the
group through drugs, torture,
or similar techniques;
(4) subjects the group to
conditions of life that are
intended to cause the physical
destruction of the group in
whole or in part;
(5) imposes measures intended to
prevent births within the
group; or
(6) transfers by force children of
the group to another group;
shall be punished as provided in
subsection (b).
(a) Definition As used in this
Section the term war crime
means any conduct
(1) Defined as a grave breach in
any of the international
conventions signed at Geneva
12 August 1949, or any
protocol to such convention to
which the United States is a
party;
(2) Prohibited by Article 23, 25,
(b) Other serious violations of the 27 or 28 of the Annex to the
laws and customs applicable in Hague Convention IV,
international armed conflict, within Respecting the Laws and
the established framework of Customs of War on Land,
international law, namely, any of the signed 18 October 1907;
following acts: (3) Which constitutes a grave
xxxx breach of common Article 3
(c) In the case of an armed conflict (as defined in subsection
not of an international character, [d][85]) when committed in the
serious violations of article 3 context of and in association
common to the four Geneva with an armed conflict not of
Conventions of 12 August 1949, an international character; or
namely, any of the following acts (4) Of a person who, in relation to
committed against persons taking no an armed conflict and contrary
active part in the hostilities, including to the provisions of the
members of armed forces who have Protocol on Prohibitions or
laid down their arms and those Restrictions on the Use of
placed hors de combat by sickness, Mines, Booby-Traps and
wounds, detention or any other Other Devices as amended at
cause: Geneva on 3 May 1996
xxxx (Protocol II as amended on 3
(d) Paragraph 2 (c) applies to armed May 1996), when the United
conflicts not of an international States is a party to such
character and thus does not apply to Protocol, willfully kills or
situations of internal disturbances causes serious injury to
and tensions, such as riots, isolated civilians.[86]
and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of the
laws and customs applicable in
armed conflicts not of an
international character, within the
established framework of
international law, namely, any of the
following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not
present. In fact, the report itself stated as much, to wit:
Few believed there were wide differences between
the crimes under the jurisdiction of the Court and crimes
within the Uniform Code of Military Justice that would expose
US personnel to the Court. Since US military lawyers were
instrumental in drafting the elements of crimes outlined in the
Rome Statute, they ensured that most of the crimes were
 consistent with those outlined in the UCMJ and gave jurisdiction in criminal cases.[94] Stated otherwise, there is no common law
strength to complementarity for the US. Small areas of
crime in the US but this is considerably different from international law.
potential gaps between the UCMJ and the Rome Statute,
military experts argued, could be addressed through existing
military laws.[87] x x x
The US doubtless recognizes international law as part of the law of
the land, necessarily including international crimes, even without any local
The report went on further to say that [a]ccording to those involved,
statute.[95] In fact, years later, US courts would apply international law as a
the elements of crimes laid out in the Rome Statute have been part of US
source of criminal liability despite the lack of a local statute criminalizing it as
military doctrine for decades.[88] Thus, the argument proffered cannot stand.
such. So it was that in Ex Parte Quirin[96] the US Supreme Court noted that
[f]rom the very beginning of its history this Court has recognized and applied
Nonetheless, despite the lack of actual domestic legislation, the US
the law of war as including that part of the law of nations which prescribes,
notably follows the doctrine of incorporation. As early as 1900, the esteemed
for the conduct of war, the status, rights and duties of enemy nations as well
Justice Gray in The Paquete Habana[89] case already held international law
as of enemy individuals.[97] It went on further to explain that Congress had
as part of the law of the US, to wit:
not undertaken the task of codifying the specific offenses covered in the law
of war, thus:
International law is part of our law, and must be
ascertained and administered by the courts of justice of
appropriate jurisdiction as often as questions of right It is no objection that Congress in providing for the
depending upon it are duly presented for their determination. trial of such offenses has not itself undertaken to codify
For this purpose, where there is no treaty and no controlling that branch of international law or to mark its precise
executive or legislative act or judicial decision, resort must boundaries, or to enumerate or define by statute all the
be had to the customs and usages of civilized nations, and, acts which that law condemns. An Act of Congress
as evidence of these, to the works of jurists and punishing the crime of piracy as defined by the law of
commentators who by years of labor, research, and nations is an appropriate exercise of its constitutional
experience have made themselves peculiarly well authority, Art. I, s 8, cl. 10, to define and punish the offense
acquainted with the subjects of which they treat. Such works since it has adopted by reference the sufficiently precise
are resorted to by judicial tribunals, not for the speculations definition of international law. x x x Similarly by the reference
of their authors concerning what the law ought to be, but for in the 15th Article of War to offenders or offenses that x x x
the trustworthy evidence of what the law really is.[90] by the law of war may be triable by such military
(Emphasis supplied.) commissions. Congress has incorporated by reference, as
within the jurisdiction of military commissions, all offenses
which are defined as such by the law of war x x x, and which
Thus, a person can be tried in the US for an international crime may constitutionally be included within that jurisdiction.[98] x
x x (Emphasis supplied.)
despite the lack of domestic legislation. The cited ruling in U.S. v.
Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,[92]
This rule finds an even stronger hold in the case of crimes against
only applies to common law and not to the law of nations or international
humanity. It has been held that genocide, war crimes and crimes against
law.[93] Indeed, the Court in U.S. v. Hudson only considered the question,
humanity have attained the status of customary international law. Some even
whether the Circuit Courts of the United States can exercise a common law
go so far as to state that these crimes have attained the status of jus
cogens.[99]
Customary international law or international custom is a source of
international law as stated in the Statute of the ICJ.[100] It is defined as the
general and consistent practice of states recognized and followed by them
from a sense of legal obligation.[101] In order to establish the customary
status of a particular norm, two elements must concur: State practice, the
objective element; and opinio juris sive necessitates, the subjective
element.[102]
State practice refers to the continuous repetition of the same or
similar kind of acts or norms by States.[103] It is demonstrated upon the
existence of the following elements: (1) generality; (2) uniformity and
consistency; and (3) duration.[104] While, opinio juris, the psychological
element, requires that the state practice or norm be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by
the existence of a rule of law requiring it.[105]
The term jus cogens means the compelling law.[106] Corollary, a jus
cogens norm holds the highest hierarchical position among all other
customary norms and principles.[107] As a result, jus cogens norms are
deemed peremptory and non-derogable.[108] When applied to international
crimes, jus cogens crimes have been deemed so fundamental to the
existence of a just international legal order that states cannot derogate from
them, even by agreement.[109]
These jus cogens crimes relate to the principle of universal
jurisdiction, i.e., any state may exercise jurisdiction over an individual who
commits certain heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists.[110] The rationale behind this
principle is that the crime committed is so egregious that it is considered to
be committed against all members of the international community[111] and
thus granting every State jurisdiction over the crime.[112]
Therefore, even with the current lack of domestic legislation on the
part of the US, it still has both the doctrine of incorporation and universal
jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an
international tribunal, found in the Rome Statute is not declaratory of
customary international law.
The first element of customary international law, i.e., established,
widespread, and consistent practice on the part of States,[113] does not,
under the premises, appear to be obtaining as reflected in this simple reality:
As of October 12, 2010, only 114[114] States have ratified the Rome Statute,
subsequent to its coming into force eight (8) years earlier, or on July 1, 2002.
The fact that 114 States out of a total of 194[115] countries in the world, or
roughly 58.76%, have ratified the Rome Statute casts doubt on whether or
not the perceived principles contained in the Statute have attained the status
of customary law and should be deemed as obligatory international law. The
numbers even tend to argue against the urgency of establishing international
criminal courts envisioned in the Rome Statute. Lest it be overlooked, the
Philippines, judging by the action or inaction of its top officials, does not even
feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the Statute, but the
treaty has not been transmitted to the Senate for the ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the
application of the concurring elements, thus:
 Custom or customary international law means a practice, in a certain manner. This implicitly requires belief that the practice in
general and consistent practice of states followed by them
question is rendered obligatory by the existence of a rule of law requiring
from a sense of legal obligation [opinio juris] x x x. This
statement contains the two basic elements of custom: the it.[117] Like the first element, the second element has likewise not been
material factor, that is how the states behave, and the
shown to be present.
psychological factor or subjective factor, that is, why they
behave the way they do.
Further, the Rome Statute itself rejects the concept of universal
xxxx
jurisdiction over the crimes enumerated therein as evidenced by it requiring
The initial factor for determining the existence of custom is
State consent.[118] Even further, the Rome Statute specifically and
the actual behavior of states. This includes several
elements: duration, consistency, and generality of the unequivocally requires that: This Statute is subject to ratification,
practice of states.
acceptance or approval by signatory States.[119] These clearly negate the
The required duration can be either short or long. x x argument that such has already attained customary status.
x

xxxx More importantly, an act of the executive branch with a foreign

government must be afforded great respect. The power to enter into
Duration therefore is not the most important element. More important
is the consistency and the generality of the practice. x x x executive agreements has long been recognized to be lodged with the
President. As We held in Neri v. Senate Committee on Accountability of
xxxx
Public Officers and Investigations, [t]he power to enter into an executive
Once the existence of state practice has been
agreement is in essence an executive power. This authority of the President
established, it becomes necessary to determine why
states behave the way they do. Do states behave the way to enter into executive agreements without the concurrence of the Legislature
they do because they consider it obligatory to behave thus or
has traditionally been recognized in Philippine jurisprudence.[120] The
do they do it only as a matter of courtesy? Opinio juris, or the
belief that a certain form of behavior is obligatory, is what rationale behind this principle is the inviolable doctrine of separation of
makes practice an international rule. Without it, practice is
powers among the legislative, executive and judicial branches of the
not law.[116] (Emphasis added.)
government. Thus, absent any clear contravention of the law, courts should
exercise utmost caution in declaring any executive agreement invalid.
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent
practice, among the different countries in the world that the prosecution of
internationally recognized crimes of genocide, etc. should be handled by a
particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the

second or the psychological element must be deemed non-existent, for an
inquiry on why states behave the way they do presupposes, in the first place,
that they are actually behaving, as a matter of settled and consistent
In light of the above consideration, the position or view that the challenged
RP-US Non-Surrender Agreement ought to be in the form of a treaty, to be
effective, has to be rejected.

WHEREFORE, the petition for certiorari, mandamus and prohibition

is hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

ISABELITA C. VINUYA, VICTORIA
C. DELA PEA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO,
ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A.
SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEA,
EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA
ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C.
GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ,
FERMIN B. DELA PEA, MARIA DELA
PAZ B. CULALA, ESPERANZA
MANAPOL, JUANITA M. BRIONES,
VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA
R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A.
CULALA, PILAR Q. GALANG,
ROSARIO C. BUCO, GAUDENCIA C.
DELA PEA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C.
GUEVARRA, VICTORIA M. DELA
CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON
M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M.
BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA
LIWAG, ESTER C. BALINGIT, JOVITA
A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA
S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA
C. GULAPA, SEFERINA S. TURLA, Promulgated:
MAXIMA B. TURLA, LEONICIA G. April 28, 2010
GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T.
G.R. No. 162230 SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the
Malaya Lolas Organization,
Petitioners,
- versus -
THE HONORABLE EXECUTIVE
SECRETARY ALBERTO G.
ROMULO, THE HONORABLE
SECRETARY OF FOREIGN
Present: AFFAIRS DELIA DOMINGO-
ALBERT, THE HONORABLE
PUNO, C. J., SECRETARY OF JUSTICE
CARPIO, MERCEDITAS N. GUTIERREZ,
CORONA, and THE HONORABLE SOLICITOR
CARPIO MORALES, GENERAL ALFREDO L. BENIPAYO,
VELASCO, JR., Respondents.
NACHURA, x--------------------------------------------------------x
LEONARDO-DE CASTRO,
BRION, DECISION
PERALTA,
BERSAMIN, DEL CASTILLO, J.:
DEL CASTILLO,
ABAD, The Treaty of Peace with Japan, insofar as it barred future claims
VILLARAMA, JR., such as those asserted by plaintiffs in these actions, exchanged
PEREZ, and full compensation of plaintiffs for a future peace. History has
MENDOZA, JJ. vindicated the wisdom of that bargain. And while full compensation
for plaintiffs' hardships, in the purely economic sense, has been
denied these former prisoners and countless other survivors of the
war, the immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world services
the debt.[1]
 There is a broad range of vitally important areas that must be regularly
decided by the Executive Department without either challenge or interference by the
Judiciary. One such area involves the delicate arena of foreign relations. It would be
strange indeed if the courts and the executive spoke with different voices in the
realm of foreign policy. Precisely because of the nature of the questions presented,
and the lapse of more than 60 years since the conduct complained of, we make no
attempt to lay down general guidelines covering other situations not involved here,
and confine the opinion only to the very questions necessary to reach a decision on
this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court
with an application for the issuance of a writ of preliminary mandatory injunction
against the Office of the Executive Secretary, the Secretary of the Department of
Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the
Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock,
non-profit organization registered with the Securities and Exchange
Commission, established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the Second World
War.
Petitioners narrate that during the Second World War, the Japanese army
attacked villages and systematically raped the women as part of the destruction of
the village. Their communities were bombed, houses were looted and burned, and
civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly
seized the women and held them in houses or cells, where they were repeatedly
raped, beaten, and abused by Japanese soldiers. As a result of the actions of their
Japanese tormentors, the petitioners have spent their lives in misery, having
endured physical injuries, pain and disability, and mental and emotional suffering.[2]
Petitioners claim that since 1998, they have approached the Executive
Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim
against the Japanese officials and military officers who ordered the establishment of
the comfort women stations in the Philippines. However, officials of the Executive
Department declined to assist the petitioners, and took the position that the individual
claims of the comfort women for compensation had already been fully satisfied by
Japans compliance with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that
respondents committed grave abuse of discretion amounting to lack or excess of
discretion in refusing to espouse their claims for the crimes against humanity and
war crimes committed against them; and (b) compel the respondents to espouse
their claims for official apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other international tribunals.
Petitioners arguments
Petitioners argue that the general waiver of claims made by the Philippine
government in the Treaty of Peace with Japan is void. They claim that the comfort
women system established by Japan, and the brutal rape and enslavement of
petitioners constituted a crime against humanity,[3] sexual slavery,[4] and torture.[5]
They allege that the prohibition against these international crimes is jus cogens
norms from which no derogation is possible; as such, in waiving the claims of Filipina
comfort women and failing to espouse their complaints against Japan, the Philippine
government is in breach of its legal obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that the Philippine governments
acceptance of the apologies made by Japan as well as funds from the Asian included the rapes and murders of an estimated 20,000 to 80,000 Chinese women,
Womens Fund (AWF) were contrary to international law. including young girls, pregnant mothers, and elderly women.[9]

Respondents Arguments In reaction to international outcry over the incident, the Japanese
government sought ways to end international condemnation[10] by establishing the
Respondents maintain that all claims of the Philippines and its nationals comfort women system. Under this system, the military could simultaneously
relative to the war were dealt with in the San Francisco Peace Treaty of 1951 and appease soldiers' sexual appetites and contain soldiers' activities within a regulated
the bilateral Reparations Agreement of 1956.[6] environment.[11] Comfort stations would also prevent the spread of venereal
Article 14 of the Treaty of Peace[7] provides: disease among soldiers and discourage soldiers from raping inhabitants of occupied
territories.[12]
Article 14. Claims and Property
Daily life as a comfort woman was unmitigated misery.[13] The military
a) It is recognized that Japan should pay reparations to
the Allied Powers for the damage and suffering forced victims into barracks-style stations divided into tiny cubicles where they were
caused by it during the war. Nevertheless it is also
forced to live, sleep, and have sex with as many 30 soldiers per day.[14] The 30
recognized that the resources of Japan are not
presently sufficient, if it is to maintain a viable minutes allotted for sexual relations with each soldier were 30-minute increments of
economy, to make complete reparation for all such
unimaginable horror for the women.[15] Disease was rampant.[16] Military doctors
damage and suffering and at the present time meet
its other obligations. regularly examined the women, but these checks were carried out to prevent the
spread of venereal diseases; little notice was taken of the frequent cigarette burns,
b) Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations claims bruises, bayonet stabs and even broken bones inflicted on the women by soldiers.
of the Allied Powers, other claims of the Allied
Powers and their nationals arising out of any actions
taken by Japan and its nationals in the course of the Fewer than 30% of the women survived the war.[17] Their agony continued
prosecution of the war, and claims of the Allied
in having to suffer with the residual physical, psychological, and emotional scars from
Powers for direct military costs of occupation.
their former lives. Some returned home and were ostracized by their families. Some
committed suicide. Others, out of shame, never returned home.[18]
In addition, respondents argue that the apologies made by Japan[8] have
been satisfactory, and that Japan had addressed the individual claims of the women
Efforts to Secure Reparation
through the atonement money paid by the Asian Womens Fund.
Historical Background
The most prominent attempts to compel the Japanese government to
accept legal responsibility and pay compensatory damages for the comfort women
The comfort women system was the tragic legacy of the Rape of Nanking.
system were through a series of lawsuits, discussion at the United Nations (UN),
In December 1937, Japanese military forces captured the city of Nanking in China
resolutions by various nations, and the Womens International Criminal Tribunal. The
and began a barbaric campaign of terror known as the Rape of Nanking, which
Japanese government, in turn, responded through a series of public apologies and
the creation of the AWF.[19]
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first
lawsuit in Japan by former comfort women against the Japanese government. The
Tokyo District Court however dismissed their case.[20] Other suits followed,[21] but
the Japanese government has, thus far, successfully caused the dismissal of every
case.[22]
Undoubtedly frustrated by the failure of litigation before Japanese courts,
victims of the comfort women system brought their claims before the United States
(US). On September 18, 2000, 15 comfort women filed a class action lawsuit in the
US District Court for the District of Columbia[23] "seeking money damages for
[allegedly] having been subjected to sexual slavery and torture before and during
World War II," in violation of "both positive and customary international law." The
case was filed pursuant to the Alien Tort Claims Act (ATCA),[24] which allowed the
plaintiffs to sue the Japanese government in a US federal district court.[25] On
October 4, 2001, the district court dismissed the lawsuit due to lack of jurisdiction
over Japan, stating that [t]here is no question that this court is not the appropriate
forum in which plaintiffs may seek to reopen x x x discussions nearly half a century
later x x x [E]ven if Japan did not enjoy sovereign immunity, plaintiffs' claims are non-
justiciable and must be dismissed.
The District of Columbia Court of Appeals affirmed the lower court's
dismissal of the case.[26] On appeal, the US Supreme Court granted the womens
petition for writ of certiorari, vacated the judgment of the District of Columbia Court of
Appeals, and remanded the case.[27] On remand, the Court of Appeals affirmed its
prior decision, noting that much as we may feel for the plight of the appellants, the
courts of the US simply are not authorized to hear their case.[28] The women again
brought their case to the US Supreme Court which denied their petition for writ of
certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual
Slavery by Japan (KCWS), submitted a petition to the UN Human Rights
Commission (UNHRC), asking for assistance in investigating crimes committed by
Japan against Korean women and seeking reparations for former comfort
women.[29] The UNHRC placed the issue on its agenda and appointed Radhika
Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy issued
a Report reaffirming Japan's responsibility in forcing Korean women to act as sex
slaves for the imperial army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up
by the Japanese Imperial Army during the Second World
War was a violation of its obligations under international
law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese
military sexual slavery according to principles outlined by
the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities
on the right to restitution, compensation and rehabilitation
for victims of grave violations of human rights and
fundamental freedoms. A special administrative tribunal
for this purpose should be set up with a limited time-frame
since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its
possession with regard to comfort stations and other
related activities of the Japanese Imperial Army during the
Second World War;
(d) Make a public apology in writing to individual women who
have come forward and can be substantiated as women
 victims of Japanese military sexual slavery; which the lives of women continue to be undervalued. Sadly, this
failure to address crimes of a sexual nature committed on a
(e) Raise awareness of these issues by amending massive scale during the Second World War has added to the
educational curricula to reflect historical realities; level of impunity with which similar crimes are committed today.
The Government of Japan has taken some steps to apologize and
(f) Identify and punish, as far as possible, perpetrators atone for the rape and enslavement of over 200,000 women and
involved in the recruitment and institutionalization of girls who were brutalized in comfort stations during the Second
comfort stations during the Second World War. World War. However, anything less than full and unqualified
acceptance by the Government of Japan of legal liability and the
consequences that flow from such liability is wholly inadequate. It
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on must now fall to the Government of Japan to take the necessary
final steps to provide adequate redress.
Prevention of Discrimination and Protection of Minorities, also presented a report to
the Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery:
The UN, since then, has not taken any official action directing Japan to
Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict.
provide the reparations sought.
The report included an appendix entitled An Analysis of the Legal Liability of the
Government of Japan for 'Comfort Women Stations' established during the Second
Women's International War
World War,[30] which contained the following findings:
Crimes

68. The present report concludes that the Japanese

Tribunal
Government remains liable for grave violations of human rights
and humanitarian law, violations that amount in their totality to
crimes against humanity. The Japanese Governments arguments
The Women's International War Crimes Tribunal (WIWCT) was a people's
to the contrary, including arguments that seek to attack the
underlying humanitarian law prohibition of enslavement and rape, tribunal established by a number of Asian women and human rights organizations,
remain as unpersuasive today as they were when they were first
supported by an international coalition of non-governmental organizations.[31] First
raised before the Nuremberg war crimes tribunal more than 50
years ago. In addition, the Japanese Governments argument that proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to adjudicate
Japan has already settled all claims from the Second World War
Japan's military sexual violence, in particular the enslavement of comfort women, to
through peace treaties and reparations agreements following the
war remains equally unpersuasive. This is due, in large part, to the bring those responsible for it to justice, and to end the ongoing cycle of impunity for
failure until very recently of the Japanese Government to admit the
wartime sexual violence against women.
extent of the Japanese militarys direct involvement in the
establishment and maintenance of these rape centres. The
Japanese Governments silence on this point during the period in
After examining the evidence for more than a year, the tribunal issued its
which peace and reparations agreements between Japan and
other Asian Governments were being negotiated following the end verdict on December 4, 2001, finding the former Emperor Hirohito and the State of
of the war must, as a matter of law and justice, preclude Japan
Japan guilty of crimes against humanity for the rape and sexual slavery of
from relying today on these peace treaties to extinguish liability in
these cases. women.[32] It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since the
69. The failure to settle these claims more than half a century
after the cessation of hostilities is a testament to the degree to tribunal itself was organized by private citizens.

Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California,
along with six co-sponsor representatives, introduced House Resolution 121 which
called for Japanese action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July 30, 2007,[33] and
made four distinct demands:
[I]t is the sense of the House of Representatives that the
Government of Japan (1) should formally acknowledge, apologize,
and accept historical responsibility in a clear and unequivocal
manner for its Imperial Armed Forces' coercion of young women
into sexual slavery, known to the world as comfort women, during
its colonial and wartime occupation of Asia and the Pacific Islands
from the 1930s through the duration of World War II; (2) would
help to resolve recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to make such
an apology as a public statement in his official capacity; (3) should
clearly and publicly refute any claims that the sexual enslavement
and trafficking of the comfort women for the Japanese Imperial
Army never occurred; and (4) should educate current and future
generations about this horrible crime while following the
recommendations of the international community with respect to
the comfort women.[34]
In December 2007, the European Parliament, the governing body of the
European Union, drafted a resolution similar to House Resolution 121.[35] Entitled,
Justice for Comfort Women, the resolution demanded: (1) a formal acknowledgment
of responsibility by the Japanese government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged education of the past. The resolution
also stressed the urgency with which Japan should act on these issues, stating: the
right of individuals to claim reparations against the government should be expressly
recognized in national law, and cases for reparations for the survivors of sexual
slavery, as a crime under international law, should be prioritized, taking into account
the age of the survivors.
The Canadian and Dutch parliaments have each followed suit in drafting
resolutions against Japan. Canada's resolution demands the Japanese government
to issue a formal apology, to admit that its Imperial Military coerced or forced
hundreds of thousands of women into sexual slavery, and to restore references in
Japanese textbooks to its war crimes.[36] The Dutch parliament's resolution calls for
the Japanese government to uphold the 1993 declaration of remorse made by Chief
Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdoms Parliament also
produced a report in November, 2008 entitled, "Global Security: Japan and Korea"
which concluded that Japan should acknowledge the pain caused by the issue of
comfort women in order to ensure cooperation between Japan and Korea.
Statements of Remorse
made by representatives of
the Japanese government
Various officials of the Government of Japan have issued the following
public statements concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:
The Government of Japan has been conducting a study
on the issue of wartime "comfort women" since December 1991. I
wish to announce the findings as a result of that study.
As a result of the study which indicates that comfort
stations were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the
military authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and
management of the comfort stations and the transfer of comfort
women. The recruitment of the comfort women was conducted
mainly by private recruiters who acted in response to the request
of the military. The Government study has revealed that in many
cases they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel
directly took part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were
transferred to the war areas, excluding those from Japan, those
from the Korean Peninsula accounted for a large part. The Korean
Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally
against their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the involvement of the
military authorities of the day, that severely injured the honor and
dignity of many women. The Government of Japan would like to
take this opportunity once again to extend its sincere apologies
and remorse to all those, irrespective of place of origin, who
suffered immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of Japan, to
continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described
above instead of evading them, and take them to heart as lessons
of history. We hereby reiterated our firm determination never to
repeat the same mistake by forever engraving such issues in our
memories through the study and teaching of history.
As actions have been brought to court in Japan and
interests have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayamas Statement in 1994
On the issue of wartime comfort women, which seriously
stained the honor and dignity of many women, I would like to take
this opportunity once again to express my profound and sincere
remorse and apologies
c) Letters from the Prime Minister of Japan to Individual Comfort Women
The issue of comfort women, with the involvement of the
Japanese military authorities at that time, was a grave affront to the
honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most
sincere apologies and remorse to all the women who endured
immeasurable and painful experiences and suffered incurable
physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse, should face
up squarely to its past history and accurately convey it to future
generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial
rule and acts of aggression that occurred in modern world history,
and recognizing that Japan carried out such acts in the past and
inflicted suffering on the people of other countries, especially in
Asia, the Members of this House hereby express deep remorse.
(Resolution of the House of Representatives adopted on June 9,
1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last
year, and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing sincerely to
those who suffered immeasurable pain and incurable
psychological wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto, have issued
letters to the comfort women. I would like to be clear that I carry the
same feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK, March
11, 2007).
I am apologizing here and now. I am apologizing as the
Prime Minister and it is as stated in the statement by the Chief
Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister
Abe at the Budget Committee, the House of Councilors, the Diet of
Japan, March 26, 2007).
 I am deeply sympathetic to the former comfort women applied for assistance: (1) an atonement fund paying 2 million (approximately
who suffered hardships, and I have expressed my apologies for
$20,000) to each woman; (2) medical and welfare support programs, paying 2.5-3
the extremely agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by Prime Minister million ($25,000-$30,000) for each woman; and (3) a letter of apology from the
Abe to President George W. Bush, April 3, 2007).
Japanese Prime Minister to each woman. Funding for the program came from the
I have to express sympathy from the bottom of my heart Japanese government and private donations from the Japanese people. As of
to those people who were taken as wartime comfort women. As a
March 2006, the AWF provided 700 million (approximately $7 million) for these
human being, I would like to express my sympathies, and also as
prime minister of Japan I need to apologize to them. My programs in South Korea, Taiwan, and the Philippines; 380 million (approximately
administration has been saying all along that we continue to stand
$3.8 million) in Indonesia; and 242 million (approximately $2.4 million) in the
by the Kono Statement. We feel responsible for having forced
these women to go through that hardship and pain as comfort Netherlands.
women under the circumstances at the time. (Excerpt from an
interview article "A Conversation with Shinzo Abe" by the
Washington Post, April 22, 2007). On January 15, 1997, the AWF and the Philippine government signed a
Memorandum of Understanding for medical and welfare support programs for
x x x both personally and as Prime Minister of Japan, my
heart goes out in sympathy to all those who suffered extreme former comfort women. Over the next five years, these were implemented by the
hardships as comfort women; and I expressed my apologies for
Department of Social Welfare and Development.
the fact that they were forced to endure such extreme and harsh
conditions. Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to make the 21st
Our Ruling
Century a wonderful century in which no human rights are violated.
And the Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister Abe's
Stripped down to its essentials, the issue in this case is whether the
remarks at the Joint Press Availability after the summit meeting at
Camp David between Prime Minister Abe and President Bush, Executive Department committed grave abuse of discretion in not espousing
April 27, 2007).
petitioners claims for official apology and other forms of reparations against Japan.

The Asian Women's Fund

The petition lacks merit.

Established by the Japanese government in 1995, the AWF represented

From a Domestic Law
the government's concrete attempt to address its moral responsibility by offering Perspective, the Executive
Department has the
monetary compensation to victims of the comfort women system.[37] The purpose
exclusive prerogative to
of the AWF was to show atonement of the Japanese people through expressions of determine whether to
espouse petitioners claims
apology and remorse to the former wartime comfort women, to restore their honor,
against Japan.
and to demonstrate Japans strong respect for women.[38]

Baker v. Carr[39] remains the starting point for analysis under the political
The AWF announced three programs for former comfort women who
question doctrine. There the US Supreme Court explained that:

x x x Prominent on the surface of any case held to involve
a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department or a
lack of judicially discoverable and manageable standards for
resolving it, or the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various
departments on question.
In Taada v. Cuenco,[40] we held that political questions refer "to those
questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is concerned
with issues dependent upon the wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political
questions.[41] One such category involves questions of foreign relations. It is well-
established that "[t]he conduct of the foreign relations of our government is
committed by the Constitution to the executive and legislative--'the political'--
departments of the government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision."[42] The
US Supreme Court has further cautioned that decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil.
They are decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility.[43]
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or invalidate treaties
and executive agreements.[44] However, the question whether the Philippine
government should espouse claims of its nationals against a foreign government is a
foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the country to waive
all claims of its nationals for reparations against Japan in the Treaty of Peace of
1951. The wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department via the
instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US
Supreme Court held that [t]he President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations.
It is quite apparent that if, in the maintenance of our
international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims
achieved, congressional legislation which is to be made effective
through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and freedom
from statutory restriction which would not be admissible where
domestic affairs alone involved. Moreover, he, not Congress, has
the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has
his confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v.
Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Punos dissent in
Secretary of Justice v. Lantion:[48]
x x x The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the
nation especially in times of war. It can only be entrusted to that
department of government which can act on the basis of the best
 available information and can decide with decisiveness. x x x It is
also the President who possesses the most comprehensive and
the most confidential information about foreign countries for our
diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the presidential role in
foreign affairs is dominant and the President is traditionally
accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners cause
would be inimical to our countrys foreign policy interests, and could disrupt our
relations with Japan, thereby creating serious implications for stability in this region.
For us to overturn the Executive Departments determination would mean an
assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.
In any event, it cannot reasonably be maintained that the Philippine
government was without authority to negotiate the Treaty of Peace with Japan. And
it is equally true that, since time immemorial, when negotiating peace accords and
settling international claims:
x x x [g]overnments have dealt with x x x private claims as their
own, treating them as national assets, and as counters, `chips', in
international bargaining. Settlement agreements have lumped, or
linked, claims deriving from private debts with others that were
intergovernmental in origin, and concessions in regard to one
category of claims might be set off against concessions in the
other, or against larger political considerations unrelated to
debts.[49]
Indeed, except as an agreement might otherwise provide, international
settlements generally wipe out the underlying private claims, thereby terminating any
recourse under domestic law. In Ware v. Hylton,[50] a case brought by a British
subject to recover a debt confiscated by the Commonwealth of Virginia during the
war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject
of the war, and that after peace is concluded, neither the matter in
dispute, nor the conduct of either party, during the war, can ever be
revived, or brought into contest again. All violences, injuries, or
damages sustained by the government, or people of either, during
the war, are buried in oblivion; and all those things are implied by
the very treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or compensation
for, British property confiscated, or extinguished, during the war, by
any of the United States, could only be provided for by the treaty of
peace; and if there had been no provision, respecting these
subjects, in the treaty, they could not be agitated after the treaty, by
the British government, much less by her subjects in courts of
justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty is certainly
nothing new. For instance, in Dames & Moore v. Regan,[51] the US Supreme Court
held:
Not infrequently in affairs between nations, outstanding
claims by nationals of one country against the government of
another country are sources of friction between the two
sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations
have often entered into agreements settling the claims of their
respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the
government of another are established international practice
reflecting traditional international theory. L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that principle, the
United States has repeatedly exercised its sovereign authority to
settle the claims of its nationals against foreign countries. x x x
Under such agreements, the President has agreed to renounce or
extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the
establishment of arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants
 themselves, since a claimant's only hope of obtaining any payment
at all might lie in having his Government negotiate a diplomatic
settlement on his behalf. But it is also undisputed that the United
States has sometimes disposed of the claims of its citizens without
their consent, or even without consultation with them, usually
without exclusive regard for their interests, as distinguished from
those of the nation as a whole. Henkin, supra, at 262-263. Accord,
Restatement (Second) of Foreign Relations Law of the United
States 213 (1965) (President may waive or settle a claim against a
foreign state x x x [even] without the consent of the [injured]
national). It is clear that the practice of settling claims continues
today.
Respondents explain that the Allied Powers concluded the Peace Treaty
with Japan not necessarily for the complete atonement of the suffering caused by
Japanese aggression during the war, not for the payment of adequate reparations,
but for security purposes. The treaty sought to prevent the spread of communism in
Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.
This was also the finding in a similar case involving American victims of
Japanese slave labor during the war.[52] In a consolidated case in the Northern
District of California,[53] the court dismissed the lawsuits filed, relying on the 1951
peace treaty with Japan,[54] because of the following policy considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the reparations
issue once and for all. As the statement of the chief United States
negotiator, John Foster Dulles, makes clear, it was well
understood that leaving open the possibility of future claims
would be an unacceptable impediment to a lasting peace:
Reparation is usually the most
controversial aspect of peacemaking. The
present peace is no exception.
On the one hand, there are claims both
vast and just. Japan's aggression caused
tremendous cost, losses and suffering.
On the other hand, to meet these
claims, there stands a Japan presently reduced
to four home islands which are unable to
produce the food its people need to live, or the
raw materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of Japan.
During the occupation the Supreme Commander of the Allied
Powers (SCAP) for the region, General Douglas MacArthur,
confiscated Japanese assets in conjunction with the task of
managing the economic affairs of the vanquished nation and with
a view to reparations payments. It soon became clear that
Japan's financial condition would render any aggressive
reparations plan an exercise in futility. Meanwhile, the
importance of a stable, democratic Japan as a bulwark to
communism in the region increased. At the end of 1948,
MacArthur expressed the view that [t]he use of reparations as a
weapon to retard the reconstruction of a viable economy in Japan
should be combated with all possible means and recommended
that the reparations issue be settled finally and without delay.
That this policy was embodied in the treaty is clear not
only from the negotiations history but also from the Senate Foreign
Relations Committee report recommending approval of the treaty
by the Senate. The committee noted, for example:
Obviously insistence upon the payment
of reparations in any proportion commensurate
with the claims of the injured countries and their
nationals would wreck Japan's economy,
dissipate any credit that it may possess at
present, destroy the initiative of its people, and
create misery and chaos in which the seeds of
discontent and communism would flourish. In
short, [it] would be contrary to the basic purposes
and policy of x x x the United States x x x.
We thus hold that, from a municipal law perspective, that certiorari will not
lie. As a general principle and particularly here, where such an extraordinary length
of time has lapsed between the treatys conclusion and our consideration the
Executive must be given ample discretion to assess the foreign policy considerations
of espousing a claim against Japan, from the standpoint of both the interests of the fit, for it is its own right that the State is asserting. Should the
natural or legal person on whose behalf it is acting consider
petitioners and those of the Republic, and decide on that basis if apologies are
that their rights are not adequately protected, they have no
sufficient, and whether further steps are appropriate or necessary. remedy in international law. All they can do is resort to national
law, if means are available, with a view to furthering their cause or
obtaining redress. The municipal legislator may lay upon the State
The Philippines is not under an obligation to protect its citizens abroad, and may also confer
any international obligation upon the national a right to demand the performance of that
to espouse petitioners obligation, and clothe the right with corresponding sanctions.
claims. However, all these questions remain within the province of
municipal law and do not affect the position internationally.[58]
(Emphasis supplied)
In the international sphere, traditionally, the only means available for
individuals to bring a claim within the international legal system has been when the
The State, therefore, is the sole judge to decide whether its protection will
individual is able to persuade a government to bring a claim on the individuals
be granted, to what extent it is granted, and when will it cease. It retains, in this
behalf.[55] Even then, it is not the individuals rights that are being asserted, but
respect, a discretionary power the exercise of which may be determined by
rather, the states own rights. Nowhere is this position more clearly reflected than in
considerations of a political or other nature, unrelated to the particular case.
the dictum of the Permanent Court of International Justice (PCIJ) in the 1924
Mavrommatis Palestine Concessions Case:
The International Law Commissions (ILCs) Draft Articles on Diplomatic
Protection fully support this traditional view. They (i) state that "the right of diplomatic
By taking up the case of one of its subjects and by
protection belongs to or vests in the State,[59] (ii) affirm its discretionary nature by
resorting to diplomatic action or international judicial proceedings
on his behalf, a State is in reality asserting its own right to ensure, clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and
in the person of its subjects, respect for the rules of international
(iii) stress that the state "has the right to exercise diplomatic protection
law. The question, therefore, whether the present dispute
originates in an injury to a private interest, which in point of fact is on behalf of a national. It is under no duty or obligation to do so."[61]
the case in many international disputes, is irrelevant from this
standpoint. Once a State has taken up a case on behalf of one of
its subjects before an international tribunal, in the eyes of the latter It has been argued, as petitioners argue now, that the State has a duty to
the State is sole claimant.[56]
protect its nationals and act on his/her behalf when rights are injured.[62] However,
Since the exercise of diplomatic protection is the right of the State, reliance
at present, there is no sufficient evidence to establish a general international
on the right is within the absolute discretion of states, and the decision whether to
obligation for States to exercise diplomatic protection of their own nationals
exercise the discretion may invariably be influenced by political considerations other
abroad.[63] Though, perhaps desirable, neither state practice nor opinio juris has
than the legal merits of the particular claim.[57] As clearly stated by the ICJ in
evolved in such a direction. If it is a duty internationally, it is only a moral and not a
Barcelona Traction:
legal duty, and there is no means of enforcing its fulfillment.[64]

The Court would here observe that, within the limits

prescribed by international law, a State may exercise diplomatic We fully agree that rape, sexual slavery, torture, and sexual violence are
protection by whatever means and to whatever extent it thinks
morally reprehensible as well as legally prohibited under contemporary international
law.[65] However, petitioners take quite a theoretical leap in claiming that these
proscriptions automatically imply that that the Philippines is under a non-derogable
obligation to prosecute international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but seek to recover monetary
reparations from the state of Japan. Absent the consent of states, an applicable
treaty regime, or a directive by the Security Council, there is no non-derogable duty
to institute proceedings against Japan. Indeed, precisely because of states
reluctance to directly prosecute claims against another state, recent
developments support the modern trend to empower individuals to directly
participate in suits against perpetrators of international crimes.[66]
Nonetheless, notwithstanding an array of General Assembly resolutions calling for
the prosecution of crimes against humanity and the strong policy arguments
warranting such a rule, the practice of states does not yet support the present
existence of an obligation to prosecute international crimes.[67] Of course a
customary duty of prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state practice in this area is
widespread, it is in the practice of granting amnesties, immunity, selective
prosecution, or de facto impunity to those who commit crimes against humanity.[68]
Even the invocation of jus cogens norms and erga omnes obligations will
not alter this analysis. Even if we sidestep the question of whether jus cogens norms
existed in 1951, petitioners have not deigned to show that the crimes committed by
the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace
was signed, or that the duty to prosecute perpetrators of international crimes is an
erga omnes obligation or has attained the status of jus cogens.
The term erga omnes (Latin: in relation to everyone) in international law has
been used as a legal term describing obligations owed by States towards the
community of states as a whole. The concept was recognized by the ICJ in
Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community as a
whole, and those arising vis--vis another State in the field of
diplomatic protection. By their very nature, the former are the
concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the
basic rights of the human person, including protection from slavery
and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law
others are conferred by international instruments of a universal or
quasi-universal character.
The Latin phrase, erga omnes, has since become one of the rallying cries
of those sharing a belief in the emergence of a value-based international public
order. However, as is so often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal concept, its full
potential remains to be realized in practice.[69]
The term is closely connected with the international law concept of jus
cogens. In international law, the term jus cogens (literally, compelling law) refers to
norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be modified only by general
international norms of equivalent authority.[70]
Early strains of the jus cogens doctrine have existed since the 1700s,[71]
but peremptory norms began to attract greater scholarly attention with the publication
of Alfred von Verdross's influential 1937 article, Forbidden Treaties in International
Law.[72] The recognition of jus cogens gained even more force in the 1950s and
1960s with the ILCs preparation of the Vienna Convention on the Law of Treaties
(VCLT).[73] Though there was a consensus that certain international norms had
attained the status of jus cogens,[74] the ILC was unable to reach a consensus on
the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the
ILC concluded ruefully in 1963 that there is not as yet any generally accepted
criterion by which to identify a general rule of international law as having the
character of jus cogens.[75] In a commentary accompanying the draft convention,
the ILC indicated that the prudent course seems to be to x x x leave the full content
of this rule to be worked out in State practice and in the jurisprudence of international
tribunals.[76] Thus, while the existence of jus cogens in international law is
undisputed, no consensus exists on its substance,[77] beyond a tiny core of
principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we

cannot begin to comprehend the unimaginable horror they underwent at the hands
of the Japanese soldiers. We are also deeply concerned that, in apparent
contravention of fundamental principles of law, the petitioners appear to be without a
remedy to challenge those that have offended them before appropriate fora.
Needless to say, our government should take the lead in protecting its citizens
against violation of their fundamental human rights. Regrettably, it is not within our
power to order the Executive Department to take up the petitioners cause. Ours is
only the power to urge and exhort the Executive Department to take up petitioners
cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.
 HON. RONALDO ZAMORA,
JR. (Executive Secretary),
HON. MAR ROXAS (Secretary
of Trade and Industry), HON.
FELIPE MEDALLA (Secretary
of National Economic and
Development Authority), GOV.
REPRESENTATIVES GERARDO S. G.R. No. 143855 RAFAEL BUENAVENTURA
ESPINA, ORLANDO FUA, (Bangko Sentral ng Pilipinas)
JR., PROSPERO and HON. LILIA BAUTISTA
AMATONG, ROBERT ACE (Chairman, Securities and
S. BARBERS, RAUL M. Exchange Commission),
GONZALES, PROSPERO
PICHAY, JUAN MIGUEL Respondents. Promulgated:
ZUBIRI and FRANKLIN
BAUTISTA, September 21,
Petitioners, Present: 2010
x --------------------------------------------------------------------------------------- x
CORONA, C.J., DECISION

CARPIO, ABAD, J.:

CARPIO
MORALES,
VELASCO, JR.,* This case calls upon the Court to exercise its power of judicial review
NACHURA,*
and determine the constitutionality of the Retail Trade Liberalization Act of
LEONARDO-DE
CASTRO,* 2000, which has been assailed as in breach of the constitutional mandate for
- versus - BRION,*
the development of a self-reliant and independent national economy
PERALTA,
BERSAMIN, effectively controlled by Filipinos.
DEL CASTILLO,
ABAD,
VILLARAMA, JR., The Facts and the Case
PEREZ,
MENDOZA,* and
SERENO,** JJ. On March 7, 2000 President Joseph E. Estrada signed into law
Republic Act (R.A.) 8762, also known as the Retail Trade Liberalization Act
of 2000. It expressly repealed R.A. 1180, which absolutely prohibited foreign
nationals from engaging in the retail trade business. R.A. 8762 now allows
them to do so under four categories:

Category A Less than Exclusively for Filipino

US$2,500,000.00 citizens and
 corporations wholly
owned by Filipino
First, the law runs afoul of Sections 9, 19, and 20 of Article II of the
citizens.
Category B US$2,500,000.00 up but For the first two years of Constitution which enjoins the State to place the national economy under the
less than R.A. 8762s effectivity, control of Filipinos to achieve equal distribution of opportunities, promote
US$7,500,000.00 foreign ownership is
allowed up to 60%. industrialization and full employment, and protect Filipino enterprise against
After the two-year unfair competition and trade policies.
period, 100% foreign
equity shall be allowed.
Category C US$7,500,000.00 or May be wholly owned Second, the implementation of R.A. 8762 would lead to alien control
more by foreigners. Foreign
investments for of the retail trade, which taken together with alien dominance of other areas
establishing a store in of business, would result in the loss of effective Filipino control of the
Categories B and C
shall not be less than economy.
the equivalent in
Philippine Pesos of
US$830,000.00. Third, foreign retailers like Walmart and K-Mart would crush Filipino
Category D US$250,000.00 per May be wholly owned retailers and sari-sari store vendors, destroy self-employment, and bring
store of foreign by foreigners.
enterprises specializing about more unemployment.
in high-end or luxury
products
Fourth, the World Bank-International Monetary Fund had improperly
imposed the passage of R.A. 8762 on the government as a condition for the
R.A. 8762 also allows natural-born Filipino citizens, who had lost
release of certain loans.
their citizenship and now reside in the Philippines, to engage in the retail
trade business with the same rights as Filipino citizens.
Fifth, there is a clear and present danger that the law would promote
monopolies or combinations in restraint of trade.
On October 11, 2000 petitioners Magtanggol T. Gunigundo I,
Michael T. Defensor, Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr.,
Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and
Prospero Amatong, Sergio Apostol, Robert Ace S. Barbers, Enrique Garcia,
Industry Secretary Mar Roxas, National Economic and Development
Jr., Raul M. Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo
Authority (NEDA) Secretary Felipe Medalla, Bangko Sentral ng Pilipinas Gov.
Montemayor, Ma. Elena Palma-Gil, Prospero Pichay, Juan Miguel Zubiri and
Franklin Bautista, all members of the House of Representatives, filed the
present petition, assailing the constitutionality of R.A. 8762 on the following
grounds:
Rafael Buenaventura, and Securities and Exchange Commission Chairman
1. Whether or not petitioner lawmakers have the legal standing
Lilia Bautista countered that:
to challenge the constitutionality of R.A. 8762; and

2. Whether or not R.A. 8762 is unconstitutional.

First, petitioners have no legal standing to file the petition. They
cannot invoke the fact that they are taxpayers since R.A. 8762 does not
The Courts Ruling
involve the disbursement of public funds. Nor can they invoke the fact that
they are members of Congress since they made no claim that the law
One. The long settled rule is that he who challenges the validity of a
infringes on their right as legislators.
law must have a standing to do so.[1] Legal standing or locus standi refers to
the right of a party to come to a court of justice and make such a challenge.
Second, the petition does not involve any justiciable controversy.
More particularly, standing refers to his personal and substantial interest in
Petitioners of course claim that, as members of Congress, they represent the
that he has suffered or will suffer direct injury as a result of the passage of
small retail vendors in their respective districts but the petition does not
that law.[2] To put it another way, he must show that he has been or is about
allege that the subject law violates the rights of those vendors.
to be denied some right or privilege to which he is lawfully entitled or that he
is about to be subjected to some burdens or penalties by reason of the law
Third, petitioners have failed to overcome the presumption of
he complains of.[3]
constitutionality of R.A. 8762. Indeed, they could not specify how the new law
violates the constitutional provisions they cite. Sections 9, 19, and 20 of
Here, there is no clear showing that the implementation of the Retail
Article II of the Constitution are not self-executing provisions that are
Trade Liberalization Act prejudices petitioners or inflicts damages on them,
judicially demandable.
either as taxpayers[4] or as legislators.[5] Still the Court will resolve the
question they raise since the rule on standing can be relaxed for
Fourth, the Constitution mandates the regulation but not the
nontraditional plaintiffs like ordinary citizens, taxpayers, and legislators when
prohibition of foreign investments. It directs Congress to reserve to Filipino
as in this case the public interest so requires or the matter is of
citizens certain areas of investments upon the recommendation of the NEDA
transcendental importance, of overarching significance to society, or of
and when the national interest so dictates. But the Constitution leaves to the
paramount public interest.[6]
discretion of the Congress whether or not to make such reservation. It does
not prohibit Congress from enacting laws allowing the entry of foreigners into
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of
certain industries not reserved by the Constitution to Filipino citizens.
the 1987 Constitution for the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos. They invoke the
The Issues Presented
provisions of the Declaration of Principles and State Policies under Article II
of the 1987 Constitution, which read as follows:
Simplified, the case presents two issues:
 Section 9. The State shall promote a just and Section 12. The State shall promote the
dynamic social order that will ensure the prosperity and preferential use of Filipino labor, domestic materials and
independence of the nation and free the people from locally produced goods, and adopt measures that help
poverty through policies that provide adequate social make them competitive.
services, promote full employment, a rising standard of
living, and an improved quality of life for all. Section 13. The State shall pursue a trade policy
that serves the general welfare and utilizes all forms and
xxxx arrangements of exchange on the basis of equality and
reciprocity.
Section 19. The State shall develop a self-reliant
and independent national economy effectively
controlled by Filipinos. But, as the Court explained in Taada v. Angara,[7] the provisions of
Article II of the 1987 Constitution, the declarations of principles and state
Section 20. The State recognizes the
indispensable role of the private sector, encourages policies, are not self-executing. Legislative failure to pursue such policies
private enterprise, and provides incentives to needed
cannot give rise to a cause of action in the courts.
investments.

The Court further explained in Taada that Article XII of the 1987
Petitioners also invoke the provisions of the National Economy and
Constitution lays down the ideals of economic nationalism: (1) by expressing
Patrimony under Article XII of the 1987 Constitution, which reads:
preference in favor of qualified Filipinos in the grant of rights, privileges and
Section 10. The Congress shall, upon concessions covering the national economy and patrimony and in the use of
recommendation of the economic and planning agency,
Filipino labor, domestic materials and locally-produced goods; (2) by
when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at mandating the State to adopt measures that help make them competitive;
least sixty per centum of whose capital is owned by
and (3) by requiring the State to develop a self-reliant and independent
such citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The national economy effectively controlled by Filipinos.[8]
Congress shall enact measures that will encourage the
formation and operation of enterprises whose capital is
wholly owned by Filipinos. In other words, while Section 19, Article II of the 1987 Constitution
requires the development of a self-reliant and independent national economy
In the grant of rights, privileges, and
concessions covering the national economy and effectively controlled by Filipino entrepreneurs, it does not impose a policy of
patrimony, the State shall give preference to qualified
Filipino monopoly of the economic environment. The objective is simply to
Filipinos.
prohibit foreign powers or interests from maneuvering our economic policies
The State shall regulate and exercise authority
and ensure that Filipinos are given preference in all areas of development.
over foreign investments within its national jurisdiction
and in accordance with its national goals and priorities.
Indeed, the 1987 Constitution takes into account the realities of the
xxxx
outside world as it requires the pursuit of a trade policy that serves the
general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity; and speaks of industries which are
competitive in both domestic and foreign markets as well as of the protection
of Filipino enterprises against unfair foreign competition and trade practices.
Thus, while the Constitution mandates a bias in favor of Filipino goods,
services, labor and enterprises, it also recognizes the need for business
exchange with the rest of the world on the bases of equality and reciprocity
and limits protection of Filipino enterprises only against foreign competition
and trade practices that are unfair.[9]
In other words, the 1987 Constitution does not rule out the entry of
foreign investments, goods, and services. While it does not encourage their
unlimited entry into the country, it does not prohibit them either. In fact, it
allows an exchange on the basis of equality and reciprocity, frowning only on
foreign competition that is unfair.[10] The key, as in all economies in the
world, is to strike a balance between protecting local businesses and
allowing the entry of foreign investments and services.
More importantly, Section 10, Article XII of the 1987 Constitution
gives Congress the discretion to reserve to Filipinos certain areas of
investments upon the recommendation of the NEDA and when the national
interest requires. Thus, Congress can determine what policy to pass and
when to pass it depending on the economic exigencies. It can enact laws
allowing the entry of foreigners into certain industries not reserved by the
Constitution to Filipino citizens. In this case, Congress has decided to open
certain areas of the retail trade business to foreign investments instead of
reserving them exclusively to Filipino citizens. The NEDA has not opposed
such policy.
The control and regulation of trade in the interest of the public
welfare is of course an exercise of the police power of the State. A persons
right to property, whether he is a Filipino citizen or foreign national, cannot be
taken from him without due process of law. In 1954, Congress enacted the
Retail Trade Nationalization Act or R.A. 1180 that restricts the retail business
to Filipino citizens. In denying the petition assailing the validity of such Act for
violation of the foreigners right to substantive due process of law, the
Supreme Court held that the law constituted a valid exercise of police
power.[11] The State had an interest in preventing alien control of the retail
trade and R.A. 1180 was reasonably related to that purpose. That law is not
arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization
Act, lessens the restraint on the foreigners right to property or to engage in
an ordinarily lawful business, it cannot be said that the law amounts to a
denial of the Filipinos right to property and to due process of law. Filipinos
continue to have the right to engage in the kinds of retail business to which
the law in question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the
wisdom of R.A. 8762 save when it blatantly violates the Constitution. But as
the Court has said, there is no showing that the law has contravened any
constitutional mandate. The Court is not convinced that the implementation
of R.A. 8762 would eventually lead to alien control of the retail trade
business. Petitioners have not mustered any concrete and strong argument
to support its thesis. The law itself has provided strict safeguards on foreign
participation in that business. Thus
First, aliens can only engage in retail trade business subject to the
categories above-enumerated; Second, only nationals from, or juridical
entities formed or incorporated in countries which allow the entry of Filipino
retailers shall be allowed to engage in retail trade business; and Third,
qualified foreign retailers shall not be allowed to engage in certain retailing
activities outside their accredited stores through the use of mobile or rolling
stores or carts, the use of sales representatives, door-to-door selling,
restaurants and sari-sari stores and such other similar retailing activities.
In sum, petitioners have not shown how the retail trade liberalization
has prejudiced and can prejudice the local small and medium enterprises
since its implementation about a decade ago.
WHEREFORE, the Court DISMISSES the petition for lack of merit.
No costs.
SO ORDERED.
minors, represented by their parents MARIO and LINA CARDAMA,
CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA,
minors and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH JAMES, all
surnamed QUIPIT, minors, represented by their parents JOSE MAX and
VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as
the Secretary of the Department of Environment and Natural
Resources, and THE HONORABLE ERIBERTO U. ROSARIO, Presiding
Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.

DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically associate
G.R. No. 101083 July 30, 1993
with the twin concepts of "inter-generational responsibility" and "inter-
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
generational justice." Specifically, it touches on the issue of whether the said
OPOSA, minors, and represented by their parents ANTONIO and
petitioners have a cause of action to "prevent the misappropriation or
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
the country's vital life support systems and continued rape of Mother Earth."
and PATRISHA, all surnamed FLORES, minors and represented by their
The controversy has its genesis in Civil Case No. 90-77 which was filed
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC),
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
National Capital Judicial Region. The principal plaintiffs therein, now the
and MA. CONCEPCION, all surnamed MISA, minors and represented by
principal petitioners, are all minors duly represented and joined by their
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
respective parents. Impleaded as an additional plaintiff is the Philippine
minor, represented by his parents ANTONIO and ALICE PESIGAN,
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
corporation organized for the purpose of, inter alia, engaging in concerted
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
action geared for the protection of our environment and natural resources.
represented by her parents FREDENIL and JANE CASTRO, JOHANNA
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
DESAMPARADO,
Secretary of the Department of Environment and Natural Resources (DENR).
minor, represented by her parents JOSE and ANGELA DESAMPRADO,
His substitution in this petition by the new Secretary, the Honorable Angel C.
CARLO JOAQUIN T. NARVASA, minor, represented by his parents
Alcala, was subsequently ordered upon proper motion by the petitioners.1
GREGORIO II and CRISTINE CHARITY NARVASA, MA. MARGARITA,
The complaint2 was instituted as a taxpayers' class suit3 and alleges that the
JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all surnamed
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
SAENZ, minors, represented by their parents ROBERTO and AURORA
entitled to the full benefit, use and enjoyment of the natural resource treasure
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID
that is the country's virgin tropical forests." The same was filed for
IAN, all surnamed KING, minors, represented by their parents MARIO
themselves and others who are equally concerned about the preservation of
and HAYDEE KING, DAVID, FRANCISCO and THERESE VICTORIA, all
said resource but are "so numerous that it is impracticable to bring them all
surnamed ENDRIGA, minors, represented by their parents BALTAZAR
before the Court." The minors further asseverate that they "represent their
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed
generation as well as generations yet unborn."4 Consequently, it is prayed
ABAYA, minors, represented by their parents ANTONIO and MARICA
for that judgment be rendered:
ABAYA, MARILIN, MARIO, JR. and MARIETTE, all surnamed CARDAMA,
 . . . ordering defendant, his agents, representatives and
other persons acting in his behalf to
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."5
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific
evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the
absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose
of supplying water for domestic uses, irrigation and the generation of electric
power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the "greenhouse
effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses
as well as documentary, photographic and film evidence in the course of the
trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four
per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely 2.8%
of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical
secondary growth forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour nighttime,
Saturdays, Sundays and holidays included the Philippines
will be bereft of forest resources after the end of this ensuing
decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As
a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to
cut and deforest the remaining forest stands will work great
damage and irreparable injury to plaintiffs especially
plaintiff minors and their successors who may never see,
use, benefit from and enjoy this rare and unique natural
resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in trust
for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to protection
by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies with
the defendant's office. On March 2, 1990, plaintiffs served
upon defendant a final demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is hereto
attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel
the TLA's is an act violative of the rights of plaintiffs,
especially plaintiff minors who may be left with a country that
is desertified (sic), bare, barren and devoid of the wonderful
flora, fauna and indigenous cultures which the Philippines
had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's
is manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that
is conductive to a life of dignity and well-being. (P.D. 1151, 6
June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional
policy of the State to
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced
and healthful ecology in accord with the rhythm and harmony
of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind the natural law and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim that the complaint states no cause of action against him
and that it raises a political question sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the
land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65
of the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required
the parties to submit their respective Memoranda after the Office of the
Solicitor General (OSG) filed a Comment in behalf of the respondents and
the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right to a
sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the
DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs) to
cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in this
case because TLAs are not contracts. They likewise submit that even if TLAs
may be considered protected by the said clause, it is well settled that they
may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege
in their complaint a specific legal right violated by the respondent Secretary
for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its
capacity as parens patriae." Such allegations, according to them, do not
reveal a valid cause of action. They then reiterate the theory that the
question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued,
a TLA remains effective for a certain period of time usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to
have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the requirements
of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible,
to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid
class suit under Section 12, Rule 3 of the Revised Rules of Court are present
both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by
the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The pertinent portions of
the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint,
the Court cannot help but agree with the defendant. For
although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient
definiteness, a specific legal right they are seeking to
enforce and protect, or a specific legal wrong they are
seeking to prevent and redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on
unverified data. In fine, plaintiffs fail to state a cause of
action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before
it, being impressed with political color and involving a matter
of public policy, may not be taken cognizance of by this
Court without doing violence to the sacred principle of
"Separation of Powers" of the three (3) co-equal branches of
the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would
 amount to "impairment of contracts" abhored (sic) by the
fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right the right to
a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.
This right unites with the right to health which is provided for
in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to
provide sanctions against all forms of
pollution air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful
(sic) environment necessarily carries with it
the correlative duty of not impairing the
same and, therefore, sanctions may be
provided for impairment of environmental
balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.
Without such forests, the ecological or environmental balance would
be irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology
and the right to health, as well as the other related provisions of the
Constitution concerning the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the
benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of
policy:
Sec. 3. Declaration of Policy. It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement
of the quality of the environment, and equitable access of the
different segments of the population to the development and
the use of the country's natural resources, not only for the
present generation but for future generations as well. It is
also the policy of the state to recognize and apply a true
value system including social and environmental cost
implications relative to their utilization, development and
conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. (1) The State shall ensure,
for the benefit of the Filipino people, the full exploration and
development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's
forest, mineral, land, waters, fisheries, wildlife, off-shore
 areas and other natural resources, consistent with the
necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment and
the objective of making the exploration, development and
utilization of such natural resources equitably accessible to
the different segments of the present as well as future
generations.
(2) The State shall likewise recognize and apply a true value
system that takes into account social and environmental cost
implications relative to the utilization, development and
conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference
to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. (1) The Department of Environment and
Natural Resources shall be primarily responsible for the
implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge
of carrying out the State's constitutional mandate to control
and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to
insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the "responsibilities of
each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty under its mandate
and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation
of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted
to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a motion to
dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph
of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
 demandable and enforceable, and to determine whether or
not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of the
authority represents a broadening of judicial power to enable
the courts of justice to review what was before forbidden
territory, to wit, the discretion of the political departments of
the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon even
the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or excess
of jurisdiction because tainted with grave abuse of discretion.
The catch, of course, is the meaning of "grave abuse of
discretion," which is a very elastic phrase that can expand or
contract according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded
from revolving it under the expanded jurisdiction conferred
upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a quo
declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist
from receiving, accepting, processing, renewing or approving
new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the
fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked,
by such a sweeping pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in his motion to dismiss
the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would
have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and
the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires,
the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources to
the end that public welfare is promoted. A timber license is
not a contract within the purview of the due process clause;
it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do what otherwise
would be unlawful, and is not a contract between the
authority, federal, state, or municipal, granting it and the
person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the granting
of license does not create irrevocable rights, neither is it
property or property rights (People vs. Ong Tin, 54 O.G.
7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid that
they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the
forest products therein. They may be validly amended,
modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause
[See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-
24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
reads: therefore amend their complaint to implead as defendants the holders or
Sec. 10. No law impairing, the obligation of contracts shall grantees of the questioned timber license agreements.
be passed. 27 No pronouncement as to costs.
cannot be invoked. SO ORDERED.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses. Hence,
the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government, is
not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment of
obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety,
moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if
the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them
harm. Equally fundamental with the private right is that of the
public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the
state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing, renewing or approving new
timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the
holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991

G.R. No. 110120 March 16, 1994
LAGUNA LAKE DEVELOPMENT AUTHORITY, petitioner,
vs.
COURT OF APPEALS, HON. MANUEL JN. SERAPIO, Presiding Judge
RTC, Branch 127, Caloocan City, HON. MACARIO A. ASISTIO, JR., City
Mayor of Caloocan and/or THE CITY GOVERNMENT OF CALOOCAN,
respondents.
Alberto N. Hidalgo and Ma. Teresa T. Oledan for petitioner.
The City Legal Officer & Chief, Law Department for Mayor Macario A. Asistio,
Jr. and the City Government of Caloocan.
ROMERO, J.:
The clash between the responsibility of the City Government of Caloocan to
dispose off the 350 tons of garbage it collects daily and the growing concern
and sensitivity to a pollution-free environment of the residents of Barangay
Camarin, Tala Estate, Caloocan City where these tons of garbage are
dumped everyday is the hub of this controversy elevated by the protagonists
to the Laguna Lake Development Authority (LLDA) for adjudication.
The instant case stemmed from an earlier petition filed with this Court by
Laguna Lake Development Authority (LLDA for short) docketed as G.R.
No. 107542 against the City Government of Caloocan, et al. In the
Resolution of November 10, 1992, this Court referred G.R. No. 107542 to the
Court of Appeals for appropriate disposition. Docketed therein as CA-G.R.
SP
No. 29449, the Court of Appeals, in a decision1 promulgated on January 29,
1993 ruled that the LLDA has no power and authority to issue a cease and
desist order enjoining the dumping of garbage in Barangay Camarin, Tala
Estate, Caloocan City. The LLDA now seeks, in this petition, a review of the
decision of the Court of Appeals.
The facts, as disclosed in the records, are undisputed.
On March 8, 1991, the Task Force Camarin Dumpsite of Our Lady of
Lourdes Parish, Barangay Camarin, Caloocan City, filed a letter-complaint2
with the Laguna Lake Development Authority seeking to stop the operation of
the 8.6-hectare open garbage dumpsite in Tala Estate, Barangay Camarin,
Caloocan City due to its harmful effects on the health of the residents and the
possibility of pollution of the water content of the surrounding area.
On November 15, 1991, the LLDA conducted an on-site investigation,
monitoring and test sampling of the leachate3 that seeps from said dumpsite
to the nearby creek which is a tributary of the Marilao River. The LLDA Legal
and Technical personnel found that the City Government of Caloocan was
maintaining an open dumpsite at the Camarin area without first securing an
Environmental Compliance Certificate (ECC) from the Environmental
Management Bureau (EMB) of the Department of Environment and Natural
Resources, as required under Presidential Decree No. 1586,4 and clearance
from LLDA as required under Republic Act No. 4850,5 as amended by
Presidential Decree No. 813 and Executive Order No. 927, series of 1983.6
After a public hearing conducted on December 4, 1991, the LLDA, acting on
the complaint of Task Force Camarin Dumpsite, found that the water
collected from the leachate and the receiving streams could considerably
affect the quality, in turn, of the receiving waters since it indicates the
presence of bacteria, other than coliform, which may have contaminated the
sample during collection or handling.7 On December 5, 1991, the LLDA
issued a Cease and Desist Order8 ordering the City Government of
Caloocan, Metropolitan Manila Authority, their contractors, and other entities,
to completely halt, stop and desist from dumping any form or kind of garbage
and other waste matter at the Camarin dumpsite.
The dumping operation was forthwith stopped by the City Government of
Caloocan. However, sometime in August 1992 the dumping operation was
resumed after a meeting held in July 1992 among the City Government of
Caloocan, the representatives of Task Force Camarin Dumpsite and LLDA at
the Office of Environmental Management Bureau Director Rodrigo U.
Fuentes failed to settle the problem.
After an investigation by its team of legal and technical personnel on August
14, 1992, the LLDA issued another order reiterating the December 5, 1991,
order and issued an Alias Cease and Desist Order enjoining the City
Government of Caloocan from continuing its dumping operations at the
Camarin area.
On September 25, 1992, the LLDA, with the assistance of the Philippine
National Police, enforced its Alias Cease and Desist Order by prohibiting the
entry of all garbage dump trucks into the Tala Estate, Camarin area being
utilized as a dumpsite.
Pending resolution of its motion for reconsideration earlier filed on
September 17, 1992 with the LLDA, the City Government of Caloocan filed
with the Regional Trial Court of Caloocan City an action for the declaration of
nullity of the cease and desist order with prayer for the issuance of writ of
injunction, docketed as Civil Case No. C-15598. In its complaint, the City
Government of Caloocan sought to be declared as the sole authority
empowered to promote the health and safety and enhance the right of the
people in Caloocan City to a balanced ecology within its territorial
jurisdiction.9
On September 25, 1992, the Executive Judge of the Regional Trial Court of
Caloocan City issued a temporary restraining order enjoining the LLDA from
enforcing its cease and desist order. Subsequently, the case was raffled to
the Regional Trial Court, Branch 126 of Caloocan which, at the time, was
presided over by Judge Manuel Jn. Serapio of the Regional Trial Court,
Branch 127, the pairing judge of the recently-retired presiding judge.
The LLDA, for its part, filed on October 2, 1992 a motion to dismiss on the
ground, among others, that under Republic Act No. 3931, as amended by
Presidential Decree No. 984, otherwise known as the Pollution Control Law,
the cease and desist order issued by it which is the subject matter of the
complaint is reviewable both upon the law and the facts of the case by the
Court of Appeals and not by the Regional Trial Court. 10
On October 12, 1992 Judge Manuel Jn. Serapio issued an order
consolidating Civil Case No. C-15598 with Civil Case No. C-15580, an earlier
case filed by the Task Force Camarin Dumpsite entitled "Fr. John Moran, et
al. vs. Hon. Macario Asistio." The LLDA, however, maintained during the trial
that the foregoing cases, being independent of each other, should have been
treated separately.
On October 16, 1992, Judge Manuel Jn. Serapio, after hearing the motion to
dismiss, issued in the consolidated cases an order11 denying LLDA's motion
to dismiss and granting the issuance of a writ of preliminary injunction
enjoining the LLDA, its agent and all persons acting for and on its behalf,
from enforcing or implementing its cease and desist order which prevents
plaintiff City of Caloocan from dumping garbage at the Camarin dumpsite
during the pendency of this case and/or until further orders of the court.
On November 5, 1992, the LLDA filed a petition for certiorari, prohibition and
injunction with prayer for restraining order with the Supreme Court, docketed
as G.R. No. 107542, seeking to nullify the aforesaid order dated October 16,
1992 issued by the Regional Trial Court, Branch 127 of Caloocan City
denying its motion to dismiss.
The Court, acting on the petition, issued a Resolution12 on November 10,
1992 referring the case to the Court of Appeals for proper disposition and at
the same time, without giving due course to the petition, required the
respondents to comment on the petition and file the same with the Court of
Appeals within ten (10) days from notice. In the meantime, the Court issued a
temporary restraining order, effective immediately and continuing until further
orders from it, ordering the respondents: (1) Judge Manuel Jn. Serapio,
Presiding Judge, Regional Trial Court, Branch 127, Caloocan City to cease
and desist from exercising jurisdiction over the case for declaration of nullity
of the cease and desist order issued by the Laguna Lake Development
Authority (LLDA); and (2) City Mayor of Caloocan and/or the City
Government of Caloocan to cease and desist from dumping its garbage at
the Tala Estate, Barangay Camarin, Caloocan City.
Respondents City Government of Caloocan and Mayor Macario A. Asistio,
Jr. filed on November 12, 1992 a motion for reconsideration and/or to
quash/recall the temporary restraining order and an urgent motion for
reconsideration alleging that ". . . in view of the calamitous situation that
would arise if the respondent city government fails to collect 350 tons of
garbage daily for lack of dumpsite (i)t is therefore, imperative that the issue
be resolved with dispatch or with sufficient leeway to allow the respondents
to find alternative solutions to this garbage problem."
On November 17, 1992, the Court issued a Resolution13 directing the Court
of Appeals to immediately set the case for hearing for the purpose of
determining whether or not the temporary restraining order issued by the
Court should be lifted and what conditions, if any, may be required if it is to
be so lifted or whether the restraining order should be maintained or
converted into a preliminary injunction.
The Court of Appeals set the case for hearing on November 27, 1992, at
10:00 in the morning at the Hearing Room, 3rd Floor, New Building, Court of
Appeals.14 After the oral argument, a conference was set on December 8,
1992 at 10:00 o'clock in the morning where the Mayor of Caloocan City, the
General Manager of LLDA, the Secretary of DENR or his duly authorized
representative and the Secretary of DILG or his duly authorized
representative were required to appear.
It was agreed at the conference that the LLDA had until December 15, 1992
to finish its study and review of respondent's technical plan with respect to
the dumping of its garbage and in the event of a rejection of respondent's
technical plan or a failure of settlement, the parties will submit within 10 days
from notice their respective memoranda on the merits of the case, after
which the petition shall be deemed submitted for resolution.15
Notwithstanding such efforts, the parties failed to settle the dispute.
On April 30, 1993, the Court of Appeals promulgated its decision holding
that: (1) the Regional Trial Court has no jurisdiction on appeal to try, hear
and decide the action for annulment of LLDA's cease and desist order,
including the issuance of a temporary restraining order and preliminary
injunction in relation thereto, since appeal therefrom is within the exclusive
and appellate jurisdiction of the Court of Appeals under Section 9, par. (3), of
Batas Pambansa Blg. 129; and (2) the Laguna Lake Development Authority
has no power and authority to issue a cease and desist order under its
enabling law, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order
No. 927, series of 1983.
The Court of Appeals thus dismissed Civil Case No. 15598 and the
preliminary injunction issued in the said case was set aside; the cease and
desist order of LLDA was likewise set aside and the temporary restraining
order enjoining the City Mayor of Caloocan and/or the City Government of
Caloocan to cease and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City was lifted, subject, however, to the
condition that any future dumping of garbage in said area, shall be in
conformity with the procedure and protective works contained in the proposal
attached to the records of this case and found on pages 152-160 of the
Rollo, which was thereby adopted by reference and made an integral part of
the decision, until the corresponding restraining and/or injunctive relief is
granted by the proper Court upon LLDA's institution of the necessary legal
proceedings.
Hence, the Laguna Lake Development Authority filed the instant petition for
review on certiorari, now docketed as G.R. No. 110120, with prayer that the
temporary restraining order lifted by the Court of Appeals be re-issued until
after final determination by this Court of the issue on the proper interpretation
of the powers and authority of the LLDA under its enabling law.
On July, 19, 1993, the Court issued a temporary restraining order16
enjoining the City Mayor of Caloocan and/or the City Government of
Caloocan to cease and desist from dumping its garbage at the Tala Estate,
Barangay Camarin, Caloocan City, effective as of this date and containing
until otherwise ordered by the Court.
It is significant to note that while both parties in this case agree on the need
to protect the environment and to maintain the ecological balance of the
surrounding areas of the Camarin open dumpsite, the question as to which
agency can lawfully exercise jurisdiction over the matter remains highly open
to question.
The City Government of Caloocan claims that it is within its power, as a local
government unit, pursuant to the general welfare provision of the Local
Government Code, 17 to determine the effects of the operation of the
dumpsite on the ecological balance and to see that such balance is
maintained. On the basis of said contention, it questioned, from the inception
of the dispute before the Regional Trial Court of Caloocan City, the power
and authority of the LLDA to issue a cease and desist order enjoining the
dumping of garbage in the Barangay Camarin over which the City
Government of Caloocan has territorial jurisdiction.
The Court of Appeals sustained the position of the City of Caloocan on the
theory that Section 7 of Presidential Decree No. 984, otherwise known as the
Pollution Control law, authorizing the defunct National Pollution Control
Commission to issue an ex-parte cease and desist order was not
incorporated in Presidential Decree No. 813 nor in Executive Order No. 927,
series of
1983. The Court of Appeals ruled that under Section 4, par. (d), of Republic
Act No. 4850, as amended, the LLDA is instead required "to institute the
necessary legal proceeding against any person who shall commence to
implement or continue implementation of any project, plan or program within
the Laguna de Bay region without previous clearance from the Authority."
The LLDA now assails, in this partition for review, the abovementioned ruling
of the Court of Appeals, contending that, as an administrative agency which
was granted regulatory and adjudicatory powers and functions by Republic
Act No. 4850 and its amendatory laws, Presidential Decree No. 813 and
Executive Order No. 927, series of 1983, it is invested with the power and
authority to issue a cease and desist order pursuant to Section 4 par. (c), (d),
(e), (f) and (g) of Executive Order No. 927 series of 1983 which provides,
thus:
Sec. 4. Additional Powers and Functions. The authority shall
have the following powers and functions:
xxx xxx xxx
(c) Issue orders or decisions to compel compliance with the
provisions of this Executive Order and its implementing rules
and regulations only after proper notice and hearing.
(d) Make, alter or modify orders requiring the discontinuance
of pollution specifying the conditions and the time within
which such discontinuance must be accomplished.
(e) Issue, renew, or deny permits, under such conditions as
it may determine to be reasonable, for the prevention and
abatement of pollution, for the discharge of sewage,
industrial waste, or for the installation or operation of sewage
works and industrial disposal system or parts thereof.
(f) After due notice and hearing, the Authority may also
revoke, suspend or modify any permit issued under this
Order whenever the same is necessary to prevent or abate
pollution.
(g) Deputize in writing or request assistance of appropriate
government agencies or instrumentalities for the purpose of
enforcing this Executive Order and its implementing rules
and regulations and the orders and decisions of the
Authority.
The LLDA claims that the appellate court deliberately suppressed and totally
disregarded the above provisions of Executive Order No. 927, series of 1983,
which granted administrative quasi-judicial functions to LLDA on pollution
abatement cases.
In light of the relevant environmental protection laws cited which are
applicable in this case, and the corresponding overlapping jurisdiction of
government agencies implementing these laws, the resolution of the issue of
whether or not the LLDA has the authority and power to issue an order
which, in its nature and effect was injunctive, necessarily requires a
determination of the threshold question: Does the Laguna Lake Development
Authority, under its Charter and its amendatory laws, have the authority to
entertain the complaint against the dumping of garbage in the open dumpsite
in Barangay Camarin authorized by the City Government of Caloocan which
is allegedly endangering the health, safety, and welfare of the residents
therein and the sanitation and quality of the water in the area brought about
by exposure to pollution caused by such open garbage dumpsite?
The matter of determining whether there is such pollution of the environment
that requires control, if not prohibition, of the operation of a business
establishment is essentially addressed to the Environmental Management
Bureau (EMB) of the DENR which, by virtue of Section 16 of Executive Order
No. 192, series of 1987,18 has assumed the powers and functions of the
defunct National Pollution Control Commission created under Republic Act
No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB)
under the Office of the DENR Secretary now assumes the powers and
functions of the National Pollution Control Commission with respect to
adjudication of pollution cases. 19
As a general rule, the adjudication of pollution cases generally pertains to the
Pollution Adjudication Board (PAB), except in cases where the special law
provides for another forum. It must be recognized in this regard that the
LLDA, as a specialized administrative agency, is specifically mandated under
Republic Act No. 4850 and its amendatory laws to carry out and make
effective the declared national policy20 of promoting and accelerating the
development and balanced growth of the Laguna Lake area and the
surrounding provinces of Rizal and Laguna and the cities of San Pablo,
Manila, Pasay, Quezon and Caloocan21 with due regard and adequate
provisions for environmental management and control, preservation of the
quality of human life and ecological systems, and the prevention of undue
ecological disturbances, deterioration and pollution. Under such a broad
grant and power and authority, the LLDA, by virtue of its special charter,
obviously has the responsibility to protect the inhabitants of the Laguna Lake
region from the deleterious effects of pollutants emanating from the
discharge of wastes from the surrounding areas. In carrying out the
aforementioned declared policy, the LLDA is mandated, among others, to
pass upon and approve or disapprove all plans, programs, and projects
proposed by local government offices/agencies within the region, public
corporations, and private persons or enterprises where such plans, programs
and/or projects are related to those of the LLDA for the development of the
region. 22
In the instant case, when the complainant Task Force Camarin Dumpsite of
Our Lady of Lourdes Parish, Barangay Camarin, Caloocan City, filed its
letter-complaint before the LLDA, the latter's jurisdiction under its charter was
validly invoked by complainant on the basis of its allegation that the open
dumpsite project of the City Government of Caloocan in Barangay Camarin
was undertaken without a clearance from the LLDA, as required under
Section 4, par. (d), of Republic Act. No. 4850, as amended by P.D. No. 813
and Executive Order No. 927. While there is also an allegation that the said
project was without an Environmental Compliance Certificate from the
Environmental Management Bureau (EMB) of the DENR, the primary
jurisdiction of the LLDA over this case was recognized by the Environmental
Management Bureau of the DENR when the latter acted as intermediary at
the meeting among the representatives of the City Government of Caloocan,
Task Force Camarin Dumpsite and LLDA sometime in July 1992 to discuss
the possibility of
re-opening the open dumpsite.
Having thus resolved the threshold question, the inquiry then narrows down
to the following issue: Does the LLDA have the power and authority to issue
a "cease and desist" order under Republic Act No. 4850 and its amendatory
laws, on the basis of the facts presented in this case, enjoining the dumping
of garbage in Tala Estate, Barangay Camarin, Caloocan City.
The irresistible answer is in the affirmative.
The cease and desist order issued by the LLDA requiring the City
Government of Caloocan to stop dumping its garbage in the Camarin open
dumpsite found by the LLDA to have been done in violation of Republic Act
No. 4850, as amended, and other relevant environment laws,23 cannot be
stamped as an unauthorized exercise by the LLDA of injunctive powers. By
its express terms, Republic Act No. 4850, as amended by P.D. No. 813 and
Executive Order No. 927, series of 1983, authorizes the LLDA to "make, alter
or modify order requiring the discontinuance or pollution."24 (Emphasis
supplied) Section 4, par. (d) explicitly authorizes the LLDA to make whatever
order may be necessary in the exercise of its jurisdiction.
To be sure, the LLDA was not expressly conferred the power "to issue and
ex-parte cease and desist order" in a language, as suggested by the City
Government of Caloocan, similar to the express grant to the defunct National
Pollution Control Commission under Section 7 of P.D. No. 984 which,
admittedly was not reproduced in P.D. No. 813 and E.O. No. 927, series of
1983. However, it would be a mistake to draw therefrom the conclusion that
there is a denial of the power to issue the order in question when the power
"to make, alter or modify orders requiring the discontinuance of pollution" is
expressly and clearly bestowed upon the LLDA by Executive Order No. 927,
series of 1983.
Assuming arguendo that the authority to issue a "cease and desist order"
were not expressly conferred by law, there is jurisprudence enough to the
effect that the rule granting such authority need not necessarily be
express.25 While it is a fundamental rule that an administrative agency has
only such powers as are expressly granted to it by law, it is likewise a settled
rule that an administrative agency has also such powers as are necessarily
implied in the exercise of its express powers.26 In the exercise, therefore, of
its express powers under its charter as a regulatory and quasi-judicial body
with respect to pollution cases in the Laguna Lake region, the authority of the
LLDA to issue a "cease and desist order" is, perforce, implied. Otherwise, it
may well be reduced to a "toothless" paper agency.
In this connection, it must be noted that in Pollution Adjudication Board v.
Court of Appeals, et al.,27 the Court ruled that the Pollution Adjudication
Board (PAB) has the power to issue an ex-parte cease and desist order
when there is prima facie evidence of an establishment exceeding the
allowable standards set by the anti-pollution laws of the country. The
ponente, Associate Justice Florentino P. Feliciano, declared:
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely
because stopping the continuous discharge of pollutive and
 untreated effluents into the rivers and other inland waters of to the exercise of such broad powers may not be obeyed, resulting in the
the Philippines cannot be made to wait until protracted thwarting of its laudabe objective. To meet such contingencies, then the writs
litigation over the ultimate correctness or propriety of such of mandamus and injunction which are beyond the power of the LLDA to
orders has run its full course, including multiple and issue, may be sought from the proper courts.
sequential appeals such as those which Solar has taken, Insofar as the implementation of relevant anti-pollution laws in the Laguna
which of course may take several years. The relevant Lake region and its surrounding provinces, cities and towns are concerned,
pollution control statute and implementing regulations were the Court will not dwell further on the related issues raised which are more
enacted and promulgated in the exercise of that pervasive, appropriately addressed to an administrative agency with the special
sovereign power to protect the safety, health, and general knowledge and expertise of the LLDA.
welfare and comfort of the public, as well as the protection of WHEREFORE, the petition is GRANTED. The temporary restraining order
plant and animal life, commonly designated as the police issued by the Court on July 19, 1993 enjoining the City Mayor of Caloocan
power. It is a constitutional commonplace that the ordinary and/or the City Government of Caloocan from dumping their garbage at the
requirements of procedural due process yield to the Tala Estate, Barangay Camarin, Caloocan City is hereby made permanent.
necessities of protecting vital public interests like those here SO ORDERED.
involved, through the exercise of police power. . . .
The immediate response to the demands of "the necessities of protecting
vital public interests" gives vitality to the statement on ecology embodied in
the Declaration of Principles and State Policies or the 1987 Constitution.
Article II, Section 16 which provides:
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.
As a constitutionally guaranteed right of every person, it carries the
correlative duty of non-impairment. This is but in consonance with the
declared policy of the state "to protect and promote the right to health of the
people and instill health consciousness among them."28 It is to be borne in
mind that the Philippines is party to the Universal Declaration of Human
Rights and the Alma Conference Declaration of 1978 which recognize health
as a fundamental human right. 29
The issuance, therefore, of the cease and desist order by the LLDA, as a
practical matter of procedure under the circumstances of the case, is a
proper exercise of its power and authority under its charter and its
amendatory laws. Had the cease and desist order issued by the LLDA been
complied with by the City Government of Caloocan as it did in the first
instance, no further legal steps would have been necessary.
The charter of LLDA, Republic Act No. 4850, as amended, instead of
conferring upon the LLDA the means of directly enforcing such orders, has
provided under its Section 4 (d) the power to institute "necessary legal
proceeding against any person who shall commence to implement or
continue implementation of any project, plan or program within the Laguna
de Bay region without previous clearance from the LLDA."
Clearly, said provision was designed to invest the LLDA with sufficiently
broad powers in the regulation of all projects initiated in the Laguna Lake
region, whether by the government or the private sector, insofar as the
implementation of these projects is concerned. It was meant to deal with
cases which might possibly arise where decisions or orders issued pursuant

G.R. No. L-543 August 31, 1946
JOSE O. VERA, ET AL., petitioners,
vs.
JOSE A. AVELINO, ET AL., respondents.
Jose W. Diokno and Antonio Barredo for petitioners.
Vicente J. Francisco and Solicitor General Taada for respondents.
J. Antonio Araneta of the Lawyers' Guild as amicus curiae.
BENGZON, J.:
Pursuant to a constitutional provision (section 4, Article X), the Commission
on elections submitted, last May, to the President and the Congress of the
Philippines, its report on the national elections held the preceding month,
and, among other things, stated that, by reason of certain specified acts of
terrorism and violence in the Provinces of Pampanga, Nueva Ecija, Bulacan
and Tarlac, the voting in said region did not reflect the true and free
expression of the popular will.
When the Senate convened on May 25, 1946, it proceeded with the selection
of its officers. Thereafter, in the course of the session, a resolution was
approved referring to the report and ordering that, pending the termination of
the protest lodged against their election, the herein petitioners, Jose O. Vera,
Ramon Diokno and Jose E. Romero who had been included among the
sixteen candidates for senator receiving the highest number of votes,
proclaimed by the Commission on Elections shall not be sworn, nor
seated, as members of the chamber.
Pertinent parts of the resolution called Pendatun are these:
WHEREAS the Commission on Elections, charged under the
Constitution with the duty of insuring free, orderly, and honest
elections in the Philippines, reported to the President of the
Philippines on May 23, 1946, that
". . . Reports also reached this Commission to the effect that
in the Provinces of Bulacan, Pampanga, Tarlac and Nueva
Ecija, the secrecy of the ballot was actually violated; the
armed bands saw to it that their candidates were voted for;
and that the great majority of the voters, thus coerced or
intimadated, suffered from a paralysis of judgement in the
matter of exercising the right of suffrage; considering all
those acts of terrorism, violence and intimidation in
connection with elections which are more or less general in
the Provinces of Pampanga, Tarlac, Bulacan and Nueva
Ecija, this Commission believes that the election in the
provinces aforesaid did not reflect the true and free
expression of the popular will. It should be stated, however,
that the Commission is without jurisdiction, to determine
whether or not the votes cast in the said provinces which,
according to these reports have been cast under the
influence of threats or violence, are valid or invalid. . . ."
WHEREAS, the minority report of the Hon. Vicente de Vera, member
of the Commission on Elections, says among other things, that "we
know that as a result of this chaotic condition, many residents of the
four provinces have voluntarily banished themselves from their home
towns in order not to be subjected to the prevailing oppression and to
avoid being victimized or losing their lives"; and that after the election
dead bodies had been found with notes attached to their necks,
reading, "Bomoto kami kay Roxas" (we voted for Roxas);
WHEREAS the same Judge De Vera says in his minority report that
in the four Provinces of Pampanga, Tarlac, Bulacan and Nueva
Ecija, the worst terrorism reigned during and after the election, and
that if the elections held in the aforesaid provinces were annulled as
demanded by the circumstances mentioned in the report of the
Commission, Jose O. Vera, Ramon Diokno, and Jose Romero,
would not and could not have been declared elected;
xxx xxx xxx
WHEREAS the terrorism resorted to by the lawless elements in the
four provinces mentioned above in order to insure the election of the
candidates of the Conservative wing of the Nationalist Party is of
public knowledge and that such terrorism continues to this day; that
before the elections Jose O. Vera himself declared as campaign
Manager of the Osmea faction that he was sorry if Presidential
Candidate Manuel A. Roxas could not campaign in the Huk
provinces because his life would be endangered; and that because
of the constant murders of his candidates and leaders, Presidential
Candidate Roxas found it necessary to appeal to American High
Commissioner Paul V. McNutt for protection, which appeal American
High Commissioner personallyreferred to President Sergio
Osme__a for appropriate action, and the Presidentin turn ordered
the Secretary of the existence and reign of such terrorism;
 WHEREAS the Philippines, a Republic State, embracing the
principles ofdemocracy, must condem all acts that seek to defeat the
popular will;
WHEREAS it is essential, in order to maintain alive the respect
fordemocratic institutions among our people, that no man or group of
men be permitted to profit from the results of an election held under
coercion, in violation of law, and contrary to the principle of freedom
of choice which should underlie all elections under the Constitution;
WHEREAS protests against the election of Jose O. Vega, Ramon
Diokno, and Jose Romero, have been filed with the electoral Tribunal
of the Senate of the Philippines on the basis of the findings of the
Commission on Elections above quoted;
NOW, THEREFORE, be it resolved by the Senate of the Philippines
in session assembled, as it hereby resolves, to defer the
administration of oath and the sitting of Jose O. Vera, Ramon
Diokno, and Jose Romero, pending the hearing and decision on the
protests lodged against their elections, wherein the terrorism averred
in the report of the Commission on Elections and in the report of the
Provost Marshal constitutes the ground of said protests and will
therefore be the subject of investigation and determination.
Petitioners immediately instituted this action against their colleagues
responsible for the resolution. They pray for an order annulling it, and
compelling respondents to permit them to occupy their seats, and to exercise
their senatorial prerogatives.
In their pleadings, respondents traverse the jurisdiction of this court, and
assert the validity of the Pendatun Resolution.
The issues, few and clear-cut, were thoroughly discussed at the extended
oral argument and in comprehensive memoranda submitted by both sides.
A.NO JURISDICTION
Way back in 1924, Senator Jose Alejandrino assaulted a fellow-member in
the Philippine Senate. That body, after investigation, adopted a resolution,
suspending him from office for one year. He applied here for mandamus and
injunction to nullify the suspension and to require his colleagues to reinstate
him. This court believed the suspension was legally wrong, because, as
senator appointed by the Governor-General, he could not be disciplined by
the Philippine Senate; but it denied the prayer for relief, mainly upon the
theory of the separation of the three powers, Executive, Legislative and
Judicial. (Alejandrino vs. Quezon, 46 Phil., 81.) Said the decision:
. . . Mandamus will not lie against the legislative body, its members,
or its officers, to compel the performance of duties purely legislative
in their character which therefore pertain to their legislative functions
and over which they have exclusive control. The courts cannot
dictate action in this respect without a gross usurpation of power. So
it has been held that where a member has been expelled by the
legislative body, the courts have no power, irrespective of whether
the expulsion was right or wrong, to issue a mandate to compel his
reinstatement. (Code of civil Procedure, section 222, 515; 18 R.C. L.,
186, 187; Cooley, Constitutional Limitations, 190; French vs. Senate
[1905], 146 Cal; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte
Echols [1886], 39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De
Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood
Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel.
Crammer vs. Thorson [1896], 33 L. R. A., ex rel. Bruce vs. Dunne
[1913], 258 Ill., 441; People ex rel. La Chicote vs. Best [1907], 187
N. Y., 1; Abueva vs. Wood [1924], 45 Phil., 612.) (Supra, pp. 88, 89.)
. . . Under our form of government the judicial department has no
power to revise even the most arbitrary and unfair action of the
legislative department, or of either house thereof, taken in pursuance
of the power committed exclusively to that department by the
constitution. (Supra, p. 93)
No court has ever held and we apprehend no court will ever hold that
it possesses the power to direct the Chief Executive or the
Legislature or a branch thereof to take any particular action. If a court
should ever be so rash as to thus trench on the domain of either of
the other departments, it will be the end of popular government as
we know it in democracies. (Supra, p. 94.)
Conceding therefore that the power of the Senate to punish its
members for disorderly behavior does not authorize it to suspend an
appointive member from the exercise of his office for one year,
conceding what has been so well stated by the learned counsel for
the petitioner, conceding all this and more, yet the writ prayed for
cannot issue, for the all-conclusive reason that the Supreme Court
does not possess the power of coercion to make the Philippine
Senate take any particular action. . . . (Supra, p. 97.)
The same hands-off policy had been previously followed in Severino vs.
Governor-General and Provincial Board of Occidental Negros (16 Phil., 366)
and Abueva vs. Wood (45 Phil., 612)
At this point we could pretend to erudition by tracing the origin, development
and various applications of theory of separation of powers, transcribing
herein whole paragraphs from adjudicated cases to swell the pages of
judicial output. Yet the temptation must be resisted, and the parties spared a
stiff dose of juris prudential lore about a principle, which, after all, is the first
fundamental imparted to every student of Constitutional Law.
Not that a passable excuse would be lacking for such a dissertation. The
advent of the Republic, and the consequent finality of our views on
constitutional issues, may call for a definition of concepts and attitudes. But
surely, there will be time enough, as cases come up for adjudication.
Returning to the instant litigation, it presents no more than the questions,
whether the Alejandro doctrine still obtains, and whether the admitted facts
disclose any features justifying departure therefrom.
When the Commonwealth Constitution was approved in 1935, the existence
of three coordinate, co-equal and co-important branches of the government
was ratified and confirmed. That Organic Act contained some innovations
which established additional exceptions to the well-known separation of
powers; for instance, the creation of the Electoral Tribunal wherein Justices
of the Supreme Court participate in the decision of congressional election
protests, the grant of rule-making power to the Supreme Court, etc.; but in
the main, the independence of one power from the other was maintained.
And the Convention composed mostly of lawyers (143 out of a total of 202
members), fully acquainted with the Abueva, Alejandrino and Severino
precedents did not choose to modify their constitutional doctrine, even as
it altered some fundamental tenets theretofore well established.1
However, it is alleged that, in 1936, Angara vs. Electoral Commission (63
Phil., 139), modified the aforesaid ruling. We do not agree. There is no
pronouncement in the latter decision, making specific reference to the
Alejandrino incident regarding our power or lack of it to interfere with
the functions of the Senate. And three years later, in 1939, the same Justice
Laurel, who had penned it, cited Alejandrino vs. Quezon as a binding
authority of the separation of powers. (Planas vs. Gil, 67 Phil., 62.) It must be
stressed that, in the Angara controversy, no legislative body or person was a
litigant before the court, and whatever obiter dicta, or general expressions,
may therein found can not change the ultimate circumstance that no directive
was issued against a branch of the Legislature or any member thereof.2 This
Court, in that case, did not require the National Assembly or any
assemblyman to do any particular act. It only found it "has jurisdiction over
the Electoral Commission." (Supra, 63 Phil., 161.)
That this court in the Angara litigation made declarations, nullifying a
resolution of the National Assembly, is not decisive. In proper cases this
court may annul any Legislative enactment that fails to observe the
constitutional limitations. That is a power conceded to the judiciary since
Chief Justice Marshall penned Marbury vs. Madison in 1803. Its foundation is
explained by Justice Sutherland in the Minimum Wage Case (261 U. S.,
544).Said the Court:
. . . The Constitution, by its own terms, is the supreme law of the
land, emanating from the people, the repository of ultimate
sovereignty under our form of government. A congressional statute,
on the other hand, is the act of an agency of this sovereign authority,
and if it conflicts with the Constitution, must fall; for that which is not
supreme must yield to that which is. To hold it invalid (if it be invalid)
is a plain exercise of the judicial power, that power vested in
courts to enable them to administer justice according to law. From
the authority to ascertain and determine the law in a given case there
necessa ruly results, in case of conflict, the duty to declare and
enforce the rule of the supreme law and reject that of an inferior act
of legislation which, transcending the Constitution, is no effect, and
binding on no one. This is not the exercise of a substantive power to
review and nullify acts of Congress, for such no substantive power
exists. It is simply a necessary concomitant of the power to hear and
dispose of a case or controversy properly before the court, to the
determination of which must be brought the test and measure of the
law.
And the power is now expressly recognized by our Organic Act. (See
sections 2 and 10. Article VIII.)
But we must emphasize, the power is to be exercised in proper cases, with
the appropriate parties.
It must be conceded that the acts of the Chief executive performed
within the limits of his jurisdiction are his official acts and courts will
neither direct nor restrain executive action in such cases. The rule is
non-interference. But from this legal premise, it does not necessarily
follow that we are precluded from making an inquiry into the validity
or constitutionality of his acts when these are properly challenged in
an appropriate legal proceeding. . . . In the present case, the
President is not a party to the proceeding. He is neither compelled
nor restrained to actin a particular way. . . . This court, therefore, has
jurisdiction over the instant proceedings and will accordingly proceed
to determine the merits of the present controversy." (Planas vs. Gil.,
67 Phil., 62, 73, 74, 76.) (Emphasis ours.) (See also Lopez vs. De
los Reyes, 55 Phil., 170.)
More about the Angara precedent: The defendant there was only the
Electoral Commission which was "not a separate department of the
Government" (Vol. 63,p. 160), and exercised powers "judicial in nature."
(Supra, p. 184) Hence, against our authority, there was no objection based
on the independence and separation of the three co-equal departments of
Government. Besides, this court said no more than that, there being a
conflict of jurisdiction between two constitutional bodies, it could not decline
to take cognizance of the controversy to determine the "character, scope and
extent" of their respective constitutional spheres of action. Here, there is
actually no antagonism between the Electoral Tribunal of the Senate and the
Senate itself, for it is not suggested has adopted a rule contradicting the
Pendatun Resolution. Consequently, there is no occasion for our
intervention. Such conflict of jurisdiction, plus the participation of the Senate
Electoral Tribunal are essential ingredients to make the facts of this case fit
the mold of the Angara doctrine.
Now, under the principles enunciated in the Alejandrino case, may this
petition be entertained? The answer must naturally be in the negative.
Granting that the postponement of the administration of the oath amounts to
suspension of the petitioners from their office, and conceding arguendo that
such suspension is beyond the power of the respondents, who in effect are
and acted as the Philippine Senate (Alejandrino vs. Quezon, 46 Phil., 83,
88),this petition should be denied. As was explained in the Alejandrino case,
we could not order one branch of the Legislature to reinstate a member
thereof. To do so would be to establish judicial predominance, and to upset
the classic pattern of checks and balances wisely woven into our institutional
setup.
Adherence to established principle should generally be our guiding criterion,
if we are to escape the criticism voiced once by Bryce in American
Commonwealth thus:
The Supreme Court has changed its color i. e., its temper and
tendencies, from time to time according to the political proclivities of
the men who composed it. . . . Their action flowed naturally from the
habits of thought they had formed before their accession to the
bench and from the sympathy they could not feel for the doctrine on
whose behalf they had contended. (The Annals of the American
Academy of Political and Social Science, May, 1936, p. 50.)
Needless to add, any order we may issue in this case should, according to
the rules, be enforceable by contempt proceedings. If the respondents
should disobey our order, can we punish them for contempt? If we do, are we
not thereby destroying the independence, and the equal importance to which
legislative bodies are entitled under the Constitution?
Let us not be overly influenced by the plea that for every wrong there is are
medy, and that the judiciary should stand ready to afford relief. There are
undoubtedly many wrongs the judicature may not correct, for instance, those
involving political questions. Numerous decisions are quoted and
summarized under this heading in 16 Corpus Juris Secundum, section 145.
Let us likewise disabuse our minds from the notion that the judiciary is the
repository of remedies for all political and social ills. We should not forget that
the Constitution had judiciously allocated the powers of government to three
distinct and separate compartments; and that judicial interpretation has
tended to the preservation of the dependence of the three, and a zealous
regard of the prerogatives of each, knowing full well that one is not the
guardian of the others and that, for official wrong-doing, each may be brought
to account, either by impeachment, trial or by the ballot box.
The extreme case has been described wherein a legislative chamber, without
any reason whatsoever, decrees by resolution the incarceration, for years, of
a citizen. And the rhetorical question is confidently formulated. Will this man
be denied relief by the courts?
Of course not: He may successfully apply for habeas corpus, alleging the
nullity of the resolution and claiming for release. But then, the defendant shall
be the officer or person, holding him in custody, and the question therein will
be the validity or invalidity of resolution. That was done in Lopez vs. De los
Reyes, supra. (See also Kilbourn vs. Thompson, 103 U.S. 168; 26 Law. ed.,
377, p. 391.) Courts will interfere, because the question is not a political one,
the "liberty of citizen" being involved (Kilbourn vs. Thompson, supra) and the
act will clearly beyond the bounds of the legislative power, amounting to
usurpation of the privileges of the courts, the usurpation being clear, palpable
and oppressive and the infringement of the Constitution truly real. (See 16
C.J.S., p. 44.)
Nevertheless, suppose for the moment that we have jurisdiction:
B.PROHIBITION DOES NOT LIE
Petitioners pray for a writ of prohibition. Under the law, prohibition refers only
to proceedings of any tribunal, corporation, board, or person, exercising
functions judicial or ministerial. (Rule 67, section 2, Rules of Court.) As the
respondents do not exercise such kind of functions, theirs being legislative, it
is clear the dispute falls beyond the scope of such special remedy.
C.SENATE HAS NOT EXCEEDED POWERS
Again let us suppose the question lies within the limits of prohibition and of
our jurisdiction.
Before the organization of the Commonwealth and the promulgation of the
Constitution, each House of the Philippine Legislature exercised the power to
defer oath-taking of any member against whom a protest had been lodged,
whenever in its discretion such suspension was necessary, before the final
decision of the contest. The cases of Senator Fuentebella and
Representative Rafols are known instances of such suspension. The
discussions in the constitutional Convention showed that instead of
transferring to the Electoral Commission all the powers of the House or
Senate as "the sole judge of the election, returns, and qualifications of the
members of the National Assembly," it was given only jurisdiction over "all
contests" relating to the election, etc. (Aruego, The Framing of the Philippine
Constitution, Vol. I, p. 271.) The proceedings in the Constitutional Convention
on this subject are illuminating:
It became gradually apparent in the course of the debates that the
Convention was evenly divided on the proposition of creating the
Electoral Commission with the membership and powers set forth in
the draft. It was growing evident, too, that the opposition to the
Electoral Commission was due to rather inclusive power of that body
to judge not only of cases contesting the election of the members of
the National Assembly, but also of their elections, returns, and
qualifications.
Many of the delegates wanted to be definitely informed of the scope of the
powers of the Electoral Commission as defined in the draft before
determining their final decision; for if the draft meant to confer upon the
Electoral Commission the inclusive power to pass upon the elections,
returns, and qualifications contested or not of the members of the
National Assembly, they were more inclined to vote against the Electoral
Commission. In an attempt to seek this clarification, the following
interpretations took place:
xxx xxx xxx
Delegate Labrador.Does not the gentleman from Capiz believe
that unless this power is granted to the assembly, the assembly on
its own motion does not have the right to contest the election and
qualification of its members?
Delegate Roxas.I have no doubt that the gentleman is right. If this
right is retained, as it is, even if two-thirds of the assembly believe
that a member has not the qualifications provided by law, they
cannot remove him from that reason.
 xxx xxx xxx
In the course of the heated debates, with the growing restlessness
on the part of the Convention, President Recto suspended the
session in order to find out if it was possible to arrive at a
compromise plan to meet the objection.
When the session was resumed, a compromise plan was submitted
in the form of an amendment presented by Delegates Francisco,
Ventura, Lim, Vinzons, Rafols, Mumar, and others, limiting the power
of the Electoral Commission to the judging of all cases contesting
elections, returns, and qualifications of members of the National
Assembly. Explaining the difference between the amendment thus
proposed and the provision of the draft, Delegate Roxas, upon the
request of President Recto, said:
The difference, Mr. President, consists only in obviating the objection
pointed out by various delegates to the effect that the first clause of
the draft which states "The election, returns, and qualifications of
members of the National Assembly" seems to give to the Electoral
commission the power to determine also the election of the members
who have not been protested. And in order to obviate that difficulty,
we believe that the amendment is right in that sense . . . that is, if we
amend the draft so that it should read as follows: "All cases
contesting the election, etc.", so that the judges of the Electoral
Commission will limit themselves only to cases in which there has
been a protest against the returns.
The limitation to the powers of the Electoral Commission proposed in
the compromise amendment did much to win in favor of the Electoral
Commission many of its opponents; so that when the amendment
presented by Delegate Labrador and others to retain in the
Constitution the power of the lawmaking body to be the sole judge of
the elections, returns, and qualifications of its members was put to a
nominal vote, it was defeated by 98 negative votes against 56
affirmative votes.
With the defeat of the Labrador amendment, the provision of the
draft creating the Electoral Commission, as modified by the
compromise amendment, was consequently approved.
"All cases contesting the elections, returns and qualifications of the
members of the National Assembly shall be judged by an electoral
commission, composed of three members elected by the party
having the largest number of votes in the National Assembly, three
elected by the members of the party having the second largest
number of votes, and three justices of the Supreme Court designated
by the Chief, the Commission to be presided over by one of said
justices."
In the special committee on style, the provision was amended so that
the Chairman of the Commission should be the senior Justice in the
Commission, and so that the Commission was to be the sole judge
of the election, returns, and qualifications of the members of the
National Assembly. As it was then amended, the provision read:
"There shall be an Electoral Commission composed of three
Justices of the Supreme court designated by the Chief
Justice, and of six Members chosen by the National
Assembly, three of whom shall be nominated by the party
having the largest number of votes, and three by the party
having the second largest number of votes therein. The
senior Justice in the Commission shall be its Chairman. The
Electoral Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the National
Assembly."
The report of the special committee on style on the power of the
Commission was opposed on the floor of the Convention by
Delegate Confesor, who insisted that the Electoral Commission
should limit itself to judging only of all contests relating to the
elections, returns, and qualifications of the members of the National
Assembly. The draft was amended accordingly by the Convention.
As it was finally adopted by the Convention, the provision read:
There shall be an Electoral Commission . . . The Electoral
Commission shall be the sole judge of all contests relating to the
election, returns, and qualifications of the Members of the National
Assembly. (Aruego, The Framing of the Philippine Constitution, Vol.
I, pp. 267, 269, 270, 271 and 272.).
Delegate Roxas rightly opined that "if this draft is retained" the Assembly
would have no power over election and qualifications of its members;
because all the powers are by the draft vested in the Commission.
The Convention, however, bent on circumscribing the latter's authority to
"contests" relating to the election, etc. altered the draft. The Convention did
not intend to give it all the functions of the Assembly on the subject of
election and qualifications of its members. The distinction is not without a
difference. "As used in constitutional provisions", election contest "relates
only to statutory contests in which the contestant seeks not only to oust the
intruder, but also to have himself inducted into the office."(Laurel on
Elections, Second Edition, p. 250; 20 C.J., 58.)
One concrete example will serve to illustrate the remaining power in either
House of Congress: A man is elected by a congressional district who had
previously served ten years in Bilibid Prison for estafa. As he had no
opponent, no protest is filed. And the Electoral Tribunal has no jurisdiction,
because there is no election contest. (20 C.J., 58, supra.) When informed of
the fact, may not the House, motu propio postpone his induction? May not
the House suspend, investigate and thereafter exclude him?3 It must be
observed that when a member of the House raises a question as to the
qualifications of another, an "election contest" does not thereby ensue,
because the former does not seek to be substituted for the latter.
So that, if not all the powers regarding the election, returns, and qualifications
of members was withdrawn by the Constitution from the Congress; and if, as
admitted by petitioners themselves at the oral argument, the power to defer
the oath-taking, until the contests is adjudged, does not belong to the
corresponding Electoral Tribunal, then it must be held that the House or
Senate still retains such authority, for it has not been transferred to, nor
assumed by, the Electoral Tribunal. And this result flows, whether we believe
that such power (to delay induction) stemmed from the (former) privilege of
either House to be judge of the election, returns, and qualifications of the
members thereof, or whether we hold it to be inherent to every legislative
body as a measure of self-preservation.
It is customary that when a number of persons come together to form a
legislative body, ". . . the first organization must be temporary, and if the law
does not designate the person who shall preside over such temporary
organization, the persons assembled and claiming to be members may
select one of their number for that purpose. The next step is to ascertain in
some convenient way the names of the person who are, by reason of holding
the proper credentials, prima facie entitled to seats, and therefore entitled to
take part in permanent organization of the body. In the absence of any
statutory or other regulation upon this subject, a committee on credentials is
usually appointed, to whom all credentials to be entitled to seats. . . . (Laurel
on Elections, Second Edition, pp. 356, 357, quoting McCrary on Elections.)
Therefore, independently of constitutional or statutory grant, the Senate has,
under parliamentary practice, the power to inquire into the credentials of any
member and the latter's right to participate in its deliberations. As we have
seen, the assignment by the constitution of the Electoral Tribunal does not
actually negative that power provided the Senate does not cross the
boundary line, deciding an election contest against the member. Which the
respondents at bar never attempted to do. Precisely, their resolution
recognized, and did not impair, the jurisdiction of the Electoral Tribunal to
decide the contest. To test whether the resolution trenched on the territory of
the last named agency let ask the question: May the Electoral Tribunal of the
Senate order that Body to defer the admission of any member whose
election has been contested? Obviously not. Then it must be conceded that
the passage of the disputed resolution meant no invasion of the former's
realm.
At this juncture the error will be shown of the contention that the Senate has
not this privilege "as a residuary power". Such contention is premised on the
proposition that the Houses of the Philippine Congress possess only such
powers as are expressly or impliedly granted by the Constitution. And an
American decision is quoted on the powers of the United States Congress.
The mistake is due to the failure to differentiate between the nature of
legislative power under the Constitution of the United States, and legislative
power under the State Constitutions and the Constitution of the
Commonwealth (now the Republic). It must be observed that the Constitution
of the United States contains only a grant or delegation of legislative powers
to the Federal Government, whereas, the other Constitutions, like the
Constitution of the Commonwealth (now the Republic), are limits upon the
plenary powers of legislation of the Government. The legislative power of the
United States Congress is confined to the subject on which it is permitted to
act by the Federal constitution. (Dorr vs. United States, 195 U. S., 140;
Martin vs. Hunter, 1 Wheat., 326; McCullock vs. Maryland, 4 Wheat., 405;
United States vs. Cruikshank, 92 U.S., 551.) The legislative power of the
Philippine Congress is plenary, subject only to such limitations, as are found
in the Republic's Constitution. So that any power, deemed to be legislative by
usage and tradition, is necessarily possessed by the Philippine Congress,
unless the Organic Act has lodged it elsewhere.
Another line of approach. The Senate, as a branch of the legislative
department, had the constitutional power to adopt rules for its
proceedings(section 10 [3], Article VI of the Constitution), and by legislative
practice it is conceded the power to promulgate such orders as may be
necessary to maintain its prestige and to preserve its dignity.4 We are
advised by the respondents that, after weighing the propriety or impropriety
of the step, the Senate, in the exercise of its authority and discretion and of
its inherent power of self-preservation, resolved to defer the administration of
oath and the sitting of the petitioners pending determination of the contest. It
is not clear that the measure had no reasonable connection with the ends in
view, and neither does it palpably transcend the powers of the public
deliverative body. On the contrary, there are reasons to believe it was
prompted by the dictates of ordinary caution, or of public policy. For, if, as
reported by the corresponding constitutional agency, concededly well-posted
on the matter by reason of its official duties, the elections held in the
Provinces of Pampanga, Bulacan, Tarlac, and Nueva Ecija were so tainted
with acts of violence and intimidation, that the result was not the legitimate
expression of the voters' choice, the Senate made no grievous mistake in
foreseeing the probability that, upon proof of such widespread lawlessness,
the Electoral Tribunal would annull the returns in that region (see Gardiner
vs. Romulo, 26 Phil., 521; Laurel, Elections [2d ed.], p. 488 et seq.), and
declare herein petitioners not entitled to seats in the Senate. Consequently,
to avoid the undesirable result flowing from the participation of disqualified
members in its deliberations, it was prudent for it to defer the sitting of the
respondents. True, they may have no direct connection with the acts of
intimidation; yet the votes may be annulled just the same, and if that
happens, petitioners would not among the sixteen senators elected. Nor was
it far-fetched for the Senate to consider that "in order to maintain alive the
respect for democratic institutions among our people, no man or group of
men (should) be permitted to profit from the results of an election held under
coercion, in violation of law and contrary to the principle of freedom of choice
which should underlie all elections under the Constitution." (Exhibit A of
petitioners' complaint.)
a. Justices in the Electoral Tribunals
During our deliberations, it was remarked that several justices subscribing
the majority opinion, belong to the electoral tribunals wherein protests
connected with the Central Luzon polls await investigation. Mulling over this,
we experience no qualmish feelings about the coincidence. Their designation
to the electoral tribunals deducted not a whit from their functions as members
of this Supreme Court, and did not disqualify them in this litigation. Nor will
their deliverances here at on a given question operate to prevent them from
voting in the electoral forum on identical questions; because the Constitution,
establishing no incompatibility between the two roles, naturally did not
contemplate, nor want, justices opining one way here, and thereafter holding
otherwise, pari materia, in the electoral tribunals, or vice-versa.
Anyhow, these should be no diversity of thought in a democratic country, at
least, on the legal effects of the alleged rampant lawlessness, root and basis
of the Pendatun Resolution.
However, it must be observed and emphasized, herein is no definite
pronouncement that terrorism and violence actually prevailed in the district to
such extent that the result was not the expression of the free will of the
electorate. Such issue was not tendered in these proceedings. It hinges upon
proof to be produced by protestants and protestees at the hearing of the
respective contests.
b. Doubt and presumption.
After all is said or written, the most that may be conceded to the industry of
petitioners' counsel is that the Senate power, or lack of power, to approve the
resolution is not entirely clear. We should, therefore, indulge the presumption
that official duty has been performed regularly, (Rule 123, section 69, Rule of
Court), and in the right manner:
It is a general principle to presume that public officers act correctly
until the contrary is shown. United States vs. Weed, 5 Wall., 62.
It will be presumed, unless the contrary be shown, that a public
officer acted in accordance with the law and his instructions. Moral y
Gonzales vs. Ross (Gonzales vs. Ross), 120 U.S., 605; 7 Sup. Ct.
Rep., 705.
Officers charged with the performance of a public duty are presumed
to perform it correctly. Quinlan vs. Greene Country, 205 U.S., 410;
27 Sup. Ct. Rep., 505. (United State Supreme Court Reports Digest,
Vol. 5, p. 3188.)
It is presumed that the legislature has acted within its constitutional
powers. (See cases cited at p. 257, 16 C.J.S., note 1.)
And should there be further doubt, by all the maxims of prudence, left alone
comity, we should heed the off-limits sign at the Congressional Hall, and
check the impulse to rush in to set matters aright firm in the belief that if a
political fraud has been accomplished, as petitioners aver, the sovereign
people, ultimately the offended party, will render the fitting verdict at the
polling precints.
c. Membership in the Constitutional Convention
The theory has been proposed modesty aside that the dissenting
members of this Court who were delegates to the Constitutional Convention
and were "co-authors of the Constitution" "are in a better position to interpret"
that same Constitution in this particular litigation.
There is no doubt that their properly recorded utterances during the debates
and proceedings of the Convention deserve weight, like those of any other
delegate therein. Note, however, that the proceedings of the Convention "are
less conclusive of the power construction of the instrument than are
legislative proceedings of the proper construction of a statute; since in the
latter case it is the intent of the legislature we seek, while in the former we
are endeavoring to arrive at the intent of the people through the discussions
and deliberations of their representatives. (Willoughby on the Constitution,
Vol. I, pp. 54, 55.)
Their writings (of the delegates) commenting or explaining that instrument,
published shortly thereafter, may, like those of Hamilton, Madison and Jayin
The Federalist here in the Philippines, the book of Delegate Aruego,
supra, and of others have persuasive force. (Op. cit., p. 55.)
But their personal opinion on the matter at issue expressed during our
deliberations stand on a different footing: If based on a "fact" known to them,
but not duly established or judicially cognizable, it is immaterial, and their
brethren are not expected to take their word for it, to the prejudice of the
party adversely affected, who had no chance of rebuttal. If on a matter of
legal hermeneutics, their conclusions may not, simply on account of
membership in the Convention, be a shade better, in the eyes of the law.
There is the word "deference" to be sure. But deference is a compliment
spontaneously to be paid never a tribute to be demanded.
And if we should (without intending any disparagement) compare the
Constitution's enactment to a drama on the stage or in actual life, we would
realize that intelligent spectators or readres often know as much, if not more,
about the real meanings, effects or tendency is of the event, or incidents
thereof, as some of the actors themselves, who sometimes become so
absorbed in fulfilling their emotional roles that they fail to watch the other
scenes or to meditate on the larger aspects of the whole performance, or
what is worse, become so infatuated with their lines as to construe the entire
story according to their prejudices or frustrations. Perspective and
disinterestedness help certainly a lot in examining actions and occurrences.
Come to think of it, under the theory thus proposed, Marshall and Holmes
(names venerated by those who have devoted a sizable portion of their
professionals lives to analyzing or solving constitutional problems and
developments) were not so authoritative after all in expounding the United
States Constitution because they were not members of the Federal
Convention that framed it!
D.ALLEGED DUTY OF RESPONDENTS
Quoting section 12 of Commonwealth Act No. 725, counsel for petitioners
assert that it was respondents' duty legally inescapable, to permit petitioners
to assume office and take part in the current regular session. The section
reads partly:
The candidates for Member of the House of Representatives and
those for Senators who have been proclaimed elected by the
respective Board of Canvassers and the Commission on Elections
shall assume office and shall hold regular session for the year
nineteen hundred and forty-six on May twenty-five, nineteen hundred
and forty-six. (Section 12, Commonwealth Act. No. 725.)
We have carefully considered the argument. We opine that, as contended by
the Solicitor-General, this provision is addressed to the individual member of
Congress, imposing on him the obligation to come to Manila, and join his
colleagues in regular session. However, it does not imply that if, for any
reason, he is disqualified, the House is powerless to postpone his admission.
Suppose that after elections a member is finally convicted of treason. May
not the House refuse him outright admission, pending an investigation (by it
or the Electoral Tribunal as the case may be) as to his privilege to sit there?
Granting the right to admission as the counterpart of the duty to assume
office by virtue of said section 12; we must nevertheless allow that such
rights would not be peremptory whenever it contacts other rights of equal or
superior force. To illustrate: if the law provided that all children, seven years
or more "shall go to school", it can not reasonably be inferred that school
authorities are bound to accept every seven-year boy, even if he refuses to
pay fees, or to present the certificates required by school regulations.
Furthermore, it would not be erroneous to maintain that any right spelled out
of section 12 must logically be limited to those candidates whose
proclamation is clear, unconditional and unclouded, and that such standard is
not met by the petitioners, because in the very document attesting to their
election one member of the Commission on Elections demurred to the non-
exclusion of the votes in Central Luzon, calling attention to the reported reign
of terror and violence in that region, and virtually objecting to the certification
of herein petitioners. To be sure, it was the beclouded condition of
petitioner's credential (certificate of canvass) that partly prompted the Senate
to enact the precautionary measure herein complained of. And finding no
phrase or sentence in the Constitution expressly or impliedly outlawing the
step taken by that legislative body, we should be, and we are, reluctant to
intervene.
Indeed, had the Senate been officially informed that the inclusion of
petitioners' name in the Commission's certificate had been made at the point
of a gangster's automatic, none will deny the appositeness of the
postponement of their induction, pending an inquiry by the corresponding
authorities. Yet the difference between such situation and the instant
litigation is one of degree, broad and wide perhaps, but not altering the
dominant legal principle.
In answer to the suggestions as to abuse of the power it should be stated
that the mere possibility of abuse is no conclusive argument against the
existence of the power, of the power, for the simple reason that every official
authority is susceptible of misuse. And everybody knows that when any
people will discover the methods to curb it.
Perhaps it is necessary to explain that this decision goes no further than to
recognize the existence of Congressional power. It is settled that the point
whether such power has been wisely or correctly exercised, is usually
beyond the ken of judicial determination.
E.PARLIAMENTARY PRIVILEGES
One final consideration.
The Constitution provides (Article VI, section 15) that "for any speech or
debate" in congress, Senators and congressmen "shall not be questioned in
any other place." The Supreme Court of the United States has interpreted
this privilege to include the giving of a vote or the presentation of a
resolution.
. . . It would be a narrow view of the constitutional provision to limit it
towards spoken in debate. The reason of the rule is as forcible in its
application to written reports presented in that body by its
committees, to resolutions offered, which, though in writing, must be
reproduced in speech, and to the act of voting, . . . (Kilbourn vs.
thompson, 103 U.S., 204; 26 Law. ed., 377, p. 391.)
In the above case, Kilbourn, for refusing to answer questions put to him by
the House of Representatives of the United States Congress, concerning the
business of a real estate partnership, was imprisoned for contempt by
resolution of the house. He sued to recover damages from the sergeant at
arms and the congressional members of the committee, who had caused him
to be brought before the house, where he was adjudged to be in contempt.
The Supreme Court of the United States found that the resolution of the
House was void for want of jurisdiction in that body, but the action was
dismissed as to the members of the committee upon the strength of the
herein above-mentioned congressional immunity. The court cited with
approval the following excerpts from an earlier decision of the Supreme
Court of Massachusetts:
These privileges are thus secured, not with the intention of protecting
the members against prosecutions for their own benefit, but to
support the rights of the people, by enabling their representatives to
execute the functions of their office without fear of prosecutions, civil
or criminal. I, therefore, think that the article ought not to be
construed strictly, but liberally, that the full design of it may be
answered. . . (103 U.S., 203.) (Emphasis ours.)
Commenting on this Congressional privilege, Willoughby relates apparently
as controlling, the following incident:
In 1910, several Members of Congress having been served with a
writ of mandamus in a civil action brought against them as members
of the Joint Committee on Printing and growing out a refusal of a bid
of the Valley Paper Company, for the furnishing of paper, the Senate
resolved that the Justice issuing the writ had "unlawfully invaded the
constitutional privileges and prerogatives of the Senate of the United
 States and of three Senators; and was without jurisdiction to grant
the rule, and Senators are directed to make no appearance in
response thereto." (Willoughby on the Constitution of the United
States, Vol. I, Second Edition, p. 616.)
Respondents are, by this proceeding, called to account for their votes in
approving the Pendatum Resolution. Having sworn to uphold the
Constitution, we must enforce the constitutional directive. We must not
question, nor permit respondents to be questioned here in connection with
their votes. (Kilbourn vs. Thompson, supra.)
Case dismissed. No costs.
G.R. No. 169777* April 20, 2006
SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON,
in his capacity as Senate President, JUAN M. FLAVIER, in his capacity
as Senate President Pro Tempore, FRANCIS N. PANGILINAN, in his
capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his
capacity as Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO ESTRADA,
LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J.
GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-
ego of President Gloria Macapagal-Arroyo, and anyone acting in his
stead and in behalf of the President of the Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep.
SATUR OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO,
Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep. JOEL VIRADOR,
COURAGE represented by FERDINAND GAITE, and COUNSELS FOR
THE DEFENSE OF LIBERTIES (CODAL) represented by ATTY.
REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary and alter-
ego of President Gloria Macapagal-Arroyo, Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO
J. CRUZ, JR., in his capacity as Secretary of Defense, and GENEROSO
S. SENGA, in his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary,
Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R.
RIVERA, JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON
C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED
BAR FOR THE PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a truly republican state.
Even in the early history of republican thought, however, it has been
recognized that the head of government may keep certain information
confidential in pursuit of the public interest. Explaining the reason for vesting
executive power in only one magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity, secrecy, and dispatch will
generally characterize the proceedings of one man, in a much more eminent
degree than the proceedings of any greater number; and in proportion as the
number is increased, these qualities will be diminished."1
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and prohibition proffer that
the President has abused such power by issuing Executive Order No. 464
(E.O. 464) last September 28, 2005. They thus pray for its declaration as null
and void for being unconstitutional.
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come from a co-equal branch of government,
which thus entitles it to a strong presumption of constitutionality. Once the
challenged order is found to be indeed violative of the Constitution, it is duty-
bound to declare it so. For the Constitution, being the highest expression of
the sovereign will of the Filipino people, must prevail over any issuance of
the government that contravenes its mandates.
In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees, conducts inquiries or investigations in aid of
legislation which call for, inter alia, the attendance of officials and employees
of the executive department, bureaus, and offices including those employed
in Government Owned and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police (PNP).
On September 21 to 23, 2005, the Committee of the Senate as a whole
issued invitations to various officials of the Executive Department for them to
appear on September 29, 2005 as resource speakers in a public hearing on
the railway project of the North Luzon Railways Corporation with the China
National Machinery and Equipment Group (hereinafter North Rail Project).
The public hearing was sparked by a privilege speech of Senator Juan
Ponce Enrile urging the Senate to investigate the alleged overpricing and
other unlawful provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and Security likewise issued
invitations2 dated September 22, 2005 to the following officials of the AFP:
the Commanding General of the Philippine Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga;
Deputy Chief of Staff for Intelligence of the AFP Rear Admiral Tirso R.
Danga; Chief of the Intelligence Service of the AFP Brig. Gen. Marlu Q.
Quevedo; Assistant Superintendent of the Philippine Military Academy (PMA)
Brig. Gen. Francisco V. Gudani; and Assistant Commandant, Corps of
Cadets of the PMA, Col. Alexander F. Balutan, for them to attend as
resource persons in a public hearing scheduled on September 28, 2005 on
the following: (1) Privilege Speech of Senator Aquilino Q. Pimentel Jr.,
delivered on June 6, 2005 entitled "Bunye has Provided Smoking Gun or has
Opened a Can of Worms that Show Massive Electoral Fraud in the
Presidential Election of May 2005"; (2) Privilege Speech of Senator Jinggoy
E. Estrada delivered on July 26, 2005 entitled "The Philippines as the Wire-
Tapping Capital of the World"; (3) Privilege Speech of Senator Rodolfo
Biazon delivered on August 1, 2005 entitled "Clear and Present Danger"; (4)
Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee on National Defense and Security to
Conduct an Inquiry, in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator Biazon Resolution Directing the
Committee on National Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the Philippines.
Also invited to the above-said hearing scheduled on September 28 2005 was
the AFP Chief of Staff, General Generoso S. Senga who, by letter 3 dated
September 27, 2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal attention" while
"some of the invited AFP officers are currently attending to other urgent
operational matters."
On September 28, 2005, Senate President Franklin M. Drilon received from
Executive Secretary Eduardo R. Ermita a letter4 dated September 27, 2005
"respectfully request[ing] for the postponement of the hearing [regarding the
NorthRail project] to which various officials of the Executive Department have
been invited" in order to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they may better enlighten
the Senate Committee on its investigation."
Senate President Drilon, however, wrote5 Executive Secretary Ermita that
the Senators "are unable to accede to [his request]" as it "was sent belatedly"
and "[a]ll preparations and arrangements as well as notices to all resource
persons were completed [the previous] week."
Senate President Drilon likewise received on September 28, 2005 a letter 6
from the President of the North Luzon Railways Corporation Jose L. Cortes,
Jr. requesting that the hearing on the NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring
Observance of the Principle of Separation of Powers, Adherence to the Rule
on Executive Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution,
and For Other Purposes,"7 which, pursuant to Section 6 thereof, took effect
immediately. The salient provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments Before Congress. In
accordance with Article VI, Section 22 of the Constitution and to implement
the Constitutional provisions on the separation of powers between co-equal
branches of the government, all heads of departments of the Executive
Branch of the government shall secure the consent of the President prior to
appearing before either House of Congress.
When the security of the State or the public interest so requires and the
President so states in writing, the appearance shall only be conducted in
executive session.
SECTION. 2. Nature, Scope and Coverage of Executive Privilege.
(a) Nature and Scope. - The rule of confidentiality based on executive
privilege is fundamental to the operation of government and rooted in the
separation of powers under the Constitution (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995). Further, Republic Act No. 6713 or the Code of
Conduct and Ethical Standards for Public Officials and Employees provides
that Public Officials and Employees shall not use or divulge confidential or
classified information officially known to them by reason of their office and
not made available to the public to prejudice the public interest.
Executive privilege covers all confidential or classified information between
the President and the public officers covered by this executive order,
including:
Conversations and correspondence between the President and the public
official covered by this executive order (Almonte vs. Vasquez G.R. No.
95367, 23 May 1995; Chavez v. Public Estates Authority, G.R. No. 133250, 9
July 2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be divulged (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to the conclusion of
treaties and executive agreements (Chavez v. Presidential Commission on
Good Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v. Presidential
Commission on Good Government, G.R. No. 130716, 9 December 1998);
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July 2002).
(b) Who are covered. The following are covered by this executive order:
Senior officials of executive departments who in the judgment of the
department heads are covered by the executive privilege;
Generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the
executive privilege;
Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP
are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. All
public officials enumerated in Section 2 (b) hereof shall secure prior consent
of the President prior to appearing before either House of Congress to
ensure the observance of the principle of separation of powers, adherence to
the rule on executive privilege and respect for the rights of public officials
appearing in inquiries in aid of legislation. (Emphasis and underscoring
supplied)
Also on September 28, 2005, Senate President Drilon received from
Executive Secretary Ermita a copy of E.O. 464, and another letter 8 informing
him "that officials of the Executive Department invited to appear at the
meeting [regarding the NorthRail project] will not be able to attend the same
without the consent of the President, pursuant to [E.O. 464]" and that "said
officials have not secured the required consent from the President." On even
date which was also the scheduled date of the hearing on the alleged
wiretapping, Gen. Senga sent a letter9 to Senator Biazon, Chairperson of the
Committee on National Defense and Security, informing him "that per
instruction of [President Arroyo], thru the Secretary of National Defense, no
officer of the [AFP] is authorized to appear before any Senate or
Congressional hearings without seeking a written approval from the
President" and "that no approval has been granted by the President to any
AFP officer to appear before the public hearing of the Senate Committee on
National Defense and Security scheduled [on] 28 September 2005."
Despite the communications received from Executive Secretary Ermita and
Gen. Senga, the investigation scheduled by the Committee on National
Defense and Security pushed through, with only Col. Balutan and Brig. Gen.
Gudani among all the AFP officials invited attending.
For defying President Arroyos order barring military personnel from testifying
before legislative inquiries without her approval, Brig. Gen. Gudani and Col.
Balutan were relieved from their military posts and were made to face court
martial proceedings.
As to the NorthRail project hearing scheduled on September 29, 2005,
Executive Secretary Ermita, citing E.O. 464, sent letter of regrets, in
response to the invitations sent to the following government officials: Light
Railway Transit Authority Administrator Melquiades Robles, Metro Rail
Transit Authority Administrator Roberto Lastimoso, Department of Justice
(DOJ) Chief State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of Transportation and
Communication (DOTC) Undersecretary Guiling Mamonding, DOTC
Secretary Leandro Mendoza, Philippine National Railways General Manager
Jose Serase II, Monetary Board Member Juanita Amatong, Bases
Conversion Development Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets
likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,
and 169667, for certiorari and prohibition, were filed before this Court
challenging the constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna, House of
Representatives Members Satur Ocampo, Crispin Beltran, Rafael Mariano,
Liza Maza, Joel Virador and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense of Liberties (CODAL),
a group of lawyers dedicated to the promotion of justice, democracy and
peace, all claiming to have standing to file the suit because of the
transcendental importance of the issues they posed, pray, in their petition
that E.O. 464 be declared null and void for being unconstitutional; that
respondent Executive Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be prohibited from imposing,
and threatening to impose sanctions on officials who appear before
Congress due to congressional summons. Additionally, petitioners claim that
E.O. 464 infringes on their rights and impedes them from fulfilling their
respective obligations. Thus, Bayan Muna alleges that E.O. 464 infringes on
its right as a political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their rights and duties as
members of Congress to conduct investigation in aid of legislation and
conduct oversight functions in the implementation of laws; Courage alleges
that the tenure of its members in public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464 should they
be summoned by Congress; and CODAL alleges that its members have a
sworn duty to uphold the rule of law, and their rights to information and to
transparent governance are threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez, claiming that his
constitutional rights as a citizen, taxpayer and law practitioner, are affected
by the enforcement of E.O. 464, prays in his petition that E.O. 464 be
declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
that as a coalition of 17 legal resource non-governmental organizations
engaged in developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and as an organization
of citizens of the Philippines and a part of the general public, it has legal
standing to institute the petition to enforce its constitutional right to
information on matters of public concern, a right which was denied to the
public by E.O. 464,13 prays, that said order be declared null and void for
being unconstitutional and that respondent Executive Secretary Ermita be
ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has
a vital interest in the resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senates powers and functions and
conceals information of great public interest and concern, filed its petition for
certiorari and prohibition, docketed as G.R. No. 169777 and prays that E.O.
464 be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political party with members
duly elected into the Philippine Senate and House of Representatives, filed a
similar petition for certiorari and prohibition, docketed as G.R. No. 169834,
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation and transcendental
issues need to be resolved to avert a constitutional crisis between the
executive and legislative branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his
invitation to Gen. Senga for him and other military officers to attend the
hearing on the alleged wiretapping scheduled on February 10, 2005. Gen.
Senga replied, however, by letter15 dated February 8, 2006, that "[p]ursuant
to Executive Order No. 464, th[e] Headquarters requested for a clearance
from the President to allow [them] to appear before the public hearing" and
that "they will attend once [their] request is approved by the President." As
none of those invited appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate Committee on
Agriculture and Food and the Blue Ribbon Committee on the alleged
mismanagement and use of the fertilizer fund under the Ginintuang
Masaganang Ani program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled on October 5 and 26,
November 24 and December 12, 2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant Secretary Felix Jose
Montes, Fertilizer and Pesticide Authority Executive Director Norlito R.
Gicana,17 and those from the Department of Budget and Management18
having invoked E.O. 464.
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential Spokesperson Ignacio R. Bunye,19 DOJ Secretary
Raul M. Gonzalez20 and Department of Interior and Local Government
Undersecretary Marius P. Corpus21 communicated their inability to attend
due to lack of appropriate clearance from the President pursuant to E.O. 464.
During the February 13, 2005 budget hearing, however, Secretary Bunye
was allowed to attend by Executive Secretary Ermita.
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members
of the Board of Governors of the Integrated Bar of the Philippines, as
taxpayers, and the Integrated Bar of the Philippines as the official
organization of all Philippine lawyers, all invoking their constitutional right to
be informed on matters of public interest, filed their petition for certiorari and
prohibition, docketed as G.R. No. 171246, and pray that E.O. 464 be
declared null and void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing, enforcing, and observing E.O.
464.
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were ventilated: (1) whether respondents
committed grave abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of general circulation;
and (2) whether E.O. 464 violates the following provisions of the Constitution:
Art. II, Sec. 28, Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue
of whether there is an actual case or controversy that calls for judicial review
was not taken up; instead, the parties were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to
submit their respective memoranda, paying particular attention to the
following propositions: (1) that E.O. 464 is, on its face, unconstitutional; and
(2) assuming that it is not, it is unconstitutional as applied in four instances,
namely: (a) the so called Fertilizer scam; (b) the NorthRail investigation (c)
the Wiretapping activity of the ISAFP; and (d) the investigation on the
Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their
memoranda on March 7, 2006, while those in G.R. No. 16966725 and G.R.
No. 16983426 filed theirs the next day or on March 8, 2006. Petitioners in
G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum 27 was granted, subsequently filed a
manifestation28 dated March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues resolved soonest,
prompting this Court to issue a Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following constitutional
provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the other hand, pray in
their consolidated memorandum 38 on March 13, 2006 for the dismissal of the
petitions for lack of merit.
The Court synthesizes the issues to be resolved as follows:
1. Whether E.O. 464 contravenes the power of inquiry vested in
Congress;
2. Whether E.O. 464 violates the right of the people to information on
matters of public concern; and
3. Whether respondents have committed grave abuse of discretion
when they implemented E.O. 464 prior to its publication in a
newspaper of general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of E.O. 464,
ascertainment of whether the requisites for a valid exercise of the Courts
power of judicial review are present is in order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the validity of the subject
act or issuance; otherwise stated, he must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement; (3) the question of constitutionality must be raised
at the earliest opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.39
Except with respect to the requisites of standing and existence of an actual
case or controversy where the disagreement between the parties lies,
discussion of the rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in
G.R. Nos. 169659, 169660 and 169667 make it clear that they, adverting to
the non-appearance of several officials of the executive department in the
investigations called by the different committees of the Senate, were brought
to vindicate the constitutional duty of the Senate or its different committees to
conduct inquiry in aid of legislation or in the exercise of its oversight
functions. They maintain that Representatives Ocampo et al. have not shown
any specific prerogative, power, and privilege of the House of
Representatives which had been effectively impaired by E.O. 464, there
being no mention of any investigation called by the House of Representatives
or any of its committees which was aborted due to the implementation of
E.O. 464.
As for Bayan Munas alleged interest as a party-list representing the
marginalized and underrepresented, and that of the other petitioner groups
and individuals who profess to have standing as advocates and defenders of
the Constitution, respondents contend that such interest falls short of that
required to confer standing on them as parties "injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not
claim an interest as a taxpayer for the implementation of E.O. 464 does not
involve the exercise of taxing or spending power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury by reason of the issuance of E.O. 464,
the Senate and its individual members are not the proper parties to assail the
constitutionality of E.O. 464.
Invoking this Courts ruling in National Economic Protectionism Association v.
Ongpin42 and Valmonte v. Philippine Charity Sweepstakes Office,43
respondents assert that to be considered a proper party, one must have a
personal and substantial interest in the case, such that he has sustained or
will sustain direct injury due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only
for intelligent public decision-making in a democratic system, but more
especially for sound legislation45 is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress to access information
that is crucial to law-making.46 Verily, the Senate, including its individual
members, has a substantial and direct interest over the outcome of the
controversy and is the proper party to assail the constitutionality of E.O. 464.
Indeed, legislators have standing to maintain inviolate the prerogative,
powers and privileges vested by the Constitution in their office and are
allowed to sue to question the validity of any official action which they claim
infringes their prerogatives as legislators.47
In the same vein, party-list representatives Satur Ocampo (Bayan Muna),
Teodoro Casino (Bayan Muna), Joel Virador (Bayan Muna), Crispin Beltran
(Anakpawis), Rafael Mariano (Anakpawis), and Liza Maza (Gabriela) are
allowed to sue to question the constitutionality of E.O. 464, the absence of
any claim that an investigation called by the House of Representatives or any
of its committees was aborted due to the implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464
infringes on their constitutional rights and duties as members of Congress to
conduct investigation in aid of legislation and conduct oversight functions in
the implementation of laws.
The national political party, Bayan Muna, likewise meets the standing
requirement as it obtained three seats in the House of Representatives in the
2004 elections and is, therefore, entitled to participate in the legislative
process consonant with the declared policy underlying the party list system of
affording citizens belonging to marginalized and underrepresented sectors,
organizations and parties who lack well-defined political constituencies to
contribute to the formulation and enactment of legislation that will benefit the
nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file
their petitions, passing on the standing of their co-petitioners Courage and
Codal is rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which claims to be an
organization of citizens, and the incumbent members of the IBP Board of
Governors and the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public concern, asserting that
the right to information, curtailed and violated by E.O. 464, is essential to the
effective exercise of other constitutional rights51 and to the maintenance of
the balance of power among the three branches of the government through
the principle of checks and balances.52
It is well-settled that when suing as a citizen, the interest of the petitioner in
assailing the constitutionality of laws, presidential decrees, orders, and other
regulations, must be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the
requirement of personal interest.
As for petitioner PDP-Laban, it asseverates that it is clothed with legal
standing in view of the transcendental issues raised in its petition which this
Court needs to resolve in order to avert a constitutional crisis. For it to be
accorded standing on the ground of transcendental importance, however, it
must establish (1) the character of the funds (that it is public) or other assets
involved in the case, (2) the presence of a clear case of disregard of a
constitutional or statutory prohibition by the public respondent agency or
instrumentality of the government, and (3) the lack of any party with a more
direct and specific interest in raising the questions being raised. 54 The first
and last determinants not being present as no public funds or assets are
involved and petitioners in G.R. Nos. 169777 and 169659 have direct and
specific interests in the resolution of the controversy, petitioner PDP-Laban is
bereft of standing to file its petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is only a "generalized
interest" which it shares with the rest of the political parties. Concrete injury,
whether actual or threatened, is that indispensable element of a dispute
which serves in part to cast it in a form traditionally capable of judicial
resolution.55 In fine, PDP-Labans alleged interest as a political party does
not suffice to clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate to its hearings after the issuance of
E.O. 464, particularly those on the NorthRail project and the wiretapping
controversy.
Respondents counter that there is no case or controversy, there being no
showing that President Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials.56 These officials, they claim, merely
communicated to the Senate that they have not yet secured the consent of
the President, not that the President prohibited their attendance.57
Specifically with regard to the AFP officers who did not attend the hearing on
September 28, 2005, respondents claim that the instruction not to attend
without the Presidents consent was based on its role as Commander-in-
Chief of the Armed Forces, not on E.O. 464.
Respondents thus conclude that the petitions merely rest on an unfounded
apprehension that the President will abuse its power of preventing the
appearance of officials before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents assertion that the President has not withheld
her consent or prohibited the appearance of the officials concerned
immaterial in determining the existence of an actual case or controversy
insofar as E.O. 464 is concerned. For E.O. 464 does not require either a
deliberate withholding of consent or an express prohibition issuing from the
President in order to bar officials from appearing before Congress.
As the implementation of the challenged order has already resulted in the
absence of officials invited to the hearings of petitioner Senate of the
Philippines, it would make no sense to wait for any further event before
considering the present case ripe for adjudication. Indeed, it would be sheer
abandonment of duty if this Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of executive officials
before Congress, deprives Congress of the information in the possession of
these officials. To resolve the question of whether such withholding of
information violates the Constitution, consideration of the general power of
Congress to obtain information, otherwise known as the power of inquiry, is
in order.
The power of inquiry
The Congress power of inquiry is expressly recognized in Section 21 of
Article VI of the Constitution which reads:
SECTION 21. The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of legislation in
accordance with its duly published rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be respected. (Underscoring
supplied)
This provision is worded exactly as Section 8 of Article VIII of the 1973
Constitution except that, in the latter, it vests the power of inquiry in the
unicameral legislature established therein the Batasang Pambansa and
its committees.
The 1935 Constitution did not contain a similar provision. Nonetheless, in
Arnault v. Nazareno,58 a case decided in 1950 under that Constitution, the
Court already recognized that the power of inquiry is inherent in the power to
legislate.
Arnault involved a Senate investigation of the reportedly anomalous
purchase of the Buenavista and Tambobong Estates by the Rural Progress
Administration. Arnault, who was considered a leading witness in the
controversy, was called to testify thereon by the Senate. On account of his
refusal to answer the questions of the senators on an important point, he
was, by resolution of the Senate, detained for contempt. Upholding the
Senates power to punish Arnault for contempt, this Court held:
Although there is no provision in the Constitution expressly investing either
House of Congress with power to make investigations and exact testimony to
the end that it may exercise its legislative functions advisedly and effectively,
such power is so far incidental to the legislative function as to be implied. In
other words, the power of inquiry with process to enforce it is an essential
and appropriate auxiliary to the legislative function. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the
conditions which the legislation is intended to affect or change; and where
the legislative body does not itself possess the requisite information which
is not infrequently true recourse must be had to others who do possess it.
Experience has shown that mere requests for such information are often
unavailing, and also that information which is volunteered is not always
accurate or complete; so some means of compulsion is essential to obtain
what is needed.59 . . . (Emphasis and underscoring supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same case. The power of inquiry, the Court
therein ruled, is co-extensive with the power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper
subject of investigation are one. It follows that the operation of government,
being a legitimate subject for legislation, is a proper subject for investigation.
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper exercise of the power of inquiry.
Besides being related to the expenditure of public funds of which Congress is
the guardian, the transaction, the Court held, "also involved government
agencies created by Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar with and informed on
executive operations.
As discussed in Arnault, the power of inquiry, "with process to enforce it," is
grounded on the necessity of information in the legislative process. If the
information possessed by executive officials on the operation of their offices
is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the
disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy
era," however, the right of Congress to conduct inquiries in aid of legislation
is, in theory, no less susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the Courts certiorari
powers under Section 1, Article VIII of the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the
inquiry itself might not properly be in aid of legislation, and thus beyond the
constitutional power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for Congress to avoid such a
result as occurred in Bengzon is to indicate in its invitations to the public
officials concerned, or to any person for that matter, the possible needed
statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there would be less room for
speculation on the part of the person invited on whether the inquiry is in aid
of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe
the legislative power of inquiry. The provision requires that the inquiry be
done in accordance with the Senate or Houses duly published rules of
procedure, necessarily implying the constitutional infirmity of an inquiry
conducted without duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or affected by such inquiries
be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances, none appearing to
obtain at present, wherein a clear pattern of abuse of the legislative power of
inquiry might be established, resulting in palpable violations of the rights
guaranteed to members of the executive department under the Bill of Rights.
In such instances, depending on the particulars of each case, attempts by
the Executive Branch to forestall these abuses may be accorded judicial
sanction.
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which exemptions fall under the rubric of
"executive privilege." Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular clauses,62 and in its
very title, a discussion of executive privilege is crucial for determining the
constitutionality of E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been
used even prior to the promulgation of the 1986 Constitution.63 Being of
American origin, it is best understood in light of how it has been defined and
used in the legal literature of the United States.
Schwartz defines executive privilege as "the power of the Government to
withhold information from the public, the courts, and the Congress."64
Similarly, Rozell defines it as "the right of the President and high-level
executive branch officers to withhold information from Congress, the courts,
and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has
encompassed claims of varying kinds.67 Tribe, in fact, comments that while it
is customary to employ the phrase "executive privilege," it may be more
accurate to speak of executive privileges "since presidential refusals to
furnish information may be actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing degrees of success, in
the context of either judicial or legislative investigations."
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with Washington, on the ground that
the information is of such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the informers privilege, or
the privilege of the Government not to disclose the identity of persons who
furnish information of violations of law to officers charged with the
enforcement of that law. Finally, a generic privilege for internal deliberations
has been said to attach to intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising part of a process
by which governmental decisions and policies are formulated. 68
Tribes comment is supported by the ruling in In re Sealed Case, thus:
Since the beginnings of our nation, executive officials have claimed a variety
of privileges to resist disclosure of information the confidentiality of which
they felt was crucial to fulfillment of the unique role and responsibilities of the
executive branch of our government. Courts ruled early that the executive
had a right to withhold documents that might reveal military or state secrets.
The courts have also granted the executive a right to withhold the identity of
government informers in some circumstances and a qualified right to
withhold information related to pending investigations. x x x"69 (Emphasis and
underscoring supplied)
The entry in Blacks Law Dictionary on "executive privilege" is similarly
instructive regarding the scope of the doctrine.
This privilege, based on the constitutional doctrine of separation of powers,
exempts the executive from disclosure requirements applicable to the
ordinary citizen or organization where such exemption is necessary to the
discharge of highly important executive responsibilities involved in
maintaining governmental operations, and extends not only to military and
diplomatic secrets but also to documents integral to an appropriate exercise
of the executive domestic decisional and policy making functions, that is,
those documents reflecting the frank expression necessary in intra-
governmental advisory and deliberative communications.70 (Emphasis and
underscoring supplied)
That a type of information is recognized as privileged does not, however,
necessarily mean that it would be considered privileged in all instances. For
in determining the validity of a claim of privilege, the question that must be
asked is not only whether the requested information falls within one of the
traditional privileges, but also whether that privilege should be honored in a
given procedural setting.71
The leading case on executive privilege in the United States is U.S. v. Nixon,
72 decided in 1974. In issue in that case was the validity of President Nixons
claim of executive privilege against a subpoena issued by a district court
requiring the production of certain tapes and documents relating to the
Watergate investigations. The claim of privilege was based on the
Presidents general interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is no explicit reference
to a privilege of confidentiality in the U.S. Constitution, it is constitutionally
based to the extent that it relates to the effective discharge of a Presidents
powers. The Court, nonetheless, rejected the Presidents claim of privilege,
ruling that the privilege must be balanced against the public interest in the
fair administration of criminal justice. Notably, the Court was careful to clarify
that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional demands for information.
Cases in the U.S. which involve claims of executive privilege against
Congress are rare.73 Despite frequent assertion of the privilege to deny
information to Congress, beginning with President Washingtons refusal to
turn over treaty negotiation records to the House of Representatives, the
U.S. Supreme Court has never adjudicated the issue.74 However, the U.S.
Court of Appeals for the District of Columbia Circuit, in a case decided earlier
in the same year as Nixon, recognized the Presidents privilege over his
conversations against a congressional subpoena.75 Anticipating the
balancing approach adopted by the U.S. Supreme Court in Nixon, the Court
of Appeals weighed the public interest protected by the claim of privilege
against the interest that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the Court declined to enforce
the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was recognized by this
Court in Almonte v. Vasquez.77 Almonte used the term in reference to the
same privilege subject of Nixon. It quoted the following portion of the Nixon
decision which explains the basis for the privilege:
"The expectation of a President to the confidentiality of his conversations and
correspondences, like the claim of confidentiality of judicial deliberations, for
example, has all the values to which we accord deference for the privacy of
all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who assist him must be
free to explore alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to express except
privately. These are the considerations justifying a presumptive privilege for
Presidential communications. The privilege is fundamental to the operation of
government and inextricably rooted in the separation of powers under the
Constitution x x x " (Emphasis and underscoring supplied)
Almonte involved a subpoena duces tecum issued by the Ombudsman
against the therein petitioners. It did not involve, as expressly stated in the
decision, the right of the people to information.78 Nonetheless, the Court
recognized that there are certain types of information which the government
may withhold from the public, thus acknowledging, in substance if not in
name, that executive privilege may be claimed against citizens demands for
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a "governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic and
other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority, 81 the Court ruled that the
right to information does not extend to matters recognized as "privileged
information under the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and discussions in closed-door
Cabinet meetings. It also held that information on military and diplomatic
secrets and those affecting national security, and information on
investigations of crimes by law enforcement agencies before the prosecution
of the accused were exempted from the right to information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this jurisdiction, a clear principle emerges.
Executive privilege, whether asserted against Congress, the courts, or the
public, is recognized only in relation to certain types of information of a
sensitive character. While executive privilege is a constitutional concept, a
claim thereof may be valid or not depending on the ground invoked to justify
it and the context in which it is made. Noticeably absent is any recognition
that executive officials are exempt from the duty to disclose information by
the mere fact of being executive officials. Indeed, the extraordinary character
of the exemptions indicates that the presumption inclines heavily against
executive secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the officials covered by
them to secure the consent of the President prior to appearing before
Congress. There are significant differences between the two provisions,
however, which constrain this Court to discuss the validity of these provisions
separately.
Section 1 specifically applies to department heads. It does not, unlike Section
3, require a prior determination by any official whether they are covered by
E.O. 464. The President herself has, through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not made to depend on the department
heads possession of any information which might be covered by executive
privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is
no reference to executive privilege at all. Rather, the required prior consent
under Section 1 is grounded on Article VI, Section 22 of the Constitution on
what has been referred to as the question hour.
SECTION 22. The heads of departments may upon their own initiative, with
the consent of the President, or upon the request of either House, as the
rules of each House shall provide, appear before and be heard by such
House on any matter pertaining to their departments. Written questions shall
be submitted to the President of the Senate or the Speaker of the House of
Representatives at least three days before their scheduled appearance.
Interpellations shall not be limited to written questions, but may cover matters
related thereto. When the security of the State or the public interest so
requires and the President so states in writing, the appearance shall be
conducted in executive session.
Determining the validity of Section 1 thus requires an examination of the
meaning of Section 22 of Article VI. Section 22 which provides for the
question hour must be interpreted vis--vis Section 21 which provides for the
power of either House of Congress to "conduct inquiries in aid of legislation."
As the following excerpt of the deliberations of the Constitutional Commission
shows, the framers were aware that these two provisions involved distinct
functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on
the Question Hour] yesterday, I noticed that members of the Cabinet cannot
be compelled anymore to appear before the House of Representatives or
before the Senate. I have a particular problem in this regard, Madam
President, because in our experience in the Regular Batasang Pambansa
as the Gentleman himself has experienced in the interim Batasang
Pambansa one of the most competent inputs that we can put in our
committee deliberations, either in aid of legislation or in congressional
investigations, is the testimonies of Cabinet ministers. We usually invite
them, but if they do not come and it is a congressional investigation, we
usually issue subpoenas.
I want to be clarified on a statement made by Commissioner Suarez when he
said that the fact that the Cabinet ministers may refuse to come to the House
of Representatives or the Senate [when requested under Section 22] does
not mean that they need not come when they are invited or subpoenaed by
the committee of either House when it comes to inquiries in aid of legislation
or congressional investigation. According to Commissioner Suarez, that is
allowed and their presence can be had under Section 21. Does the
gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers
only to what was originally the Question Hour, whereas, Section 21 would
refer specifically to inquiries in aid of legislation, under which anybody for that
matter, may be summoned and if he refuses, he can be held in contempt of
the House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was meant to be discretionary in the
question hour, it was compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he being one of the
proponents of the amendment to make the appearance of department heads
discretionary in the question hour.
So clearly was this distinction conveyed to the members of the Commission
that the Committee on Style, precisely in recognition of this distinction, later
moved the provision on question hour from its original position as Section 20
in the original draft down to Section 31, far from the provision on inquiries in
aid of legislation. This gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on
Style] We now go, Mr. Presiding Officer, to the Article on Legislative and may
I request the chairperson of the Legislative Department, Commissioner
Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is
recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to
the Question Hour. I propose that instead of putting it as Section 31, it should
follow Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee say?
MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding
Officer.
MR. MAAMBONG. Actually, we considered that previously when we
sequenced this but we reasoned that in Section 21, which is Legislative
Inquiry, it is actually a power of Congress in terms of its own lawmaking;
whereas, a Question Hour is not actually a power in terms of its own
lawmaking power because in Legislative Inquiry, it is in aid of legislation. And
so we put Question Hour as Section 31. I hope Commissioner Davide will
consider this.
MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to or a supplement of the Legislative
Inquiry. The appearance of the members of Cabinet would be very, very
essential not only in the application of check and balance but also, in effect,
in aid of legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In other words, we are accepting that
and so this Section 31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)
Consistent with their statements earlier in the deliberations, Commissioners
Davide and Maambong proceeded from the same assumption that these
provisions pertained to two different functions of the legislature. Both
Commissioners understood that the power to conduct inquiries in aid of
legislation is different from the power to conduct inquiries during the question
hour. Commissioner Davides only concern was that the two provisions on
these distinct powers be placed closely together, they being complementary
to each other. Neither Commissioner considered them as identical functions
of Congress.
The foregoing opinion was not the two Commissioners alone. From the
above-quoted exchange, Commissioner Maambongs committee the
Committee on Style shared the view that the two provisions reflected
distinct functions of Congress. Commissioner Davide, on the other hand, was
speaking in his capacity as Chairman of the Committee on the Legislative
Department. His views may thus be presumed as representing that of his
Committee.
In the context of a parliamentary system of government, the "question hour"
has a definite meaning. It is a period of confrontation initiated by Parliament
to hold the Prime Minister and the other ministers accountable for their acts
and the operation of the government,85 corresponding to what is known in
Britain as the question period. There was a specific provision for a question
hour in the 1973 Constitution86 which made the appearance of ministers
mandatory. The same perfectly conformed to the parliamentary system
established by that Constitution, where the ministers are also members of the
legislature and are directly accountable to it.
An essential feature of the parliamentary system of government is the
immediate accountability of the Prime Minister and the Cabinet to the
National Assembly. They shall be responsible to the National Assembly for
the program of government and shall determine the guidelines of national
policy. Unlike in the presidential system where the tenure of office of all
elected officials cannot be terminated before their term expired, the Prime
Minister and the Cabinet remain in office only as long as they enjoy the
confidence of the National Assembly. The moment this confidence is lost the
Prime Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in the present Constitution so as to
conform more fully to a system of separation of powers.88 To that extent, the
question hour, as it is presently understood in this jurisdiction, departs from
the question period of the parliamentary system. That department heads may
not be required to appear in a question hour does not, however, mean that
the legislature is rendered powerless to elicit information from them in all
circumstances. In fact, in light of the absence of a mandatory question
period, the need to enforce Congress right to executive information in the
performance of its legislative function becomes more imperative. As
Schwartz observes:
Indeed, if the separation of powers has anything to tell us on the subject
under discussion, it is that the Congress has the right to obtain information
from any source even from officials of departments and agencies in the
executive branch. In the United States there is, unlike the situation which
prevails in a parliamentary system such as that in Britain, a clear separation
between the legislative and executive branches. It is this very separation that
makes the congressional right to obtain information from the executive so
essential, if the functions of the Congress as the elected representatives of
the people are adequately to be carried out. The absence of close rapport
between the legislative and executive branches in this country, comparable
to those which exist under a parliamentary system, and the nonexistence in
the Congress of an institution such as the British question period have
perforce made reliance by the Congress upon its right to obtain information
from the executive essential, if it is intelligently to perform its legislative tasks.
Unless the Congress possesses the right to obtain executive information, its
power of oversight of administration in a system such as ours becomes a
power devoid of most of its practical content, since it depends for its
effectiveness solely upon information parceled out ex gratia by the
executive.89 (Emphasis and underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to
each other, should not be considered as pertaining to the same power of
Congress. One specifically relates to the power to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the power to conduct a question hour,
the objective of which is to obtain information in pursuit of Congress
oversight function.
When Congress merely seeks to be informed on how department heads are
implementing the statutes which it has issued, its right to such information is
not as imperative as that of the President to whom, as Chief Executive, such
department heads must give a report of their performance as a matter of
duty. In such instances, Section 22, in keeping with the separation of powers,
states that Congress may only request their appearance. Nonetheless, when
the inquiry in which Congress requires their appearance is "in aid of
legislation" under Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90
In fine, the oversight function of Congress may be facilitated by compulsory
process only to the extent that it is performed in pursuit of legislation. This is
consistent with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the appearance of executive
officials under Section 21 and the lack of it under Section 22 find their basis
in the principle of separation of powers. While the executive branch is a co-
equal branch of the legislature, it cannot frustrate the power of Congress to
legislate by refusing to comply with its demands for information.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom is by a valid claim of privilege. They
are not exempt by the mere fact that they are department heads. Only one
executive official may be exempted from this power the President on
whom executive power is vested, hence, beyond the reach of Congress
except through the power of impeachment. It is based on her being the
highest official of the executive branch, and the due respect accorded to a
co-equal branch of government which is sanctioned by a long-standing
custom.
By the same token, members of the Supreme Court are also exempt from
this power of inquiry. Unlike the Presidency, judicial power is vested in a
collegial body; hence, each member thereof is exempt on the basis not only
of separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. This point is not in dispute, as even counsel
for the Senate, Sen. Joker Arroyo, admitted it during the oral argument upon
interpellation of the Chief Justice.
Having established the proper interpretation of Section 22, Article VI of the
Constitution, the Court now proceeds to pass on the constitutionality of
Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22 of Article VI of the
Constitution and the absence of any reference to inquiries in aid of
legislation, must be construed as limited in its application to appearances of
department heads in the question hour contemplated in the provision of said
Section 22 of Article VI. The reading is dictated by the basic rule of
construction that issuances must be interpreted, as much as possible, in a
way that will render it constitutional.
The requirement then to secure presidential consent under Section 1, limited
as it is only to appearances in the question hour, is valid on its face. For
under Section 22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary on their part.
Section 1 cannot, however, be applied to appearances of department heads
in inquiries in aid of legislation. Congress is not bound in such instances to
respect the refusal of the department head to appear in such inquiry, unless
a valid claim of privilege is subsequently made, either by the President
herself or by the Executive Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials enumerated in Section
2(b) to secure the consent of the President prior to appearing before either
house of Congress. The enumeration is broad. It covers all senior officials of
executive departments, all officers of the AFP and the PNP, and all senior
national security officials who, in the judgment of the heads of offices
designated in the same section (i.e. department heads, Chief of Staff of the
AFP, Chief of the PNP, and the National Security Adviser), are "covered by
the executive privilege."
The enumeration also includes such other officers as may be determined by
the President. Given the title of Section 2 "Nature, Scope and Coverage of
Executive Privilege" , it is evident that under the rule of ejusdem generis,
the determination by the President under this provision is intended to be
based on a similar finding of coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly invoked in relation to
specific categories of information and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope
and coverage of executive privilege, the reference to persons being "covered
by the executive privilege" may be read as an abbreviated way of saying that
the person is in possession of information which is, in the judgment of the
head of office concerned, privileged as defined in Section 2(a). The Court
shall thus proceed on the assumption that this is the intention of the
challenged order.
Upon a determination by the designated head of office or by the President
that an official is "covered by the executive privilege," such official is
subjected to the requirement that he first secure the consent of the President
prior to appearing before Congress. This requirement effectively bars the
appearance of the official concerned unless the same is permitted by the
President. The proviso allowing the President to give its consent means
nothing more than that the President may reverse a prohibition which already
exists by virtue of E.O. 464.
Thus, underlying this requirement of prior consent is the determination by a
head of office, authorized by the President under E.O. 464, or by the
President herself, that such official is in possession of information that is
covered by executive privilege. This determination then becomes the basis
for the officials not showing up in the legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to
be present, such invocation must be construed as a declaration to Congress
that the President, or a head of office authorized by the President, has
determined that the requested information is privileged, and that the
President has not reversed such determination. Such declaration, however,
even without mentioning the term "executive privilege," amounts to an
implied claim that the information is being withheld by the executive branch,
by authority of the President, on the basis of executive privilege. Verily, there
is an implied claim of privilege.
The letter dated September 28, 2005 of respondent Executive Secretary
Ermita to Senate President Drilon illustrates the implied nature of the claim of
privilege authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the Committee of the
Whole regarding the Northrail Project of the North Luzon Railways
Corporation on 29 September 2005 at 10:00 a.m., please be informed that
officials of the Executive Department invited to appear at the meeting will not
be able to attend the same without the consent of the President, pursuant to
Executive Order No. 464 (s. 2005), entitled "Ensuring Observance Of The
Principle Of Separation Of Powers, Adherence To The Rule On Executive
Privilege And Respect For The Rights Of Public Officials Appearing In
Legislative Inquiries In Aid Of Legislation Under The Constitution, And For
Other Purposes". Said officials have not secured the required consent from
the President. (Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being requested to be resource persons falls under
the recognized grounds of the privilege to justify their absence. Nor does it
expressly state that in view of the lack of consent from the President under
E.O. 464, they cannot attend the hearing.
Significant premises in this letter, however, are left unstated, deliberately or
not. The letter assumes that the invited officials are covered by E.O. 464. As
explained earlier, however, to be covered by the order means that a
determination has been made, by the designated head of office or the
President, that the invited official possesses information that is covered by
executive privilege. Thus, although it is not stated in the letter that such
determination has been made, the same must be deemed implied.
Respecting the statement that the invited officials have not secured the
consent of the President, it only means that the President has not reversed
the standing prohibition against their appearance before Congress.
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the President or the heads of offices
authorized under E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time of writing, there has
been no contrary pronouncement from the President. In fine, an implied claim
of privilege has been made by the executive.
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked against Congress, it is gathered from
Chavez v. PEA that certain information in the possession of the executive
may validly be claimed as privileged even against Congress. Thus, the case
holds:
There is no claim by PEA that the information demanded by petitioner is
privileged information rooted in the separation of powers. The information
does not cover Presidential conversations, correspondences, or discussions
during closed-door Cabinet meetings which, like internal-deliberations of the
Supreme Court and other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This kind of information
cannot be pried open by a co-equal branch of government. A frank exchange
of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of
decision-making of those tasked to exercise Presidential, Legislative and
Judicial power. This is not the situation in the instant case.91 (Emphasis and
underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by
the mere fact that it sanctions claims of executive privilege. This Court must
look further and assess the claim of privilege authorized by the Order to
determine whether it is valid.
While the validity of claims of privilege must be assessed on a case to case
basis, examining the ground invoked therefor and the particular
circumstances surrounding it, there is, in an implied claim of privilege, a
defect that renders it invalid per se. By its very nature, and as demonstrated
by the letter of respondent Executive Secretary quoted above, the implied
claim authorized by Section 3 of E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the information demanded
involves military or diplomatic secrets, closed-door Cabinet meetings, etc.).
While Section 2(a) enumerates the types of information that are covered by
the privilege under the challenged order, Congress is left to speculate as to
which among them is being referred to by the executive. The enumeration is
not even intended to be comprehensive, but a mere statement of what is
included in the phrase "confidential or classified information between the
President and the public officers covered by this executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does not suffice to merely declare that the
President, or an authorized head of office, has determined that it is so, and
that the President has not overturned that determination. Such declaration
leaves Congress in the dark on how the requested information could be
classified as privileged. That the message is couched in terms that, on first
impression, do not seem like a claim of privilege only makes it more
pernicious. It threatens to make Congress doubly blind to the question of why
the executive branch is not providing it with the information that it has
requested.
A claim of privilege, being a claim of exemption from an obligation to disclose
information, must, therefore, be clearly asserted. As U.S. v. Reynolds
teaches:
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a private party. It is not to be lightly
invoked. There must be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after actual personal
consideration by that officer. The court itself must determine whether the
circumstances are appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege is designed to
protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim of executive
privilege, there is no way of determining whether it falls under one of the
traditional privileges, or whether, given the circumstances in which it is made,
it should be respected.93 These, in substance, were the same criteria in
assessing the claim of privilege asserted against the Ombudsman in Almonte
v. Vasquez94 and, more in point, against a committee of the Senate in Senate
Select Committee on Presidential Campaign Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is enlightening:
[T]he lack of specificity renders an assessment of the potential harm resulting
from disclosure impossible, thereby preventing the Court from balancing
such harm against plaintiffs needs to determine whether to override any
claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not called upon to perform
this balancing operation. In stating its objection to claimants interrogatories,
government asserts, and nothing more, that the disclosures sought by
claimant would inhibit the free expression of opinion that non-disclosure is
designed to protect. The government has not shown nor even alleged
that those who evaluated claimants product were involved in internal
policymaking, generally, or in this particular instance. Privilege cannot be set
up by an unsupported claim. The facts upon which the privilege is based
must be established. To find these interrogatories objectionable, this Court
would have to assume that the evaluation and classification of claimants
products was a matter of internal policy formulation, an assumption in which
this Court is unwilling to indulge sua sponte.98 (Emphasis and underscoring
supplied)
Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an
agency must provide precise and certain reasons for preserving the
confidentiality of requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires a specific
designation and description of the documents within its scope as well as
precise and certain reasons for preserving their confidentiality. Without this
specificity, it is impossible for a court to analyze the claim short of disclosure
of the very thing sought to be protected. As the affidavit now stands, the
Court has little more than its sua sponte speculation with which to weigh the
applicability of the claim. An improperly asserted claim of privilege is no claim
of privilege. Therefore, despite the fact that a claim was made by the proper
executive as Reynolds requires, the Court can not recognize the claim in the
instant case because it is legally insufficient to allow the Court to make a just
and reasonable determination as to its applicability. To recognize such a
broad claim in which the Defendant has given no precise or compelling
reasons to shield these documents from outside scrutiny, would make a farce
of the whole procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government, moreover, demands no
less than a claim of privilege clearly stating the grounds therefor. Apropos is
the following ruling in McPhaul v. U.S:102
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S.
Ct. 724, is highly relevant to these questions. For it is as true here as it was
there, that if (petitioner) had legitimate reasons for failing to produce the
records of the association, a decent respect for the House of
Representatives, by whose authority the subpoenas issued, would have
required that (he) state (his) reasons for noncompliance upon the return of
the writ. Such a statement would have given the Subcommittee an
opportunity to avoid the blocking of its inquiry by taking other appropriate
steps to obtain the records. To deny the Committee the opportunity to
consider the objection or remedy is in itself a contempt of its authority and an
obstruction of its processes. His failure to make any such statement was "a
patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot be condoned." (Emphasis and
underscoring supplied; citations omitted)
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such particularity as to compel disclosure of the
information which the privilege is meant to protect.103 A useful analogy in
determining the requisite degree of particularity would be the privilege
against self-incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely because he declares
that in so doing he would incriminate himself his say-so does not of itself
establish the hazard of incrimination. It is for the court to say whether his
silence is justified, and to require him to answer if it clearly appears to the
court that he is mistaken. However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in which a claim is
usually required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to guarantee.
To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be dangerous
because injurious disclosure could result." x x x (Emphasis and underscoring
supplied)
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b)
is thus invalid per se. It is not asserted. It is merely implied. Instead of
providing precise and certain reasons for the claim, it merely invokes E.O.
464, coupled with an announcement that the President has not given her
consent. It is woefully insufficient for Congress to determine whether the
withholding of information is justified under the circumstances of each case.
It severely frustrates the power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.
No infirmity, however, can be imputed to Section 2(a) as it merely provides
guidelines, binding only on the heads of office mentioned in Section 2(b), on
what is covered by executive privilege. It does not purport to be conclusive
on the other branches of government. It may thus be construed as a mere
expression of opinion by the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for invalidating the
challenged order the alleged unlawful delegation of authority to the heads of
offices in Section 2(b). Petitioner Senate of the Philippines, in particular, cites
the case of the United States where, so it claims, only the President can
assert executive privilege to withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain information is privileged, such determination
is presumed to bear the Presidents authority and has the effect of prohibiting
the official from appearing before Congress, subject only to the express
pronouncement of the President that it is allowing the appearance of such
official. These provisions thus allow the President to authorize claims of
privilege by mere silence.
Such presumptive authorization, however, is contrary to the exceptional
nature of the privilege. Executive privilege, as already discussed, is
recognized with respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and responsibilities of the
executive branch,105 or in those instances where exemption from disclosure
is necessary to the discharge of highly important executive responsibilities. 106
The doctrine of executive privilege is thus premised on the fact that certain
informations must, as a matter of necessity, be kept confidential in pursuit of
the public interest. The privilege being, by definition, an exemption from the
obligation to disclose information, in this case to Congress, the necessity
must be of such high degree as to outweigh the public interest in enforcing
that obligation in a particular case.
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power to invoke the privilege. She may
of course authorize the Executive Secretary to invoke the privilege on her
behalf, in which case the Executive Secretary must state that the authority is
"By order of the President," which means that he personally consulted with
her. The privilege being an extraordinary power, it must be wielded only by
the highest official in the executive hierarchy. In other words, the President
may not authorize her subordinates to exercise such power. There is even
less reason to uphold such authorization in the instant case where the
authorization is not explicit but by mere silence. Section 3, in relation to
Section 2(b), is further invalid on this score.
It follows, therefore, that when an official is being summoned by Congress on
a matter which, in his own judgment, might be covered by executive
privilege, he must be afforded reasonable time to inform the President or the
Executive Secretary of the possible need for invoking the privilege. This is
necessary in order to provide the President or the Executive Secretary with
fair opportunity to consider whether the matter indeed calls for a claim of
executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary invokes the privilege, Congress is no
longer bound to respect the failure of the official to appear before Congress
and may then opt to avail of the necessary legal means to compel his
appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President under Section 3 of E.O. 464 is to ensure
"respect for the rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected by Congress is an
echo from Article VI Section 21 of the Constitution mandating that "[t]he
rights of persons appearing in or affected by such inquiries shall be
respected."
In light of the above discussion of Section 3, it is clear that it is essentially an
authorization for implied claims of executive privilege, for which reason it
must be invalidated. That such authorization is partly motivated by the need
to ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance
of executive officials in the hearings conducted by it, and not with the
demands of citizens for information pursuant to their right to information on
matters of public concern. Petitioners are not amiss in claiming, however,
that what is involved in the present controversy is not merely the legislative
power of inquiry, but the right of the people to information.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power of inquiry and the right of the people to
information on matters of public concern. For one, the demand of a citizen for
the production of documents pursuant to his right to information does not
have the same obligatory force as a subpoena duces tecum issued by
Congress. Neither does the right to information grant a citizen the power to
exact testimony from government officials. These powers belong only to
Congress and not to an individual citizen.
Thus, while Congress is composed of representatives elected by the people,
it does not follow, except in a highly qualified sense, that in every exercise of
its power of inquiry, the people are exercising their right to information.
To the extent that investigations in aid of legislation are generally conducted
in public, however, any executive issuance tending to unduly limit disclosures
of information in such investigations necessarily deprives the people of
information which, being presumed to be in aid of legislation, is presumed to
be a matter of public concern. The citizens are thereby denied access to
information which they can use in formulating their own opinions on the
matter before Congress opinions which they can then communicate to
their representatives and other government officials through the various legal
means allowed by their freedom of expression. Thus holds Valmonte v.
Belmonte:
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. Yet, this open dialogue can be effective only
to the extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the discussion are aware of the
issues and have access to information relating thereto can such bear fruit. 107
(Emphasis and underscoring supplied)
The impairment of the right of the people to information as a consequence of
E.O. 464 is, therefore, in the sense explained above, just as direct as its
violation of the legislatures power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the need for publication. On the need for
publishing even those statutes that do not directly apply to people in general,
Taada v. Tuvera states:
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws relate to the people in general albeit
there are some that do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a relative of President
Marcos who was decreed instant naturalization. It surely cannot be said that
such a law does not affect the public although it unquestionably does not
apply directly to all the people. The subject of such law is a matter of public
interest which any member of the body politic may question in the political
forums or, if he is a proper party, even in courts of justice.108 (Emphasis and
underscoring supplied)
Although the above statement was made in reference to statutes, logic
dictates that the challenged order must be covered by the publication
requirement. As explained above, E.O. 464 has a direct effect on the right of
the people to information on matters of public concern. It is, therefore, a
matter of public interest which members of the body politic may question
before this Court. Due process thus requires that the people should have
been apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the executive branch
whenever it is sought in aid of legislation. If the executive branch withholds
such information on the ground that it is privileged, it must so assert it and
state the reason therefor and why it must be respected.
The infirm provisions of E.O. 464, however, allow the executive branch to
evade congressional requests for information without need of clearly
asserting a right to do so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of Congress to conduct
inquiries in aid of legislation is frustrated. That is impermissible. For
[w]hat republican theory did accomplishwas to reverse the old presumption
in favor of secrecy, based on the divine right of kings and nobles, and
replace it with a presumption in favor of publicity, based on the doctrine of
popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be presumed valid. Otherwise, we shall
not have merely nullified the power of our legislature to inquire into the
operations of government, but we shall have given up something of much
greater value our right as a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of
Executive Order No. 464 (series of 2005), "Ensuring Observance of the
Principle of Separation of Powers, Adherence to the Rule on Executive
Privilege and Respect for the Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the Constitution, and For
Other Purposes," are declared VOID. Sections 1 and 2(a) are, however,
VALID.
SO ORDERED.
 BAYAN MUNA Representatives G.R. No. 167930
SATUR C. OCAMPO, TEODORO
A. CASIO, and JOEL G. VIRADOR, Present:
GABRIELA WOMENS PARTY
Representative LIZA L. MAZA, PANGANIBAN, C.J.,
ANAKPAWIS Representatives PUNO,
RAFAEL V. MARIANO QUISUMBING,
and CRISPIN B. BELTRAN, YNARES-SANTIAGO,
Rep. FRANCIS G. ESCUDERO, SANDOVAL-GUTIERREZ,
Rep. EDUARDO C. ZIALCITA, CARPIO,
Rep. LORENZO R. TAADA III, AUSTRIA-MARTINEZ,
DR. CAROL PAGADUAN-ARAULLO CORONA,
and RENATO M. REYES, JR. CARPIO-MORALES,

of BAYAN, MARIE HILAO-ENRIQUEZ CALLEJO, SR.,

KILUSANG MAYO UNO, G.R. No. 167798 of KARAPATAN, ANTONIO L. TINIO AZCUNA,
NATIONAL FEDERATION OF of ACT, FERDINAND GAITE TINGA,
LABOR UNIONS-KILUSANG of COURAGE, GIOVANNI A. TAPANG CHICO-NAZARIO,
MAYO UNO (NAFLU-KMU), of AGHAM, WILFREDO MARBELLA GARCIA, and
JOSELITO V. USTAREZ, of KMP, LANA LINABAN of GABRIELA, VELASCO, Jr., JJ.
EMILIA P. DAPULANG, AMADO GAT INCIONG,
SALVADOR T. CARRANZA, RENATO CONSTANTINO, JR.,
MARTIN T. CUSTODIO, JR. and DEAN PACIFICO H. AGABIN,
ROQUE M. TAN, SHARON R. DUREMDES of the
Petitioners, NATIONAL COUNCIL OF CHURCHES
IN THE PHILIPPINES, and
- versus - BRO. EDMUNDO L. FERNANDEZ (FSC)
of the ASSOCIATION OF MAJOR
RELIGIOUS SUPERIORS OF THE
THE DIRECTOR-GENERAL, PHILIPPINES (AMRSP),
NATIONAL ECONOMIC Petitioners,
DEVELOPMENT AUTHORITY,
and THE SECRETARY, - versus -
DEPARTMENT OF BUDGET and
MANAGEMENT,
Respondents. EDUARDO ERMITA, in his capacity as
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Executive Secretary, ROMULO NERI,
in his capacity as Director-General
of the NATIONAL ECONOMIC and identification cards in private transactions, and prevent violations of laws
DEVELOPMENT AUTHORITY (NEDA) involving false names and identities.
and the Administrator of the Promulgated: NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO,
President of the Republic of the Philippines by virtue of the powers vested in
NATIONAL STATISTICS OFFICE (NSO),
me by law, do hereby direct the following:
Respondents. April 19, 2006 Section 1. Adoption of a unified multi-purpose identification (ID)
x-----------------------------------------------------x system for government. All government agencies, including government-
owned and controlled corporations, are hereby directed to adopt a unified
multi-purpose ID system to ensure the attainment of the following objectives:
DECISION a. To reduce costs and thereby lessen the financial
burden on both the government and the public
brought about by the use of multiple ID cards and
CARPIO, J.:
the maintenance of redundant database containing
the same or related information;
This case involves two consolidated petitions for certiorari, b. To ensure greater convenience for those transacting
business with the government and those availing of
prohibition, and mandamus under Rule 65 of the Rules of Court, seeking the government services;
nullification of Executive Order No. 420 (EO 420) on the ground that it is c. To facilitate private businesses and promote
the wider use of the unified ID card as provided
unconstitutional. under this executive order;
d. To enhance the integrity and reliability of
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April government-issued ID cards; and
e. To facilitate access to and delivery of quality and
2005, reads: effective government service.
Section 2. Coverage All government agencies and government-
REQUIRING ALL GOVERNMENT AGENCIES AND owned and controlled corporations issuing ID cards to their members or
GOVERNMENT-OWNED AND CONTROLLED constituents shall be covered by this executive order.
CORPORATIONS TO STREAMLINE AND HARMONIZE Section 3. Data requirement for the unified ID system The data to
THEIR IDENTIFICATION (ID) SYSTEMS, AND be collected and recorded by the participating agencies shall be limited to the
AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR- following:
GENERAL, NATIONAL ECONOMIC AND DEVELOPMENT Name
AUTHORITY TO IMPLEMENT THE SAME, AND FOR Home Address
OTHER PURPOSES Sex
WHEREAS, good governance is a major thrust of this Picture
Administration; Signature
WHEREAS, the existing multiple identification systems in
Date of Birth
government have created unnecessary and costly redundancies and higher
costs to government, while making it inconvenient for individuals to be Place of Birth
holding several identification cards; Marital Status
WHEREAS, there is urgent need to streamline and integrate the Names of Parents
processes and issuance of identification cards in government to reduce costs Height
and to provide greater convenience for those transacting business with Weight
government; Two index fingers and two thumbmarks
WHEREAS, a unified identification system will facilitate private
Any prominent distinguishing features like moles and others
businesses, enhance the integrity and reliability of government-issued
Tax Identification Number (TIN)

Provided that a corresponding ID number issued by the participating agency
and a common reference number shall form part of the stored ID data and,
together with at least the first five items listed above, including the print of the
right thumbmark, or any of the fingerprints as collected and stored, shall
appear on the face or back of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic
and Development Authority, to Harmonize All Government Identification
Systems. The Director-General, National Economic Development Authority,
is hereby authorized to streamline and harmonize all government ID
systems.
Section 5. Functions and responsibilities of the Director-
General, National Economic and Development Authority. In addition to
his organic functions and responsibilities, the Director-General, National
Economic and Development Authority, shall have the following functions and
responsibilities:
a. Adopt within sixty (60) days from the effectivity of
this executive order a unified government ID system
containing only such data and features, as indicated
in Section 3 above, to validly establish the identity of
the card holder:
b. Enter into agreements with local governments,
through their respective leagues of governors or
mayors, the Commission on Elections (COMELEC),
and with other branches or instrumentalities of the
government, for the purpose of ensuring
government-wide adoption of and support to this
effort to streamline the ID systems in government;
b. Call on any other government agency or
institution, or create subcommittees or technical
working groups, to provide such assistance as may
be necessary or required for the effective
performance of its functions; and
d. Promulgate such rules or regulations as may be
necessary in pursuance of the objectives of this
executive order.
Section 6. Safeguards. The Director-General, National Economic
and Development Authority, and the pertinent agencies shall adopt such
safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be
used only for purposes of establishing the identity of
a person, shall be limited to those specified in
Section 3 of this executive order;
b. In no case shall the collection or compilation of other
data in violation of a persons right to privacy shall be
allowed or tolerated under this order;
c. Stringent systems of access control to data in the
identification system shall be instituted;
d. Data collected and stored for this purpose shall be kept
and treated as strictly confidential and a personal or
written authorization of the Owner shall be required
for access and disclosure of data;
e. The identification card to be issued shall be
protected by advanced security features and
cryptographic technology; and
f. A written request by the Owner of the identification
card shall be required for any correction or revision
of relevant data, or under such conditions as the
participating agency issuing the identification card
shall prescribe.
Section 7. Funding. Such funds as may be recommended by the
Department of Budget and Management shall be provided to carry out the
objectives of this executive order.
Section 8. Repealing clause. All executive orders or issuances, or
portions thereof, which are inconsistent with this executive order, are hereby
revoked, amended or modified accordingly.
Section 9. Effectivity. This executive order shall take effect fifteen
(15) days after its publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our
Lord, Two Thousand and Five.
Thus, under EO 420, the President directs all government agencies
and government-owned and controlled corporations to adopt a uniform data
collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional
because it constitutes usurpation of legislative functions by the executive
branch of the government. Furthermore, they allege that EO 420 infringes on
the citizens right to privacy.[1]
Petitioners in G.R. No. 167930 allege that EO 420 is void based on
the following grounds:
 1. EO 420 is contrary to law. It completely disregards and Respondents question the legal standing of petitioners and the
violates the decision of this Honorable Court in Ople v.
ripeness of the petitions. Even assuming that petitioners are bereft of legal
Torres et al., G.R. No. 127685, July 23, 1998. It also violates
RA 8282 otherwise known as the Social Security Act of standing, the Court considers the issues raised under the circumstances of
1997.
paramount public concern or of transcendental significance to the people.
The petitions also present a justiciable controversy ripe for judicial
2. The Executive has usurped the legislative power of
Congress as she has no power to issue EO 420. Furthermore, the determination because all government entities currently issuing identification
implementation of the EO will use public funds not appropriated by
cards are mandated to implement EO 420, which petitioners claim is patently
Congress for that purpose.
unconstitutional. Hence, the Court takes cognizance of the petitions.
3. EO 420 violates the constitutional provisions on the
right to privacy
(i) It allows access to personal confidential The Courts Ruling
data without the owners consent.
The petitions are without merit.
(ii) EO 420 is vague and
without adequate safeguards or
On the Alleged Usurpation of Legislative Power
penalties for any violation of its
provisions.
Section 2 of EO 420 provides, Coverage. All government agencies
(iii) There are no compelling reasons that will legitimize the
necessity of EO 420. and government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order. EO 420
4. Granting without conceding that the President may applies only to government entities that issue ID cards as part of their
issue EO 420, the Executive Order was issued
without public hearing. functions under existing laws. These government entities have already
been issuing ID cards even prior to EO 420. Examples of these government
5. EO 420 violates the Constitutional provision on entities are the GSIS,[3] SSS,[4] Philhealth,[5] Mayors Office,[6] LTO,[7]
equal protection of laws and results in the
PRC,[8] and similar government entities.
discriminatory treatment of and penalizes those
without ID.[2] Section 1 of EO 420 directs these government entities to adopt a
unified multi-purpose ID system. Thus, all government entities that issue IDs
Issues
as part of their functions under existing laws are required to adopt a uniform
data collection and format for their IDs. Section 1 of EO 420 enumerates
Essentially, the petitions raise two issues. First, petitioners claim that the purposes of the uniform data collection and format, namely:
EO 420 is a usurpation of legislative power by the President. Second,
petitioners claim that EO 420 infringes on the citizens right to privacy. a. To reduce costs and thereby lessen the
financial burden on both the government and the
 public brought about by the use of multiple ID cards
and the maintenance of redundant database
containing the same or related information;
b. To ensure greater convenience for those
transacting business with the government and those
availing of government services;
c. To facilitate private businesses and promote
the wider use of the unified ID card as provided
under this executive order;
d. To enhance the integrity and reliability of
government-issued ID cards; and
e. To facilitate access to and delivery of quality
and effective government service.
In short, the purposes of the uniform ID data collection and ID format are to
reduce costs, achieve efficiency and reliability, insure compatibility, and
provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded
under the uniform ID system to only 14 specific items, namely: (1) Name;
(2) Home Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7)
Place of Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11)
Weight; (12) Two index fingers and two thumbmarks; (13) Any prominent
distinguishing features like moles or others; and (14) Tax Identification
Number.
These limited and specific data are the usual data required for
personal identification by government entities, and even by the private
sector. Any one who applies for or renews a drivers license provides to the
LTO all these 14 specific data.
At present, government entities like LTO require considerably more
data from applicants for identification purposes. EO 420 will reduce the data
required to be collected and recorded in the ID databases of the
government entities. Government entities cannot collect or record data, for
identification purposes, other than the 14 specific data.
Various laws allow several government entities to collect and record
data for their ID systems, either expressly or impliedly by the nature of the
functions of these government entities. Under their existing ID systems,
some government entities collect and record more data than what EO 420
allows. At present, the data collected and recorded by government entities
are disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,[9] the IDs that the Court issues to
all its employees, including the Justices, contain 15 specific data, namely: (1)
Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6)
Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11)
Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number;
(14) Name and Address of Person to be Notified in Case of Emergency; and
(15) Signature. If we consider that the picture in the ID can generally also
show the sex of the employee, the Courts ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires
only the first five items listed in Section 3, plus the fingerprint, agency
number and the common reference number, or only eight specific data. Thus,
at present, the Supreme Courts ID contains far more data than the proposed
uniform ID for government entities under EO 420. The nature of the data
contained in the Supreme Court ID is also far more financially sensitive,
specifically the Tax Identification Number.
Making the data collection and recording of government entities
unified, and making their ID formats uniform, will admittedly achieve
substantial benefits. These benefits are savings in terms of procurement of
equipment and supplies, compatibility in systems as to hardware and
software, ease of verification and thus increased reliability of data, and the
user-friendliness of a single ID format for all government entities.
There is no dispute that government entities can individually limit the
collection and recording of their data to the 14 specific items in Section 3 of
EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such an
act is certainly within the authority of the heads or governing boards of the
government entities that are already authorized under existing laws to issue
IDs.
A unified ID system for all these government entities can be
achieved in either of two ways. First, the heads of these existing government
entities can enter into a memorandum of agreement making their systems
uniform. If the government entities can individually adopt a format for their
own ID pursuant to their regular functions under existing laws, they can also
adopt by mutual agreement a uniform ID format, especially if the uniform
format will result in substantial savings, greater efficiency, and optimum
compatibility. This is purely an administrative matter, and does not involve
the exercise of legislative power.
Second, the President may by executive or administrative order
direct the government entities under the Executive department to adopt a
uniform ID data collection and format. Section 17, Article VII of the 1987
Constitution provides that the President shall have control of all executive
departments, bureaus and offices. The same Section also mandates the
President to ensure that the laws be faithfully executed.
Certainly, under this constitutional power of control the President can
direct all government entities, in the exercise of their functions under
existing laws, to adopt a uniform ID data collection and ID format to achieve
savings, efficiency, reliability, compatibility, and convenience to the public.
The Presidents constitutional power of control is self-executing and does not
need any implementing legislation.
Of course, the Presidents power of control is limited to the Executive
branch of government and does not extend to the Judiciary or to the
independent constitutional commissions. Thus, EO 420 does not apply to the
Judiciary, or to the COMELEC which under existing laws is also authorized to
issue voters ID cards.[10] This only shows that EO 420 does not establish a
national ID system because legislation is needed to establish a single ID
system that is compulsory for all branches of government.
The Constitution also mandates the President to ensure that the laws
are faithfully executed. There are several laws mandating government
entities to reduce costs, increase efficiency, and in general, improve public
services.[11] The adoption of a uniform ID data collection and format under
EO 420 is designed to reduce costs, increase efficiency, and in general,
improve public services. Thus, in issuing EO 420, the President is simply
performing the constitutional duty to ensure that the laws are faithfully
executed.
Clearly, EO 420 is well within the constitutional power of the
President to promulgate. The President has not usurped legislative power in
issuing EO 420. EO 420 is an exercise of Executive power the Presidents
constitutional power of control over the Executive department. EO 420 is also
compliance by the President of the constitutional duty to ensure that the laws
are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal
them. In issuing EO 420, the President did not make, alter or repeal any law
but merely implemented and executed existing laws. EO 420 reduces costs,
as well as insures efficiency, reliability, compatibility and user-friendliness in
the implementation of current ID systems of government entities under
existing laws. Thus, EO 420 is simply an executive issuance and not an act
of legislation.
The act of issuing ID cards and collecting the necessary personal
data for imprinting on the ID card does not require legislation. Private
employers routinely issue ID cards to their employees. Private and public
schools also routinely issue ID cards to their students. Even private clubs
and associations issue ID cards to their members. The purpose of all these
ID cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although imposed
as a condition for exercising a privilege, are voluntary because a person is
not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government
maintained ID card system. First, when the implementation of an ID card
system requires a special appropriation because there is no existing
appropriation for such purpose. Second, when the ID card system is
compulsory on all branches of government, including the independent
constitutional commissions, as well as compulsory on all citizens whether
they have a use for the ID card or not. Third, when the ID card system
requires the collection and recording of personal data beyond what is
routinely or usually required for such purpose, such that the citizens right to
privacy is infringed.
In the present case, EO 420 does not require any special
appropriation because the existing ID card systems of government entities
covered by EO 420 have the proper appropriation or funding. EO 420 is not
compulsory on all branches of government and is not compulsory on all
citizens. EO 420 requires a very narrow and focused collection and recording
of personal data while safeguarding the confidentiality of such data. In fact,
the data collected and recorded under EO 420 are far less than the data
collected and recorded under the ID systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420
does not compel all citizens to have an ID card. EO 420 applies only to
government entities that under existing laws are already collecting data and
issuing ID cards as part of their governmental functions. Every government
entity that presently issues an ID card will still issue its own ID card
under its own name. The only difference is that the ID card will contain only
the five data specified in Section 3 of EO 420, plus the fingerprint, the agency
ID number, and the common reference number which is needed for cross-
verification to ensure integrity and reliability of identification.
This Court should not interfere how government entities under the
Executive department should undertake cost savings, achieve efficiency in
operations, insure compatibility of equipment and systems, and provide user-
friendly service to the public. The collection of ID data and issuance of ID
cards are day-to-day functions of many government entities under existing
laws. Even the Supreme Court has its own ID system for employees of the
Court and all first and second level courts. The Court is even trying to unify
its ID system with those of the appellate courts, namely the Court of Appeals,
Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all
courts within the Judiciary. The same is true for government entities under
the Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card
issuance systems to achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise of any legislative power.
Thus, the issuance of EO 420 does not constitute usurpation of legislative
power.
On the Alleged Infringement of the Right to Privacy
 All these years, the GSIS, SSS, LTO, Philhealth and other
government entities have been issuing ID cards in the performance of their
governmental functions. There have been no complaints from citizens that
the ID cards of these government entities violate their right to privacy. There
have also been no complaints of abuse by these government entities in the
collection and recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID
systems of government entities prior to EO 420 violate their right to privacy.
Since petitioners do not make such claim, they even have less basis to
complain against the unified ID system under EO 420. The data collected
and stored for the unified ID system under EO 420 will be limited to only 14
specific data, and the ID card itself will show only eight specific data. The
data collection, recording and ID card system under EO 420 will even require
less data collected, stored and revealed than under the disparate systems
prior to EO 420.
Prior to EO 420, government entities had a free hand in determining
the kind, nature and extent of data to be collected and stored for their ID
systems. Under EO 420, government entities can collect and record only the
14 specific data mentioned in Section 3 of EO 420. In addition, government
entities can show in their ID cards only eight of these specific data, seven
less data than what the Supreme Courts ID shows.
Also, prior to EO 420, there was no executive issuance to
government entities prescribing safeguards on the collection, recording, and
disclosure of personal identification data to protect the right to privacy. Now,
under Section 5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which
shall be used only for purposes of establishing the
identity of a person, shall be limited to those
specified in Section 3 of this executive order;
b. In no case shall the collection or compilation of
other data in violation of a persons right to privacy
be allowed or tolerated under this order;
c. Stringent systems of access control to data in
the identification system shall be instituted;
d. Data collected and stored for this purpose shall
be kept and treated as strictly confidential and a
personal or written authorization of the Owner shall
be required for access and disclosure of data;
e. The identification card to be issued shall be
protected by advanced security features and
cryptographic technology;
f. A written request by the Owner of the
identification card shall be required for any
correction or revision of relevant data, or under such
conditions as the participating agency issuing the
identification card shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even
narrowly limits the data that can be collected, recorded and shown compared
to the existing ID systems of government entities. EO 420 further provides
strict safeguards to protect the confidentiality of the data collected, in contrast
to the prior ID systems which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID
systems by government entities. Some one hundred countries have
compulsory national ID systems, including democracies such as Spain,
France, Germany, Belgium, Greece, Luxembourg, and Portugal. Other
countries which do not have national ID systems, like the United States,
Canada, Australia, New Zealand, Ireland, the Nordic Countries and Sweden,
have sectoral cards for health, social or other public services.[12] Even with
EO 420, the Philippines will still fall under the countries that do not have
compulsory national ID systems but allow only sectoral cards for social
security, health services, and other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS,
Philhealth, and LTO cannot perform effectively and efficiently their mandated
functions under existing laws. Without a reliable ID system, GSIS, SSS,
Philhealth and similar government entities stand to suffer substantial losses
arising from false names and identities. The integrity of the LTOs licensing
system will suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to
privacy, namely, Griswold v. Connecticut,[13] U.S. Justice Department v.
Reporters Committee for Freedom of the Press,[14] and Whalen v. Roe.[15]
The last two decisions actually support the validity of EO 420, while the first
is inapplicable to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a
state law that prohibited the use and distribution of contraceptives because
enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: Would we allow the
police to search the sacred precincts of the marital bedrooms for telltale
signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship. Because the facts and the
issue involved in Griswold are materially different from the present case,
Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State
could collect and store information on individuals from public records
nationwide but whether the State could withhold such information from the
press. The premise of the issue in U.S. Justice Department is that the
State can collect and store in a central database information on citizens
gathered from public records across the country. In fact, the law
authorized the Department of Justice to collect and preserve fingerprints and
other criminal identification records nationwide. The law also authorized the
Department of Justice to exchange such information with officials of States,
cities and other institutions. The Department of Justice treated such
information as confidential. A CBS news correspondent and the Reporters
Committee demanded the criminal records of four members of a family
pursuant to the Freedom of Information Act. The U.S. Supreme Court ruled
that the Freedom of Information Act expressly exempts release of information
that would constitute an unwarranted invasion of personal privacy, and the
information demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the
personal data collected and recorded under EO 420 are treated as strictly
confidential under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987
Constitution grants the right of the people to information on matters of public
concern. Personal matters are exempt or outside the coverage of the
peoples right to information on matters of public concern. The data treated as
strictly confidential under EO 420 being private matters and not matters of
public concern, these data cannot be released to the public or the press.
Thus, the ruling in U.S. Justice Department does not collide with EO 420 but
actually supports the validity EO 420.
Whalen v. Roe is the leading American case on the constitutional
protection for control over information. In Whalen, the U.S. Supreme
Court upheld the validity of a New York law that required doctors to furnish
the government reports identifying patients who received prescription drugs
that have a potential for abuse. The government maintained a central
computerized database containing the names and addresses of the
patients, as well as the identity of the prescribing doctors. The law was
assailed because the database allegedly infringed the right to privacy of
individuals who want to keep their personal matters confidential. The U.S.
Supreme Court rejected the privacy claim, and declared:
Disclosures of private medical information to doctors, to
hospital personnel, to insurance companies, and to public
health agencies are often an essential part of modern medical
practice even when the disclosure may reflect unfavorably on
the character of the patient. Requiring such disclosures to
representatives of the State having responsibility for the
health of the community does not automatically amount to
an impermissible invasion of privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the
New York State in Whalen, the 14 specific data required for disclosure to the
Philippine government under EO 420 are far less sensitive and far less
personal. In fact, the 14 specific data required under EO 420 are routine data
for ID systems, unlike the sensitive and potentially embarrassing medical
records of patients taking prescription drugs. Whalen, therefore, carries
persuasive force for upholding the constitutionality of EO 420 as non-violative
of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen.
In Planned Parenthood of Central Missouri v. Danforth,[16] the U.S. Supreme
Court upheld the validity of a law that required doctors performing abortions
to fill up forms, maintain records for seven years, and allow the inspection of
such records by public health officials. The U.S. Supreme Court ruled that
recordkeeping and reporting requirements that are reasonably directed to the
preservation of maternal health and that properly respect a patients
confidentiality and privacy are permissible.
Again, in Planned Parenthood of Southeastern Pennsylvania v.
Casey,[17] the U.S. Supreme Court upheld a law that required doctors
performing an abortion to file a report to the government that included the
doctors name, the womans age, the number of prior pregnancies and
abortions that the woman had, the medical complications from the abortion,
the weight of the fetus, and the marital status of the woman. In case of state-
funded institutions, the law made such information publicly available. In
Casey, the U.S. Supreme Court stated: The collection of information with
respect to actual patients is a vital element of medical research, and so it
cannot be said that the requirements serve no purpose other than to make
abortion more difficult.
Compared to the disclosure requirements of personal data that the
U.S. Supreme Court have upheld in Whalen, Danforth and Casey as not
violative of the right to privacy, the disclosure requirements under EO 420
are far benign and cannot therefore constitute violation of the right to privacy.
EO 420 requires disclosure of 14 personal data that are routine for ID
purposes, data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to
privacy. Petitioners cannot show such violation by a mere facial examination
of EO 420 because EO 420 narrowly draws the data collection, recording
and exhibition while prescribing comprehensive safeguards. Ople v.
Torres[18] is not authority to hold that EO 420 violates the right to privacy
because in that case the assailed executive issuance, broadly drawn and
devoid of safeguards, was annulled solely on the ground that the subject
matter required legislation. As then Associate Justice, now Chief Justice
Artemio V. Panganiban noted in his concurring opinion in Ople v. Torres, The
voting is decisive only on the need for appropriate legislation, and it is only
on this ground that the petition is granted by this Court.
 EO 420 applies only to government entities that already maintain ID
systems and issue ID cards pursuant to their regular functions under existing
laws. EO 420 does not grant such government entities any power that they
do not already possess under existing laws. In contrast, the assailed
executive issuance in Ople v. Torres sought to establish a National
Computerized Identification Reference System,[19] a national ID system
that did not exist prior to the assailed executive issuance. Obviously, a
national ID card system requires legislation because it creates a new national
data collection and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system
but makes the existing sectoral card systems of government entities like
GSIS, SSS, Philhealth and LTO less costly, more efficient, reliable and user-
friendly to the public. Hence, EO 420 is a proper subject of executive
issuance under the Presidents constitutional power of control over
government entities in the Executive department, as well as under the
Presidents constitutional duty to ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No.
420 is declared VALID. SO ORDERED.
G.R. Nos. 185729-32 June 26, 2013
PEOPLE OF THE PHILIPPINES, PETITIONER,
vs.
THE HONORABLE SANDIGANBAYAN (FOURTH DIVISION), ANTONIO P.
BELICENA, ULDARICO P. ANDUTAN, JR., RAUL C. DE VERA,
ROSANNA P. DIALA AND JOSEPH A. CABOTAJE, RESPONDENTS.
DECISION
ABAD, J.:
This case arose from the issuance of two Tax Credit Certificates in favor of
JAM Liner, Inc. which were investigated and found fraudulent by the
Presidential Task Force 156, created by then President Joseph E. Estrada.
The Facts and the Case
The principal respondent in this case, Homero A. Mercado, was the
President of JAM Liner, Inc. The other respondents, Antonio A. Belicena,
Uldarico P. Andutan Jr., Raul C. De Vera, and Rosanna P. Diala, were
Department of Finance (DOF) officials formerly assigned at its One-Stop
Shop Inter-Agency Tax Credit and Drawback Center (DOF One-Stop Shop).
Sometime in 2000, showing willingness to testify against the criminal
syndicate that allegedly ran the tax credit scam at the DOF One-Stop Shop,
Mercado applied with the Department of Justice (DOJ) for immunity as state
witness under its witness protection program. On June 5, 2000 the DOJ
favorably acted on the application and granted immunity to Mercado. Still,
since the investigation of the case fell within the authority of the Office of the
Ombudsman (Ombudsman), the latter charged him and the other
respondents before the Sandiganbayans Fourth Division with violations of
Section 3(j) of Republic Act (R.A.) 3019 and two counts of falsification under
Article 171, paragraph 4, of the Revised Penal Code in Criminal Cases
27511-14.
The first information alleged that respondent DOF officials approved and
issued in 1996 Tax Credit Certificate 7711 for 7,350,444.00 in favor of JAM
Liner, Inc. for domestic capital equipment although it did not qualify for such
tax credit. The second Information alleged that they further illegally issued in
1996 Tax Credit Certificate 7708 for 4,410,265.50 in favor of the same
company covering its purchase of six Mitsubishi buses.
Mercado filed a motion for reconsideration or reinvestigation before the
Ombudsman, citing the DOJs grant of immunity to him. Acting favorably on
the motion, on September 4, 2003 the Ombudsman executed an Immunity
Agreement1 with Mercado. The agreement provided that, in consideration for
granting him immunity from suit, Mercado would produce all relevant
documents in his possession and testify against the accused in all the cases,
criminal or otherwise, that may be filed against them. Accordingly, on the
same date, the Ombudsman filed a motion to discharge Mercado2 from the
information involving him.
But on April 30, 2008 the Sandiganbayan issued a Resolution, 3 denying the
Ombudsmans motion. That court held that the pieces of evidence adduced
during the hearing of the Ombudsmans motion failed to establish the
conditions required under Section 17, Rule 119 of the Rules of Court for the
discharge of an accused as a state witness. The Ombudsman filed a motion
for reconsideration but the court denied it on November 6, 2008,4 hence, this
petition of the People of the Philippines.
Issue Presented
The central issue that this case presents is whether or not the
Sandiganbayan gravely abused its discretion in refusing to recognize the
immunity from criminal prosecution that the Ombudsman granted respondent
Mercado and, as a result, in declining to discharge him from the information
as a state witness.
Ruling of the Court
In denying the Ombudsmans motion to drop Mercado from the information,
the Sandiganbayan largely dwelt on the question of whether or not the
prosecution complied with the requirements of Section 17, Rule 119 of the
Rules of Criminal Procedure.
Respondents De Vera and Diala, Mercados co-accused who opposed the
grant of immunity to him, contend that the immunity that the Ombudsman
gave Mercado does not bind the court, which in the meantime already
acquired jurisdiction over the case against him. That immunity merely
relieves Mercado from any further proceedings, including preliminary
investigation, which the state might still attempt to initiate against him. 5
This in a way is true. But the filing of the criminal action against an accused
in court does not prevent the Ombudsman from exercising the power that the
Congress has granted him. Section 17 of R.A. 6770 provides:
Section 17. Immunities. x x x Under such terms and conditions as it may
determine, taking into account the pertinent provisions of the Rules of Court,
the Ombudsman may grant immunity from criminal prosecution to any person
whose testimony or whose possession and production of documents or other
evidence may be necessary to determine the truth in any hearing, inquiry or
proceeding being conducted by the Ombudsman or under its authority, in the
performance or in the furtherance of its constitutional functions and statutory
objectives. The immunity granted under this and the immediately preceding
paragraph shall not exempt the witness from criminal prosecution for perjury
or false testimony nor shall he be exempt from demotion or removal from
office.
His above authority enables the Ombudsman to carry out his constitutional
mandate to ensure accountability in the public service.6 It gives the
Ombudsman wide latitude in using an accused discharged from the
information to increase the chances of conviction of the other accused and
attain a higher prosecutorial goal.7 Immunity statutes seek to provide a
balance between the states interests and the individuals right against self-
incrimination. To secure his testimony without exposing him to the risk of
prosecution, the law recognizes that the witness can be given immunity from
prosecution.8 In such a case, both interests and rights are satisfied.
As it happened in this case, the Ombudsman had already filed with the
Sandiganbayan the criminal action against Mercado and the other
respondents in Criminal Cases 27511-14 prior to the Ombudsmans grant of
immunity to Mercado. Having already acquired jurisdiction over Mercados
case, it remained within the Sandiganbayans power to determine whether or
not he may be discharged as a state witness in accordance with Section 17,
Rule 119 of the Rules of Criminal Procedure.
The Ombudsman premised its grant of immunity to Mercado on his
undertaking to produce all the documents in his possession relative to the
DOF tax credit scam and to testify in all pending criminal, civil, and
administrative cases against those involved. Indeed, he had consistently
cooperated even prior to immunity agreement in the investigation and
prosecution of the case. His testimony gave the prosecution a clearer picture
of the transactions that led to the issuance of the subject certificates.
In any event, the question before the Sandiganbayan was whether or not
Mercado met, from its point of view, the following requirements of Section 17,
Rule 119 for the discharge of an accused to be a state witness: (a) there is
absolute necessity for the testimony of the accused whose discharge is
requested; (b) there is no other direct evidence available for the proper
prosecution of the offense committed, except the testimony of said accused;
(c) the testimony of said accused can be substantially corroborated in its
material points; (d) said accused does not appear to be the most guilty; and
(e) said accused has not at any time been convicted of any offense involving
moral turpitude.
The authority to grant immunity is not an inherent judicial function.9 Indeed,
Congress has vested such power in the Ombudsman as well as in the
Secretary of Justice. Besides, the decision to employ an accused as a state
witness must necessarily originate from the public prosecutors whose
mission is to obtain a successful prosecution of the several accused before
the courts. The latter do not as a rule have a vision of the true strength of the
prosecutions evidence until after the trial is over. Consequently, courts
should generally defer to the judgment of the prosecution and deny a motion
to discharge an accused so he can be used as a witness only in clear cases
of failure to meet the requirements of Section 17, Rule 119.
Here, the Sandiganbayan held that Mercados testimony is not absolutely
necessary because the state has other direct evidence that may prove the
offenses charged. It held that Mercardos testimony, in large part, would only
help (1) identify numerous documents and (2) disclose matters that are
essentially already contained in such documents.
But the records, particularly Mercados consolidated affidavit, show that his
testimony if true could be indispensable in establishing the circumstances
that led to the preparation and issuance of fraudulent tax credit certificates.
Indeed, nobody appears to be in a better position to testify on this than he, as
president of JAM Liner, Inc., the company to which those certificates were
issued. This is what he said in that affidavit:
Sometime in June 1997, Joseph Cabotaje went to Jam Compound office,
approached Jerry Mapalo, the liaison officer of Jam Liner and claimed that as
a former salesman of Diamond Motor Corporation, he could facilitate the
release of the tax credit. He was brought to my office and impressed upon
me that he could do the work as he personally knows the top brass in the
Center, like Raul De Vera, Assistant Executive Director; Uldarico Andutan,
Jr., Deputy Director and Undersecretary Antonio Belicena.
xxxx
x x x He asked for a fee of 20% of the amount of the tax credit and explained
that this amount he would still share with his "connections" in the Center.
As Jam Liner[s] application with the Center for the 16 Mitsubishi bus units
was pending, and having nobody to turn to, my liaison officer recommended
that I accept the offer of services of Cabotaje. There was nothing written
about the arrangement and it was with the understanding of "no cure no
pay," meaning Cabotaje would only be paid after the tax credit certificates
were released.
Sometime in July 1997, Cabotaje handed to me tax credit certificates for
4.4 million and 7.3 million in favor of Jam Liner. I believed that these
certificates were approved upon the intercession and through the efforts of
Cabotaje. The tax credit certificates were issued on June 30, 1997.
The 2 TCCs were received and handed to me by Mr. Cabotaje. When he the discharge of one of the conspirators is essential so he can testify against
presented the TCCs to me, I noticed that the amount was bigger than what the others.14 Who else outside the conspiracy can testify about the goings-on
we were supposed to get. In my estimate, there was an over evaluation of that took place among the accused involved in the conspiracy to defraud the
about 20% equivalent to 100,000.00 per unit, more or less.10 government in this case?15 No one can underestimate Mercados testimony
During direct examination by the Sandiganbayan, Mercado also testified that: since he alone can provide a detailed picture of the fraudulent scheme that
AJ Ponferrada: went into the approval and issuance of the tax credit certificates.1wphi1 The
The question is, what is unusal about that document? documents can show the irregularities but not the detailed events that led to
Answer. their issuance. As correctly pointed out by the prosecution, Mercados
Mr. Mercado: testimony can fill in the gaps in the evidence.
It says here, date complied, when we havent given anything to the Respondents further contend that Mercado should not be granted immunity
Department of Finance except for those we filed originally on April 11, sir. We because he also benefited from the unlawful transactions. But the immunity
have not submitted any document related in this application other than those granted to Mercado does not blot out the fact that he committed the offense.
we originally filed on April 11, sir. But it says here, dated (sic) complied, June While he is liable, the State saw a higher social value in eliciting information
26, so, it means, for us, that we have complied with their requirements while from him rather than in engaging in his prosecution.16
we did not give any additional documents to them, Your Honors (sic). WHEREFORE, the Court GRANTS the petition, SETS ASIDE the
xxxx Sandiganbayans Resolutions of April 30 and November 6, 2008 in Criminal
Q: Cases 27511-14, and ORDERS the discharge of accused Homero A.
What else did you notice aside from the date of suspension? Mercado from the criminal information to be used as state witness.
A: SO ORDERED.
The date of suspension, sir, was April 13, a few days after we filed the
application and on the third page of Exhibit "KKK-2". If I may repeat my
testimony before, this amount is much bigger than those we filed with the
Department of Finance. But the engine and chassis number are the same
except for the amount, which was noted to 4,094,000.00, sir.11 x x x
The decision to move for the discharge of Mercado was part of prosecutorial
discretion in the determination of who should be used as a state witness to
bolster the successful prosecution of criminal offenses. Unless made in clear
violation of the Rules, this determination should be given great weight by our
courts. As this Court held in People v. Court of Appeals:12
The Rules do not require absolute certainty in determining those conditions.
Perforce, the Judge has to rely in a large part upon the suggestions and the
considerations presented by the prosecuting officer.
"A trial judge cannot be expected or required to inform himself with absolute
certainty at the very outset of the trial as to everything which may be
developed in the course of the trial in regard to the guilty participation of the
accused in the commission of the crime charged in the complaint. If that were
practicable or possible, there would be little need for the formality of a trial. In
coming to his conclusions as to the necessity for the testimony of the
accused whose discharge is requested, as to the availability or non-
availability of other direct or corroborative evidence; as to which of the
accused is the most guilty one; and the like, the judge must rely in a large
part upon the suggestions and the information furnished by the prosecuting
officer. x x x."13 (Emphasis supplied)
What is more, the criminal informations in these cases charge respondents
with having conspired in approving and issuing the fraudulent tax credit
certificates. One rule of wisdom is that where a crime is contrived in secret,