Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel
MARGARITO TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA,
Major FEDERICO ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville
Hussey for respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and

Commanding General of the Japanese Imperial Forces in The Philippines during a period
covering 19433 and 19444 who is now charged before a military Commission convened by the
Chief of Staff of the Armed forces of the Philippines with having unlawfully disregarded and failed
"to discharge his duties as such command, permitting them to commit brutal atrocities and other
high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces in
violation of the laws and customs of war" — comes before this Court seeking to establish the
illegality of Executive Order No. 68 of the President of the Philippines: to enjoin and prohibit
respondents Melville S. Hussey and Robert Port from participating in the prosecution of
petitioner's case before the Military Commission and to permanently prohibit respondents from
proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the
provision of our constitutional law but also our local laws to say nothing of the fact (that) the
Philippines is not a signatory nor an adherent to the Hague Convention on Rules and
Regulations covering Land Warfare and therefore petitioners is charged of 'crimes' not based on
law, national and international." Hence petitioner argues — "That in view off the fact that this
commission has been empanelled by virtue of an unconstitutional law an illegal order this
commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert
Port who are not attorneys authorized by the Supreme Court to practice law in the Philippines is
a diminution of our personality as an independent state and their appointment as prosecutor are
a violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State
not being a party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and
regulation governing the trial of accused war criminals, was issued by the President of the
Philippines on the 29th days of July, 1947 This Court holds that this order is valid and
constitutional. Article 2 of our Constitution provides in its section 3, that —
 The Philippines renounces war as an instrument of national policy and adopts the
generally accepted principles of international law as part of the nation.

In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of
international jurisprudence established by the United Nation all those person military or civilian
who have been guilty of planning preparing or waging a war of aggression and of the commission
of crimes and offenses consequential and incidental thereto in violation of the laws and customs
of war, of humanity and civilization are held accountable therefor. Consequently in the
promulgation and enforcement of Execution Order No. 68 the President of the Philippines has
acted in conformity with the generally accepted and policies of international law which are part of
the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed
hostilities incident of war may remain pending which should be disposed of as in time of
war. An importance incident to a conduct of war is the adoption of measure by the
military command not only to repel and defeat the enemies but to seize and subject to
disciplinary measure those enemies who in their attempt to thwart or impede our military
effort have violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed
the power to create a military commission for the trial and punishment of war criminals is
an aspect of waging war. And in the language of a writer a military commission has
jurisdiction so long as a technical state of war continues. This includes the period of an
armistice or military occupation up to the effective of a treaty of peace and may extend
beyond by treaty agreement. (Cowles Trial of War Criminals by Military Tribunals,
America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this

unfinished aspect of war namely the trial and punishment of war criminal through the issuance
and enforcement of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for
acts committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these rules and principles
were accepted by the two belligerent nation the United State and Japan who were signatories to
the two Convention, Such rule and principles therefore form part of the law of our nation even if
the Philippines was not a signatory to the conventions embodying them for our Constitution has
been deliberately general and extensive in its scope and is not confined to the recognition of rule
and principle of international law as continued inn treaties to which our government may have
been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the
Philippines was under the sovereignty of United States and thus we were equally bound together
with the United States and with Japan to the right and obligation contained in the treaties
between the belligerent countries. These rights and obligation were not erased by our
assumption of full sovereignty. If at all our emergency as a free state entitles us to enforce the
right on our own of trying and punishing those who committed crimes against crimes against our
people. In this connection it is well to remember what we have said in the case of Laurel vs.
Misa (76 Phil., 372):
 . . . The change of our form government from Commonwealth to Republic does not affect
the prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were
a Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice
law in the Philippines in accordance with the Rules of Court. In facts it is common in military
tribunals that counsel for the parties are usually military personnel who are neither attorneys nor
even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation
sovereignty. It is only fair and proper that United States, which has submitted the vindication of
crimes against her government and her people to a tribunal of our nation should be allowed
representation in the trial of those very crimes. If there has been any relinquishment of
sovereignty it has not been by our government but by the United State Government which has
yielded to us the trial and punishment of her enemies. The least that we could do in the spirit of
comity is to allow them representation in said trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the
United State and its people have been equally if not more greatly aggrieved by the crimes with
which petitioner stands charged before the Military Commission. It can be considered a privilege
for our Republic that a leader nation should submit the vindication of the honor of its citizens and
its government to a military tribunal of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court
to practice law were appointed prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No. 68 of the President
of the Philippines the validity of which is challenged by petitioner on constitutional grounds.
Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of
the Philippines as accusers.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port.
It appearing that they are aliens and have not been authorized by the Supreme Court to practice
law there could not be any question that said person cannot appear as prosecutors in petitioner
case as with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question
involved in the challenge against the validity of Executive Order No. 68. Said order is challenged
on several constitutional ground. To get a clear idea of the question raised it is necessary to read
the whole context of said order which is reproduced as follows:

EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING

RULES AND REGULATION GOVERNING THE TRIAL OF ACCUSED WAR
CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes
Office charged with the responsibility of accomplishing the speedy trial of all Japanese
accused of war crimes committed in the Philippines and prescribe the rules and
regulation such trial.

The National War crimes office is established within the office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction supervision
and control of the Judge Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the commencement of
hostilities by Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section
General Headquarters, Supreme Commander for the Allied power and shall exchange
with the said Office information and evidence of war crimes.

The following rules and regulation shall govern the trial off person accused as war
criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military commission to
be convened by or under the authority of the Philippines.

II. JURISDICTION
(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction
over all persons charged with war crimes who are in the custody of the convening
authority at the time of the trial.

(b) Over Offenses. — The military commission established hereunder shall have
jurisdiction over all offenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in

violation of international treaties agreement or assurance or participation in a common
plan or conspiracy for the accomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited
to murder ill-treatment or deportation to slave labor or for other purpose of civilian
population of or in occupied territory; murder or ill-treatment of prisoners of war or
internees or person on the seas or elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns or village; or devastation not
justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed
against civilian population before or during the war or persecution on political racial or
religion ground in executive of or in connection with any crime defined herein whether or
not in violation of the local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be
appointed by the convening authority. Such shall attend all session of the commission,
and in case of illness or other incapacity of any principal member, an alternate shall take
the place of that member. Any vacancy among the members or alternates, occurring after
a trial has begun, may be filled by the convening authority but the substance of all
proceeding had evidence taken in that case shall be made known to the said new
member or alternate. This facts shall be announced by the president of the commission
in open court.

(b) Number of Members. — Each commission shall consist of not less than three (3)
members.

(c) Qualifications. — The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not disqualified
by personal interest or prejudice, provided that no person shall be appointed to hear a
case in which he personally investigated or wherein his presence as a witness is
required. One specially qualified member whose ruling is final in so far as concerns the
commission on an objection to the admissibility of evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote
of not less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does not name one of
the member as the presiding member, the senior officer among the member of the
Commission present shall preside.

IV. PROSECUTORS
(a) Appointment. — The convening authority shall designate one or more person to
conduct the prosecution before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay
or interference.

(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be directed
by the convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly
worded so as to apprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.

(3) To testify in his own behalf and have his counsel present relevant evidence at the trial
in support of his defense, and cross-examine each adverse witness who personally
appears before the commission.

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer
oaths or affirmations to witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules of
evidence and pleading set forth herein with the greatest liberality to achieve expeditious
procedure. In particular, and without limiting in any way the scope of the foregoing
general rules, the following evidence may be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to
have been signed or issued by any officer, department, agency or member of the armed
forces of any Government without proof of the signature or of the issuance of the
document.

(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers as
possessing knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is
not immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of
military or other agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary
offer of proof whereupon the commission may rule in advance on the admissibility of
such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not constitute a defense, but may be
considered in mitigation of punishment if the commission determines that justice so
requires.

(5) All purposed confessions or statements of the accused shall bee admissible in
evidence without any showing that they were voluntarily made. If it is shown that such
confession or statement was procured by mean which the commission believe to have
been of such a character that may have caused the accused to make a false statement
the commission may strike out or disregard any such portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not
guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at
this or any other time require the prosecutor to state what evidence he proposes to
submit to the commission and the commission thereupon may rule upon the admissibility
of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At
the close of the case for the prosecution, the commission may, on motion of the defense
for a finding of not guilty, consider and rule whether he evidence before the commission
may defer action on any such motion and permit or require the prosecution to reopen its
case and produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The
presiding member may, at this any other time require the defense to state what evidence
it proposes to submit to the commission where upon the commission may rule upon the
admissibility of such evidence.

(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence if any. The commission may state the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a separate record of its

proceeding in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel.
The commission shall be responsible for its accuracy. Such record, certified by the
presiding member of the commission or his successor, shall be delivered to the
convening authority as soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of
Review to be composed of not more than three officers none of whom shall be on duty
with or assigned to the Judge Advocate General's Office. The Chief of Staff shall have
authority to approve, mitigate remit in whole or in part, commute, suspend, reduce or
otherwise alter the sentence imposed, or (without prejudice to the accused) remand the
case for rehearing before a new military commission; but he shall not have authority to
increase the severity of the sentence. Except as herein otherwise provided the judgment
and sentence of a commission shall final and not subject to review by any other tribunal.

VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules and forms to
govern its procedure, not inconsistent with the provision of this Order, or such rules and
forms as may be prescribed by the convening authority]or by the President of the
Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of
the appropriations for the Army of the Philippines for use by the National War Crimes
 Office in the accomplishment of its mission as hereinabove set forth, and shall be
expended in accordance with the recommendation of the Judge Advocate General as
approved by the President. The buildings, fixtures, installations, messing, and billeting
equipment and other property herefore used by then Legal Section, Manila Branch, of the
General Headquarters, Supreme Commander for the Allied Power, which will be turned
over by the United States Army to the Philippines Government through the Foreign
Liquidation Commission and the Surplus Property Commission are hereby specification
reserved for use off the National War Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred
and forty-seven, and of the Independence of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.

The first question that is trust at our face spearheading a group of other no less important
question, is whether or not the President of the Philippines may exercise the legislative power
expressly vested in Congress by the Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall
consist of a Senate and House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President of the President of the
Philippines, to the specific provision which allow the president of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law,
and to the rule-making power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers
in the tripartite system of government as originally enunciated by Aristotle, further elaborated by
Montequieu and accepted and practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned, has allocated the three power
of government — legislative, executive, judicial — to distinct and separate department of
government.

Because the power vested by our Constitution to the several department of the government are
in the nature of grants, not recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the Constitution or by law by virtue
express authority of the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with war crimes. The power to
define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office
established by the said Executive Order No. 68. This constitutes another usurpation of legislative
power as the power to vote appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme
Court.

Challenged to show the constitutional or legal authority under which the President issued
Executive Order No. 68, respondent could not give any definite answer. They attempted,
however, to suggest that the President of the Philippines issued Executive Order No. 68 under
the emergency power granted to him by Commonwealth Act No. 600, as amended by
Commonwealth Act No. 620, and Commonwealth Act No. 671, both of which are transcribed
below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE

PRESIDENT TO PROMULGATE RULES AND REGULATION TO SAFEGUARD
THE INTEGRITY OF THE PHILIPPINES AND TO INSURE THE TRANQUILITY
OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive
to the people adequate shelter and clothing and sufficient food supply, and by providing
means for the speedy evacuation of the civilian population the establishment of an air
protective service and the organization of volunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public. To carry out this
policy the President is authorized to promulgate rules and regulations which shall have
the force and effect off law until the date of adjournment of the next regulation which shall
have the force and effect of law until the date of adjournment of the next regular session
of the First Congress of the Philippines, unless sooner amended or repealed by the
Congress of Philippines. Such rules and regulation may embrace the following objects:
(1) to suppress espionage and other subversive activities; (2) to require all able-bodied
citizens (a) when not engaged in any lawful occupation, to engage in farming or other
productive activities or (b) to perform such services as may bee necessary in the public
interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger
and destitution; (4) to take over industrial establishment in order to insure adequate
production, controlling wages and profits therein; (5) to prohibit lockouts and strikes
whenever necessary to prevent the unwarranted suspension of work in productive
enterprises or in the interest of national security; (6) to regulate the normal hours of work
for wage-earning and salaried employees in industrial or business undertakings of all
kinds; (7) to insure an even distribution of labor among the productive enterprises; (8) to
commandership and other means of transportation in order to maintain, as much as
possible, adequate and continued transportation facilities; (9) to requisition and take over
any public service or enterprise for use or operation by the Government;(10) to regulate
rents and the prices of articles or commodities of prime necessity, both imported and
locally produced or manufactured; and (11) to prevent, locally or generally, scarcity,
monopolization, hoarding injurious speculations, and private control affecting the supply,
distribution and movement of foods, clothing, fuel, fertilizer, chemical, building, material,
implements, machinery, and equipment required in agriculture and industry, with power
to requisition these commodities subject to the payment of just compensation. (As
amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the
President may designate any officer, without additional compensation, or any
department, bureau, office, or instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of
this Act or of this Act or any of the rules or regulations promulgated by the President
under the authority of section one of this Act shall be punished by imprisonment of not
more than ten years or by a fine of not more than ten thousand pesos, or by both. If such
violation is committed by a firm or corporation, the manager, managing director, or
person charge with the management of the business of such firm, or corporation shall be
criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from
the date of the opening of its next regular session whatever action has been taken by him
under the authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction
to be unconstitutional and void, such declaration shall not invalidate the remainder of this
Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

 AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF
WAR INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT
TO PROMULGATE RULE AND REGULATIONS TO MEET SUCH
EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe
and Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the
President is hereby authorized, during the existence of the emergency, to promulgate
such rules and regulation as he may deem necessary to carry out the national policy
declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to
transfer the seat of the Government or any of its subdivisions, branches, department,
offices, agencies or instrumentalities; (b) to reorganize the Government of the
Commonwealth including the determination of the order of precedence of the heads of
the Executive Department; (c) to create new subdivision, branches, departments, offices,
agency or instrumentalities of government and to abolish any of those already existing;
(d) to continue in force laws and appropriation which would lapse or otherwise became
inoperative, and to modify or suspend the operation or application of those of an
administrative character; (e) to imposed new taxes or to increase, reduce, suspend, or
abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise,
and to authorize the expensive of the proceeds thereof; (g) to authorize the National,
provincial, city or municipal governments to incur in overdrafts for purposes that he may
approve; (h) to declare the suspension of the collection of credits or the payment of
debts; and (i) to exercise such other power as he may deem necessary to enable the
Government to fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947.
Said Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the
latest, when the surrender of Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken
direct part in their consideration and passage, not only as one of the members of said legislative
body as chairman of the Committee on Third Reading population Known as the "Little Senate."
We are, therefore in a position to state that said measures were enacted by the second national
Assembly for the purpose of facing the emergency of impending war and of the Pacific War that
finally broke out with the attack of Pearl Harbor on December 7, 1941. We approved said
extraordinary measures, by which under the exceptional circumstances then prevailing legislative
power were delegated to the President of the Philippines, by virtue of the following provisions of
the Constitution:

In time of war or other national emergency, the Congress may by law authorize the
President, for a limited period and subject to such restrictions as it may prescribe to
 promulgate rules and regulations to carry out declared national policy. (Article VI, section
26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision
of the Constitution. We are of the opinion that there is no doubt on this question.; but if there
could still be any the same should be resolved in favor of the presumption that the National
Assembly did not intend to violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the
hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after
the Commonwealth was already replaced by the Republic of the Philippines with the
proclamation of our Independence, two district, separate and independence legislative organs, —
Congress and the President of the Philippines — would have been and would continue enacting
laws, the former to enact laws of every nature including those of emergency character, and the
latter to enact laws, in the form of executive orders, under the so-called emergency powers. The
situation would be pregnant with dangers to peace and order to the rights and liberties of the
people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he
long recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments
of Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter
and spirit of the Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the
fundamental guarantees of the due process and equal protection of the law. It is especially so,
because it permit the admission of many kinds evidence by which no innocent person can afford
to get acquittal and by which it is impossible to determine whether an accused is guilty or not
beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in
Chief of the United State Armed Forces in Western Pacific, for the purpose of trying among
other, General Yamashita and Homma. What we said in our concurring and dissenting opinion to
the decision promulgated on December 19, 1945, in the Yamashita case, L-129, and in our
concurring and dissenting opinion to the resolution of January 23, 1946 in disposing the Homma
case, L-244, are perfectly applicable to the offensive rules of evidence in Executive Order No. 68.
Said rules of evidence are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote
to declare Executive Order No. 68 null and void and to grant petition.
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 91332 July 16, 1993

PHILIP MORRIS, INC., BENSON & HEDGES (CANADA), INC., AND FABRIQUES OF TABAC
REUNIES, S.A., petitioners
vs.
THE COURT OF APPEALS AND FORTUNE TOBACCO CORPORATION, respondents.

Quasha, Asperilla, Ancheta, Peña & Nolasco Law Office for petitioners.

Teresita Gandionco-Oledan for private respondent.

MELO, J.:

In the petition before us, petitioners Philip Morris, Inc., Benson and Hedges (Canada), Inc., and
Fabriques of Tabac Reunies, S.A., are ascribing whimsical exercise of the faculty conferred upon
magistrates by Section 6, Rule 58 of the Revised Rules of Court when respondent Court of
Appeals lifted the writ of preliminary injunction it earlier had issued against Fortune Tobacco
Corporation, herein private respondent, from manufacturing and selling "MARK" cigarettes in the
local market.

Banking on the thesis that petitioners' respective symbols "MARK VII", "MARK TEN", and
"LARK", also for cigarettes, must be protected against unauthorized appropriation, petitioners
twice solicited the ancillary writ in the course the main suit for infringement but the court of origin
was unpersuaded.

Before we proceed to the generative facts of the case at bar, it must be emphasized that
resolution of the issue on the propriety of lifting the writ of preliminary injunction should not be
construed as a prejudgment of the suit below. Aware of the fact that the discussion we are about
to enter into involves a mere interlocutory order, a discourse on the aspect infringement must
thus be avoided. With these caveat, we shall now shift our attention to the events which spawned
the controversy.

As averred in the initial pleading, Philip Morris, Incorporated is a corporation organized under the
laws of the State of Virginia, United States of America, and does business at 100 Park Avenue,
New York, New York, United States of America. The two other plaintiff foreign corporations,
which are wholly-owned subsidiaries of Philip Morris, Inc., are similarly not doing business in the
Philippines but are suing on an isolated transaction. As registered owners "MARK VII", "MARK
TEN", and "LARK" per certificates of registration issued by the Philippine Patent Office on April
26, 1973, May 28, 1964, and March 25, 1964, plaintiffs-petitioners asserted that defendant
Fortune Tobacco Corporation has no right to manufacture and sell cigarettes bearing the
allegedly identical or confusingly similar trademark "MARK" in contravention of Section 22 of the
Trademark Law, and should, therefore, be precluded during the pendency of the case from
performing the acts complained of via a preliminary injunction (p. 75, Court of Appeals Rollo in
AC-G.R. SP No. 13132).
For its part, Fortune Tobacco Corporation admitted petitioners' certificates of registration with the
Philippine Patent Office subject to the affirmative and special defense on misjoinder of party
plaintiffs. Private respondent alleged further that it has been authorized by the Bureau of Internal
Revenue to manufacture and sell cigarettes bearing the trademark "MARK", and that "MARK" is
a common word which cannot be exclusively appropriated (p.158, Court of Appeals Rollo in A.C.-
G.R. SP No. 13132). On March 28, 1983, petitioners' prayer for preliminary injunction was denied
by the Presiding Judge of Branch 166 of the Regional Trial Court of the National Capital Judicial
Region stationed at Pasig, premised upon the following propositions:

Plaintiffs admit in paragraph 2 of the complaint that ". . . they are

not doing business in the Philippines and are suing on an isolated transaction . .
.". This simply means that they are not engaged in the sale, manufacture,
importation, expor[t]ation and advertisement of their cigarette products in the
Philippines. With this admission, defendant asks: ". . . how could defendant's
"MARK" cigarettes cause the former "irreparable damage" within the territorial
limits of the Philippines?" Plaintiffs maintain that since their trademarks are
entitled to protection by treaty obligation under Article 2 of the Paris Convention
of which the Philippines is a member and ratified by Resolution No. 69 of the
Senate of the Philippines and as such, have the force and effect of law under
Section 12, Article XVII of our Constitution and since this is an action for a
violation or infringement of a trademark or trade name by defendant, such mere
allegation is sufficient even in the absence of proof to support it. To the mind of
the Court, precisely, this is the issue in the main case to determine whether or not
there has been an invasion of plaintiffs' right of property to such trademark or
trade name. This claim of plaintiffs is disputed by defendant in paragraphs 6 and
7 of the Answer; hence, this cannot be made a basis for the issuance of a writ of
preliminary injunction.

There is no dispute that the First Plaintiff is the registered owner of trademar[k]
"MARK VII" with Certificate of Registration No. 18723, dated April 26,1973 while
the Second Plaintiff is likewise the registered owner of trademark "MARK TEN"
under Certificate of Registration No. 11147, dated May 28, 1963 and the Third
Plaintiff is a registrant of trademark "LARK" as shown by Certificate of
Registration No. 10953 dated March 23, 1964, in addition to a pending
application for registration of trademark "MARK VII" filed on November 21, 1980
under Application Serial No. 43243, all in the Philippine Patent Office. In same
the manner, defendant has a pending application for registration of the trademark
"LARK" cigarettes with the Philippine Patent Office under Application Serial No.
44008. Defendant contends that since plaintiffs are "not doing business in the
Philippines" coupled the fact that the Director of Patents has not denied their
pending application for registration of its trademark "MARK", the grant of a writ of
preliminary injunction is premature. Plaintiffs contend that this act(s) of defendant
is but a subterfuge to give semblance of good faith intended to deceive the public
and patronizers into buying the products and create the impression that
defendant's goods are identical with or come from the same source as plaintiffs'
products or that the defendant is a licensee of plaintiffs when in truth and in fact
the former is not. But the fact remains that with its pending application, defendant
has embarked in the manufacturing, selling, distributing and advertising of
"MARK" cigarettes. The question of good faith or bad faith on the part of
defendant are matters which are evidentiary in character which have to be proven
during the hearing on the merits; hence, until and unless the Director of Patents
has denied defendant's application, the Court is of the opinion and so holds that
issuance a writ of preliminary injunction would not lie.

There is no question that defendant has been authorized by the Bureau of

Internal Revenue to manufacture cigarettes bearing the trademark "MARK"
(Letter of Ruben B. Ancheta, Acting Commissioner addressed to Fortune
Tobacco Corporation dated April 3, 1981, marked as Annex "A", defendant's
"OPPOSITION, etc." dated September 24, 1982). However, this authority is
qualified . . . that the said brands have been accepted and registered by the
Patent Office not later than six (6) months after you have been manufacturing the
cigarettes and placed the same in the market." However, this grant ". . . does not
give you protection against any person or entity whose rights may be prejudiced
by infringement or unfair competition in relation to your indicated
trademarks/brands". As aforestated, the registration of defendant's application is
still pending in the Philippine Patent Office.

It has been repeatedly held in this jurisdiction as well as in the United States that
the right or title of the applicant for injunction remedy must be clear and free from
doubt. Because of the disastrous and painful effects of an injunction, Courts
should be extremely careful, cautious and conscionable in the exercise of its
discretion consistent with justice, equity and fair play.

There is no power the exercise of which is more delicate which

requires greater caution, deliberation, and sound discretion, or
(which is) more dangerous in a doubtful case than the issuing of
an injunction; it is the strong arm of equity that never ought to be
extended unless to cases of great injury, where courts of law
cannot afford an adequate or commensurate remedy in damages.
The right must be clear, the injury impending or threatened, so as
to be averted only by the protecting preventive process of
injunction. (Bonaparte v. Camden, etc. N. Co., 3 F. Cas. No. 1,
617, Baldw. 205, 217.)

Courts of equity constantly decline to lay down any rule which

injunction shall be granted or withheld. There is wisdom in this
course, for it is impossible to foresee all exigencies of society
which may require their aid to protect rights and restrain wrongs.
(Merced M. Go v. Freemont, 7 Gal. 317, 321; 68 Am. Dec. 262.)

It is the strong arm of the court; and to render its operation begin
and useful, it must be exercised with great discretion, and when
necessary requires it. (Attorney-General v. Utica Inc. Co., P. John
Ch. (N.Y.) 371.)

Having taken a panoramic view of the position[s] of both parties as viewed from
their pleadings, the picture reduced to its minimum size would be this: At the
crossroads are the two (2) contending parties, plaintiffs vigorously asserting the
rights granted by law, treaty and jurisprudence to restrain defendant in its
activities of manufacturing, selling, distributing and advertising its "MARK"
cigarettes and now comes defendant who countered and refused to be restrained
claiming that it has been authorized temporarily by the Bureau of Internal
Revenue under certain conditions to do so as aforestated coupled by its pending
application for registration of trademark "MARK" in the Philippine Patent Office.
This circumstance in itself has created a dispute between the parties which to the
mind of the Court does not warrant the issuance of a writ of preliminary
injunction.

It is well-settled principle that courts of equity will refuse an

application for the injunctive remedy where the principle of law on
which the right to preliminary injunction rests is disputed and will
admit of doubt, without a decision of the court of law establishing
such principle although satisfied as to what is a correct conclusion
 of law upon the facts. The fact, however, that there is no such
dispute or conflict does not in itself constitute a justifiable ground
for the court to refuse an application for the injunctive relief.
(Hackensack Impr. Commn. v. New Jersey Midland P. Co., 22
N.J. Eg. 94.)

Hence, the status quo existing between the parties prior to the filing of this case
should be maintained. For after all, an injunction, without reference to the parties,
should be violent, vicious nor even vindictive. (pp. 338-341, Rollo in G.R. No.
91332.)

In the process of denying petitioners' subsequent motion for reconsideration of the order denying
issuance of the requested writ, the court of origin took cognizance of the certification executed on
January 30, 1984 by the Philippine Patent Office attesting to the fact that private respondent's
application for registration is still pending appropriate action. Apart from this communication,
what prompted the trial court judge to entertain the idea of prematurity and untimeliness of
petitioners' application for a writ of preliminary injunction was the letter from the Bureau of
Internal Revenue date February 2, 1984 which reads:

MRS. TERESITA GANDIONGCO OLEDAN

Legal Counsel
Fortune Tobacco Corporation

Madam:

In connection with your letter dated January 25, 1984, reiterating your query as to
whether your label approval automatically expires or becomes null and void after
six (6) months if the brand is not accepted and by the patent office, please be
informed that no provision in the Tax Code or revenue regulation that requires an
applicant to comply with the aforementioned condition order that his label
approved will remain valid and existing.

Based on the document you presented, it shows that registration of this particular
label still pending resolution by the Patent Office. These being so , you may
therefore continue with the production said brand of cigarette until this Office is
officially notified that the question of ownership of "MARK" brand is finally
resolved.

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(p. 348, Rollo.)

It appears from the testimony of Atty. Enrique Madarang, Chief of the Trademark Division of the
then Philippine Patent Office that Fortune's application for its trademark is still pending before
said office (p. 311, Rollo).

Petitioners thereafter cited supervening events which supposedly transpired since March 28,
1983, when the trial court first declined issuing a writ of preliminary injunction, that could alter the
results of the case in that Fortune's application had been rejected, nay, barred by the Philippine
Patent Office, and that the application had been forfeited by abandonment, but the trial court
nonetheless denied the second motion for issuance of the injunctive writ on April 22, 1987, thus:

For all the prolixity of their pleadings and testimonial evidence, the plaintiffs-
movants have fallen far short of the legal requisites that would justify the grant of
the writ of preliminary injunction prayed for. For one, they did not even bother to
establish by competent evidence that the products supposedly affected adversely
by defendant's trademark now subject of an application for registration with the
Philippine Patents Office, are in actual use in the Philippines. For another, they
concentrated their fire on the alleged abandonment and forfeiture by defendant of
said application for registration.

The Court cannot help but take note of the fact that in their complaint plaintiffs
included a prayer for issuance preliminary injunction. The petition was duly heard,
and thereafter matter was assiduously discussed lengthily and resolved against
plaintiffs in a 15-page Order issued by the undersigned's predecessor on March
28, 1983. Plaintiffs' motion for reconsideration was denied in another well-argued
8 page Order issued on April 5, 1984,, and the matter was made to rest.

However, on the strength of supposed changes in the material facts of this case,
plaintiffs came up with the present motion citing therein the said changes which
are: that defendant's application had been rejected and barred by the Philippine
Patents Office, and that said application has been deemed abandoned and
forfeited. But defendant has refiled the same.
 Plaintiffs' arguments in support of the present motion appear to be a mere rehash
of their stand in the first above-mentioned petition which has already been ruled
upon adversely against them. Granting that the alleged changes in the material
facts are sufficient grounds for a motion seeking a favorable grant of what has
already been denied, this motion just the same cannot prosper.

In the first place there is no proof whatsoever that any of plaintiffs' products which
they seek to protect from any adverse effect of the trademark applied for by
defendant, is in actual use and available for commercial purposes anywhere in
the Philippines. Secondly as shown by plaintiffs' own evidence furnished by no
less than the chief of Trademarks Division of the Philippine Patent Office, Atty.
Enrique Madarang, the abandonment of an application is of no moment, for the
same can always be refiled. He said there is no specific provision in the rules
prohibiting such refiling (TSN, November 21, 1986, pp. 60 & 64, Raviera). In fact,
according to Madarang, the refiled application of defendant is now pending
before the Patents Office. Hence, it appears that the motion has no leg to stand
on. (pp. 350-351, Rolloin G. R. No. 91332.)

Confronted with this rebuff, petitioners filed a previous petition for certiorari before the Court,
docketed as G.R. No. 78141, but the petition was referred to the Court of Appeals.

The Court of Appeals initially issued a resolution which set aside the court of origin's order dated
April 22, 1987, and granted the issuance of a writ of preliminary injunction enjoining Fortune, its
agents, employees, and representatives, from manufacturing, selling, and advertising "MARK"
cigarettes. The late Justice Cacdac, speaking for the First Division of the Court of Appeals in CA-
G.R. SP No. 13132, remarked:

There is no dispute that petitioners are the registered owners of the trademarks
for cigarettes "MARK VII", "MARK TEN", and "LARK".(Annexes B, C and D,
petition). As found and reiterated by the Philippine Patent Office in two (2) official
communications dated April 6, 1983 and January 24, 1984, the trademark
"MARK" is "confusingly similar" to the trademarks of petitioners, hence
registration was barred under Sec. 4 (d) of Rep. Act. No. 166, as amended (pp.
106, 139, SCA rollo). In a third official communication dated April 8, 1986, the
trademark application of private respondent for the "MARK" under Serial No.
44008 filed on February 13, 1981 which was declared abandoned as of February
16, 1986, is now deemed forfeited, there being no revival made pursuant to Rule
98 of the Revised Rules of Practitioners in Trademark Cases." (p. 107, CA rollo).
The foregoing documents or communications mentioned by petitioners as "the
changes in material facts which occurred after March 28, 1983", are not also
questioned by respondents.

Pitted against the petitioners' documentary evidence, respondents pointed to (1)

the letter dated January 30, 1979 (p. 137, CA rollo) of Conrado P. Diaz, then
Acting Commissioner of Internal Revenue, temporarily granting the request of
private respondent for a permit to manufacture two (2) new brands of cigarettes
one of which is brand "MARK" filter-type blend, and (2) the certification dated
September 26, 1986 of Cesar G. Sandico, Director of Patents (p. 138, CA rollo)
issued upon the written request of private respondents' counsel dated September
17, 1986 attesting that the records of his office would show that the "trademark
MARK" for cigarettes is now the subject of a pending application under Serial No.
59872 filed on September 16, 1986.

Private respondent's documentary evidence provides the reasons neutralizing or

weakening their probative values. The penultimate paragraph of Commissioner
Diaz' letter of authority reads:
 Please be informed further that the authority herein granted does
not give you protection against any person or entity whose rights
may be prejudiced by infringement or unfair competition in relation
to your above-named brands/trademark.

while Director Sandico's certification contained similar conditions as follows:

This Certification, however, does not give protection as against

any person or entity whose right may be prejudiced by
infringement or unfair competition in relation to the aforesaid
trademark nor the right to register if contrary to the provisions of
the Trademark Law, Rep. Act No. 166 as amended and the
Revised Rules of Practice in Trademark Cases.

The temporary permit to manufacture under the trademark "MARK" for cigarettes
and the acceptance of the second application filed by private respondent in the
height of their dispute in the main case were evidently made subject to the
outcome of the said main case or Civil Case No. 47374 of the respondent Court.
Thus, the Court has not missed to note the absence of a mention in the Sandico
letter of September 26, 1986 of any reference to the pendency of the instant
action filed on August 18, 1982. We believe and hold that petitioners have shown
a prima facie case for the issuance of the writ of prohibitory injunction for the
purposes stated in their complaint and subsequent motions for the issuance of
the prohibitory writ. (Buayan Cattle Co. vs. Quintillan, 125 SCRA 276)

The requisites for the granting of preliminary injunction are the existence of the
right protected and the facts against which the injunction is to be directed as
violative of said right. (Buayan Cattle Co. vs. Quintillan, supra; Ortigas & Co. vs.
Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the
case commanding an act which the Court regards as essential to justice and
restraining an act it deems contrary to equity and good conscience (Rosauro vs.
Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final
judgment, do or continue the doing of the act which the plaintiff asks the court to
restrain, and thus make ineffectual the final judgment rendered afterwards
granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445).
Generally, its grant or denial rests upon the sound discretion of the Court except
on a clear case of abuse (Belish Investment & Finance Co. vs. State House, 151
SCRA 636). Petitioners' right of exclusivity to their registered trademarks being
clear and beyond question, the respondent court's denial of the prohibitive writ
constituted excess of jurisdiction and grave abuse discretion. If the lower court
does not grant preliminary injunction, the appellate court may grant the same.
(Service Specialists, Inc. vs. Sheriff of Manila, 145 SCRA 139). (pp. 165-
167, Rollo in G.R. No. 91332.)

After private respondent Fortune's motion for reconsideration was rejected, a motion to dissolve
the disputed writ of preliminary injunction with offer to post a counterbond was submitted which
was favorably acted upon by the Court of Appeals, premised on the filing of a sufficient
counterbond to answer for whatever perjuicio petitioners may suffer as a result thereof, to wit:

The private respondent seeks to dissolve the preliminary injunction previously

granted by this Court with an offer to file a counterbond. It was pointed out in its
supplemental motion that lots of workers employed will be laid off as a
consequence of the injunction and that the government will stand to lose the
amount of specific taxes being paid by the
private respondent. The specific taxes being paid is the sum total of P120,120,
295.98 from January to July 1989.
 The petitioners argued in their comment that the damages caused by the
infringement of their trademark as well as the goodwill it generates are incapable
of pecuniary estimation and monetary evaluation and not even the counterbond
could adequately compensate for the damages it will incur as a result of the
dissolution of the bond. In addition, the petitioner further argued that doing
business in the Philippines is not relevant as the injunction pertains to an
infringement of a trademark right.

After a thorough re-examination of the issues involved and the arguments

advanced by both parties in the offer to file a counterbond and the opposition
thereto, WE believe that there are sound and cogent reasons for US to grant the
dissolution of the writ of preliminary injunction by the offer of the private
respondent to put up a counterbond to answer for whatever damages the
petitioner may suffer as a consequence of the dissolution of the preliminary
injunction.

The petitioner will not be prejudiced nor stand to suffer irreparably as a

consequence of the lifting of the preliminary injunction considering that they are
not actually engaged in the manufacture of the cigarettes with the trademark in
question and the filing of the counterbond will amply answer for such damages.

While the rule is that an offer of a counterbond does not operate to dissolve an
injunction previously granted, nevertheless, it is equally true that an injunction
could be dissolved only upon good and valid grounds subject to the sound
discretion of the court. As WE have maintained the view that there are sound and
good reasons to lift the preliminary injunction, the motion to file a counterbond is
granted. (pp. 53-54, Rollo in G.R. No. 91332.)

Petitioners, in turn, filed their own motion for re-examination geared towards reimposition of the
writ of preliminary injunction but to no avail (p. 55, Rollo in G.R. No. 91332).

Hence, the instant petition casting three aspersions that respondent court gravely abused its
discretion tantamount to excess of jurisdiction when:

I. . . . it required, contrary to law and jurisprudence, that in order that petitioners

may suffer irreparable injury due to the lifting of the injunction, petitioners should
be using actually their registered trademarks in commerce in the Philippines;

II. . . . it lifted the injunction in violation of section 6 of Rule 58 of the Rules of

Court; and

III. . . . after having found that the trial court had committed grave abuse of
discretion and exceeded its jurisdiction for having refused to issue the writ of
injunction to restrain private respondent's acts that are contrary to equity and
good conscience, it made a complete about face for legally insufficient grounds
and authorized the private respondent to continue performing the very same acts
that it had considered contrary to equity and good conscience, thereby ignoring
not only the mandates of the Trademark Law, the international commitments of
the Philippines, the judicial admission of private respondent that it will have no
more right to use the trademark "MARK" after the Director of Patents shall have
rejected the application to register it, and the admonitions of the Supreme Court.
(pp. 24-25, Petition; pp. 25-26, Rollo.)

To sustain a successful prosecution of their suit for infringement, petitioners, as foreign

corporations not engaged in local commerce, rely on section 21-A of the Trademark Law reading
as follows:
 Sec. 21-A. Any foreign corporation or juristic person to which a mark or trade-
name has been registered or assigned under this act may bring an action
hereunder for infringement, for unfair competition, or false designation of origin
and false description, whether or not it has been licensed to do business in the
Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended,
otherwise known as the Corporation Law, at the time it brings complaint:
Provided, That the country of which the said foreign corporation or juristic person
is a citizen or in which it is domiciled, by treaty, convention or law, grants a similar
privilege to corporate or juristic persons of the Philippines. (As inserted by Sec. 7
of Republic Act No. 638.)

to drive home the point that they are not precluded from initiating a cause of
action in the Philippines on account of the principal perception that another entity
is pirating their symbol without any lawful authority to do so. Judging from a
perusal of the aforequoted Section 21-A, the conclusion reached by petitioners is
certainly correct for the proposition in support thereof is embedded in the
Philippine legal jurisprudence.

Indeed, it was stressed in General Garments Corporation vs. Director of Patents (41 SCRA 50
[1971]) by then Justice (later Chief Justice) Makalintal that:

Parenthetically, it may be stated that the ruling in the Mentholatum case was
subsequently derogated when Congress, purposely to "counteract the effects" of
said case, enacted Republic Act No. 638, inserting Section 21-A in the
Trademark Law, which allows a foreign corporation or juristic person to bring an
action in Philippine courts for infringement of a mark or tradename, for unfair
competition, or false designation of origin and false description, "whether or not it
has been licensed to do business in the Philippines under Act Numbered
Fourteen hundred and fifty-nine, as amended, otherwise known as the
Corporation Law, at the time it brings complaint."

Petitioner argues that Section 21-A militates against respondent's capacity to

maintain a suit for cancellation, since it requires, before a foreign corporation may
bring an action, that its trademark or tradename has been registered under the
Trademark Law. The argument misses the essential point in the said provision,
which is that the foreign corporation is allowed thereunder to sue "whether or not
it has been licensed to do business in the Philippines" pursuant to the
Corporation Law (precisely to counteract the effects of the decision in the
Mentholatum case). (at p. 57.)

However, on May, 21, 1984, Section 21-A, the provision under consideration, was qualified by
this Court in La Chemise Lacoste S.A. vs. Fernandez (129 SCRA 373 [1984]), to the effect that a
foreign corporation not doing business in the Philippines may have the right to sue before
Philippine Courts, but existing adjective axioms require that qualifying circumstances necessary
for the assertion of such right should first be affirmatively pleaded (2 Agbayani Commercial Laws
of the Philippines, 1991 Ed., p. 598; 4 Martin, Philippine Commercial Laws, Rev. Ed., 1986, p.
381). Indeed, it is not sufficient for a foreign corporation suing under Section 21-A to simply
allege its alien origin. Rather, it must additionally allege its personality to sue. Relative to this
condition precedent, it may be observed that petitioners were not remiss in averring their
personality to lodge a complaint for infringement (p. 75, Rollo in AC-G.R. SP No. 13132)
especially so when they asserted that the main action for infringement is anchored on an isolated
transaction (p. 75, Rollo in AC-G.R. SP No. 13132; Atlantic Mutual Ins. Co. vs. Cebu Stevedoring
Co., Inc., 17 SCRA 1037 (1966), 1 Regalado, Remedial Law Compendium, Fifth Rev. Ed., 1988,
p. 103).
Another point which petitioners considered to be of significant interest, and which they desire to
impress upon us is the protection they enjoy under the Paris Convention of 1965 to which the
Philippines is a signatory. Yet, insofar as this discourse is concerned, there is no necessity to
treat the matter with an extensive response because adherence of the Philippines to the 1965
international covenant due to pact sunt servanda had been acknowledged in La
Chemise (supra at page 390).

Given these confluence of existing laws amidst the cases involving trademarks, there can be no
disagreement to the guiding principle in commercial law that foreign corporations not engaged in
business in the Philippines may maintain a cause of action for infringement primarily because of
Section 21-A of the Trademark Law when the legal standing to sue is alleged, which petitioners
have done in the case at hand.

In assailing the justification arrived at by respondent court when it recalled the writ of preliminary
injunction, petitioners are of the impression that actual use of their trademarks in Philippine
commercial dealings is not an indispensable element under Article 2 of the Paris Convention in
that:

(2) . . . . no condition as to the possession of a domicile or establishment in the

country where protection is claimed may be required of persons entitled to the
benefits of the Union for the enjoyment of any industrial property of any industrial
property rights. (p. 28, Petition; p. 29, Rollo in G.R. No. 91332.)

Yet petitioners' perception along this line is nonetheless resolved by Sections 2 and 2-A of the
Trademark Law which speak loudly, about necessity of actual commercial use of the trademark
in the local forum:

Sec. 2. What are registrable. — Trademarks, tradenames and service marks

owned by persons, corporations, partnerships or associations domiciled in the
Philippines and by persons, corporations, partnerships or associations domiciled
in any foreign country may be registered in accordance with the provisions of this
Act; Provided, That said trademarks, tradenames, or service marks are actually in
use in commerce and services not less than two months in the Philippines before
the time the applications for registration are filed; And provided, further, That the
country of which the applicant for registration is a citizen grants by law
substantially similar privileges to citizens of the Philippines, and such fact is
officially certified, with a certified true copy of the foreign law translated into the
English language, by the government of the foreign country to the Government of
the Republic of the Philippines. (As amended by R.A. No. 865).

Sec. 2-A. Ownership of trademarks, tradenames and service marks; how

acquired. — Anyone who lawfully produces or deals in merchandise of any kind
or who engages in any lawful business, or who renders any lawful service in
commerce, by actual use thereof in manufacture or trade, in business,and in the
service rendered, may appropriate to his exclusive use a trademark, a
tradename, or a service mark not so appropriated by another, to distinguish his
merchandise, business or service from the merchandise, business or service of
others. The ownership or possession of a trademark, tradename, service mark,
heretofore or hereafter appropriated, as in this section provided, shall be
recognized and protected in the same manner and to the same extent as are
other property rights known to the law. (As amended by R.A. No. 638). (Kabushi
Kaisha Isetan vs. Intermediate Appellate Court, 203 SCRA 583 [1991], at pp.
589-590; emphasis supplied.)

Following universal acquiescence and comity, our municipal law on trademarks regarding the
requirement of actual use in the Philippines must subordinate an international agreement
inasmuch as the apparent clash is being decided by a municipal tribunal (Mortensen vs. Peters,
Great Britain, High Court of Judiciary of Scotland, 1906, 8 Sessions 93; Paras, International Law
and World Organization, 1971 Ed., p. 20). Withal, the fact that international law has been made
part of the law of the land does not by any means imply the primacy of international law over
national law in the municipal sphere. Under the doctrine of incorporation as applied in most
countries, rules of international law are given a standing equal, not superior, to national
legislative enactments (Salonga and Yap, Public International Law, Fourth ed., 1974, p. 16).

The aforequoted basic provisions of our Trademark Law, according to Justice Gutierrez, Jr.,
in Kabushi Kaisha Isetan vs. Intermediate Appellate Court (203 SCRA 583 [1991]), have been
construed in this manner:

A fundamental principle of Philippine Trademark Law is that actual use in

commerce in the Philippines is a pre-requisite to the acquisition of ownership
over a trademark or a tradename.

xxx xxx xxx

These provisions have been interpreted in Sterling Products International, Inc. v.

Farbenfabriken Bayer Actiengesellschaft (27 SCRA 1214 [1969]) in this way:

A rule widely accepted and firmly entrenched because it has

come down through the years is that actual use in commerce or
business is a prerequisite to the acquisition of the right of
ownership over a trademark.

xxx xxx xxx

. . . Adoption alone of a trademark would not give exclusive right

thereto. Such right grows out of their actual use. Adoption is not
use. One may make advertisements, issue circulars, give out
price lists on certain goods; but these alone would not give
exclusive right of use. For trademark is a creation of use. The
underlying reason for all these is that purchasers have come to
understand the mark as indicating the origin of the wares. Flowing
from this is the trader's right to protection in the trade he has built
up and the goodwill he has accumulated from use of the
trademark. . . .

In fact, a prior registrant cannot claim exclusive use of the trademark unless it
uses it in commerce.

We rule[d] in Pagasa Industrial Corporation v. Court of Appeals (118 SCRA 526

[1982]):

3. The Trademark law is very clear. It requires actual commercial use of the mark
prior to its registration. There is no dispute that respondent corporation was the
first registrant, yet it failed to fully substantiate its claim that it used in trade or
business in the Philippines the subject mark; it did not present proof to invest it
with exclusive, continuous adoption of the trademark which should consist among
others, of considerable sales since its first use. The invoices (Exhibits 7, 7-a, and
8-b) submitted by respondent which were dated way back in 1957 show that the
zippers sent to the Philippines were to be used as "samples" and "of no
commercial value". The evidence for respondent must be clear, definite and free
from inconsistencies. (Sy Ching v. Gaw Lui, 44 SCRA 148-149) "Samples" are
not for sale and therefore, the fact of exporting them to the Philippines cannot be
 considered to be equivalent to the "use" contemplated by the law. Respondent
did not expect income from such "samples". There were no receipts to establish
sale, and no proof were presented to show that they were subsequently sold in
the Philippines. (Pagasa Industrial Corp. v. Court of Appeals, 118 SCRA 526
[1982]; Emphasis Supplied)

The records show that the petitioner has never conducted any business in the
Philippines. It has never promoted its tradename or trademark in the Philippines.
It is unknown to Filipino except the very few who may have noticed it while
travelling abroad. It has never paid a single centavo of tax to the Philippine
government. Under the law, it has no right to the remedy it seeks. (at pp. 589-
591.)

In other words, petitioners may have the capacity to sue for infringement irrespective of lack of
business activity in the Philippines on account of Section 21-A of the Trademark Law but the
question whether they have an exclusive right over their symbol as to justify issuance of the
controversial writ will depend on actual use of their trademarks in the Philippines in line with
Sections 2 and 2-A of the same law. It is thus incongruous for petitioners to claim that when a
foreign corporation not licensed to do business in Philippines files a complaint for infringement,
the entity need not be actually using its trademark in commerce in the Philippines. Such a foreign
corporation may have the personality to file a suit for infringement but it may not necessarily be
entitled to protection due to absence of actual use of the emblem in the local market.

Going back to the first assigned error, we can not help but notice the manner the ascription was
framed which carries with it the implied but unwarranted assumption of the existence of
petitioners' right to relief. It must be emphasized that this aspect of exclusive dominion to the
trademarks, together with the corollary allegation of irreparable injury, has yet to be established
by petitioners by the requisite quantum of evidence in civil cases. It cannot be denied that our
reluctance to issue a writ of preliminary injunction is due to judicial deference to the lower courts,
involved as there is mere interlocutory order (Villarosa vs. Teodoro, Sr., 100 Phil. 25 [1956]). In
point of adjective law, the petition has its roots on a remedial measure which is but ancillary to
the main action for infringement still pending factual determination before the court of origin. It is
virtually needless to stress the obvious reality that critical facts in an infringement case are not
before us more so when even Justice Feliciano's opinion observes that "the evidence is scanty"
and that petitioners "have yet to submit copies or photographs of their registered marks as used
in cigarettes" while private respondent has not, for its part, "submitted the actual labels or
packaging materials used in selling its "Mark" cigarettes." Petitioners therefore, may not be
permitted to presume a given state of facts on their so called right to the trademarks which could
be subjected to irreparable injury and in the process, suggest the fact of infringement. Such a
ploy would practically place the cart ahead of the horse. To our mind, what appears to be the
insurmountable barrier to petitioners' portrayal of whimsical exercise of discretion by the Court of
Appeals is the well-taken remark of said court that:

The petitioner[s] will not be prejudiced nor stand to suffer irreparably as a

consequence of the lifting of the preliminary injunction considering that they are
not actually engaged in the manufacture of the cigarettes with the trademark in
question and the filing of the counterbond will amply answer for such damages.
(p. 54. Rollo in G.R. No. 91332.)

More telling are the allegations of petitioners in their complaint (p. 319, Rollo G.R. No. 91332) as
well as in the very petition filed with this Court (p. 2, Rollo in G.R. No. 91332) indicating that they
are not doing business in the Philippines, for these frank representations are inconsistent and
incongruent with any pretense of a right which can breached (Article 1431, New Civil Code;
Section 4, Rule 129; Section 3, Rule 58, Revised Rules of Court). Indeed, to be entitled to an
injunctive writ, petitioner must show that there exists a right to be protected and that the facts
against which injunction is directed are violative of said right (Searth Commodities Corporation
vs. Court of Appeals, 207 SCRA 622 [1992]). It may be added in this connection that albeit
petitioners are holders of certificate of registration in the Philippines of their symbols as admitted
by private respondent, the fact of exclusive ownership cannot be made to rest solely on these
documents since dominion over trademarks is not acquired by the mere fact of registration alone
and does not perfect a trademark right (Unno Commercial Enterprises, Inc. vs. General Milling
Corporation, 120 SCRA 804 [1983]).

Even if we disregard the candid statements of petitioners anent the absence of business activity
here and rely on the remaining statements of the complaint below, still, when these averments
are juxtaposed with the denials and propositions of the answer submitted by private respondent,
the supposed right of petitioners to the symbol have thereby been controverted. This is not to
say, however, that the manner the complaint was traversed by the answer is sufficient to tilt the
scales of justice in favor of private respondent. Far from it. What we are simply conveying is
another basic tenet in remedial law that before injunctive relief may properly issue, complainant's
right or title must be undisputed and demonstrated on the strength of one's own title to such a
degree as to unquestionably exclude dark clouds of doubt, rather than on the weakness of the
adversary's evidence, inasmuch as the possibility of irreparable damage, without prior proof of
transgression of an actual existing right, is no ground for injunction being mere damnum absque
injuria (Talisay-Silay Milling Co., Inc. vs. CFI of Negros Occidental, 42 SCRA 577 [1971];
Francisco, Rules of Court, Second ed., 1985, p. 225; 3 Martin, Rules of Court, 1986 ed., p. 82).

On the economic repercussion of this case, we are extremely bothered by the thought of having
to participate in throwing into the streets Filipino workers engaged in the manufacture and sale of
private respondent's "MARK" cigarettes who might be retrenched and forced to join the ranks of
the many unemployed and unproductive as a result of the issuance of a simple writ of preliminary
injunction and this, during the pendency of the case before the trial court, not to mention the
diminution of tax revenues represented to be close to a quarter million pesos annually. On the
other hand, if the status quo is maintained, there will be no damage that would be suffered by
petitioners inasmuch as they are not doing business in the Philippines.

With reference to the second and third issues raised by petitioners on the lifting of the writ of
preliminary injunction, it cannot be gainsaid that respondent court acted well within its
prerogatives under Section 6, Rule 58 of the Revised Rules of Court:

Sec. 6. Grounds for objection to, or for motion of dissolution of injunction. — The
injunction may be refused or, if granted ex parte, may be dissolved, upon the
insufficiency of the complaint as shown by the complaint itself, with or without
notice to the adverse party. It may also be refused or dissolved on other grounds
upon affidavits on the part of the defendants which may be opposed by the
plaintiff also by affidavits. It may further be refused or, if granted, may be
dissolved, if it appears after hearing that although the plaintiff is entitled to the
injunction, the issuance or continuance thereof, as the case may be, would cause
great damage to the defendant while the plaintiff can be fully compensated for
such damages as he may suffer, and the defendant files a bond in an amount
fixed by the judge conditioned that he will pay all damages which the plaintiff may
suffer by the refusal or the dissolution of the injunction. If it appears that the
extent of the preliminary injunction granted is too great, it must be modified.

Under the foregoing rule, injunction may be refused, or, if granted, may be dissolved, on the
following instances:

(1) If there is insufficiency of the complaint as shown by the allegations

therein. Refusal or dissolution may be granted in this case with or without notice
to the adverse party.

(2) If it appears after hearing that although the plaintiff is entitled to the injunction,
the issuance or continuance thereof would cause great damage to the defendant,
 while the plaintiff can be fully compensated for such damages as he may suffer.
The defendant, in this case, must file a bond in an amount fixed by the judge
conditioned that he will pay all damages which plaintiff may suffer by the refusal
or the dissolution of the injunction.

(3) On the other grounds upon affidavits on the part of the defendant which may
be opposed by the plaintiff also affidavits.

Modification of the injunction may also be ordered by the court if it appears that
the extent of the preliminary injunction granted is too great. (3 Martin, Rules of
Court, 1986 ed., p. 99; Francisco, supra, at p. 268.)

In view of the explicit representation of petitioners in the complaint that they are not engaged in
business in the Philippines, it inevitably follows that no conceivable damage can be suffered by
them not to mention the foremost consideration heretofore discussed on the absence of their
"right" to be protected. At any rate, and assuming in gratia argumenti that respondent court
erroneously lifted the writ it previously issued, the same may be cured by appeal and not in the
form of a petition for certiorari (Clark vs. Philippine Ready Mix Concrete Co., 88 Phil. 460 [1951]).
Verily, and mindful of the rule that a writ of preliminary injunction is an interlocutory order which is
always under the control of the court before final judgment, petitioners' criticism must fall flat on
the ground, so to speak, more so when extinction of the previously issued writ can even be made
without previous notice to the adverse party and without a hearing (Caluya vs. Ramos, 79 Phil.
640 [1974]; 3 Moran, Rules of Court, 1970 ed., p. 81).

WHEREFORE, the petition is hereby DISMISSED and the Resolutions of the Court of Appeals
dated September 14, 1989 and November 29, 1989 are hereby AFFIRMED.

SO ORDERED.

Bidin, J., concurs.

Davide, Jr., concurs in the result.

Romero, J. took no part.

Separate Opinions

FELICIANO, J., dissenting:

I find myself unable to join in the opinion prepared by my distinguished brother, Melo, J.

It seems to me that the issues involved in this case are rather more complex than what has been
assumed to be the case by the majority opinion. For this and related reasons, there is set out
below a statement of the relevant facts (as I see them) that is more extensive than what is
ordinarily found in dissenting opinions.
Petitioner Philip Morris, Inc. is a corporation organized and existing under the law of Virginia,
U.S.A. Petitioners Benson & Hedges (Canada), Inc. and Fabriques de Tabac Reunies, S.A., both
wholly owned subsidiaries of Philip Morris, Inc., are organized and existing under the law of
Canada and Switzerland, respectively.

Philip Morris, Inc. is registered owner of the trademark "MARK VII" for cigarettes. Its ownership
thereof is evidenced by Philippine Patent Office Trademark Certificate of Registration No. 18723,
dated 26 April 1973. The statement attached to the Certificate of Registration states that the
trademark "MARK VII" had been registered in the United States Patent Office, on the Principal
Register, under Certificate of Registration No. 888,931 issued on 7 April 1970. The statement
also requested that the trademark be registered in the Philippine Patent Office on the Principal
Register in accordance with Section 37 of R.A. No. 166, as amended.

Benson & Hedges (Canada), Inc. is the registered owner of the trademark "MARK TEN" also for
cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No.
11147, dated 28 May 1964, on the Principal Register. This Trademark Certificate of Registration
was originally issued in the name of Canadian Tabacofina Ltd. and later assigned to Benson &
Hedges (Canada), Inc. Petitioners alleged that the name Canadian Tabacofina Ltd. was later
changed to Benson & Hedges (Canada) Ltd. This trademark Certificate of Registration was
renewed on 28 May 1984. The statement attached thereto stated that the "date of first use of the
trademark 'MARK TEN' in trade in or with the Philippines is April 15, 1963," and that trademark
had "been in actual use in commerce over the Philippines continuously for two months."

Fabriques de Tabac Reunies, S.A. is registered owner of the trademark "LARK" also for
cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No.
10953, dated 25 March 1964. This Trademark Certificate of Registration was originally issued in
the name of Ligget and Myres Tobacco Company was later assigned to Fabriques de Tabac
Reunies, S.A. Petitioners alleged that the name of Liggett and Myres Tobacco Company was
changed later to Fabriques de Tabac Reunies, S.A. The statement attached to this Certificate of
Registration states that the trademark "LARK" was first used by Ligget and Myres Tobacco
Company on 31 May 1920, and first used by it "in commerce in or with the Philippines on
February 6, 1963" and has been continuously used by it "in trade in or with the Philippines since
February 6, 1963."

Sometime before 17 October 1981, private respondent Fortune Tobacco Corporation ("Fortune")
commenced manufacturing and selling in the Philippines cigarettes under the brandname
"MARK." Fortune also filed on 13 February 1981 with the Philippine Patent Office an application
for registration of "MARK" as a trademark for cigarettes.

By a letter dated 17 October 1981, petitioner through their lawyers wrote to Fortune stating that
the manufacturing, selling and advertising of "MARK" cigarettes by Fortune constituted an
"infringement or an act of unfair competition with" petitioners' "well-known international
trademarks used on cigarettes and tobacco products which were registered worldwide and with
the Philippine Patent Office." Petitioners listed their Philippine Certificates of Registration for the
trademarks "MARK VII," "MARK TEN," and "LARK." Petitioners then asked Fortune "to cease
and desist from further manufacturing; selling or advertising 'MARK' cigarettes," otherwise
appropriate court actions would be filed without further notice.

On 18 August 1982, petitioners commenced action before the Court of First Instance of Pasig,
Metro Manila (Civil Case No. 47374). In their complaint, petitioners alleged that they were not
doing business in the Philippines but had nonetheless the right and the capacity to bring the
instant suit; that they were owners of Philippine Patent Office Trademark Certificates of
Registration which were in full force and effect, covering "MARK VII," "MARK TEN," and "LARK,"
all for cigarettes (except the last which also covered chewing and smoking tobacco); that they
had registered those trademarks in their respective countries of origin and in other countries the
world and that by virtue of their "long and extensive use [had] gained international fame and
acceptance;" that they had their respective real and effective industrial or commercial
establishments in the United States, Canada and Switzerland, which countries were, like the
Philippines, members of the Convention of Paris for the Protection of Industrial Property; that
under that Convention each member-country undertakes to prohibit the use of a trademark which
constitutes a reproduction, imitation or translation of a mark already belonging to a person
entitled to the benefits of the Convention and use for identical or similar goods; that petitioner
Fabriques de Tabac Reunies, S.A. had long been using trademark "LARK" throughout the world,
including the Philippines where its products bearing the trademark "LARK" had been sold in the
duty-free market, and advertised and marketted in the Philippines at least since 1964 and have
continued to be so to present; that Fortune had without previous consent, authority or license
from petitioners, with knowledge of the popularity of petitioners' marks and their Philippine
registrations, manufactured, advertised and sold cigarettes bearing the identical or confusingly
similar trademark "MARK" which unauthorized use constituted an act of infringement under
Section 22 of R.A. No. 166, as amended; that thereby the public and the patronizers of
petitioners' products were being deceived into buying Fortune's cigarettes under the impression
and mistaken belief that Fortune's cigarettes were identical with, or came from the same source
as, petitioners' products or that Fortune was licensee of petitioners, which it was not; that the
infringement by Fortune of petitioners' trademarks have inflicted damages upon petitioners; that
the continued unauthorized and unlicensed manufacture and sale by Fortune of its infringing
products during the litigation would work injustice and cause irreparable injury to petitioners in
violation of their property rights and moreover tend to render the judgment which the court might
render ineffectual. Petitioners accordingly asked for a writ of preliminary injunction to restrain
Fortune from manufacturing or selling "MARK" cigarettes, and after trial, to make such
preliminary injunction permanent and to order Fortune's infringing materials to be destroyed, and
for damages.

Fortune filed an Opposition to petitioners' prayer for preliminary injunction. On 28 March 1983,
the trial court1 issued an Order denying petitioners' motion for preliminary injunction. In rendering
that order, the trial court, while noting that petitioners were holders of Philippine Certificates of
Trademark Registration, relied heavily on three (3) factors:

Firstly, that petitioners were foreign corporations not doing business in the
Philippines;

Secondly, that Fortune's application for a registration as trademark of the word

"MARK" for cigarettes was then pending before the Philippine Patent Office; and

Thirdly, that Fortune was the "only party authorized" by the Bureau of Internal
Revenue ("BIR") to manufacture cigarettes bearing the mark "MARK" in the
Philippines.

In respect of the first point, the trial court was obviously heavily influenced by Fortune's
argument that because petitioners were not doing business in the Philippines, which
meant that "they [were] not engaged in the sale, manufacture, importation, exportation
and advertisement of their cigarette products in the Philippines," Fortune's manufacture
and sale of its "MARK" cigarettes could not be said to be causing petitioners "irreparable
damage" within the Philippines. In respect to the second point, the trial judge felt that
because the Director of Patents had not, at that point, denied Fortune's pending
application for registration of its trademark "MARK," the grant of a preliminary injunction
was premature. With regard to the third point, the judge noted a letter dated 30 January
1979 2 of the then Acting Commissioner of Internal Revenue Mr. Conrado P. Diaz,
temporarily granting the request of Fortune for a permit to manufacture two (2) new
brands of cigarettes, one of which was "MARK." The trial judge also noted that the BIR
letter contained the following paragraph:
 Please be informed further that this authority herein granted does not give you
protection against any person or entity whose rights may be prejudiced by
infringement or unfair competition in relation to your above named
brands/trademarks. 3

The trial judge, however, apparently gave no weight at all to this caveat.

Petitioners sought, on 15 April 1983, reconsideration of Judge Reyes' Order denying preliminary
injunction. After Fortune had filed an Opposition to petitioners' Motion for Reconsideration, and
petitioners had filed their Reply and Fortune a Rejoinder, and after an offer of exhibits by the
parties respectively, Judge Reyes issued on 5 April 1984 another Order denying the Motion for
Reconsideration. In his second order, the trial judge laid great stress on the fact that Fortune's
application for registration of its trademark "MARK" for cigarettes remained subsisting. On the
basis, Judge Reyes denied petitioners' motion for reconsideration.

More than two (2) years later, petitioners filed a "Second Motion for Issuance of Preliminary
Injunction" dated 1 September 1986. In their Second Motion, petitioners invited attention to
Paper No. 3, dated 6 April 1983, relating to Fortune's application for registration of its brandname
"MARK." This Paper No. 3 reproduced a letter to Fortune's counsel by Bienvenido A. Palisoc,
Senior Trademark Examiner, and Wilfredo T. Jaramillo, Trademark Examiner, stating that:

This application [for registration of "Mark"] has been examined.

Caption mark of the application must tally with the drawing on file.

Subject mark is confusingly similar with the following marks on file:

a. "Mark" with Reg. No. SR-2659 for cigarettes.

b. "Mark VII" with Reg. No. 18723 for cigarettes.

c. "Mark Ten" with Reg. No. 11147 for cigarettes.

d. "Lark" with Reg. No. 10953 for cigarettes.

Hence, registration is barred under Sec. 4 (d) of Rep. Act No. 166 as amended.

Subject mark has no trademark significance and can not serve its purpose as to
indicate the source and origin of goods.

Furthermore, the word "Mark" is generic and therefore incapable of exclusive

appropriation.

Makati, Metro Manila, April 6, 1983. 4 (Emphasis supplied)

Petitioners also invited attention to a certification dated 8 August 1986 issued by Mr. Luis
M. Daca, Jr., Assistant Director, Philippine Patent Office, to the effect that Fortune's
application for the mark "MARK" for cigarettes was declared abandoned as of 16
February 1986 and was now deemed forfeited. In addition, petitioners explained in some
detail how Fortune's use of its mark "MARK" was "destructive of [petitioners'] property
right to [their] registered trademarks."5 Further, petitioners assailed Fortune's argument
that issuance of preliminary injunction would cause "loss of revenue and taxes to the
Government" and that more damages would be sustained by Fortune than by petitioners
since the petitioners do not market their cigarettes in the Philippines.
After Fortune had filed an Opposition to petitioners' Second Motion, the trial court, this time
presided over by Judge Nicolas Galing, issued an Order dated 22 April 1987 denying once more
the motion for issuance of a writ of preliminary injunction. In this order, Judge Galing relied on
two (2) points: firstly, according to the trial judge, petitioners had not shown that the products
they sought to protect from Fortune's "MARK" cigarettes were "in actual use and available for
commercial purposes anywhere in the Philippines;" and secondly, it appeared that while
Fortune's original application had been abandoned, it could be refiled and was in fact re-filed.
Thus, Judge Galing in effect reiterated Judge Reyes's position that until the Director of Patents
had definitely acted upon Fortune's application for registration of "MARK," petitioners' prayer for
preliminary injunction could not be granted.

Petitioners then filed a Petition for Review with the Supreme Court, which Petition was docketed
as G.R. No. 78141. The Court ordered respondents to file their Comments on the Petition and on
30 September 1987, the Court referred the Petition to the Court of Appeals.

In due course of time, the Court of Appeals, through Cacdac, Jr., J.,6 rendered a decision on 5
May 1989 setting aside the 22 April 1987 order of the trial court and ordering issuance of a writ of
preliminary injunction upon filing of a bond by petitioners in the sum of P200,000.00 to be
approved by the appellate court, "enjoining the private respondents, its agents, employees and
representatives from manufacturing, selling and/or advertising "MARK" cigarettes until further
orders." The Court of Appeals said in pertinent part:

There is no dispute that petitioners are the registered owners of the trademarks
for cigarettes "MARK VII," "MARK TEN," and "LARK". (Annexes B, C and D,
Petition). As found and reiterated by the Philippine Patent Office in two (2) official
communications dated April 6, 1983 and January 24, 1984, the trademark
"MARK" is "confusingly similar" to the trademarks of petitioners, hence,
registration was barred under Sec. 4(d) of Rep. Act No. 166, as amended (pp.
106, 139 SCA rollo). In a third official communication dated April 8, 1986, the
trademark application of private respondent for the mark "MARK" under Serial
No. 44008 filed on February 13, 1981 which was declared abandoned as of
February 16, 1986, is now deemed forfeited, there being no revival made
pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases.'
(p. 107, CA rollo). The foregoing documents or communications mentioned by
petitioners as "the changes in material facts which occurred after March 28,
1983", are not also questioned by respondents.7 (Emphasis supplied)

The Court of Appeals also noted the BIR letter of 30 January 1979 temporarily granting Fortune's
request for a permit to manufacture two (2) new brands of cigarettes, including one branded
"MARK," and the caveat (earlier noted)8 that the BIR's authorization would not give Fortune any
protection against any person or entity whose rights may be prejudiced by infringement or unfair
competition on the part of Fortune. The Court of Appeals also referred to the certificate dated 26
September 1986 of Mr. Cesar G. Sandico, then Director of Patents, issued upon request of
Fortune's counsel stating that there was a pending application for registration of the trademark
"MARK" for cigarettes under Serial No. 59872, filed on 16 September 1986, noting at the same
time, that Director Sandico's certification contained the following caveat or qualification:

This certification, however, does not give protection as against any person or
entity whose right may be prejudiced by infringement or unfair competition in
relation to the aforesaid trademark nor the right to register as contrary to the
provisions of the Trademark Law, Republic Act No. 166 as amended and the
Revised Rules of Practice in Trademark Cases. (Emphasis supplied)

The Court of Appeals then went on to say that:

 [We] believe and hold that petitioners have shown a prima facie case for the
issuance of the writ of prohibitory injunction for the purposes stated in their
complaint and subsequent motions for the issuance of the prohibitory writ.
(Buayan Cattle Co. v. Quintillan, 125 SCRA 276).

The requisites for the granting of preliminary injunction are the existence of the
right protected and the facts against which the injunction is to be directed as
violative of said right. (Buayan Cattle Co. v. Quintillan, supra; Ortigas & Co. vs.
Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the
case commanding an act which the Court regards as essential to justice and
restraining an act it deems contrary to equity and good conscience (Rosauro vs.
Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final
judgment, do or continue the doing of the act which the plaintiff asks the court to
restrain, and thus make ineffectual the final judgment rendered afterwards
granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445).
Generally, its grant or denial rests upon the sound discretion of the Court except
on a clear case of abuse (Belish Investment & Finance Co. vs. Statement House,
151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks
being clear and beyond question, the respondent court's denial of the prohibitive
writ constituted excess of jurisdiction and grave abuse of discretion. If the lower
court does not grant preliminary injunction, the appellate court may grant the
same (Service Specialists, Inc. v. Sheriff of Manila. 145 SCRA 139).9 (Emphasis
supplied)

Fortune moved for reconsideration of the Decision of the Court of Appeals insisting that
petitioners must first prove their "clear, unmistakable and unquestioned right to the writ, coupled
with the possible damages it would suffer;" that petitioners had not suffered any "great and
irreparable injury to speak of" because "petitioners have never done business in this country in
the past nor in the future;" that, on the other hand, Fortune had been authorized by the BIR to
manufacture "MARK" cigarettes, "thereby generating much needed funds for the Government;"
that Fortune's application for registration of its brandname "MARK" with the Philippine Patent
Office "still pending" and not "finally rejected" by the Director of Patents. On 12 July 1989, the
Court of Appeals issued a Minute Resolution stating that the issues and arguments in Fortune's
motion for reconsideration had been "fully discussed" in the Decision sought to be reconsidered,
that no new arguments were raised, and accordingly denied the Motion for Reconsideration.

Fortune then filed a "Motion to Dissolve Writ of Preliminary Injunction with Offer to File
Counterbond" date 25 July 1989, where it reiterated the basic arguments it previously made.

A "Supplemental Motion to Lift Writ of Preliminary Injunction with Offer of Counterbond" dated 17
August 1989 was next filed by Fortune. In this "Supplemental Motion," Fortune averred that it had
paid to the BIR for 1988 the amount of P181,940,177.38 for specific taxes; while for January to
July 1989, it had paid the amount of P120,120,735.28. Fortune also referred to its employees
assigned to the manufacture of "MARK" cigarettes who were apparently apprehensive that their
services would eventually be terminated and that they would join the ranks of the unemployed.

Petitioners filed an Opposition to the "Motion to Dissolve" and a Comment on the "Supplemental
Motion" of Fortune.

On 14 September 1989, the Court of Appeals once more through Cacdac, Jr., J. issued a
Resolution lifting the preliminary injunction it had earlier granted upon the filing of counterbond by
private respondent in the amount of P400,000.00 to answer for any damages petitioners may
suffer as a consequence of such lifting. In its Resolution, the Court of Appeals referred to the
"lots of workers employed [who] will be laid off as a consequence of the injunction" and that
Government "will stand to lose the amount of specific taxes being paid by" Fortune. It when went
on to say:
 After a thorough re-examination of the issues involved and the arguments
advanced by both parties in the offer to file a counterbond and the opposition
thereto, WE believe that there are sound and cogent reasons for Us to grant the
dissolution of the writ of preliminary injunction by the offer of the private
respondent to put up a counterbond to answer for whatever damages the
petitioner may suffer as a consequence of the dissolution of the preliminary
injunction.

The petitioner will not be prejudiced nor stand to suffer irreparably as a

consequence of the lifting of the preliminary injunction considering that they are
not actually engaged in the manufacture of the cigarettes with the trademarks in
question and the filing of the counterbond will amply answer for such damages.

While the rule is that an offer of a counterbond does not operate to dissolve an
injunction previously granted, nevertheless, it is equally true that an injunction
could be dissolved only upon good and valid grounds subject to the sound
discretion of the court. As WE have maintained the view that there are sound and
good reasons to lift the preliminary injunction the motion to file a counterbond is
granted. 10(Emphasis supplied)

Petitioners filed a Motion for Reconsideration, without success.

In the instant Petition, petitioners make the following basic submissions:

1. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when it required, contrary to law and jurisprudence that in order that
petitioners may suffer irreparable injury due to the lifting of the injunction,
petitioners should be using actually their registered trademarks in commerce in
the Philippines;

2. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when it lifted the injunction in violation of Section 6 of Rule 58 of the
rules of Court;

3. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when, after having found that the trial court had committed grave
abuse of discretion and exceeded its jurisdiction for having refused to issue the
writ of injunction to restrain respondent's acts that are contrary to equity and good
conscience, it made a complete about face for legally insufficient grounds and
authorized private respondent to continue performing the very same acts that it
had considered contrary to equity and good conscience, thereby ignoring not only
the mandates of the trademark law, the international commitments of the
Philippines, the judicial admission of private respondent that it will have no more
right to use the trademark "MARK" after the Director of Patents shall have
rejected the application to register it, and the admonitions of the Supreme
Court. 11

The Court required private respondent to file a comment. The comment reiterated the basic
arguments made by private respondent before the Court of Appeals:

a. the petitioners are not suffering any irreparable damage by the lifting of the
preliminary injunction by the Court of appeals. Whatever damages they might
suffer are "based purely on speculation, since by judicial admission, petitioners
are not doing business in the Philippines. Private respondent stressed
that petitioners "are not manufacturing, importing or selling "MARK TEN," "MARK
VII" or "LARK" in this country," notwithstanding "false allegation" that petitioners
 have been "using" the said trademarks "in commerce and trade" in the
Philippines since 1963 up to the present.

b. that whatever damage petitioners may be suffering is negligible when

compared to the taxes that would have to be foregone by the
Government considering that private respondent "paid an annual specific tax of
P240 Million only on the manufacture and sale of "MARK cigarettes." Private
respondent claims that, in contrast, petitioners which are foreign corporations
"based in three different countries" have not contributed anything to Government
tax revenues.

c. that the Court of Appeals lifted the writ of preliminary injunction it had earlier
issued upon the submission of a counter bond in double the amount of the bond
submitted by petitioners, under Section 6, Rule 58 of the Rules of Court, which
act was within the sound discretion of the Court of Appeals. Private respondent
also stresses that the right of petitioners to the injunction was still being litigated
before the trial court.

Reformulating the issues raised by the petitioners here, we think the principal issues may be
reduced to the following: firstly, is there a clear legal right to the relief asked by petitioners in the
form of a preliminary injunction to restrain private respondent from manufacturing, selling and
distributing cigarettes under the trademark "MARK"? The second question is: are private
respondent's acts complained of by petitioners causing irreparable injury to petitioners' rights in
the premises? These two (2) basic issues are obviously related and need to be addressed
together.

The first point that needs to be stressed is that petitioners have Philippine Certificates of
Registration for their trademarks "MARK TEN", "MARK VII," and "LARK" in the Principal
Register.

Upon the other hand, private respondent's trademark "MARK" is not registered in the Principal
Register in the Office of the Director of Patents; private respondents is simply an applicant for
registration of a mark, the status of which application may be noted later.

It is important to stress the legal effects of registration of a trademark in the Principal Register in
the Office of the Director of Patents. Section 20 of R.A. No. 166, as amended, sets out the
principal legal effects of such registration:

Sec. 20. Certificate of registration prima facie evidence of validity. — A certificate

of registration, of a mark or a trade name shall be prima facie evidence of the
validity of the registration, the registrant's ownership of the mark or trade name,
and of the registrant's exclusive right to use the same in connection with the
goods, business or services specified in the certificate, subject to any conditions
and limitations stated therein. (Emphasis supplied)

In Lorenzana v. Macagba, 12 the Court distinguished between the effects of registration in the
Principal Register and registration in the Supplemental Register in the following manner:

(1) Registration in the Principal Register gives rise to a presumption of the validity
of the registration, the registrant's ownership of the mark, and his right to the
exclusive use thereof. There is no such presumption in registrations in the
Supplemental Register.
 (2) Registration in the Principal Register is limited to the actual owner of the
trademark (Unno Commercial Enterprises v. Gen. Milling Corp., 120 SCRA 804
[1983]) and proceedings therein pass on the issue of ownership, which may be
contested through opposition or interference proceedings, or after registration, in
a petition for cancellation.

Registration in the Principal Register is constructive notice of the registrant's

claims of ownership, while registration in the Supplemental Register is merely
proof of actual use of the trademark and notice that the registrant has used or
appropriated it. (Le Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 373 [1984]:
"Registration in the Supplemental Register . . . serves as notice that the registrant
is using or has appropriated the trademark.") It is not subject to opposition
although it may be cancelled after its issuance. Corollarilly, registration in the
Principal Register is a basis for an action for infringement, while registration in the
Supplemental Register is not.

(3) In application for registration in the Principal Register, publication of the

application is necessary. This is not so in applications for registration in the
Supplemental Register. Certificates of registration under both Registers are also
different from each other.

(4) Proof of registration in the Principal Register may be filed with the Bureau of
Customs to exclude foreign goods bearing infringing marks while it does not hold
true for registrations in the Supplemental Register. 13 (Emphasis supplied)

When taken with the companion presumption of regularity of performance of official duty, it will
be seen that issuance of a Certificate of Registration of a trademark in the Principal Register also
gives rise to the presumption that
all requirements of Philippine law necessary for a valid registration (including prior use in
commerce in the Philippines for at least two [2] months) were complied with and satisfied.

In contrast, private respondent filed an application for registration of its mark "MARK" for
cigarettes with the Director of Patents soon after it commenced manufacturing and selling
cigarettes trademark with "MARK." This application was abandoned or "forfeited", 14 for failure of
private respondent to file a necessary Paper with the Director of Patent. It also appears,
however, that private respondent later re-filed or reinstated its application for registration of
"MARK" 15 and that, so far as the record here before us is concerned, this application remains
merely an application and has not been granted and a Certificate of Registration in the Principal
Register issued. 16 While final action does not appear as yet to have been taken by the Director of
Patents on private respondent's application, there was at least a preliminary determination of the
trademark examiners that the trademark "MARK" was "confusingly similar" with petitioners'
marks "MARK VII," "MARK TEN" and "LARK" and that accordingly, registration was barred under
Section 4 (d) of R.A. No. 166, as amended. 17

In the trial court, both Judge Reyes and Judge Galing took the position that until the Director of
Patents shall have finally acted on private respondent's application for registration of "MARK,"
petitioners cannot be granted the relief of preliminary injunction. It is respectfully submitted that
this position is both erroneous and unfortunate. In reliance upon that position, private respondent
has kept its application for registration alive and pending. The Director of Patents in turn may well
have refrained from taking final action on that application, even in the absence of a restraining
order from the courts, out of deference to the courts. The pendency of the application before the
Director of Patents is not in itself a reason for denying preliminary injunction. Our courts have
jurisdiction and authority to determine whether or not "MARK" is an infringement on petitioners'
registered trademarks. Under our case law, the issuance of a Certificate of Registration of a
trademark in the Principal Register by the Director of Patents would not prevent a court from
ruling on whether or not the trademark so granted registration is confusingly similar with a
previously registered trademark, where such issue is essential for resolution of a case properly
before the court. A fortiori, a mere application for registration cannot be a sufficient reason for
denying injunctive relief, whether preliminary or definitive. In the case at bar, petitioners' suit for
injunction and for damages for infringement, and their application for a preliminary injunction
against private respondent, cannot be resolved without resolving the issue of claimed confusing
similarity.

In the case at bar, the evidence of record is scanty. Petitioners have not submitted actual copies
or photographs of their registered marks as used in cigarettes. Private respondent has not, for its
part, submitted the actual labels or packaging material used in selling its "MARK" cigarettes.
Petitioners have appended to their Petition a photocopy of an advertisement of "MARK"
cigarettes. Private respondent has not included in the record a copy of its application for
registration of "MARK" for cigarettes, which would include a facsimile of the trademark being
applied for. It should be noted that "MARK" and "LARK," when read or pronounced orally,
constitute idem sonans in striking degree. Further, "MARK" has taken over the dominant word in
"MARK VII" and "MARK TEN." These circumstances, coupled with private respondent's failure to
explain how or why it chose, out of all the words in the English language, the word "mark" to refer
to its cigarettes, lead me to the submission that there is a prima facie basis for holding, as the
Patent Office has held and as the Court of Appeals did hold originally, that private respondent's
"MARK" infringes upon petitioners' registered trademarks.

II

There is thus no question as to the legal rights of petitioners as holders of trademarks registered
in the Philippines. Private respondent, however, resists and assails petitioners' effort to enforce
their legal rights by heavily underscoring the fact that petitioners are not registered to do
business in the Philippines and are not in fact doing business in the Philippines. It is thus
necessary to determine what consequences, if any, flow from this circumstance so far as
enforcement of petitioners' rights as holders of registered Philippine trademarks is concerned.

It should be stressed at the outset that circumstance has no legal impact upon the right of
petitioners to own and register their trademarks in the Philippines. Section 2 of R.A. No. 166 as
amended expressly recognizes as registrable, under this statute, marks which are owned by
corporations domiciled in any foreign country:

Sec. 2. What are registrable. — Trademarks, trade names and service

marks owned by persons, corporations, partnerships or associations domiciled in
the Philippines and by persons, corporations, partnerships or associations
domiciled in any foreign country may be registered in accordance with the
provisions of this Act; Provided, That said trade marks, trade names or service
marks are actually in use in commerce and services not less than two months in
the Philippines before the time the applications for registration are filed:
And provided further, That the country of which the applicant for registration is a
citizen grants by law substantially similar privileges to citizens of the Philippines,
and such fact is officially certified, with a certified true copy of the foreign law
translated into the English language, by the government of the foreign country to
the Government of the Republic of the Philippines. (Emphasis suppplied)

It is also entirely clear that foreign corporations and corporations domiciled in a foreign country
are not disabled from bringing suit in Philippine courts to protect their rights as holders of
trademarks registered in the Philippines. Under Section 21-A of R.A. No. 166, as amended, any
foreign corporation which is a holder of a trademark registered under Philippine law may bring an
action for infringement of such mark or for unfair competition or false designation of origin and
false description "whether or not it has been licensed to do business in the Philippines under the
[Corporation Law] at the time it brings complaint, subject to the proviso that:
 . . . that the country of which the said foreign corporation or juristic person is a
citizen or in which it is domiciled by treaty, convention or law, grants similar
privilege to corporate or juristic persons of the Philippines. (Emphasis supplied)

The rule thus embodied in Section 21-A of R.A. No. 166 as amended is also set out in Article 2 of
the Paris Convention for the Protection of Industrial Property ("Paris Convention"), to which the
Philippines, the United States, Canada and Switzerland are all parties. 18 Article 2 of the Paris
Convention provides in relevant part:

Article 2

(1) Nationals of any country of the Union shall, as regards the protection of
industrial property, enjoy in all the other countries of the Union the advantages
that their respective laws now grant, or may hereafter grant, to nationals; all
without prejudice to the rights specially provided for by this Convention.
Consequently, they shall have the same protection as the latter, and the same
legal remedy against any infringement of their rights, provided that the conditions
and formalities imposed upon national are complied with.

(2) However, no requirement as to domicile or establishment in the country where

protection is claimed may be imposed upon nationals of countries of the Union for
the enjoyment of any industrial property rights.

xxx xxx xxx

(Emphasis supplied)

Article 2, paragraph 1 of the Paris Convention embodies the principle of "national treatment" or
"assimilation with nationals," one of the basic rules of the Convention. 19 Under Article 2,
paragraph 1 of the Paris Convention, nationals of Canada, Switzerland and the United States
who are all countries of the Paris Union are entitled to enjoy in the Philippines, also a country of
the Union, the advantages and protections which Philippine law grants to Philippine nationals.
Article 2 paragraph 2 of the Paris Convention restrains the Philippines from imposing a
requirement of local incorporation or establishment of a local domicile as a pre-requisite for
granting to foreign nationals the protection which nationals of the Philippines are entitled to under
Philippine law in respect of their industrial property rights. It should be noted that Article 2,
paragraph 2 also constitutes proof of compliance with the requirement of reciprocity between, on
the one hand, the Philippines and, on the other hand, Canada, Switzerland and the United States
required under Section 21-A of R.A. No. 166 as amended.

The net effect of the statutory and treaty provisions above referred to is that a corporate national
of a member country of the Paris Union is entitled to bring in Philippine courts an action for
infringement of trademarks, or for unfair competition, without necessity for obtaining registration
or a license to do business in the Philippines. Article 2 as quoted above is in effect with respect
to all four (4) countries.

Such has been the rule in our jurisdiction even before the enactment of R.A. No. 166 and before
the Philippines became a party to the Paris Convention. In Western Equipment and Supplies
Company, et al. v. Reyes, etc., et al., 20 petitioner Western Electrical Company, a U.S.
manufacturer of electrical and telephone equipment and supplies not doing business in the
Philippines, commenced action in a Philippine court to protect its corporate name from
unauthorized use thereof by certain Philippine residents. The Philippine residents sought to
organize a Philippine corporation to be known as "Western Electrical Company" for the purpose
of manufacturing and selling electrical and telephone equipment in the Philippines. The local
residents resisted the suit by contending, inter alia, that the petitioner Western Electrical
Company had never transacted business in the Philippines and that registration of private
respondent's articles of incorporation could not in any way injure petitioner. The Supreme Court,
in rejecting this argument, stated that:

. . . a foreign corporation which has never done business in the Philippines — but
is widely and favorably known in the Philippines through the use therein of its
products bearing its corporate name and tradename has a legal right to maintain
an action in the [Philippines]. The purpose of such a suit is to protect its
reputation, corporate name and goodwill which has been established through the
natural development of its trade for a long period of years in the doing of which it
does not seek to enforce any legal or contract rights arising from or closing out of
any business which it has transacted in the Philippines. . . .21 (Emphasis supplied)

Similarly, in Asari Yoko v. Kee Boc,22 a Japanese corporation, also not engaged in any business
in the Philippines, successfully opposed an application for registration of its trademark "Race
Brand" on shirts and undershirts by a local businessman, even though the Japanese company
had not previously registered its own mark "Race Brand" in the Philippines.

Again, in General Garments Corporation v. Director of Patents and Puritan Sportswear

Corporation,23 Puritan Sportswear Corporation, an entity organized in Pennsylvania U.S.A. and
not doing business in the Philippines, filed a petition for cancellation of the mark "Puritan" which
was registered in the name of petitioner General Garments Corporation for assorted men's wear,
undershirts, briefs, shirts, sweaters and jackets. Puritan Sportswear alleged ownership and prior
use of the trademark "Puritan" in the Philippines. Petitioner General Garments, on the other
hand, contended that Puritan Sportswear, being a foreign corporation not licensed to do, and not
doing, business in the Philippines, could not maintain an action for cancellation of a trademark.
The Court, in upholding the Director of Patents' cancellation of the registration of the mark
"Puritan" in the name of General Garments, said:

. . . .such mark should not have been registered in the first place (and
consequently may be cancelled if so required) if it consists of
or comprises a mark or tradename which so resembles a mark or tradename . . .
. previously used in the Philippines by another and not abandoned, as to be
likely, when applied to or used in connection with goods, business or services of
the applicant, to cause confusion or mistake or to deceive
purchasers. 24 (Emphasis supplied)

In Converse Rubber Corporation v. Universal Rubber Products, Inc., 25 petitioner Converse

Rubber Corporation was an American manufacturer of rubber shoes, not doing business on its
own in the Philippines and not licensed to do business in the Philippines, opposed the application
for registration of the trademark "Universal Converse and Device" to be used also in rubber
shoes and rubber slippers by private respondent Universal Rubber Products, Inc. ("Universal").
In reversing the Director of Patents and holding that Universal's application must be rejected, the
Supreme Court said:

The sales of 12 to 20 pairs a month of petitioner's rubber shoes cannot be

considered insignificant, considering that they appear to be of high expensive
quality, which not too many basketball players can afford to buy. Any sale made
by a legitimate trader from his store is a commercial act establishing trademark
rights since such sales are made in due course of business to the general public,
not only to limited individuals. It is a matter of public knowledge that all brands of
goods filter into the market, indiscriminately sold by jobbers, dealers and
merchants not necessarily with the knowledge or consent of the
manufacturer. Such actual sale of goods in the local market establishes
trademark use which serves as the basis for any action aimed at trademark pre-
emption. It is a corollary logical deduction that while Converse Rubber
Corporation is not licensed to do business in the country and is not actually doing
 business here, it does not mean that its goods are not being sold here or that it
has not earned a reputation or goodwill as regards its products. The Director of
Patents was, therefore, remiss in ruling that the proofs sales presented "was
made by a single witness who had never dealt with nor had never known opposer
{petitioner} . . . without Opposer having a direct or indirect hand in the transaction
to be the basis of trademark pre-exemption. 26 (Emphasis supplied)

Three (3) other cases may be noted. The first is La Chemise Lacoste, S.A. v. Fernandez 27 La
Chemise Lacoste, S.A. although a foreign corporation not engaged in and not licensed to do
business in the Philippines, was accorded protection for its trademarks "Lacoste", "Chemise
Lacoste," and "Crocodile Device" for clothing and sporting apparel. The Court recognized that
those marks were "world famous trademarks which the Philippines, as a party to the Paris Union,
is bound to protect." Similarly, in Del Monte Corporation, et al. v. Court of Appeals, et
al., 28petitioner Del Monte Corporation was a company organized under the laws of the United
States and not engaged in business in the Philippines. Because both the Philippines and the
United States are signatories to the Convention of Paris, which grants to nationals of the parties
the rights and advantages which their own nationals enjoy for the repression of acts of
infringement and unfair competition, the Court, having found that private respondent's label was
an infringement of Del Monte's trademark, held Del Monte entitled to recover damages.

In Puma Sportschuhfabriken Rudolf Dassler, K.G. v. Intermediate appellate Court, et

al, 29 petitioner Puma was a foreign corporation existing under the laws of the Federal Republic of
Germany not registered to do business and not doing business in the Philippines, filed a
complaint for infringement of trademark and for issuance of a writ of preliminary injunction
against a local manufacturing company. Reversing the Court of Appeals, this Court held that
Puma had legal capacity to bring the suit in the Philippines under Section 21-A of R.A. No. 166
as amended and under the provisions of the Paris Convention to which both the Philippines and
the Federal Republic of Germany are parties. The Court also noted that "Puma" is an
internationally known brandname.

The relevancy of the doctrines set out in the cases above cited are conceded by my
distinguished brother Melo, J. in the majority opinion. The majority opinion, however, goes on to
say:

In other words, petitioners may have the capacity to sue for infringement
irrespective of lack of business activity in the Philippines on account of Section
21-A of the Trademark Law but the question of whether they have an exclusive
right over their symbols as to justify issuance of the controversial writ will depend
on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A
of the same law. It is thus incongruous for petitioners to claim that when a foreign
corporation not licensed to do business in the Philippines files a complaint for
infringement, the entity need not be actually using its trademark in commerce in
the Philippines. Such a foreign corporation may have the personality to file a suit
for infringement but it may not necessarily be entitled to protection due to
absence of actual use of the emblem in the local market.

With great respect, certain essential qualifications must be made respecting the above
paragraph. Firstly, of the petitioners' three (3) marks here involved, two (2) of them — i.e.,
"MARK TEN" and "LARK" — were registered in the Philippines on the basis of actual use in the
Philippines, precisely in accordance with the requirements of Section 2-A and Section 5 (A) of
R.A. No. 166 as amended. The pre-registration use in commerce and trade in the Philippines for
at least two (2) months as required by the statute, is explicitly stated in the Certificates of
Registration. The very fact that the appropriate Philippine Government office issued the
Certificates of Registration necessarily gave rise to the presumption that such pre-registration
use had in fact been shown to the satisfaction of the Philippine Patent Office (now the Bureau of
Patents, Trademark and Technology Transfer ["BPTTT"]). It is important to note that respondent
Fortune has not purported to attack the validity of the trademarks "Mark Ten" and "Lark" by
pretending that no pre-registration use in commerce in the Philippines had been shown. 30

The third mark of petitioners — "MARK VII" — was registered in the Philippines on the basis of
Section 37 of R.A. No. 166 as amended, i.e., on the basis of registration in the country of origin
and under the Paris Convention. In such registration, by the express provisions of Section 37 (b)
of R.A. No. 166 as amended, prior (pre-registration) use in commerce in the Philippines
need not be alleged.

Whether the Philippine trademark was based on actual use in the Philippines (under Section 2-A)
or on registration in a foreign country of origin (under Section 37), the statute appears to require
that trademarks (at least trademarks not shown to be internationally "well-known") must continue
to be used in trade and commerce in the Philippines. It is, however, essential to point out that
such continued use, as a requirement for the continued right to the exclusive use of the
registered trademark, is presumed so long as the Certificate of Registration remains outstanding
and so long as the registered trademark owner complies with the requirements of Section 12 of
R.A. No. 166 as amended of filing affidavits with the BPTTT on the 5th, 10th and 15th
anniversaries of the date of issuance of the Certificate of Registration, showing that the
trademark is still in use or showing that its non-use is not due to any intention to abandon the
same. In the case at bar, again, respondent Fortune has not explicitly pretended that the
petitioners' trademarks have been abandoned by non-use in trade and commerce in the
Philippines although it appears to insinuate such non-use and abandonment by stressing that
petitioners are not doing business in the Philippines.

That petitioners are not doing business and are not licensed to do business in the Philippines,
does not by any means mean either that petitioners have not complied with the requirements of
Section 12 of R.A. No. 166 relating to affidavits of continued use, or that petitioners' trademarks
are not in fact used in trade and commerce in the Philippines. In the Converse case, as earlier
noted, the Court held that the circumstance that the foreign owner of a Philippine trademark is
not licensed to do business and is not doing business in the Philippines, does not mean that
petitioner's goods (that is, goods bearing petitioner's trademark) are not sold in the Philippines.
For cigarettes bearing petitioners' trademarks may in fact be imported into and be available for
sale in the Philippines through the acts of importers or distributors. Petitioners have stated that
their "Mark VII," "Mark Ten" and "Lark" cigarettes are in fact brought into the country and
available for sale here in, e.g., duty-free shops, though not imported into or sold in the
Philippines by petitioners themselves. There is no legal requirement that the foreign registrant
itself manufacture and sell its products here. All the statute requires is the use in trade and
commerce in the Philippines, and that can be carried out by third party manufacturers operating
under license granted by the foreign registrant or by the importation and distribution of finished
products by independent importers or traders. The "use" of the trademark in such instances by
the independent third parties constitutes use of the foreign registrant's trademarks to the benefit
of the foreign registrant. 31

III

We turn to petitioners' claim that they are suffering irreparable damage by reason of the
manufacture and sale of cigarettes under the trademark "MARK." Here again, a basic argument
of private respondent was that petitioners had not shown any damages because they are not
doing business in the Philippines. I respectfully maintain that this argument is specious and
without merit.

That petitioners are not doing business and are not licensed to do business in the Philippines,
does not necessarily mean that petitioners are not in a position to sustain, and do not in fact
sustain, damage through trademark infringement on the part of a local enterprise. 32 Such
trademark infringement by a local company may, for one thing, affect the volume of importation
into the Philippines of cigarettes bearing petitioners' trademarks by independent or third party
traders.

The damage which the petitioners claim they are sustaining by reason of the acts of private
respondents, are not limited to impact upon the volume of actual imports into the Philippines of
petitioners' cigarettes. Petitioners urge that private respondent's use of its confusingly similar
trademark "MARK" is invasive and destructive of petitioners property right in their registered
trademarks because.

a) Plaintiffs' undeniable right to the exclusive use of their registered trademarks is

effectively effaced by defendant's use of a confusingly similar trademark;

b) Plaintiffs would lose control of the reputation of their products as their

reputation will depend on defendant's commercial activities and the quality of
defendant's products;

c) The market in the Philippines for plaintiffs' products will be pre-empted;

d) Purchasers will think that defendant's goods are approved or sponsored by

plaintiff;

e) Defendant will be allowed to benefit from the reputation of the plaintiffs' goods
and trademarks;

f) Defendant will be effectively authorized to continually invade plaintiffs' property

rights, for which invasion no fair and reasonable redness can be had in a court of
law; and

g) Plaintiffs will lose their goodwill and trade and the value of their registered
trademarks will irreparably diluted and the damages to be suffered by plaintiffs
cannot be redressed fairly in terms of money. 33

Modern authorities on trademark law view trademarks as symbols which perform three (3)
distinct functions: first, they indicate origin or ownership of the articles to which they are attached;
second, they guarantee that those articles come up to a certain standard of quality; third, they
advertise the articles they symbolize. 34

The first two (2) functions have long been recognized in trademark law which characterizes the
goodwill or business reputation symbolized by a trademark as a property right protected by law.
Thus, the owner of a trademark is held entitled to exclude others from the use of the same, or of
a confusingly similar, mark where confusion results in diversion of trade or financial injury. At the
same time, trademarks warn against the imitation or faking of products and prevent the
imposition of fraud upon the public. The first two (2) functions of trademarks were aptly stressed
in e.g., the La Chemise Lacoste case where the objectives of trademark protection were
described in the following terms:

. . . to stem the tide of fake and counterfeit consumer items flooding the Philippine
market or exported abroad from our country. The greater victim is not so much
the manufacturer whose product is being faked but
the Filipino consuming public and in the case of exportations, our image abroad .
. . . We buy a kitchen appliance, a household tool, perfume, a face powder, other
toilet articles, watches, brandy or whisky, and items of clothing like jeans, T-
shirts, neckties, etc. — the list is quite lengthy — and pay good money relying on
the brand name as guarantee of its quality and genuine nature only to explode in
bitter frustration and helpless anger because the purchased item turns out to be a
shoddy imitation, albeit a clever looking counterfeit, of the quality product . . . . 35
The third or advertisement function of trademark has become of especial importance given the
modern technology of communication and transportation and the growth of international
trade. 36 Through advertisement in the broadcast and print media, the owner of the trademark is
able to establish a nexus between its trademark products and the public in regions where the
owner does not itself manufacture or sell its own products. 37 Through advertisement, a well-
established and well-earned reputation may be gained in countries where the trademark owner
has itself no established business connection. 38 Goodwill may thus be seen to be much less
closely confined territorially than, say, a hundred or fifty years ago. 39 It is no longer true that "a
trademark of itself cannot travel to markets where there is no article to wear the badge and no
trader to offer the article." 40 Advertisement of trademarks is geared towards the promotion of use
of the marked article and the attraction of potential buyers and users;41 by fixing the identity of the
marked article in the public mind, it prepares the way for growth in such commerce whether the
commerce be handled by the trademark owner itself or by its licensees or independent traders.

That a registered trademark has value in itself apart from the trade physically accompanying its
use, has been recognized by our Court. In Ang v. Teodoro,42 the Court was called upon the
determine whether there was infringement in the use of the same trademark on articles which
do not belong to the same class of goods which the lawful trademark owner manufactures and
sells. In holding that there was infringing use in such case, the Court said:

. . . . such unfair trading can cause injury or damage to the first user of a given
trade-mark, first, by prevention of the natural expansion of his business and,
second, by having his business reputation confused with and put at the mercy of
the second user. When noncompetitive products are sold under the same
mark, the gradual whittling away or dispersion of the identity and hold upon the
public mind of the mark created by its first user, inevitably result. The original
owner is entitled to the preservation of the valuable link between him and the
public that has been created by his ingenuity and the merit of his wares or
services. Experience has demonstrated that when a well-known trade-mark is
adopted by another even for a totally different class of goods, it is done to get the
benefit of the reputation and advertisements of the originator of said mark, to
convey to the public a false impression of some supposed connection between
the manufacturer of the article sold under the original mark and the new articles
being tendered to the public under the same or similar mark . . . The owner of a
trademark or tradename has a property right in which he is entitled to protection,
since there is damage to him in the form of confusion of reputation or goodwill in
the mind of the public as well as from confusion of goods. (Emphasis supplied)

In Sta. Ana v. Maliwat,43 the Court, through J.B.L. Reyes, J., in holding that the use of the
name "Flormen" with respect to shoes was infringement of the mark "Flormann" used in
the men's wear such as shirts, polo shirts and pants, said:

Modern law recognizes that the protection to which the owner of a trade-mark is
entitled is not limited to guarding his goods or business from actual market
competition with identical or similar products of the parties, but extends to all
cases in which the use by a junior appropriator of a trade-mark or trade-name is
likely to lead to a confusing of source, as where prospective purchasers would be
misled into thinking that the complaining party has extended his business into the
field (see 148 ALR 56 et seq; 52 Am. Jur. 576) or is in any way connected with
the activities of the infringer; or when it forestalls the normal potential expansion
of his business (v. 148 ALR, 77, 84; 52 Am. Jur. 576, 577). . . . . 44 (Emphasis
supplied)

Petitioners did not try to put a peso figure on their claimed damage arising from the erosion and
possible eventual destruction of the symbolic value of their trademark. Such damage, while not
easily quantifiable, is nonetheless real and effective. I submit, with respect, that such continuing
damage falls clearly within the concept of irreparable damage or injury described in Social
Security Commission v. Bayona 45 in the following terms:

Damages are irreparable within the meaning of the rule relative to the issuance of
injunction where there is no standard by which their amount can be measured
with reasonable accuracy (Crouc v. Central Labor Council, 83 ALR, 193). "An
irreparable injury which a court of equity will enjoin includes that degree of wrong
of a repeated and continuing kind which produce hurt, inconvenience, or damage
that can be estimated only by conjecture, and not by any accurate standard of
measurement" (Phipps v. Rogue River Valley Canal Co., 7 ALR, 741). An
irreparable injury to authorize an injunction consists of a serious charge of, or is
destructive to, the property if affects, either physically or in the character in which
it has been held and enjoined, or when the property has some peculiar quality or
use, so that its pecuniary value will not fairly recompense the owner of the loss
thereof' (Dunker v. Field and Tub Club, 92 P., 502).

Respondent corporations made a lengthy discourse on the matter of irreparable

injury they may suffer if the injunction were not issued, but the array of figures
they have laid out merely succeeded in proving that the damage, if any they may
suffer, is susceptible of mathematical computation. It is not then irreparable. As
already stated, this term has a definite meaning in law. It does not have reference
to the amount of damages that may be caused but rather to the difficulty of
measuring the damages inflicted. If full compensation can be obtained by way of
damages, equity will not apply the remedy of injunction(28 Am. Jur., 244; 43
C.J.S., 427, 446). 46

I next turn to private respondent's claim that issuance of an injunction would impose heavy
damage upon itself and upon Government. As noted, private respondent stated that it had paid
many millions of pesos as ad valorem and VAT taxes to the Government in 1988 and 1989 in
connection with its "MARK" cigarettes. 47 Presumably, the total volume of its business associated
with the manufacture and sale of cigarettes trademarked "MARK" would be even larger. In
addition, private respondent suggests, albeit indirectly only, that hundreds if not thousands of its
employees would find themselves unemployed if it were restrained from the manufacture and
sale of "MARK" cigarettes.

Private respondent's claims concerning alleged damages both to itself and to the Government,
which obviously loomed very large in the mind of the majority here, and of the Court of Appeals
when it lifted the injunction it had issued, appear to me to be extravagant indeed. Petitioners
cannot claim to be entitled to an injunction which could restrain private respondent from
manufacturing and selling cigarettes completely; petitioner do not pretend to be so entitled to
such a comprehensive injunction. Petitioners seek only the reinstatement of the original
injunction issued by the Court of Appeals, i.e., one that restrains private respondent from using
the trademark "MARK" on its cigarettes. There is nothing to prevent private respondent from
continuing to manufacture and sell cigarettes under any of its already existing and registered
trademarks, of which it has several, or under some new and specially created trademark(s).
Realistically, private respondent, if enjoined, would lose only the value of the packaging material
imprinted with the same trademark (which cigarettes and material may well be amenable to re-
cycling) and the cost of past advertisements of "MARK" in media, if any. Thus, the apprehension
on the part of the majority which private respondent tried diligently to foment — that the
Government would lose many millions of pesos in tax revenues and that many employees would
lose their jobs, if an injunction is issued — is more apparent than real. The damages private
respondent would sustain from reinstatement of the preliminary injunction are clearly quantifiable
in pesos.

Besides, as pointed out by petitioners, to pay heed to private respondent's creative economic
argument would ultimately mean that the greater the volume of sales and the profits of the
infringer, the greater would be the infringer's claim to be entitled to continue infringement. I
respectfully submit that the law should not countenance such a cynical result.

My conclusion is that private respondent's claims concerning damage which it would sustain if
the petitioners were granted the injunction they seek, did not constitute a sufficient basis for
overturning the original decision of the Court of Appeals. The Resolution of the Court of Appeals
granting private respondent's Motion to Dissolve, in effect disregarded everything that Court had
set out in its original Decision. The mere offer and filing of a counterbond does not, by itself,
provide a sufficient basis for lifting the preliminary injunction earlier granted. For all the elements
which supported the original issuance of a preliminary injunction continued to exist. Private
respondent's hyperbolic claims concerning the damages that it and the Government would
sustain by reason of an injunction, had been made earlier both before the trial court and the
Court of Appeals. Finally, it is not enough to say as private respondent says, that the Court of
Appeals in granting its Motion to Dissolve the preliminary injunction was merely exercising its
discretion; for the Court of Appeals obviously was also exercising its discretion when it rendered
its original Decision granting the preliminary injunction.

I vote to grant due course to the petition for Certiorari, to set aside the Resolution of the
respondent Court of Appeals dated 14 September 1989 in C.A.-G.R. SP No. 13132 and to
reinstate the Decision of that same Court dated 5 May 1989.

# Separate Opinions

FELICIANO, J., dissenting:

I find myself unable to join in the opinion prepared by my distinguished brother, Melo, J.

It seems to me that the issues involved in this case are rather more complex than what has been
assumed to be the case by the majority opinion. For this and related reasons, there is set out
below a statement of the relevant facts (as I see them) that is more extensive than what is
ordinarily found in dissenting opinions.

Petitioner Philip Morris, Inc. is a corporation organized and existing under the law of Virginia,
U.S.A. Petitioners Benson & Hedges (Canada), Inc. and Fabriques de Tabac Reunies, S.A., both
wholly owned subsidiaries of Philip Morris, Inc., are organized and existing under the law of
Canada and Switzerland, respectively.

Philip Morris, Inc. is registered owner of the trademark "MARK VII" for cigarettes. Its ownership
thereof is evidenced by Philippine Patent Office Trademark Certificate of Registration No. 18723,
dated 26 April 1973. The statement attached to the Certificate of Registration states that the
trademark "MARK VII" had been registered in the United States Patent Office, on the Principal
Register, under Certificate of Registration No. 888,931 issued on 7 April 1970. The statement
also requested that the trademark be registered in the Philippine Patent Office on the Principal
Register in accordance with Section 37 of R.A. No. 166, as amended.

Benson & Hedges (Canada), Inc. is the registered owner of the trademark "MARK TEN" also for
cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No.
11147, dated 28 May 1964, on the Principal Register. This Trademark Certificate of Registration
was originally issued in the name of Canadian Tabacofina Ltd. and later assigned to Benson &
Hedges (Canada), Inc. Petitioners alleged that the name Canadian Tabacofina Ltd. was later
changed to Benson & Hedges (Canada) Ltd. This trademark Certificate of Registration was
renewed on 28 May 1984. The statement attached thereto stated that the "date of first use of the
trademark 'MARK TEN' in trade in or with the Philippines is April 15, 1963," and that trademark
had "been in actual use in commerce over the Philippines continuously for two months."
Fabriques de Tabac Reunies, S.A. is registered owner of the trademark "LARK" also for
cigarettes, as evidenced by Philippine Patent Office Trademark Certificate of Registration No.
10953, dated 25 March 1964. This Trademark Certificate of Registration was originally issued in
the name of Ligget and Myres Tobacco Company was later assigned to Fabriques de Tabac
Reunies, S.A. Petitioners alleged that the name of Liggett and Myres Tobacco Company was
changed later to Fabriques de Tabac Reunies, S.A. The statement attached to this Certificate of
Registration states that the trademark "LARK" was first used by Ligget and Myres Tobacco
Company on 31 May 1920, and first used by it "in commerce in or with the Philippines on
February 6, 1963" and has been continuously used by it "in trade in or with the Philippines since
February 6, 1963."

Sometime before 17 October 1981, private respondent Fortune Tobacco Corporation ("Fortune")
commenced manufacturing and selling in the Philippines cigarettes under the brandname
"MARK." Fortune also filed on 13 February 1981 with the Philippine Patent Office an application
for registration of "MARK" as a trademark for cigarettes.

By a letter dated 17 October 1981, petitioner through their lawyers wrote to Fortune stating that
the manufacturing, selling and advertising of "MARK" cigarettes by Fortune constituted an
"infringement or an act of unfair competition with" petitioners' "well-known international
trademarks used on cigarettes and tobacco products which were registered worldwide and with
the Philippine Patent Office." Petitioners listed their Philippine Certificates of Registration for the
trademarks "MARK VII," "MARK TEN," and "LARK." Petitioners then asked Fortune "to cease
and desist from further manufacturing; selling or advertising 'MARK' cigarettes," otherwise
appropriate court actions would be filed without further notice.

On 18 August 1982, petitioners commenced action before the Court of First Instance of Pasig,
Metro Manila (Civil Case No. 47374). In their complaint, petitioners alleged that they were not
doing business in the Philippines but had nonetheless the right and the capacity to bring the
instant suit; that they were owners of Philippine Patent Office Trademark Certificates of
Registration which were in full force and effect, covering "MARK VII," "MARK TEN," and "LARK,"
all for cigarettes (except the last which also covered chewing and smoking tobacco); that they
had registered those trademarks in their respective countries of origin and in other countries the
world and that by virtue of their "long and extensive use [had] gained international fame and
acceptance;" that they had their respective real and effective industrial or commercial
establishments in the United States, Canada and Switzerland, which countries were, like the
Philippines, members of the Convention of Paris for the Protection of Industrial Property; that
under that Convention each member-country undertakes to prohibit the use of a trademark which
constitutes a reproduction, imitation or translation of a mark already belonging to a person
entitled to the benefits of the Convention and use for identical or similar goods; that petitioner
Fabriques de Tabac Reunies, S.A. had long been using trademark "LARK" throughout the world,
including the Philippines where its products bearing the trademark "LARK" had been sold in the
duty-free market, and advertised and marketted in the Philippines at least since 1964 and have
continued to be so to present; that Fortune had without previous consent, authority or license
from petitioners, with knowledge of the popularity of petitioners' marks and their Philippine
registrations, manufactured, advertised and sold cigarettes bearing the identical or confusingly
similar trademark "MARK" which unauthorized use constituted an act of infringement under
Section 22 of R.A. No. 166, as amended; that thereby the public and the patronizers of
petitioners' products were being deceived into buying Fortune's cigarettes under the impression
and mistaken belief that Fortune's cigarettes were identical with, or came from the same source
as, petitioners' products or that Fortune was licensee of petitioners, which it was not; that the
infringement by Fortune of petitioners' trademarks have inflicted damages upon petitioners; that
the continued unauthorized and unlicensed manufacture and sale by Fortune of its infringing
products during the litigation would work injustice and cause irreparable injury to petitioners in
violation of their property rights and moreover tend to render the judgment which the court might
render ineffectual. Petitioners accordingly asked for a writ of preliminary injunction to restrain
Fortune from manufacturing or selling "MARK" cigarettes, and after trial, to make such
preliminary injunction permanent and to order Fortune's infringing materials to be destroyed, and
for damages.

Fortune filed an Opposition to petitioners' prayer for preliminary injunction. On 28 March 1983,
the trial court1 issued an Order denying petitioners' motion for preliminary injunction. In rendering
that order, the trial court, while noting that petitioners were holders of Philippine Certificates of
Trademark Registration, relied heavily on three (3) factors:

Firstly, that petitioners were foreign corporations not doing business in the
Philippines;

Secondly, that Fortune's application for a registration as trademark of the word

"MARK" for cigarettes was then pending before the Philippine Patent Office; and

Thirdly, that Fortune was the "only party authorized" by the Bureau of Internal
Revenue ("BIR") to manufacture cigarettes bearing the mark "MARK" in the
Philippines.

In respect of the first point, the trial court was obviously heavily influenced by Fortune's
argument that because petitioners were not doing business in the Philippines, which
meant that "they [were] not engaged in the sale, manufacture, importation, exportation
and advertisement of their cigarette products in the Philippines," Fortune's manufacture
and sale of its "MARK" cigarettes could not be said to be causing petitioners "irreparable
damage" within the Philippines. In respect to the second point, the trial judge felt that
because the Director of Patents had not, at that point, denied Fortune's pending
application for registration of its trademark "MARK," the grant of a preliminary injunction
was premature. With regard to the third point, the judge noted a letter dated 30 January
1979 2 of the then Acting Commissioner of Internal Revenue Mr. Conrado P. Diaz,
temporarily granting the request of Fortune for a permit to manufacture two (2) new
brands of cigarettes, one of which was "MARK." The trial judge also noted that the BIR
letter contained the following paragraph:

Please be informed further that this authority herein granted does not give you
protection against any person or entity whose rights may be prejudiced by
infringement or unfair competition in relation to your above named
brands/trademarks. 3

The trial judge, however, apparently gave no weight at all to this caveat.

Petitioners sought, on 15 April 1983, reconsideration of Judge Reyes' Order denying preliminary
injunction. After Fortune had filed an Opposition to petitioners' Motion for Reconsideration, and
petitioners had filed their Reply and Fortune a Rejoinder, and after an offer of exhibits by the
parties respectively, Judge Reyes issued on 5 April 1984 another Order denying the Motion for
Reconsideration. In his second order, the trial judge laid great stress on the fact that Fortune's
application for registration of its trademark "MARK" for cigarettes remained subsisting. On the
basis, Judge Reyes denied petitioners' motion for reconsideration.

More than two (2) years later, petitioners filed a "Second Motion for Issuance of Preliminary
Injunction" dated 1 September 1986. In their Second Motion, petitioners invited attention to
Paper No. 3, dated 6 April 1983, relating to Fortune's application for registration of its brandname
"MARK." This Paper No. 3 reproduced a letter to Fortune's counsel by Bienvenido A. Palisoc,
Senior Trademark Examiner, and Wilfredo T. Jaramillo, Trademark Examiner, stating that:

This application [for registration of "Mark"] has been examined.

Caption mark of the application must tally with the drawing on file.
 Subject mark is confusingly similar with the following marks on file:

a. "Mark" with Reg. No. SR-2659 for cigarettes.

b. "Mark VII" with Reg. No. 18723 for cigarettes.

c. "Mark Ten" with Reg. No. 11147 for cigarettes.

d. "Lark" with Reg. No. 10953 for cigarettes.

Hence, registration is barred under Sec. 4 (d) of Rep. Act No. 166 as amended.

Subject mark has no trademark significance and can not serve its purpose as to
indicate the source and origin of goods.

Furthermore, the word "Mark" is generic and therefore incapable of exclusive

appropriation.

Makati, Metro Manila, April 6, 1983." 4 (Emphasis supplied)

Petitioners also invited attention to a certification dated 8 August 1986 issued by Mr. Luis
M. Daca, Jr., Assistant Director, Philippine Patent Office, to the effect that Fortune's
application for the mark "MARK" for cigarettes was declared abandoned as of 16
February 1986 and was now deemed forfeited. In addition, petitioners explained in some
detail how Fortune's use of its mark "MARK" was "destructive of [petitioners'] property
right to [their] registered trademarks."5 Further, petitioners assailed Fortune's argument
that issuance of preliminary injunction would cause "loss of revenue and taxes to the
Government" and that more damages would be sustained by Fortune than by petitioners
since the petitioners do not market their cigarettes in the Philippines.

After Fortune had filed an Opposition to petitioners' Second Motion, the trial court, this time
presided over by Judge Nicolas Galing, issued an Order dated 22 April 1987 denying once more
the motion for issuance of a writ of preliminary injunction. In this order, Judge Galing relied on
two (2) points: firstly, according to the trial judge, petitioners had not shown that the products
they sought to protect from Fortune's "MARK" cigarettes were "in actual use and available for
commercial purposes anywhere in the Philippines;" and secondly, it appeared that while
Fortune's original application had been abandoned, it could be refiled and was in fact re-filed.
Thus, Judge Galing in effect reiterated Judge Reyes's position that until the Director of Patents
had definitely acted upon Fortune's application for registration of "MARK," petitioners' prayer for
preliminary injunction could not be granted.

Petitioners then filed a Petition for Review with the Supreme Court, which Petition was docketed
as G.R. No. 78141. The Court ordered respondents to file their Comments on the Petition and on
30 September 1987, the Court referred the Petition to the Court of Appeals.

In due course of time, the Court of Appeals, through Cacdac, Jr., J.,6 rendered a decision on 5
May 1989 setting aside the 22 April 1987 order of the trial court and ordering issuance of a writ of
preliminary injunction upon filing of a bond by petitioners in the sum of P200,000.00 to be
approved by the appellate court, "enjoining the private respondents, its agents, employees and
representatives from manufacturing, selling and/or advertising "MARK" cigarettes until further
orders." The Court of Appeals said in pertinent part:

There is no dispute that petitioners are the registered owners of the trademarks
for cigarettes "MARK VII," "MARK TEN," and "LARK". (Annexes B, C and D,
Petition). As found and reiterated by the Philippine Patent Office in two (2) official
 communications dated April 6, 1983 and January 24, 1984, the trademark
"MARK" is "confusingly similar" to the trademarks of petitioners, hence,
registration was barred under Sec. 4(d) of Rep. Act No. 166, as amended (pp.
106, 139 SCA rollo). In a third official communication dated April 8, 1986, the
trademark application of private respondent for the mark "MARK" under Serial
No. 44008 filed on February 13, 1981 which was declared abandoned as of
February 16, 1986, is now deemed forfeited, there being no revival made
pursuant to Rule 98 of the Revised Rules of Practitioners in Trademark Cases.
(p. 107, CA rollo). The foregoing documents or communications mentioned by
petitioners as "the changes in material facts which occurred after March 28,
1983", are not also questioned by respondents.7 (Emphasis supplied)

The Court of Appeals also noted the BIR letter of 30 January 1979 temporarily granting Fortune's
request for a permit to manufacture two (2) new brands of cigarettes, including one branded
"MARK," and the caveat (earlier noted)8 that the BIR's authorization would not give Fortune any
protection against any person or entity whose rights may be prejudiced by infringement or unfair
competition on the part of Fortune. The Court of Appeals also referred to the certificate dated 26
September 1986 of Mr. Cesar G. Sandico, then Director of Patents, issued upon request of
Fortune's counsel stating that there was a pending application for registration of the trademark
"MARK" for cigarettes under Serial No. 59872, filed on 16 September 1986, noting at the same
time, that Director Sandico's certification contained the following caveat or qualification:

This certification, however, does not give protection as against any person or
entity whose right may be prejudiced by infringement or unfair competition in
relation to the aforesaid trademark nor the right to register as contrary to the
provisions of the Trademark Law, Republic Act No. 166 as amended and the
Revised Rules of Practice in Trademark Cases. (Emphasis supplied)

The Court of Appeals then went on to say that:

[We] believe and hold that petitioners have shown a prima facie case for the
issuance of the writ of prohibitory injunction for the purposes stated in their
complaint and subsequent motions for the issuance of the prohibitory writ.
(Buayan Cattle Co. v. Quintillan, 125 SCRA 276).

The requisites for the granting of preliminary injunction are the existence of the
right protected and the facts against which the injunction is to be directed as
violative of said right. (Buayan Cattle Co. v. Quintillan, supra; Ortigas & Co. vs.
Ruiz, 148 SCRA 326). It is a writ framed according to the circumstances of the
case commanding an act which the Court regards as essential to justice and
restraining an act it deems contrary to equity and good conscience (Rosauro vs.
Cuneta, 151 SCRA 570). If it is not issued, the defendant may, before final
judgment, do or continue the doing of the act which the plaintiff asks the court to
restrain, and thus make ineffectual the final judgment rendered afterwards
granting the relief sought by the plaintiff (Calo vs. Roldan, 76 Phil. 445).
Generally, its grant or denial rests upon the sound discretion of the Court except
on a clear case of abuse (Belish Investment & Finance Co. vs. Statement House,
151 SCRA 636). Petitioners' right of exclusivity to their registered trademarks
being clear and beyond question, the respondent court's denial of the prohibitive
writ constituted excess of jurisdiction and grave abuse of discretion. If the lower
court does not grant preliminary injunction, the appellate court may grant the
same (Service Specialists, Inc. v. Sheriff of Manila. 145 SCRA 139).9 (Emphasis
supplied)

Fortune moved for reconsideration of the Decision of the Court of Appeals insisting that
petitioners must first prove their "clear, unmistakable and unquestioned right to the writ, coupled
with the possible damages it would suffer;" that petitioners had not suffered any "great and
irreparable injury to speak of" because "petitioners have never done business in this country in
the past nor in the future;" that, on the other hand, Fortune had been authorized by the BIR to
manufacture "MARK" cigarettes, "thereby generating much needed funds for the Government;"
that Fortune's application for registration of its brandname "MARK" with the Philippine Patent
Office "still pending" and not "finally rejected" by the Director of Patents. On 12 July 1989, the
Court of Appeals issued a Minute Resolution stating that the issues and arguments in Fortune's
motion for reconsideration had been "fully discussed" in the Decision sought to be reconsidered,
that no new arguments were raised, and accordingly denied the Motion for Reconsideration.

Fortune then filed a "Motion to Dissolve Writ of Preliminary Injunction with Offer to File
Counterbond" date 25 July 1989, where it reiterated the basic arguments it previously made.

A "Supplemental Motion to Lift Writ of Preliminary Injunction with Offer of Counterbond" dated 17
August 1989 was next filed by Fortune. In this "Supplemental Motion," Fortune averred that it had
paid to the BIR for 1988 the amount of P181,940,177.38 for specific taxes; while for January to
July 1989, it had paid the amount of P120,120,735.28. Fortune also referred to its employees
assigned to the manufacture of "MARK" cigarettes who were apparently apprehensive that their
services would eventually be terminated and that they would join the ranks of the unemployed.

Petitioners filed an Opposition to the "Motion to Dissolve" and a Comment on the "Supplemental
Motion" of Fortune.

On 14 September 1989, the Court of Appeals once more through Cacdac, Jr., J. issued a
Resolution lifting the preliminary injunction it had earlier granted upon the filing of counterbond by
private respondent in the amount of P400,000.00 to answer for any damages petitioners may
suffer as a consequence of such lifting. In its Resolution, the Court of Appeals referred to the
"lots of workers employed [who] will be laid off as a consequence of the injunction" and that
Government "will stand to lose the amount of specific taxes being paid by" Fortune. It when went
on to say:

After a thorough re-examination of the issues involved and the arguments

advanced by both parties in the offer to file a counterbond and the opposition
thereto, WE believe that there are sound and cogent reasons for Us to grant the
dissolution of the writ of preliminary injunction by the offer of the private
respondent to put up a counterbond to answer for whatever damages the
petitioner may suffer as a consequence of the dissolution of the preliminary
injunction.

The petitioner will not be prejudiced nor stand to suffer irreparably as a

consequence of the lifting of the preliminary injunction considering that they are
not actually engaged in the manufacture of the cigarettes with the trademarks in
question and the filing of the counterbond will amply answer for such damages.

While the rule is that an offer of a counterbond does not operate to dissolve an
injunction previously granted, nevertheless, it is equally true that an injunction
could be dissolved only upon good and valid grounds subject to the sound
discretion of the court. As WE have maintained the view that there are sound and
good reasons to lift the preliminary injunction the motion to file a counterbond is
granted. 10(Emphasis supplied)

Petitioners filed a Motion for Reconsideration, without success.

In the instant Petition, petitioners make the following basic submissions:

 1. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when it required, contrary to law and jurisprudence that in order that
petitioners may suffer irreparable injury due to the lifting of the injunction,
petitioners should be using actually their registered trademarks in commerce in
the Philippines;

2. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when it lifted the injunction in violation of Section 6 of Rule 58 of the
rules of Court;

3. that the Court of Appeals gravely abused its discretion amounting to excess of
jurisdiction when, after having found that the trial court had committed grave
abuse of discretion and exceeded its jurisdiction for having refused to issue the
writ of injunction to restrain respondent's acts that are contrary to equity and good
conscience, it made a complete about face for legally insufficient grounds and
authorized private respondent to continue performing the very same acts that it
had considered contrary to equity and good conscience, thereby ignoring not only
the mandates of the trademark law, the international commitments of the
Philippines, the judicial admission of private respondent that it will have no more
right to use the trademark "MARK" after the Director of Patents shall have
rejected the application to register it, and the admonitions of the Supreme
Court. 11

The Court required private respondent to file a comment. The comment reiterated the basic
arguments made by private respondent before the Court of Appeals:

a. the petitioners are not suffering any irreparable damage by the lifting of the
preliminary injunction by the Court of appeals. Whatever damages they might
suffer are "based purely on speculation, since by judicial admission, petitioners
are not doing business in the Philippines. Private respondent stressed
that petitioners "are not manufacturing, importing or selling "MARK TEN," "MARK
VII" or "LARK" in this country," notwithstanding "false allegation" that petitioners
have been "using" the said trademarks "in commerce and trade" in the
Philippines since 1963 up to the present.

b. that whatever damage petitioners may be suffering is negligible when

compared to the taxes that would have to be foregone by the
Government considering that private respondent "paid an annual specific tax of
P240 Million only on the manufacture and sale of "MARK cigarettes." Private
respondent claims that, in contrast, petitioners which are foreign corporations
"based in three different countries" have not contributed anything to Government
tax revenues.

c. that the Court of Appeals lifted the writ of preliminary injunction it had earlier
issued upon the submission of a counter bond in double the amount of the bond
submitted by petitioners, under Section 6, Rule 58 of the Rules of Court, which
act was within the sound discretion of the Court of Appeals. Private respondent
also stresses that the right of petitioners to the injunction was still being litigated
before the trial court.

Reformulating the issues raised by the petitioners here, we think the principal issues may be
reduced to the following: firstly, is there a clear legal right to the relief asked by petitioners in the
form of a preliminary injunction to restrain private respondent from manufacturing, selling and
distributing cigarettes under the trademark "MARK"? The second question is: are private
respondent's acts complained of by petitioners causing irreparable injury to petitioners' rights in
the premises? These two (2) basic issues are obviously related and need to be addressed
together.

The first point that needs to be stressed is that petitioners have Philippine Certificates of
Registration for their trademarks "MARK TEN", "MARK VII," and "LARK" in the Principal
Register.

Upon the other hand, private respondent's trademark "MARK" is not registered in the Principal
Register in the Office of the Director of Patents; private respondents is simply an applicant for
registration of a mark, the status of which application may be noted later.

It is important to stress the legal effects of registration of a trademark in the Principal Register in
the Office of the Director of Patents. Section 20 of R.A. No. 166, as amended, sets out the
principal legal effects of such registration:

Sec. 20. Certificate of registration prima facie evidence of validity. — A certificate

of registration, of a mark or a trade name shall be prima facie evidence of the
validity of the registration, the registrant's ownership of the mark or trade name,
and of the registrant's exclusive right to use the same in connection with the
goods, business or services specified in the certificate, subject to any conditions
and limitations stated therein. (Emphasis supplied)

In Lorenzana v. Macagba, 12 the Court distinguished between the effects of registration in the
Principal Register and registration in the Supplemental Register in the following manner:

(1) Registration in the Principal Register gives rise to a presumption of the validity
of the registration, the registrant's ownership of the mark, and his right to the
exclusive use thereof. There is no such presumption in registrations in the
Supplemental Register.

(2) Registration in the Principal Register is limited to the actual owner of the
trademark (Unno Commercial Enterprises v. Gen. Milling Corp., 120 SCRA 804
[1983]) and proceedings therein pass on the issue of ownership, which may be
contested through opposition or interference proceedings, or after registration, in
a petition for cancellation.

Registration in the Principal Register is constructive notice of the registrant's

claims of ownership, while registration in the Supplemental Register is merely
proof of actual use of the trademark and notice that the registrant has used or
appropriated it. (Le Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 373 [1984]:
"Registration in the Supplemental Register . . . serves as notice that the registrant
is using or has appropriated the trademark.") It is not subject to opposition
although it may be cancelled after its issuance. Corollarilly, registration in the
Principal Register is a basis for an action for infringement, while registration in the
Supplemental Register is not.

(3) In application for registration in the Principal Register, publication of the

application is necessary. This is not so in applications for registration in the
Supplemental Register. Certificates of registration under both Registers are also
different from each other.

(4) Proof of registration in the Principal Register may be filed with the Bureau of
Customs to exclude foreign goods bearing infringing marks while it does not hold
true for registrations in the Supplemental Register. 13 (Emphasis supplied)
When taken with the companion presumption of regularity of performance of official duty, it will
be seen that issuance of a Certificate of Registration of a trademark in the Principal Register also
gives rise to the presumption that
all requirements of Philippine law necessary for a valid registration (including prior use in
commerce in the Philippines for at least two [2] months) were complied with and satisfied.

In contrast, private respondent filed an application for registration of its mark "MARK" for
cigarettes with the Director of Patents soon after it commenced manufacturing and selling
cigarettes trademark with "MARK." This application was abandoned or "forfeited", 14 for failure of
private respondent to file a necessary Paper with the Director of Patent. It also appears,
however, that private respondent later re-filed or reinstated its application for registration of
"MARK" 15 and that, so far as the record here before us is concerned, this application remains
merely an application and has not been granted and a Certificate of Registration in the Principal
Register issued. 16 While final action does not appear as yet to have been taken by the Director of
Patents on private respondent's application, there was at least a preliminary determination of the
trademark examiners that the trademark "MARK" was "confusingly similar" with petitioners'
marks "MARK VII," "MARK TEN" and "LARK" and that accordingly, registration was barred under
Section 4 (d) of R.A. No. 166, as amended. 17

In the trial court, both Judge Reyes and Judge Galing took the position that until the Director of
Patents shall have finally acted on private respondent's application for registration of "MARK,"
petitioners cannot be granted the relief of preliminary injunction. It is respectfully submitted that
this position is both erroneous and unfortunate. In reliance upon that position, private respondent
has kept its application for registration alive and pending. The Director of Patents in turn may well
have refrained from taking final action on that application, even in the absence of a restraining
order from the courts, out of deference to the courts. The pendency of the application before the
Director of Patents is not in itself a reason for denying preliminary injunction. Our courts have
jurisdiction and authority to determine whether or not "MARK" is an infringement on petitioners'
registered trademarks. Under our case law, the issuance of a Certificate of Registration of a
trademark in the Principal Register by the Director of Patents would not prevent a court from
ruling on whether or not the trademark so granted registration is confusingly similar with a
previously registered trademark, where such issue is essential for resolution of a case properly
before the court. A fortiori, a mere application for registration cannot be a sufficient reason for
denying injunctive relief, whether preliminary or definitive. In the case at bar, petitioners' suit for
injunction and for damages for infringement, and their application for a preliminary injunction
against private respondent, cannot be resolved without resolving the issue of claimed confusing
similarity.

In the case at bar, the evidence of record is scanty. Petitioners have not submitted actual copies
or photographs of their registered marks as used in cigarettes. Private respondent has not, for its
part, submitted the actual labels or packaging material used in selling its "MARK" cigarettes.
Petitioners have appended to their Petition a photocopy of an advertisement of "MARK"
cigarettes. Private respondent has not included in the record a copy of its application for
registration of "MARK" for cigarettes, which would include a facsimile of the trademark being
applied for. It should be noted that "MARK" and "LARK," when read or pronounced orally,
constitute idem sonans in striking degree. Further, "MARK" has taken over the dominant word in
"MARK VII" and "MARK TEN." These circumstances, coupled with private respondent's failure to
explain how or why it chose, out of all the words in the English language, the word "mark" to refer
to its cigarettes, lead me to the submission that there is a prima facie basis for holding, as the
Patent Office has held and as the Court of Appeals did hold originally, that private respondent's
"MARK" infringes upon petitioners' registered trademarks.

II

There is thus no question as to the legal rights of petitioners as holders of trademarks registered
in the Philippines. Private respondent, however, resists and assails petitioners' effort to enforce
their legal rights by heavily underscoring the fact that petitioners are not registered to do
business in the Philippines and are not in fact doing business in the Philippines. It is thus
necessary to determine what consequences, if any, flow from this circumstance so far as
enforcement of petitioners' rights as holders of registered Philippine trademarks is concerned.

It should be stressed at the outset that circumstance has no legal impact upon the right of
petitioners to own and register their trademarks in the Philippines. Section 2 of R.A. No. 166 as
amended expressly recognizes as registrable, under this statute, marks which are owned by
corporations domiciled in any foreign country:

Sec. 2. What are registrable. — Trademarks, trade names and service

marks owned by persons, corporations, partnerships or associations domiciled in
the Philippines and by persons, corporations, partnerships or associations
domiciled in any foreign country may be registered in accordance with the
provisions of this Act; Provided, That said trade marks, trade names or service
marks are actually in use in commerce and services not less than two months in
the Philippines before the time the applications for registration are filed: And
provided further, That the country of which the applicant for registration is a
citizen grants by law substantially similar privileges to citizens of the Philippines,
and such fact is officially certified, with a certified true copy of the foreign law
translated into the English language, by the government of the foreign country to
the Government of the Republic of the Philippines. (Emphasis in the original)

It is also entirely clear that foreign corporations and corporations domiciled in a foreign country
are not disabled from bringing suit in Philippine courts to protect their rights as holders of
trademarks registered in the Philippines. Under Section 21-A of R.A. No. 166, as amended, any
foreign corporation which is a holder of a trademark registered under Philippine law may bring an
action for infringement of such mark or for unfair competition or false designation of origin and
false description "whether or not it has been licensed to do business in the Philippines under the
[Corporation Law] at the time it brings complaint, subject to the proviso that:

. . . that the country of which the said foreign corporation or juristic person is a
citizen or in which it is domiciled by treaty, convention or law, grants similar
privilege to corporate or juristic persons of the Philippines. (Emphasis supplied)

The rule thus embodied in Section 21-A of R.A. No. 166 as amended is also set out in Article 2 of
the Paris Convention for the Protection of Industrial Property ("Paris Convention"), to which the
Philippines, the United States, Canada and Switzerland are all parties. 18 Article 2 of the Paris
Convention provides in relevant part:

Article 2

(1) Nationals of any country of the Union shall, as regards the protection of
industrial property, enjoy in all the other countries of the Union the advantages
that their respective laws now grant, or may hereafter grant, to nationals; all
without prejudice to the rights specially provided for by this Convention.
Consequently, they shall have the same protection as the latter, and the same
legal remedy against any infringement of their rights, provided that the conditions
and formalities imposed upon national are complied with.

(2) However, no requirement as to domicile or establishment in the country where

protection is claimed may be imposed upon nationals of countries of the Union for
the enjoyment of any industrial property rights.

xxx xxx xxx

(Emphasis supplied)
Article 2, paragraph 1 of the Paris Convention embodies the principle of "national treatment" or
"assimilation with nationals," one of the basic rules of the Convention. 19 Under Article 2,
paragraph 1 of the Paris Convention, nationals of Canada, Switzerland and the United States
who are all countries of the Paris Union are entitled to enjoy in the Philippines, also a country of
the Union, the advantages and protections which Philippine law grants to Philippine nationals.
Article 2 paragraph 2 of the Paris Convention restrains the Philippines from imposing a
requirement of local incorporation or establishment of a local domicile as a pre-requisite for
granting to foreign nationals the protection which nationals of the Philippines are entitled to under
Philippine law in respect of their industrial property rights. It should be noted that Article 2,
paragraph 2 also constitutes proof of compliance with the requirement of reciprocity between, on
the one hand, the Philippines and, on the other hand, Canada, Switzerland and the United States
required under Section 21-A of R.A. No. 166 as amended.

The net effect of the statutory and treaty provisions above referred to is that a corporate national
of a member country of the Paris Union is entitled to bring in Philippine courts an action for
infringement of trademarks, or for unfair competition, without necessity for obtaining registration
or a license to do business in the Philippines. Article 2 as quoted above is in effect with respect
to all four (4) countries.

Such has been the rule in our jurisdiction even before the enactment of R.A. No. 166 and before
the Philippines became a party to the Paris Convention. In Western Equipment and Supplies
Company, et al. v. Reyes, etc., et al., 20 petitioner Western Electrical Company, a U.S.
manufacturer of electrical and telephone equipment and supplies not doing business in the
Philippines, commenced action in a Philippine court to protect its corporate name from
unauthorized use thereof by certain Philippine residents. The Philippine residents sought to
organize a Philippine corporation to be known as "Western Electrical Company" for the purpose
of manufacturing and selling electrical and telephone equipment in the Philippines. The local
residents resisted the suit by contending, inter alia, that the petitioner Western Electrical
Company had never transacted business in the Philippines and that registration of private
respondent's articles of incorporation could not in any way injure petitioner. The Supreme Court,
in rejecting this argument, stated that:

. . . a foreign corporation which has never done business in the Philippines — but
is widely and favorably known in the Philippines through the use therein of its
products bearing its corporate name and tradename has a legal right to maintain
an action in the [Philippines]. The purpose of such a suit is to protect its
reputation, corporate name and goodwill which has been established through the
natural development of its trade for a long period of years in the doing of which it
does not seek to enforce any legal or contract rights arising from or closing out of
any business which it has transacted in the Philippines. . . .21 (Emphasis supplied)

Similarly, in Asari Yoko v. Kee Boc,22 a Japanese corporation, also not engaged in any business
in the Philippines, successfully opposed an application for registration of its trademark "Race
Brand" on shirts and undershirts by a local businessman, even though the Japanese company
had not previously registered its own mark "Race Brand" in the Philippines.

Again, in General Garments Corporation v. Director of Patents and Puritan Sportswear

Corporation,23 Puritan Sportswear Corporation, an entity organized in Pennsylvania U.S.A. and
not doing business in the Philippines, filed a petition for cancellation of the mark "Puritan" which
was registered in the name of petitioner General Garments Corporation for assorted men's wear,
undershirts, briefs, shirts, sweaters and jackets. Puritan Sportswear alleged ownership and prior
use of the trademark "Puritan" in the Philippines. Petitioner General Garments, on the other
hand, contended that Puritan Sportswear, being a foreign corporation not licensed to do, and not
doing, business in the Philippines, could not maintain an action for cancellation of a trademark.
The Court, in upholding the Director of Patents' cancellation of the registration of the mark
"Puritan" in the name of General Garments, said:
 . . . .such mark should not have been registered in the first place (and
consequently may be cancelled if so required) if it consists of
or comprises a mark or tradename which so resembles a mark or tradename . . .
. previously used in the Philippines by another and not abandoned, as to be
likely, when applied to or used in connection with goods, business or services of
the applicant, to cause confusion or mistake or to deceive
purchasers. 24 (Emphasis supplied)

In Converse Rubber Corporation v. Universal Rubber Products, Inc., 25 petitioner Converse

Rubber Corporation was an American manufacturer of rubber shoes, not doing business on its
own in the Philippines and not licensed to do business in the Philippines, opposed the application
for registration of the trademark "Universal Converse and Device" to be used also in rubber
shoes and rubber slippers by private respondent Universal Rubber Products, Inc. ("Universal").
In reversing the Director of Patents and holding that Universal's application must be rejected, the
Supreme Court said:

The sales of 12 to 20 pairs a month of petitioner's rubber shoes cannot be

considered insignificant, considering that they appear to be of high expensive
quality, which not too many basketball players can afford to buy. Any sale made
by a legitimate trader from his store is a commercial act establishing trademark
rights since such sales are made in due course of business to the general public,
not only to limited individuals. It is a matter of public knowledge that all brands of
goods filter into the market, indiscriminately sold by jobbers, dealers and
merchants not necessarily with the knowledge or consent of the
manufacturer. Such actual sale of goods in the local market establishes
trademark use which serves as the basis for any action aimed at trademark pre-
emption. It is a corollary logical deduction that while Converse Rubber
Corporation is not licensed to do business in the country and is not actually doing
business here, it does not mean that its goods are not being sold here or that it
has not earned a reputation or goodwill as regards its products. The Director of
Patents was, therefore, remiss in ruling that the proofs sales presented "was
made by a single witness who had never dealt with nor had never known opposer
(petitioner) . . . without Opposer having a direct or indirect hand in the transaction
to be the basis of trademark pre-exemption. 26 (Emphasis supplied)

Three (3) other cases may be noted. The first is La Chemise Lacoste, S.A. v. Fernandez 27 La
Chemise Lacoste, S.A. although a foreign corporation not engaged in and not licensed to do
business in the Philippines, was accorded protection for its trademarks "Lacoste", "Chemise
Lacoste," and "Crocodile Device" for clothing and sporting apparel. The Court recognized that
those marks were "world famous trademarks which the Philippines, as a party to the Paris Union,
is bound to protect." Similarly, in Del Monte Corporation, et al. v. Court of Appeals, et
al., 28petitioner Del Monte Corporation was a company organized under the laws of the United
States and not engaged in business in the Philippines. Because both the Philippines and the
United States are signatories to the Convention of Paris, which grants to nationals of the parties
the rights and advantages which their own nationals enjoy for the repression of acts of
infringement and unfair competition, the Court, having found that private respondent's label was
an infringement of Del Monte's trademark, held Del Monte entitled to recover damages.

In Puma Sportschuhfabriken Rudolf Dassler, K.G. v. Intermediate appellate Court, et

al, 29 petitioner Puma was a foreign corporation existing under the laws of the Federal Republic of
Germany not registered to do business and not doing business in the Philippines, filed a
complaint for infringement of trademark and for issuance of a writ of preliminary injunction
against a local manufacturing company. Reversing the Court of Appeals, this Court held that
Puma had legal capacity to bring the suit in the Philippines under Section 21-A of R.A. No. 166
as amended and under the provisions of the Paris Convention to which both the Philippines and
the Federal Republic of Germany are parties. The Court also noted that "Puma" is an
internationally known brandname.
The relevancy of the doctrines set out in the cases above cited are conceded by my
distinguished brother Melo, J. in the majority opinion. The majority opinion, however, goes on to
say:

In other words, petitioners may have the capacity to sue for infringement
irrespective of lack of business activity in the Philippines on account of Section
21-A of the Trademark Law but the question of whether they have an exclusive
right over their symbols as to justify issuance of the controversial writ will depend
on actual use of their trademarks in the Philippines in line with Sections 2 and 2-A
of the same law. It is thus incongruous for petitioners to claim that when a foreign
corporation not licensed to do business in the Philippines files a complaint for
infringement, the entity need not be actually using its trademark in commerce in
the Philippines. Such a foreign corporation may have the personality to file a suit
for infringement but it may not necessarily be entitled to protection due to
absence of actual use of the emblem in the local market.

With great respect, certain essential qualifications must be made respecting the above
paragraph. Firstly, of the petitioners' three (3) marks here involved, two (2) of them — i.e.,
"MARK TEN" and "LARK" — were registered in the Philippines on the basis of actual use in the
Philippines, precisely in accordance with the requirements of Section 2-A and Section 5 (A) of
R.A. No. 166 as amended. The pre-registration use in commerce and trade in the Philippines for
at least two (2) months as required by the statute, is explicitly stated in the Certificates of
Registration. The very fact that the appropriate Philippine Government office issued the
Certificates of Registration necessarily gave rise to the presumption that such pre-registration
use had in fact been shown to the satisfaction of the Philippine Patent Office (now the Bureau of
Patents, Trademark and Technology Transfer ["BPTTT"]). It is important to note that respondent
Fortune has not purported to attack the validity of the trademarks "Mark Ten" and "Lark" by
pretending that no pre-registration use in commerce in the Philippines had been shown. 30

The third mark of petitioners — "MARK VII" — was registered in the Philippines on the basis of
Section 37 of R.A. No. 166 as amended, i.e., on the basis of registration in the country of origin
and under the Paris Convention. In such registration, by the express provisions of Section 37 (b)
of R.A. No. 166 as amended, prior (pre-registration) use in commerce in the Philippines
need not be alleged.

Whether the Philippine trademark was based on actual use in the Philippines (under Section 2-A)
or on registration in a foreign country of origin (under Section 37), the statute appears to require
that trademarks (at least trademarks not shown to be internationally "well-known") must continue
to be used in trade and commerce in the Philippines. It is, however, essential to point out that
such continued use, as a requirement for the continued right to the exclusive use of the
registered trademark, is presumed so long as the Certificate of Registration remains outstanding
and so long as the registered trademark owner complies with the requirements of Section 12 of
R.A. No. 166 as amended of filing affidavits with the BPTTT on the 5th, 10th and 15th
anniversaries of the date of issuance of the Certificate of Registration, showing that the
trademark is still in use or showing that its non-use is not due to any intention to abandon the
same. In the case at bar, again, respondent Fortune has not explicitly pretended that the
petitioners' trademarks have been abandoned by non-use in trade and commerce in the
Philippines although it appears to insinuate such non-use and abandonment by stressing that
petitioners are not doing business in the Philippines.

That petitioners are not doing business and are not licensed to do business in the Philippines,
does not by any means mean either that petitioners have not complied with the requirements of
Section 12 of R.A. No. 166 relating to affidavits of continued use, or that petitioners' trademarks
are not in fact used in trade and commerce in the Philippines. In the Converse case, as earlier
noted, the Court held that the circumstance that the foreign owner of a Philippine trademark is
not licensed to do business and is not doing business in the Philippines, does not mean that
petitioner's goods (that is, goods bearing petitioner's trademark) are not sold in the Philippines.
For cigarettes bearing petitioners' trademarks may in fact be imported into and be available for
sale in the Philippines through the acts of importers or distributors. Petitioners have stated that
their "Mark VII," "Mark Ten" and "Lark" cigarettes are in fact brought into the country and
available for sale here in, e.g., duty-free shops, though not imported into or sold in the
Philippines by petitioners themselves. There is no legal requirement that the foreign registrant
itself manufacture and sell its products here. All the statute requires is the use in trade and
commerce in the Philippines, and that can be carried out by third party manufacturers operating
under license granted by the foreign registrant or by the importation and distribution of finished
products by independent importers or traders. The "use" of the trademark in such instances by
the independent third parties constitutes use of the foreign registrant's trademarks to the benefit
of the foreign registrant. 31

III

We turn to petitioners' claim that they are suffering irreparable damage by reason of the
manufacture and sale of cigarettes under the trademark "MARK." Here again, a basic argument
of private respondent was that petitioners had not shown any damages because they are not
doing business in the Philippines. I respectfully maintain that this argument is specious and
without merit.

That petitioners are not doing business and are not licensed to do business in the Philippines,
does not necessarily mean that petitioners are not in a position to sustain, and do not in fact
sustain, damage through trademark infringement on the part of a local enterprise. 32 Such
trademark infringement by a local company may, for one thing, affect the volume of importation
into the Philippines of cigarettes bearing petitioners' trademarks by independent or third party
traders.

The damage which the petitioners claim they are sustaining by reason of the acts of private
respondents, are not limited to impact upon the volume of actual imports into the Philippines of
petitioners' cigarettes. Petitioners urge that private respondent's use of its confusingly similar
trademark "MARK" is invasive and destructive of petitioners property right in their registered
trademarks because.

a) Plaintiffs' undeniable right to the exclusive use of their registered trademarks is

effectively effaced by defendant's use of a confusingly similar trademark;

b) Plaintiffs would lose control of the reputation of their products as their

reputation will depend on defendant's commercial activities and the quality of
defendant's products;

c) The market in the Philippines for plaintiffs' products will be pre-empted;

d) Purchasers will think that defendant's goods are approved or sponsored by

plaintiff;

e) Defendant will be allowed to benefit from the reputation of the plaintiffs' goods
and trademarks;

f) Defendant will be effectively authorized to continually invade plaintiffs' property

rights, for which invasion no fair and reasonable redness can be had in a court of
law; and

g) Plaintiffs will lose their goodwill and trade and the value of their registered
trademarks will irreparably diluted and the damages to be suffered by plaintiffs
cannot be redressed fairly in terms of money. 33
Modern authorities on trademark law view trademarks as symbols which perform three (3)
distinct functions: first, they indicate origin or ownership of the articles to which they are attached;
second, they guarantee that those articles come up to a certain standard of quality; third, they
advertise the articles they symbolize. 34

The first two (2) functions have long been recognized in trademark law which characterizes the
goodwill or business reputation symbolized by a trademark as a property right protected by law.
Thus, the owner of a trademark is held entitled to exclude others from the use of the same, or of
a confusingly similar, mark where confusion results in diversion of trade or financial injury. At the
same time, trademarks warn against the imitation or faking of products and prevent the
imposition of fraud upon the public. The first two (2) functions of trademarks were aptly stressed
in e.g., the La Chemise Lacoste case where the objectives of trademark protection were
described in the following terms:

. . . to stem the tide of fake and counterfeit consumer items flooding the Philippine
market or exported abroad from our country. The greater victim is not so much
the manufacturer whose product is being faked but
the Filipino consuming public and in the case of exportations, our image abroad .
. . . We buy a kitchen appliance, a household tool, perfume, a face powder, other
toilet articles, watches, brandy or whisky, and items of clothing like jeans, T-
shirts, neckties, etc. — the list is quite lengthy — and pay good money relying on
the brand name as guarantee of its quality and genuine nature only to explode in
bitter frustration and helpless anger because the purchased item turns out to be a
shoddy imitation, albeit a clever looking counterfeit, of the quality product . . . . 35

The third or advertisement function of trademark has become of especial importance given the
modern technology of communication and transportation and the growth of international
trade. 36 Through advertisement in the broadcast and print media, the owner of the trademark is
able to establish a nexus between its trademark products and the public in regions where the
owner does not itself manufacture or sell its own products. 37 Through advertisement, a well-
established and well-earned reputation may be gained in countries where the trademark owner
has itself no established business connection. 38 Goodwill may thus be seen to be much less
closely confined territorially than, say, a hundred or fifty years ago. 39 It is no longer true that "a
trademark of itself cannot travel to markets where there is no article to wear the badge and no
trader to offer the article." 40 Advertisement of trademarks is geared towards the promotion of use
of the marked article and the attraction of potential buyers and users;41 by fixing the identity of the
marked article in the public mind, it prepares the way for growth in such commerce whether the
commerce be handled by the trademark owner itself or by its licensees or independent traders.

That a registered trademark has value in itself apart from the trade physically accompanying its
use, has been recognized by our Court. In Ang v. Teodoro,42 the Court was called upon the
determine whether there was infringement in the use of the same trademark on articles which
do not belong to the same class of goods which the lawful trademark owner manufactures and
sells. In holding that there was infringing use in such case, the Court said:

. . . . such unfair trading can cause injury or damage to the first user of a given
trade-mark, first, by prevention of the natural expansion of his business and,
second, by having his business reputation confused with and put at the mercy of
the second user. When noncompetitive products are sold under the same
mark, the gradual whittling away or dispersion of the identity and hold upon the
public mind of the mark created by its first user, inevitably result. The original
owner is entitled to the preservation of the valuable link between him and the
public that has been created by his ingenuity and the merit of his wares or
services. Experience has demonstrated that when a well-known trade-mark is
adopted by another even for a totally different class of goods, it is done to get the
benefit of the reputation and advertisements of the originator of said mark, to
convey to the public a false impression of some supposed connection between
 the manufacturer of the article sold under the original mark and the new articles
being tendered to the public under the same or similar mark . . . The owner of a
trademark or tradename has a property right in which he is entitled to protection,
since there is damage to him in the form of confusion of reputation or goodwill in
the mind of the public as well as from confusion of goods. (Emphasis supplied)

In Sta. Ana v. Maliwat,43 the Court, through J.B.L. Reyes, J., in holding that the use of the
name "Flormen" with respect to shoes was infringement of the mark "Flormann" used in
the men's wear such as shirts, polo shirts and pants, said:

Modern law recognizes that the protection to which the owner of a trade-mark is
entitled is not limited to guarding his goods or business from actual market
competition with identical or similar products of the parties, but extends to all
cases in which the use by a junior appropriator of a trade-mark or trade-name is
likely to lead to a confusing of source, as where prospective purchasers would be
misled into thinking that the complaining party has extended his business into the
field (see 148 ALR 56 et seq; 52 Am. Jur. 576) or is in any way connected with
the activities of the infringer; or when it forestalls the normal potential expansion
of his business (v. 148 ALR, 77, 84; 52 Am. Jur. 576, 577). . . .. 44 (Emphasis
supplied)

Petitioners did not try to put a peso figure on their claimed damage arising from the erosion and
possible eventual destruction of the symbolic value of their trademark. Such damage, while not
easily quantifiable, is nonetheless real and effective. I submit, with respect, that such continuing
damage falls clearly within the concept of irreparable damage or injury described in Social
Security Commission v. Bayona 45 in the following terms:

Damages are irreparable within the meaning of the rule relative to the issuance of
injunction where there is no standard by which their amount can be measured
with reasonable accuracy (Crouc v. Central Labor Council, 83 ALR, 193). "An
irreparable injury which a court of equity will enjoin includes that degree of wrong
of a repeated and continuing kind which produce hurt, inconvenience, or damage
that can be estimated only by conjecture, and not by any accurate standard of
measurement" (Phipps v. Rogue River Valley Canal Co., 7 ALR, 741). An
irreparable injury to authorize an injunction consists of a serious charge of, or is
destructive to, the property if affects, either physically or in the character in which
it has been held and enjoined, or when the property has some peculiar quality or
use, so that its pecuniary value will not fairly recompense the owner of the loss
thereof' (Dunker v. Field and Tub Club, 92 P., 502).

Respondent corporations made a lengthy discourse on the matter of irreparable

injury they may suffer if the injunction were not issued, but the array of figures
they have laid out merely succeeded in proving that the damage, if any they may
suffer, is susceptible of mathematical computation. It is not then irreparable. As
already stated, this term has a definite meaning in law. It does not have reference
to the amount of damages that may be caused but rather to the difficulty of
measuring the damages inflicted. If full compensation can be obtained by way of
damages, equity will not apply the remedy of injunction(28 Am. Jur., 244; 43
C.J.S., 427, 446). 46

I next turn to private respondent's claim that issuance of an injunction would impose heavy
damage upon itself and upon Government. As noted, private respondent stated that it had paid
many millions of pesos as ad valorem and VAT taxes to the Government in 1988 and 1989 in
connection with its "MARK" cigarettes. 47 Presumably, the total volume of its business associated
with the manufacture and sale of cigarettes trademarked "MARK" would be even larger. In
addition, private respondent suggests, albeit indirectly only, that hundreds if not thousands of its
employees would find themselves unemployed if it were restrained from the manufacture and
sale of "MARK" cigarettes.

Private respondent's claims concerning alleged damages both to itself and to the Government,
which obviously loomed very large in the mind of the majority here, and of the Court of Appeals
when it lifted the injunction it had issued, appear to me to be extravagant indeed. Petitioners
cannot claim to be entitled to an injunction which could restrain private respondent from
manufacturing and selling cigarettes completely; petitioner do not pretend to be so entitled to
such a comprehensive injunction. Petitioners seek only the reinstatement of the original
injunction issued by the Court of Appeals, i.e., one that restrains private respondent from using
the trademark "MARK" on its cigarettes. There is nothing to prevent private respondent from
continuing to manufacture and sell cigarettes under any of its already existing and registered
trademarks, of which it has several, or under some new and specially created trademark(s).
Realistically, private respondent, if enjoined, would lose only the value of the packaging material
imprinted with the same trademark (which cigarettes and material may well be amenable to re-
cycling) and the cost of past advertisements of "MARK" in media, if any. Thus, the apprehension
on the part of the majority which private respondent tried diligently to foment — that the
Government would lose many millions of pesos in tax revenues and that many employees would
lose their jobs, if an injunction is issued — is more apparent than real. The damages private
respondent would sustain from reinstatement of the preliminary injunction are clearly quantifiable
in pesos.

Besides, as pointed out by petitioners, to pay heed to private respondent's creative economic
argument would ultimately mean that the greater the volume of sales and the profits of the
infringer, the greater would be the infringer's claim to be entitled to continue infringement. I
respectfully submit that the law should not countenance such a cynical result.

My conclusion is that private respondent's claims concerning damage which it would sustain if
the petitioners were granted the injunction they seek, did not constitute a sufficient basis for
overturning the original decision of the Court of Appeals. The Resolution of the Court of Appeals
granting private respondent's Motion to Dissolve, in effect disregarded everything that Court had
set out in its original Decision. The mere offer and filing of a counterbond does not, by itself,
provide a sufficient basis for lifting the preliminary injunction earlier granted. For all the elements
which supported the original issuance of a preliminary injunction continued to exist. Private
respondent's hyperbolic claims concerning the damages that it and the Government would
sustain by reason of an injunction, had been made earlier both before the trial court and the
Court of Appeals. Finally, it is not enough to say as private respondent says, that the Court of
Appeals in granting its Motion to Dissolve the preliminary injunction was merely exercising its
discretion; for the Court of Appeals obviously was also exercising its discretion when it rendered
its original Decision granting the preliminary injunction.

I vote to grant due course to the petition for Certiorari, to set aside the Resolution of the
respondent Court of Appeals dated 14 September 1989 in C.A.-G.R. SP No. 13132 and to
reinstate the Decision of that same Court dated 5 May 1989.

# Footnotes

1 Then presided over by Judge Pastor P. Reyes.

2 Court of Appeals Decision, Rollo, p. 137.

3 Rollo, p. 339.

4 Id., p. 73.

5 Id., p. 88.
6 With the concurrence of Nocon and G.C. Paras, JJ.

7 Rollo, p. 165.

8 Note 3.

9 Rollo, pp. 166-167.

10 Rollo, pp. 53-54.

11 Id. pp. 25-26.

12 154 SCRA 723 (1987).

13 154 SCRA at 728-729.

14 Certification, dated 8 August 1986, Annex "I" of the Petition, Rollo, p. 74.

15 Certification dated 30 January 1984, issued by Cesar C. San Diego, Director

of Patents, certifying that as of that date, private respondent's "Application Serial
No. 44008 for the registration of trademark "MARK" and design filed on 13
February 1981 was still pending appropriate action." (Rollo, p.—).

16 This certification is quoted in the order dated 5 April 1984 of Judge

Reyes; Rollo, p. 348.

17 Section 4 (d) of R.A. No. 166, as amended, specifies the kinds of trademarks,
tradenames or service marks which cannot be registered on the Principal
Register:

(d) consists of or comprises a mark or tradename which so resembles mark or

tradename registered in the Philippines or a mark or tradename previously used
in the Philippines by another and not abandoned, as to be likely, when applied to
or used in connection with the goods or services of the applicant to cause
confusion or mistake or to deceive purchasers; . . . .

18 The Paris Convention was concurred in by the Senate by S.R. No. 69, May
10, 1965 and the Instrument of Ratification was signed by the President on
October 11, 1965; List of Treaties and Other International Agreements of the
Republic of the Philippines, p. 1 (1966; U.P. Law Center). The adhesion of the
Philippines to the Convention became effective as of 27 September 1965;
Canada on 12 June 1925; Switzerland on 7 July 1884; and the United States on
30 May 1887.

The text of the Paris Convention and of the List of "Members-States of the
International Union for the Protection of Industrial Property (Paris Union) as in
April 1968" may be found in G.H.C. Bodenhausen, Guide to the Application of the
Paris Convention for the Protection of Industrial Property (1968).

19 G.H.C. Bodenhausen, supra, p. 27.

20 51 Phil., 115 (1927).

21 51 Phil., at.
22 1 SCRA 1 (1961).

23 41 SCRA 50 (1971).

24 41 SCRA at.

25 147 SCRA 154 (1987).

26 147 SCRA at 162.

27 129 SCRA 373 (1984).

28 181 SCRA 410 (1990).

29 158 SCRA 233 (1988).

30 Such an attack was apparently made in Pag-Asa Industrial Corporation v.

Court of Appeals, 118 SCRA 526(1982) which the majority opinion cites.

31 Accordingly, the importer or distributor does not acquire ownership of the

trademark on the goods imported or distributed; e.g., Gabriel v. Perez, 55 SCRA
406 (1974); Unno Commercial Enterprises v. General Milling Corporation, 120
SCRA 804 (1983); Marvex Commercial Co., Inc. v. Petra Hawpia and Co., 18
SCRA 1178 (1966); Operators, Inc. v. Director of Patents, 15 SCRA 147 (1965).

32 See generally, Western Equipment and Supply Co. v. Reyes, 51 SCRA 115
(1927); Asari Yoko Co. v. Kee Boc, 1 S 1 a(1961); General Garments v. Director
of Patents, 41 SCRA 50 (1971); La Chemise Lacoste, S.A. v. Fernandez, 129
SCRA 373 (1984); Converse Rubber Corporation v. Universal Rubber Products,
147 SCRA 154 (1987).

33 Petitioners' Second Motion for Issuance of Preliminary Injunction, filed with the
trial court; Rollo, p. 88. See also the Petition for Certiorari filed with the Supreme
Court, Rollo, p. 16.

34 See 2 Callman, Unfair Competition and Trade Marks (1945), p. 804. See also
Grass, "Territorial Scope of Trademark Rights," 44 U Miami L. Rev. 1075 (1990).

35 La Chemise Lacoste, 129 SCRA at 403.

36 See Schechter, "The Rational Basis of Trademark Protection," 40 Harv. L.

Rev. 813 (1927); 2 Callman, supra at 810.

37 2 Callman, supra at 811, citing Coca-Cola Company v. Brown, 60 T 2d 319.

38 See generally, 1 Nims, "Unfair Competition and Trademark, S. 35A (1947), p.

149.

39 See also 1 Nims, supra at 150.

40 See Hanover Star Milling Co. v. Metcalf, 240 U.S. 403 (1916); see
also Territorial Scope of Trademark Rights, supra at 1086.
In Hanover Star Milling Company v. Metcalf, the United States Supreme Court
realized that advertising had the potential for spreading business goodwill beyond
the areas of actual market sales. The Court alluded to the possibility that, in
certain instances, the protection of trademarks could extend beyond the zone of
actual market penetration: "Into whatever markets the use of a trademark has
extended, or its meaning has become known, there will the manufacturer or
trader whose trade is pirated by an infringing use be entitled to protection and
redress."

41 See 2 Callman, supra at 811.

42 74 Phil. 50 (1942).

43 24 SCRA 1018 (1968).

44 24 SCRA at 1025. In Faberge, Inc. v. Intermediate Appellate Court (G.R. No.

71189, 4 November 1992), a Third Division Decision, the Court held that the use
of the trademark "Brute" for men's briefs, was not an infringement of the mark
"Brut 33 and Device" for anti-perpirants, personal deodorant, shaving cream, after
shave-shower lotion, hair spray and hair shampoo. This case turned on
interpretation of Section 20 R.A. No. 166 as amended, which appeared to limit
the exclusive right of the senior user to the goods specified in its Certificate of
Registration. Faberge does not, as I read it, deny the existence of categories or
damage or injury in trademark cases which transcend the quantifiable loss of
volume of commercial sales. Moreover, the case at bar involves competing goods
of one and the same class, i.e. cigarettes.

45 5 SCRA 126 (1962). See further Phil. Virginia Tobacco Adm. v. De los
Angeles, 164 SCRA 543 (1988); Yu v. Court of Appeals, G.R. No. 86683, 21
January 1993; Golding v. Balatbat, 36 Phil. 941 (1917); Liongson v. Martinez, 36
Phil. 948 (1917).

46 5 SCRA at 130-131.

47 See Certification, dated 11 August 1989, issued by Mr. Melchor Banares,

Assistant BIR Commissioner, being Annex "A" to private respondent's
"Supplemental Motion to Lift Writ of Preliminary Injunction with Offer of
Counterbond" filed with the Court of Appeals; Rollo p. 221.
G.R. No. 139465 January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25,
and MARK B. JIMENEZ, respondents.

MELO, J.:

The individual citizen is but a speck of particle or molecule vis-à-vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to
decide whether to uphold a citizen's basic due process rights, or the government's ironclad duties
under a treaty. The bugle sounds and this Court must once again act as the faithful guardian of
the fundamental writ.

The petition at our doorstep is cast against the following factual backdrop:

On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution;
the mutual concern for the suppression of crime both in the state where it was committed and the
state where the criminal may have escaped; the extradition treaty with the Republic of Indonesia
and the intention of the Philippines to enter into similar treaties with other interested countries;
and the need for rules to guide the executive department and the courts in the proper
implementation of said treaties.

On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between
the Government of the Republic of the Philippines and the Government of the United States of
America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of
Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed
its concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State).

On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs
U.S. Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the following provisions of the United
States Code (USC):

A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2]
counts; Maximum Penalty — 5 years on each count);
 B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty — 5
years on each count);

C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty —
5 years on each count);

D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty — 5 years
on each count);

E) 2 USC 441f (Election contributions in name of another; thirty-three [33] counts;

Maximum Penalty — less than one year).

(p. 14, Rollo.)

On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not attached to the
request and that there are some other matters that needed to be addressed" (p. 15, Rollo).

Pending evaluation of the aforestated extradition documents, private respondent, through

counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official
extradition request from the U.S. Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested that the proceedings
on the matter be held in abeyance in the meantime.

Later, private respondent requested that preliminary, he be given at least a copy of, or access to,
the request of the United States Government, and after receiving a copy of the Diplomatic Note,
a period of time to amplify on his request.

In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests
for the following reasons:

1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by this
Department of the sufficiency of the extradition documents submitted in accordance with
the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition
Treaty between the Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents submitted shall
be received and admitted as evidence. Evidentiary requirements under our domestic law
are also set forth in Section 4 of P.D. No. 1069.

Evaluation by this Department of the aforementioned documents is not a preliminary

investigation nor akin to preliminary investigation of criminal cases. We merely determine
whether the procedures and requirements under the relevant law and treaty have been
complied with by the Requesting Government. The constitutionally guaranteed rights of
the accused in all criminal prosecutions are therefore not available.

It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request for
ample time to evaluate said documents.
 2. The formal request for extradition of the United States contains grand jury information
and documents obtained through grand jury process covered by strict secrecy rules
under United States law. The United States had to secure orders from the concerned
District Courts authorizing the United States to disclose certain grand jury information to
Philippine government and law enforcement personnel for the purpose of extradition of
Mr. Jimenez. Any further disclosure of the said information is not authorized by the
United States District Courts. In this particular extradition request the United States
Government requested the Philippine Government to prevent unauthorized disclosure of
the subject information. This Department's denial of your request is consistent with Article
7 of the RP-US Extradition Treaty which provides that the Philippine Government must
represent the interests of the United States in any proceedings arising out of a request
for extradition. The Department of Justice under P.D. No. 1069 is the counsel of the
foreign governments in all extradition requests.

3. This Department is not in a position to hold in abeyance proceedings in connection

with an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to
which we are a party provides that "[E]very treaty in force is binding upon the parties to it
and must be performed by them in good faith". Extradition is a tool of criminal law
enforcement and to be effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.

(pp. 77-78, Rollo.)

Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to comment on, or
oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari(to set aside herein petitioner's letter dated July 13, 1999); and prohibition
(to restrain petitioner from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ of preliminary injunction
(pp. 104-105, Rollo).

The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.

After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared
in his own behalf, moved that he be given ample time to file a memorandum, but the same was
denied.

On August 10, 1999, respondent judge issued an order dated the previous day, disposing:

WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of
Justice, the Secretary of Foreign Affairs and the Director of the National Bureau of
Investigation, their agents and/or representatives to maintain the status quo by refraining
from committing the acts complained of; from conducting further proceedings in
connection with the request of the United States Government for the extradition of the
petitioner; from filing the corresponding Petition with a Regional Trial court; and from
performing any act directed to the extradition of the petitioner to the United States, for a
period of twenty (20) days from service on respondents of this Order, pursuant to Section
5, Rule 58 of the 1997 Rules of Court.
 The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
o'clock in the morning. The respondents are, likewise, ordered to file their written
comment and/or opposition to the issuance of a Preliminary Injunction on or before said
date.

SO ORDERED.

(pp. 110-111, Rollo.)

Forthwith, petitioner initiated the instant proceedings, arguing that:

PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR

WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN ISSUING THE TEMPORARY RESTRAINING ORDER BECAUSE:

I.

BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS

COMPLAINED OF, I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT
ACCESS TO THE OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND
FROM DENYING PRIVATE RESPONDENT AN OPPORTUNITY TO FILE A COMMENT
ON, OR OPPOSITION TO, THE REQUEST, THE MAIN PRAYER FOR A WRIT
OF MANDAMUS IN THE PETITION FOR MANDAMUS, CERTIORARI AND
PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO CONSTITUTE AN
ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;

II.

PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL

DUTIES UNDER THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION
LAW;

III.

THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS

FACE, FORMALLY AND SUBSTANTIALLY DEFICIENT; AND

IV.

PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS PROTECTION AND

ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:

NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any
person or persons acting in your place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August 9, 1999 issued by public
respondent in Civil Case No. 99-94684.
 GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the
Philippines, this 17th day of August 1999.

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed,
filed their respective memoranda.

From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us
to delineate the focal point raised by the pleadings: During the evaluation stage of the extradition
proceedings, is private respondent entitled to the two basic due process rights of notice and
hearing? An affirmative answer would necessarily render the proceedings at the trial court, moot
and academic (the issues of which are substantially the same as those before us now), while a
negative resolution would call for the immediate lifting of the TRO issued by this Court dated
August 24, 1999, thus allowing petitioner to fast-track the process leading to the filing of the
extradition petition with the proper regional trial court. Corollarily, in the event that private
respondent is adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal commitments and
obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between private respondent's basic
due process rights and the provisions of the RP-US Extradition Treaty?

The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition
therein, and of the issuance of the TRO of August 17, 1999 by the trial court.

To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition
Treaty which was executed only on November 13, 1994, ushered into force the implementing
provisions of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section
2(a) thereof defines extradition as "the removal of an accused from the Philippines with the
object of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against him or the
execution of a penalty imposed on him under the penal or criminal law of the requesting state or
government." The portions of the Decree relevant to the instant case which involves a charged
and not convicted individual, are abstracted as follows:

The Extradition Request

The request is made by the Foreign Diplomat of the Requesting State, addressed to the
Secretary of Foreign Affairs, and shall be accompanied by:

1. The original or an authentic copy of the criminal charge and the warrant of arrest
issued by the authority of the Requesting State having jurisdiction over the matter, or
some other instruments having equivalent legal force;

2. A recital of the acts for which extradition is requested, with the fullest particulars as to
the name and identity of the accused, his whereabouts in the Philippines, if known, the
acts or omissions complained of, and the time and place of the commission of these acts;

3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and

4. Such other documents or information in support of the request.

 (Sec. 4. Presidential Decree No. 1069.)

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides

. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet
the requirements of this law and the relevant treaty or convention, he shall forward the
request together with the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the case.

The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?

In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:

1. Documents, statements, or other types of information which describe the identity and
probable location of the person sought;

2. A statement of the facts of the offense and the procedural history of the case;

3. A statement of the provisions of the law describing the essential elements of the
offense for which extradition is requested;

4. A statement of the provisions of law describing the punishment for the offense;

5. A statement of the provisions of the law describing any time limit on the prosecution or
the execution of punishment for the offense;

6. Documents, statements, or other types of information specified in paragraph 3 or

paragraph 4 of said Article, as applicable.

(Paragraph 2, Article 7, Presidential Decree No. 1069.)

7. Such evidence as, according to the law of the Requested State, would provide
probable cause for his arrest and committal for trial if the offense had been committed
there;

8. A copy of the warrant or order of arrest issued by a judge or other competent authority;
and

9. A copy of the charging document.

(Paragraph 3, ibid.)

The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).

In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if
the executive authority of the Requested State determines that the request is politically
motivated, or that the offense is a military offense which is not punishable under non-military
penal legislation."
 The Extradition Petition

Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request under consideration (Paragraph
[2], ibid.).

The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall, as
soon as practicable, issue an order summoning the prospective extraditee to appear and to
answer the petition on the day and hour fixed in the order. The judge may issue a warrant of
arrest if it appears that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.

The Extradition Hearing

The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and
not inconsistent with the summary nature of the proceedings, shall apply. During the hearing,
Section 8 of the Decree provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the proceedings.

Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the
petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned
appeal, except for the required 15-day period to file brief (Section 13, ibid.).

The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article 2 of
the RP-US Extradition Treaty. The trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition
Treaty).1âwphi1.nêt

With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation stage
of the extradition proceedings?

A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice
is to file the extradition petition after the request and all the supporting papers are forwarded to
him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation. Ipso facto, as expressly
provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
ministerial duty of filing the extradition papers.

However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly evaluating
the same and its accompanying documents. The statement of an assistant secretary at the
Department of Foreign Affairs that his Department, in this regard, is merely acting as a post
office, for which reason he simply forwarded the request to the Department of Justice, indicates
the magnitude of the error of the Department of Foreign Affairs in taking lightly its responsibilities.
Thereafter, the Department of Justice took it upon itself to determine the completeness of the
documents and to evaluate the same to find out whether they comply with the requirements laid
down in the Extradition Law and the RP-US Extradition Treaty. Petitioner ratiocinates in this
connection that although the Department of Justice had no obligation to evaluate the extradition
documents, the Department also had to go over them so as to be able to prepare an extradition
petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this stage where private
respondent insisted on the following; (1) the right to be furnished the request and the supporting
papers; (2) the right to be heard which consists in having a reasonable period of time to oppose
the request, and to present evidence in support of the opposition; and (3) that the evaluation
proceedings be held in abeyance pending the filing of private respondent's opposition to the
request.

The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs,
moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant
petition as its own, indirectly conveying the message that if it were to evaluate the extradition
request, it would not allow private respondent to participate in the process of evaluation.

Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it
arrived at a well-founded judgment that the request and its annexed documents satisfy the
requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a panel of attorneys. How
then could the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?

The evaluation process, just like the extradition proceedings proper, belongs to a class by itself.
It is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an
exercise of ministerial functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the extradition papers; (b)
to outrightly deny the request if on its face and on the face of the supporting documents the
crimes indicated are not extraditable; and (c) to make a determination whether or not the request
is politically motivated, or that the offense is a military one which is not punishable under non-
military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph [3], Article
3, RP-US Extradition Treaty). Hence, said process may be characterized as an investigative or
inquisitorial process in contrast to a proceeding conducted in the exercise of an administrative
body's quasi-judicial power.

In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence;
(b) determining facts based upon the evidence presented; and (c) rendering an order or decision
supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
examining or investigatory power, is one or the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its jurisdiction (Ibid., p. 27), or
to require disclosure of information by means or accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).

The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise
judicial functions and its power is limited to investigating the facts and making findings in respect
thereto. The Court laid down the test of determining whether an administrative body is exercising
judicial functions or merely investigatory functions: Adjudication signifies the exercise of power
and authority to adjudicate upon the rights and obligations of the parties before it. Hence, if the
only purpose for investigation is to evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to make a final pronouncement
affecting the parties, then there is an absence of judicial discretion and judgment.

The above description in Ruperto applies to an administrative body authorized to evaluate

extradition documents. The body has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is limited to an initial finding of whether
or not the extradition petition can be filed in court.

It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is

characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective
extraditee pending the submission of the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
shall be automatically discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is forwarded to the Requested State,
the prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is
submitted. Practically, the purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective extraditee during the
pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).

Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.

Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
essentially criminal since such technical assessment sets off or commences the procedure for,
and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78, Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we
had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed
out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at
the trial stage that had been advanced to an earlier stage in the proceedings, such as the right to
counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs.
Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).

In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily
available only in criminal prosecutions, extends to administrative proceedings which possess a
criminal or penal aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),
pointed out that the revocation of one's license as a medical practitioner, is an even greater
deprivation than forfeiture of property.

Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we
therein ruled that since the investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty.
There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine whether a proceeding is civil or
criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although it may be
civil in form; and where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.

The cases mentioned above refer to an impending threat of deprivation of one's property or
property right. No less is this true, but even more so in the case before us, involving as it does
the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected
rights, is placed second only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.

By comparison, a favorable action in an extradition request exposes a person to eventual

extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result — the arrest and imprisonment of the respondent or the
person charged. Similar to the evaluation stage of extradition proceedings, a preliminary
investigation, which may result in the filing of an information against the respondent, can possibly
lead to his arrest, and to the deprivation of his liberty.

Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken. Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post factolaw. It had
nothing to do with the denial of the right to notice, information, and hearing.

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California,
110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
with treaty commitments.

The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.

The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are informed
and impressed, the elasticity in their interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and their having been designed from
earliest time to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due
process clause "gradually ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers
to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable
principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S.
366).

Due process is comprised of two components — substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property,
and procedural due process which consists of the two basic rights of notice and hearing, as well
as the guarantee of being heard by an impartial and competent tribunal (Cruz, Constitutional
Law, 1993 Ed., pp. 102-106).

True to the mandate of the due process clause, the basic rights of notice and hearing pervade
not only in criminal and civil proceedings, but in administrative proceedings as well. Non-
observance of these rights will invalidate the proceedings. Individuals are entitled to be notified of
any pending case affecting their interests, and upon notice, they may claim the right to appear
therein and present their side and to refute the position of the opposing parties (Cruz, Phil.
Administrative Law, 1996 ed., p. 64).

In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule

112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents, and
the right to submit counter-affidavits and other supporting documents within ten days from receipt
thereof. Moreover, the respondent shall have the right to examine all other evidence submitted
by the complainant.

These twin rights may, however, be considered dispensable in certain instances, such as:

1. In proceeding where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local Government Code, B.P.
Blg. 337), the padlocking of filthy restaurants or theaters showing obscene movies or like
establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;

2. Where there is tentativeness of administrative action, that is, where the respondent is
not precluded from enjoying the right to notice and hearing at a later time without
prejudice to the person affected, such as the summary distraint and levy of the property
of a delinquent taxpayer, and the replacement of a temporary appointee; and

3. Where the twin rights have previously been offered but the right to exercise them had
not been claimed.

Applying the above principles to the case at bar, the query may be asked: Does the evaluation
stage of the extradition proceedings fall under any of the described situations mentioned above?

Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.

American jurisprudence distinguishes between interstate rendition or extradition which is based

on the Extradition Clause in the U.S. Constitution (Art. IV, §2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have been charged with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the elements or jurisdictional
facts essential to the extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission of the crime or that
prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S.
406-407). The extradition documents are then filed with the governor of the asylum state, and
must contain such papers and documents prescribed by statute, which essentially include a copy
of the instrument charging the person demanded with a crime, such as an indictment or an
affidavit made before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in order to confer
jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A
statutory provision requiring duplicate copies of the indictment, information, affidavit, or judgment
of conviction or sentence and other instruments accompanying the demand or requisitions be
furnished and delivered to the fugitive or his attorney is directory. However, the right being such a
basic one has been held to be a right mandatory on demand (Ibid., p. 410, citing Ex parte Moore,
256 S.W. 2d 103, 158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d 853).

In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the alleged
offender, and the designation of the particular officer having authority to act in behalf of the
demanding nation (31A Am Jur 2d 815).

In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing
the U.S. extradition procedures and principles, which are basically governed by a combination of
treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:

1. All requests for extradition are transmitted through the diplomatic channel. In urgent
cases, requests for the provincial arrest of an individual may be made directly by the
Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for extradition is transmitted subsequently
through the diplomatic channel.

2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect,
that under Article 17 thereof the parties provide reciprocal legal representation in
extradition proceedings, that the offenses are covered as extraditable offenses under
Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.

3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. §3184). Said judge or magistrate is authorized to hold
a hearing to consider the evidence offered in support of the extradition request (Ibid.)

4. At the hearing, the court must determine whether the person arrested is extraditable to
the foreign country. The court must also determine that (a) it has jurisdiction over the
defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for
offenses for which the applicable treaty permits extradition; and (c) there is probable
cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.)
 5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing treaty
in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of
American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial
of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]

6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies the
person's extraditability. The court then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18 U.S.C. §3186).

7. The subject of an extradition request may not litigate questions concerning the motives
of the requesting government in seeking his extradition. However, a person facing
extradition may present whatever information he deems relevant to the Secretary of
State, who makes the final determination whether to surrender an individual to the foreign
government concerned.

From the foregoing, it may be observed that in the United States, extradition begins and ends
with one entity — the Department of State — which has the power to evaluate the request and
the extradition documents in the beginning, and, in the person of the Secretary of State, the
power to act or not to act on the court's determination of extraditability. In the Philippine setting, it
is the Department of Foreign Affairs which should make the initial evaluation of the request, and
having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the request
to the Department of Justice for the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over the
request to the Department of Justice which has taken over the task of evaluating the request as
well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for extradition.

Private respondent asks what prejudice will be caused to the U.S. Government should the
person sought to be extradited be given due process rights by the Philippines in the evaluation
stage. He emphasizes that petitioner's primary concern is the possible delay in the evaluation
process.

We agree with private respondent's citation of an American Supreme Court ruling:

The establishment of prompt efficacious procedures to achieve legitimate state ends is a

proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly
say of the Bill of Rights in general, and the Due Process Clause, in particular, that they
were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.

(Stanley vs. Illinois, 404 U.S. 645, 656)

The United States, no doubt, shares the same interest as the Philippine Government that no right
— that of liberty — secured not only by the Bills of Rights of the Philippines Constitution but of
the United States as well, is sacrificed at the altar of expediency.

(pp. 40-41, Private Respondent's Memorandum.)

In the Philippine context, this Court's ruling is invoked:

 One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there
be a valid objective; it is also necessary that the means employed to pursue it be in
keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the
nation who would deny him that right (Association of Small Landowners in the
Philippines, Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).

There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always
clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the
basic principles inherent in "ordered liberty."

Is there really an urgent need for immediate action at the evaluation stage? At that point, there is
no extraditee yet in the strict sense of the word. Extradition may or may not occur. In interstate
extradition, the governor of the asylum state may not, in the absence of mandatory statute, be
compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the extradition
papers, he may hold that federal and statutory requirements, which are significantly jurisdictional,
have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the executive
authority of the requested state has the power to deny the behest from the requesting state.
Accordingly, if after a careful examination of the extradition documents the Secretary of Foreign
Affairs finds that the request fails to meet the requirements of the law and the treaty, he shall not
forward the request to the Department of Justice for the filing of the extradition petition since non-
compliance with the aforesaid requirements will not vest our government with jurisdiction to effect
the extradition.

In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed the
U.S. Government of certain problems in the extradition papers (such as those that are in Spanish
and without the official English translation, and those that are not properly authenticated). In fact,
petitioner even admits that consultation meetings are still supposed to take place between the
lawyers in his Department and those from the U.S. Justice Department. With the meticulous
nature of the evaluation, which cannot just be completed in an abbreviated period of time due to
its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate
and prompt action where notice and hearing can be dispensed with?

Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation procedure.
On one hand there is yet no extraditee, but ironically on the other, it results in an administrative if
adverse to the person involved, may cause his immediate incarceration. The grant of the request
shall lead to the filing of the extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after the extradition
petition is filed in court, but even during the evaluation proceeding itself by virtue of the
provisional arrest allowed under the treaty and the implementing law. The prejudice to the
"accused" is thus blatant and manifest.

Plainly, the notice and hearing requirements of administrative due process cannot be dispensed
with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of
access to official records documents. The general right guaranteed by said provision is the right
to information on matters of public concern. In its implementation, the right of access to official
records is likewise conferred. These cognate or related rights are "subject to limitations as may
be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104)
and rely on the premise that ultimately it is an informed and critical public opinion which alone
can protect the values of democratic government (Ibid.).

Petitioner argues that the matters covered by private respondent's letter-request dated July 1,
1999 do not fall under the guarantee of the foregoing provision since the matters contained in the
documents requested are not of public concern. On the other hand, private respondent argues
that the distinction between matters vested with public interest and matters which are of purely
private interest only becomes material when a third person, who is not directly affected by the
matters requested, invokes the right to information. However, if the person invoking the right is
the one directly affected thereby, his right to information becomes absolute.

The concept of matters of public concerns escapes exact definition. Strictly speaking, every act
of a public officer in the conduct of the governmental process is a matter of public concern
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This
concept embraces a broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters arouse the interest of an
ordinary citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real
party in interest is the people and any citizen has "standing".

When the individual himself is involved in official government action because said action has a
direct bearing on his life, and may either cause him some kind of deprivation or injury, he actually
invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly the right
to information on matters of public concern. As to an accused in a criminal proceeding, he
invokes Section 14, particularly the right to be informed of the nature and cause of the accusation
against him.

The right to information is implemented by the right of access to information within the control of
the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p.
337). Such information may be contained in official records, and in documents and papers
pertaining to official acts, transactions, or decisions.

In the case at bar, the papers requested by private respondent pertain to official government
action from the U.S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that the
extradition papers are matters of public concern since they may result in the extradition of a
Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done; hence
the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The extradition of a fellow
Filipino would be forthcoming.

We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondent's entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RP-
Extradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between
the treaty and the due process clause in the Constitution?

First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign relations.

The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The observance
of our country's legal duties under a treaty is also compelled by Section 2, Article II of the
Constitution which provides that "[t]he Philippines renounces war as an instrument of national
policy, adopts the generally accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with
nations." Under the doctrine of incorporation, rules of international law form part of the law of the
and land no further legislative action is needed to make such rules applicable in the domestic
sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).

The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in
observance of the observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and
municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts
(Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In
re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal law and
are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact that
international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The doctrine
of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect — a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution (Ibid.).

In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition
petition and during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is
silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.

We disagree.

In the absence of a law or principle of law, we must apply the rules of fair play. An application of
the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).

Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of
the Department of Justice Panel of Attorneys. The confidentiality argument is, however,
overturned by petitioner's revelation that everything it refuses to make available at this stage
would be obtainable during trial. The Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury information. If the information is
truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings.
Not even during trial.

A libertarian approach is thus called for under the premises.

One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the
two basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by
analogy.

Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability, does this imply that
for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety requires it"?
Petitioner's theory would also infer that bail is not available during the arrest of the prospective
extraditee when the extradition petition has already been filed in court since Presidential Decree
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution
which provides that "[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not
be impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can
petitioner validly argue that since these contraventions are by virtue of a treaty and hence
affecting foreign relations, the aforestated guarantees in the Bill of Rights could thus be
subservient thereto?

The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc.
vs. NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer
vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process refers to the method or
manner by which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils.,
283 SCRA 31 [1997]). This Court will not tolerate the least disregard of constitutional guarantees
in the enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid
objections to the Requested State's non-performance of its commitments under the Extradition
Treaty are insubstantial and should not be given paramount consideration.

How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?

Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for
the Organization of the Civil Service Commission in Accordance with Provisions of the
Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential
Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who
may be charged for Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended
by Presidential Decree No. 1707, although summary dismissals may be effected without the
necessity of a formal investigation, the minimum requirements of due process still operate. As
held in GSIS vs. Court of Appeals:

. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is
by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his defenses. . . .

(at p. 671)

Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.

In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible banishment
to a foreign land. The convergence of petitioner's favorable action on the extradition request and
the deprivation of private respondent's liberty is easily comprehensible.

We have ruled time and again that this Court's equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530
[1997]; David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the
case at bar does not even call for "justice outside legality," since private respondent's due
process rights, although not guaranteed by statute or by treaty, are protected by constitutional
guarantees. We would not be true to the organic law of the land if we choose strict construction
over guarantees against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.

Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for
lack of merit. Petitioner is ordered to furnish private respondent copies of the extradition request
and its supporting papers, and to grant him a reasonable period within which to file his comment
with supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot
and academic by this decision, the same is hereby ordered dismissed.

SO ORDERED.

Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
Kapunan, J., see separate concurring opinion.
Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.

Separate Opinions

VITUG, J., separate opinion;

The only real issue before the Court, I would take it, is whether or not private respondent can
validly ask for copies of pertinent documents while the application for extradition against him is
still undergoing process by the Executive Department.

There is, I agree with the majority, a right of access to such extradition documents conformably
with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right
to free access to information of public concern is circumscribed only by the fact that the desired
information is not among the species exempted by law from the operation of the constitutional
guaranty and that the exercise of the right conforms with such reasonable conditions as may be
prescribed by law.

There is no hornbook rule to determine whether or not an information is of public concern. The
term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters
which the public may want to know either because the subject thereof can affect their lives or
simply because it arouses concern.2

I am not convinced that there is something so viciously wrong with, as to deny, the request of
private respondent to be furnished with copies of the extradition documents.

I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he
may wish to proffer in an effort to clear himself. This right is two-pronged — substantive and
procedural due process — founded, in the first instance, on Constitutional or statutory provisions,
and in the second instance, on accepted rules of procedure.3 Substantive due process looks into
the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to
his life, liberty and property. Procedural due process — the more litigated of the two — focuses
on the rules that are established in order to ensure meaningful adjudication in the enforcement
and implementation of the law. Like "public concern," the term due process does not admit of any
restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as being
". . . compounded by history, reason, the past course of decisions, and stout confidence in the
democratic faith."4 The framers of our own Constitution, it would seem, have deliberately
intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and
resilient, adaptable to every situation calling for its application that makes it appropriate to accept
an enlarged concept of the term as and when there is a possibility that the right of an individual to
life, liberty and property might be diffused.5 Verily, whenever there is an imminent threat to the
life, liberty or property of any person in any proceeding conducted by or under the auspices of
the State, his right to due process of law, when demanded, must not be ignored.

A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the Extradition
Treaty between the Government of the Republic of the Philippines and the Government of the
United States of America provides that in case of urgency, a Contracting Party may request the
provisional arrest of the person prior to the presentation of the request for extradition. I see
implicit in this provision that even after the request for extradition is made and before a petition
for extradition is filed with the courts, the possibility of an arrest being made on the basis of a
mere evaluation by the Executive on the request for extradition by the foreign State cannot totally
be discounted.

The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the
extraditee to be furnished, upon request, with a copy of the relevant documents and to file his
comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty to
be made.

I vote to deny the petition.

KAPUNAN, J., separate concurring opinion;

I vote to dismiss the petition, both on technical and substantial grounds.

The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in
Civil Case No. 99-94684. The TRO directed respondents in said case to:

. . . maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding Petition with
the Regional Trial Court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty days from the service on
respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.1 (Emphasis ours.)

The petition itself categorically states that "(t)he issue sought to be presented and litigated here
is solely-the validity of the TRO."2

Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear
the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any
other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge
that is being challenged in the petition before us.

Since, as alleged in the petition, a copy of the TRO was served on respondents below on August
10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition
has become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3

Assuming that the present case has not become moot and academic, still, it should be dismissed
for lack of merit.

The substantive issues raised in this case are: (a) whether a person whose extradition is sought
by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution
before the Department of Justice as the request for extradition is being evaluated, or whether
due process rights maybe invoked only upon the filing of a petition for extradition before a
regional trial court; and (b) whether or not private respondent has a right of access to extradition
documents under Section 7, Article III of the 1997 Constitution.

Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the extradition
treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings. Further, he
argues that the documents sought to be furnished to private respondent only involve private
concerns, and not matters of public concern to which the people have a constitutional right to
access.

While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the
basic constitutional rights of the person sought to be extradited. A person ordered extradited is
arrested, forcibly taken from his house, separated from his family and delivered to a foreign state.
His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him — a fate
as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to have
access to the evidence against him and the right to controvert them.

While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither
does either prohibit it. The right to due process is a universal basic right which is deemed written
into our laws and treaties with foreign countries.

Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the
innocent against hasty, malicious and oppressive prosecution.

In this connection, it should be stressed that the evaluation procedure of the extradition request
and its accompanying documents by the Department of Justice cannot be characterized as a
mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities
of the Department of Justice in evaluating the extradition papers involve the exercise of
judgment. They involve a determination whether the request for extradition conforms fully to the
requirements of the extradition treaty and whether the offense is extraditable. These include,
among others, whether the offense for which extradition is requested is a political or military
offense (Article 3); whether the documents and other informations required under Article 7(2)
have been provided (Article 7); and whether the extraditable offense is punishable under the laws
of both contracting parties by deprivation of liberty for a period of more than one year (Article 2).
Consequently, to arrive at a correct judgment, the parties involved are entitled to be heard if the
requirements of due process and equal protection are to be observed.

With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of
one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The respondent
has a right of access to all of the evidence. He has the right to submit controverting evidence.
The prosecuting official who conducts the preliminary investigation is required to be neutral,
objective, and impartial in resolving the issue of probable cause. I see no reason why the same
rights may not be accorded a person sought to be extradited at the stage where the Department
of Justice evaluates whether a petition for extradition would be filed before a regional trial court. If
denied such rights, not only denial of due process rights but of equal protection may be raised.

It is suggested that after a petition for extradition is filed with a regional trial court, the person
sought to be extradited may exercise all due process rights. He may then have access to all the
records on the basis of which the request for extradition has been made. He may controvert that
evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due
process requirement.

But why must he wait until the petition for extradition is filed? As succinctly expressed, if the right
to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a time
when the deprivation can still be prevented.4 Like the filing of an information in a criminal case,
the mere filing of a petition for extradition causes immediate impairment of the liberty of the
person sought to be extradited and a substantial curtailment of other rights. His arrest may be
immediately ordered by the regional trial court. He would be compelled to face an open and
public trial. He will be constrained to seek the assistance of counsel and incur other expenses of
litigation. The public eye would be directed at him with all the concomitant intrusions to his right
to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of
liberty, invocation of due process rights can never be too early.

QUISUMBING, J., concurring opinion;

As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.

The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in
our Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty obligations to the government of
another state. This is so although we recognize treaties as a source of binding obligations under
generally accepted principles of international law incorporated in our Constitution as part of the
law of the land.

For this primordial reason, I vote to DENY the petition.

Moreover, considering that the Extradition Treaty between the USA and Philippines appears
mute on the specific issue before us, the Court — in the exercise of its judicial power to find and
state what the law is — has this rare opportunity of setting a precedent that enhances respect for
human rights and strengthens due process of law.

As both majority and dissenting colleagues in the Court will recognize, American authorities
follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to statute,
the state Executive upon demand furnishes the would be extraditee or counsel copies of
pertinent documents as well as the request for extradition; and (2) the international practice
where the Executive department need not initially grant notice and hearing at all. Rules of
reciprocity and comity, however, should not bar us from applying internationally now what
appears the more reasonable and humane procedure, that is, the interstate practice among
Americans themselves. For in this case the American people should be among the most
interested parties.

Truly, what private respondent is asking our Executive department (notice, copies of documents,
and the opportunity to protect himself at the earliest time against probable peril) does not, in my
view, violate our Extradition Treaty with the USA. His request if granted augurs well for
transparency in interstate or intergovernmental relations rather than secrecy which smacks of
medieval diplomacy and the inquisition discredited long ago.

That private respondent is a Filipino citizen is not decisive of the issue here, although it is
obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my
view, entitled to our full protection against the hazards of extradition (or deportation, similarly)
from the very start. More so because, looking at the facts adduced at the hearing and on the
record of this case, the charges against him involve or are co-mingled with, if not rooted in,
certain offenses of a political nature or motivation such as the ones involving alleged financial
contributions to a major American political party. If so, long established is the principle that
extradition could not be utilized for political offenses or politically motivated charges.

There may, of course, be other charges against private respondent in the USA. But then they
are, in my view, already tainted there with political color due to the highly charged partisan
campaign atmosphere now prevailing. That private respondent's cases will be exploited as
political fodder there is not far-fetched, hence the need here for cautious but comprehensive
deliberation on the matter at bar. For, above all, it is not only a Treaty provision we are
construing; it is about constitutional and human rights we are most concerned.

YNARES-SANTIAGO, J., concurring opinion;

I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's
right to be given what is due to him. I join in his exposition of this Court's constitutional duty to
strike the correct balance between overwhelming Government power and the protection of
individual rights where only one person is involved.

However, I am constrained to write this short concurrence if only to pose the question of why
there should be any debate at all on a plea for protection of one's liberty which, if granted, will not
result in any meaningful impediment of thwarting any state policy and objectives.

I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked
about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in
court before he may be informed of what the contracting states in an extradition treaty have
against him. There is no question that everything which respondent Jimenez now requests will be
given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed
why he may be deported from his own country.

I see no ill effects which would arise if the extradition request and supporting documents are
shown to him now, instead of later.

Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:

1. In evaluating the documents, the Department merely determines whether the

procedures and requirements under the relevant law and treaty have been complied with
by the Requesting Government. The constitutional rights of the accused in all criminal
prosecutions are, therefore, not available.

2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.

3. The petitioner cannot hold in abeyance proceedings in connection with an extradition

request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.

I respectfully submit that any apprehensions in the Court arising from a denial of the petition —
"breach of an international obligation, rupture of states relations, forfeiture of confidence, national
embarrassment, and a plethora of other equally undesirable consequences" — are more illusory
than real. Our country is not denying the extradition of a person who must be extradited. Not one
provision of the extradition treaty is violated. I cannot imagine the United States taking issue over
what, to it, would be a minor concession, perhaps a slight delay, accorded in the name of human
rights. On the other hand, the issue is fundamental in the Philippines. A citizen is invoking the
protection, in the context of a treaty obligation, of rights expressly guaranteed by the Philippine
Constitution.

Until proved to be a valid subject for extradition, a person is presumed innocent or not covered
by the sanctions of either criminal law or international treaty. At any stage where a still
prospective extraditee only seeks to know so that he can prepare and prove that he should not
be extradited, there should be no conflict over the extension to him of constitutional protections
guaranteed to aliens and citizens alike.

Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article
7 enumerates the required documents and establishes the procedures under which the
documents shall be submitted and admitted as evidence. There is no specific provision on how
that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not
even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's
rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states
of the right to know. Silence is interpreted as the exclusion of the right to a preliminary
examination or preliminary investigation provided by the laws of either one of the two states.

The right to be informed of charges which may lead to court proceedings and result in a
deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's
coercive power has already been focused. I fail to see how silence can be interpreted as
exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal
matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not
the other way around.

The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United
States Government requested the Philippine Government to prevent unauthorized disclosure of
certain information. On the other hand, petitioner declares that the United States has already
secured orders from concerned District Courts authorizing the disclosure of the same grand jury
information to the Philippine Government and its law enforcement personnel.

Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue
is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they
would have so provided in the extradition treaty. A positive provision making certain rights
unavailable cannot be implied from silence.

I cannot believe that the United States and the Philippines with identical constitutional provisions
on due process and basic rights should sustain such a myopic view in a situation where the grant
of a right would not result in any serious setbacks to criminal law enforcement.

It is obvious that any prospective extraditee wants to know if his identity as the person indicated
has been established. Considering the penchant of Asians to adopt American names when in
America, the issue of whether or not the prospective extraditee truly is the person charged in the
United States becomes a valid question. It is not only identity of the person which is involved.
The crimes must also be unmistakably identified and their essential elements clearly stated.

There are other preliminary matters in which respondent is interested. I see nothing in our laws
or in the Treaty which prohibits the prospective extraditee from knowing until after the start of trial
whether or not the extradition treaty applies to him.

Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Paño, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to
protect him from an open and extensively publicized accusation of crimes; to spare him the
trouble, expense, and anxiety of a public trial; and also to protect the state from useless and
expensive trails. Even if the purpose is only to determine whether or not the respondent is a
proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and
freedom accorded to those charged with ordinary crimes in the Philippines.

The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for
extradition must be viewed objectively and impartially without any predisposition to granting it
and, therefore, hastening the extradition process.

In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It
would incur greater delays if these are discovered only during court trial. On the other hand, if,
from respondent's participation, the evaluating official discovers a case of mistaken identity,
insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no
delays during trial. An unnecessary trial with all its complications would be avoided.

The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the
deliberate exclusion of the defendant or respondent from the proceedings. As this Court rules
in Acebedo vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from
vexatious, capricious and oppressive delays, its salutary objective being to assure that an
innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of
having his guilt (in this case, his being extradited) determined within the shortest possible time
compatible with the presentation and consideration of whatsoever legitimate defense he may
interpose."

The right to be informed and the right to a preliminary hearing are not merely for respondent.
They also serve the interests of the State. 1âwphi1.nêt
In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights of
individual respondent override the concerns of petitioner. There should be no hurried or
indifferent effort to routinely comply with all requests for extradition. I understand that this is truer
in the United States than in other countries. Proposed extraditees are given every legal
protection available from the American justice system before they are extradited. We serve under
a government of limited powers and inalienable rights. Hence, this concurrence.

PUNO, J., dissenting opinion;

If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause. But the case at bar does not involve the guilt or innocence of
an accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for an
alleged offense committed within that jurisdiction. The issues are of first impression and the
majority opinion dangerously takes us to unknown shoals in constitutional and international laws,
hence this dissenting opinion.

Extradition is a well-defined concept and is more a problem in international law. It is the "process
by which persons charged with or convicted of crime against the law of a State and found in a
foreign State are returned by the latter to the former for trial or punishment. It applies to those
who are merely charged with an offense but have not been brought to trial; to those who have
been tried and convicted and have subsequently escaped from custody; and those who have
been convicted in absentia. It does not apply to persons merely suspected of having committed
an offense but against who no charge has been laid or to a person whose presence is desired as
a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private
respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the
United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire,
radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of
election contributions in the name of another. There is an outstanding warrant of arrest against
the private respondent issued by the US District Court, Southern District of Florida.

A brief review of the history of extradition law will illumine our labor. Possibly the most
authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of
extradition into four (4) periods: "(1) ancient times to seventeenth century — a period revealing
almost exclusive concern for political and religious offenders; (2) the eighteenth century and half
of the nineteenth century — a period of treaty-making chiefly concerned with military offenders
characterizing the condition of Europe during that period; (3) from 1833 to 1948 — a period of
collective concern in suppressing common criminality; and (4) post-1948 developments which
ushered in a greater concern for protecting the human rights of persons and revealed an
awareness of the need to have international due process of law regulate international relations."2

It is also rewarding to have a good grip on the changing slopes in the landscape of extradition
during these different periods. Extradition was first practiced by the Egyptians, Chinese,
Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear.
Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical
commentators on international law thus focused their early views on the nature of the duty to
surrender an extraditee — whether the duty is legal or moral in character. Grotius and de Vattel
led the school of thought that international law imposed a legal duty called civitas maxima to
extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the so-
called duty was but an "imperfect obligation which could become enforceable only by a contract
or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law there
is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US
Supreme Court in US v. Rauscher,6held: ". . . . it is only in modern times that the nations of the
earth have imposed upon themselves the obligation of delivering up these fugitives from justice
to the states where their crimes were committed, for trial and punishment. This has been done
generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined
obligation on one country to deliver up such fugitives to another; and though such delivery was
often made it was upon the principle of comity . . ."

Then came the long and still ongoing debate on what should be the subject of international law.
The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism —
the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of
the individual against the state. Indeed, some species of human rights have already been
accorded universal recognition.7 Today, the drive to internationalize rights of women and children
is also on high gear.8 The higher rating given to human rights in the hierarchy of values
necessarily led to the re-examination of rightful place of the individual in international law. Given
the harshest eye is the moss-covered doctrine that international law deals only with States and
that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an
individual's right in international law is a near cipher. Translated in extradition law, the view that
once commanded a consensus is that since a fugitive is a mere object and not a subject of
international law, he is bereft of rights. An extraditee, so it was held, is a mere "object transported
from one state to the other as an exercise of the sovereign will of the two states involved."9 The
re-examination consigned this pernicious doctrine to the museum of ideas.10 The new thinkers of
international law then gave a significant shape to the role and rights of the individual in state-
concluded treaties and other international agreements. So it was declared by then US
Ambassador Philip C. Jessup in audible italics: "A very large part of international affairs and,
thus, of the process of international accommodation, concerns the relations between legal
persons known as states. This is necessarily so. But it is no longer novel for the particular
interest of the human being to break through the mass of interstate relationship."11 The clarion call
to re-engineer a new world order whose dominant interest would transcend the parochial
confines of national states was not unheeded. Among the world class scholars who joined the
search for the elusive ideological underpinnings of a new world order were Yale Professor Myres
McDougal and Mr. Justice Florentino Feliciano. In their seminal work. Law and Minimum World
Public Order, they suggested that the object of the new world should be "to obtain in particular
situations and in the aggregate flow of situations the outcome of a higher degree of conformity
with the security goals of preservation, deterrence, restoration, rehabilitation and reconstruction
of all societies comprising the world community."12 Needless to stress, all these prescient theses
accelerated the move to recognize certain rights of the individual in international law.

We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."13

I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the
case at bar is that a bilateral treaty — the RP-US Extradition Treaty — is the subject matter of
the litigation. In our constitutional scheme, the making of a treaty belongs to the executive and
legislative departments of our government. Between these two departments, the executive has a
greater say in the making of a treaty. Under Section 21, Article VII of our Constitution,
the President has the sole power to negotiate treaties and international agreements although to
be effective, they must be concurred in by at least two thirds of all the members of the Senate.
Section 20 of the same Article empowers the President to contract or guarantee foreign loans
with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the
President the power to appoint ambassadors, other public ministers and consuls subject to
confirmation by the Commission on Appointments. In addition, the President has the power to
deport undesirable aliens. The concentration of these powers in the person of the President is
not without a compelling consideration. 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. Beyond debate, the President is the
single most powerful official in our land for Section 1 of Article VII provides that "the executive
power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states
that "the legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives . . . except to the extent reserved to the people by
the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law." Thus, we can see that executive power is vested in the President alone whereas legislative
and judicial powers are shared and scattered. 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.14 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.

These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the extradition
documents against him and to comment thereon even while they are still at the evaluation
stage by the petitioner Secretary of Justice, an alter ego of the President. The delicate questions
of what constitutional rights and to what degree they can be claimed by an extraditee do not
admit of easy answers and have resulted in discrete approaches the world over.15 On one end of
the pole is the more liberal European approach. The European Court of Human Rights embraces
the view that an extraditee is entitled to the benefit of all relevant provisions of the European
Convention for the Protection of Human Rights and Fundamental Freedoms. It has held that ". . .
in so far as a measure of the extradition has consequences adversely affecting the enjoyment of
a convention right, it may, assuming that the consequences are not too remote, attract the
obligations of a Contracting State under the relevant convention guarantee."16 At the other end of
the pole is the more cautious approach of the various Courts of Appeal in the United States.
These courts have been more conservative in light of the principle of separation of powers and
their faith in the presumptive validity of executive decisions. By and large, they adhere to the rule
of non-inquiry under which the extraditing court refuses to examine the requesting country's
criminal justice system or consider allegations that the extraditee will be mistreated or denied a
fair trial in that country.17

The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RP-
US Extradition Treaty and our Constitution where we have to choose one over the other. Rather,
it calls for a harmonization between said treaty and our Constitution. To achieve this desirable
objective, the Court should consider whether the constitutional rights invoked by the private
respondent have truly been violated and even assuming so, whether he will be denied
fundamental fairness. It is only when their violation will destroy the respondent's right to
fundamental fairness that his constitutional claims should be given primacy.

Given this balancing approach, it is my humble submission that considering all the facts and
facets of the case, the private respondent has not proved entitlement to the right he is claiming.
The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do
not necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a
right. Also, constitutional litigations do not always involve a clear cut choice between right and
wrong. Sometimes, they involve a difficult choice between right against right. In these situations,
there is need to balance the contending rights and primacy is given to the right that will serve the
interest of the nation at that particular time. In such instances, the less compelling right is
subjected to soft restraint but without smothering its essence. Proceeding from this premise
of relativism of rights, I venture the view that even assuming arguendorespondent's weak claim,
still, the degree of denial of private respondent's rights to due process and to information is too
slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an
extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certain is
that it is not a criminal proceeding where there is an accused who claim the entire array of rights
guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no
accused and the guilt or innocence of the extraditee will not be passed upon by our executive
officials nor by the extradition judge. Hence, constitutional rights that are only relevant do
determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an
extradition proceeding is summary in nature which is untrue of criminal proceedings.18 Even
the rules of evidence are different in an extradition proceeding. Admission of evidence is less
stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the quality
but even the quantum of evidence in extradition proceeding is different. In a criminal case, an
accused can only be convicted by proof beyond reasonable doubt.20 In an extradition proceeding,
an extraditee can be ordered extradited "upon showing of the existed of a prima facie case."21 If
more need be said, the nature of an extradition decision is different from a judicial decision
whose finality cannot be changed by executive fiat. Our courts22 may hold an individual
extraditable but the ultimate decision to extradite the individual lies in the hands of the Executive.
Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that "extradition shall
not be granted if the executive authority of the Requested State determined that the request was
politically motivated, or that the offense is a military offense which is not punishable under non-
military penal legislation." In the United States, the Secretary of State exercises this ultimate
power and is conceded considerable discretion. He balances the equities of the case and the
demands of the nation's foreign relations.23 In sum, he is not straitjacketed by strict legal
considerations like an ordinary court.

The type of issue litigated in extradition proceedings which does not touch on the guilt or
innocence of the extraditee, the limited nature of the extradition proceeding, the availability of
adequate remedies in favor of the extraditee, and the traditional leeway given to the Executive in
the conduct of foreign affairs have compelled courts to put a high threshold before considering
claims of individuals that enforcement of an extradition treaty will violate their constitutional
rights. Exemplifying such approach is the Supreme Court of Canada which has adopted a highly
deferential standard that emphasizes international comity and the executive's experience in
international matters.24 It continues to deny Canada's charter protection to extraditees unless the
violation can be considered shocking to the conscience.

In the case, at bar and with due respect, the ponencia inflates with too much significance
the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to
due process and access to information must immediately be vindicated. Allegedly, respondent
Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately
furnished copies of documents accompanying the request for his extradition. Respondent's fear
of provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that
the United States authorities have not manifested any desire to request for his arrest. On the
contrary, they filed the extradition request through the regular channel and, even with the
pendency of the case at bar, they have not moved for respondent's arrest on the ground of
probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be
provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty,
in relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for
provisional arrest must be made pending receipt of the request for extradition. By filing the
request for extradition, the US authorities have implicitly decided not to move for respondent's
provisional arrest. But more important, a request for respondent's arrest does not mean he will
be the victim of an arbitrary arrest. He will be given due process before he can be arrested.
Article 9 of the treaty provides:
 PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the
person sought pending presentation of the request for extradition. A request for
provisional arrest may be transmitted through the diplomatic channel or directly between
the Philippine Department of Justice and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of a warrant of arrest or finding of

guilt or judgment of conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal request for extradition and
the supporting documents required in Article 7.

In relation to the above, Section 20 of P.D. No. 1069 provides:

Sec. 20. Provisional Arrest. — (a) In case of urgency, the requesting state may, pursuant
to the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest
of the accused from the presiding judge of the Court of First Instance of the province or
city having jurisdiction of the place, who shall issue the warrant for the provisional arrest
of the accused. The Director of the National Bureau of Investigation through the
Secretary of Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign
Affairs has not received the request for extradition and the documents mentioned in
Section 4 of this Decree, the accused shall be released from custody.

The due process protection of the private-respondent against arbitrary arrest is written in cyrillic
letters in these two (2) related provisions. It is self-evident under these provisions that a request
for provisional arrest does not mean it will be granted ipso facto. The request must comply with
certain requirements. It must be based on an "urgent" factor. This is subject to verification and
evaluation by our executive authorities. The request can be denied if not based on a real
exigency of if the supporting documents are insufficient. The protection of the respondent against
arbitrary provisional arrest does not stop on the administrative level. For even if the Director of
the National Bureau of Investigation agrees with the request for the provisional arrest of the
respondent, still he has to apply for a judicial warrant from the "presiding judge of the Court of
First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is
a judge who will issue a warrant for the provisional arrest of the respondent. The judge has
comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the . . . persons or things to be seized." The message that leaps to the eye
is that compliance with this requirements precludes any arbitrary arrest.

In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US
authorities during their evaluation stage will not subvert his right to fundamental fairness. It
should be stressed that this is not a case where the respondent will not be given an opportunity
to know the basis of the request for his extradition. In truth, and contrary to the impression of the
majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the
basis for his extradition. The time is when he is summoned by the extradition court and required
to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:

Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. — (1)

Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and
hour fixed in the order. He may issue a warrant for the immediate arrest of the accused
which may be served anywhere within the Philippines if it appears to the presiding judge
that the immediate arrest and temporary detention of the accused will best serve the
ends of justice. Upon receipt of the answer within the time fixed, the presiding judge shall
hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.

Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.

Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in balancing the clashing interests
involved in extradition treaty, national interest is more equal than the others. While lately,
humanitarian considerations are being factored in the equation, still the concept of extradition as
a national act is the guiding idea. Requesting and granting extradition remains a power and
prerogative of the national government of a State. The process still involves relations between
international personalities.25 Needless to state, a more deferential treatment should be given to
national interest than to individual interest. Our national interest in extraditing persons who have
committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D.
No. 1069, viz:

WHEREAS, the Constitution of the Philippines adopts the generally accepted principles
of international law as part of law of the land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and amity with all nations;
 WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .

The increasing incidence of international and transnational crimes, the development of new
technologies of death, and the speed and scale of improvement of communication are factors
which have virtually annihilated time and distance. They make more compelling the vindication of
national interest to insure that the punishment of criminals should not be frustrated by the
frontiers of territorial sovereignty. This overriding national interest must be upheld as against
respondent's weak constitutional claims which in no way amount to denial of fundamental
fairness.

At bottom, this case involves the respect that courts should accord to the Executive that
concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800,
the legendary John Marshall, then a congressman, has opined that the power to extradite
pursuant to a treaty rests in the executive branch as part of its power to conduct foreign
affairs.26 Courts have validated this forward-looking opinion in a catena of unbroken cases. They
defer to the judgment of the Executive on the necessities of our foreign affairs and on its view of
the requirements of international comity. The deferential attitude is dictated by the robust reality
that of the three great branches of our government, it is the Executive that is most qualified to
guide the ship of the state on the known and unknown continents of foreign relations. It is also
compelled by considerations of the principle of separation of powers for the Constitution has
clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit
that the majority decision has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our foreign affairs. The
majority should be cautions in involving this Court in the conduct of the nation's foreign relations
where the inviolable rule dictated by necessity is that the nation should speak with one voice. We
should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend the
foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes.

I vote to grant the petition.

PANGANIBAN, J., dissenting opinion;

With due respect, I dissent.

The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.

Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation
stage, whereby the executive authority of the requested state ascertains whether the extradition
request is supported by the documents and information required under the Extradition Treaty;
and (2) the extradition hearing, whereby the petition for extradition is heard before a court of
justice, which determines whether the accused should be extradited.

The instant petition refers only to the first stage. Private respondent claims that he has a right to
be notified and to be heard at this early stage. However, even the ponencia admits that neither
the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the
Philippine government, upon receipt of the request for extradition, to give copies thereof and its
supporting documents to the prospective extraditee, much less to give him an opportunity to be
heard prior to the filing of the petition in court.

Notably, international extradition proceedings in the United States do not include the grant by the
executive authority of notice and hearing to the prospective extraditee at this initial stage. It is the
judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to
consider the evidence submitted in support of the extradition request. In contrast, in interstate
rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the
request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines,
there is no similar statutory provision.

Evaluation Stage Essentially Ministerial

The evaluation stage simply involves the ascertainment by the foreign affairs secretary of
whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3,
Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts of
the offense and the procedural history of the case; provisions of the law describing the essential
elements of the offense charged and the punishment therefor; its prescriptive period; such
evidence as would provide probable cause for the arrest and the committal for trial of the fugitive;
and copies of the warrant or order of arrest and charging document. The foreign affairs secretary
also sees to it that these accompanying documents have been certified by the principal
diplomatic or consular officer of the Philippines in the United States, and that they are in English
language or have English translations. Pursuant to Article 3 of the Treaty, he also determines
whether the request is politically motivated, and whether the offense charged is a military offense
not punishable under non-military penal legislation.2

Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper
regional trial court, with a prayer that the court take the extradition request under consideration.3

When the Right to Notice and Hearing Becomes Available

According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:

No person shall be deprived of life, liberty or property without due process of law.

He claims that this right arises immediately, because of the possibility that he may be
provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:

In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.

xxx xxx xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a
provisional arrest pending the submission of the extradition request and (2) his temporary arrest
during the pendency of the extradition petition in court.4 The second instance is not in issue here,
because no petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all
times, and in enforcement does not depend solely on the discretion of the requested state. From
the wordings of the provision itself, there are at least three requisites: (1) there must be an
urgency, and (2) there is a corresponding request (3) which must be made prior to the
presentation of the request for extradition.

In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the
United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states
during the Oral Argument that he had no intention of applying for the provisional arrest of private
respondent.5 Finally, the formal request for extradition has already been made; therefore,
provisional arrest is not likely, as it should really come before the extradition request.6

Mark Jimenez Not in Jeopardy of Arrest

Under the outlined facts of this case, there is no open door for the application of Article 9,
contrary to the apprehension of private respondent. In other words, there is no actual danger that
Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that his
rights would be trampled upon, pending the filing in court of the petition for his extradition. Hence,
there is no substantial gain to be achieved in requiring the foreign affairs (or justice) secretary to
notify and hear him during the preliminary stage, which basically involves only the exercise of the
ministerial power of checking the sufficiency of the documents attached to the extradition
request.

It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is
merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the
power and the duty of the court, not the executive authority, to determine whether there is
sufficient evidence to establish probable cause that the extraditee committed the crimes
charged.8The sufficiency of the evidence of criminality is to be determined based on the laws of
the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full
opportunity before the court, in case an extradition petition will indeed be filed, to be heard on all
issues including the sufficiency of the documents supporting the extradition request.10

Private respondent insists that the United States may still request his provisional arrest at any
time. That is purely speculative. It is elementary that this Court does not declare judgments or
grant reliefs based on speculations, surmises or conjectures.

In any event, even granting that the arrest of Jimenez is sought at any time despite the
assurance of the justice secretary that no such measure will be undertaken, our local laws and
rules of procedure respecting the issuance of a warrant of arrest will govern, there being no
specific provision under the Extradition Treaty by which such warrant should issue. Therefore,
Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person
whose arrest is being sought. 1âw phi1.nêt

The right of one state to demand from another the return of an alleged fugitive from justice and
the correlative duty to surrender the fugitive to the demanding country exist only when created by
a treaty between the two countries. International law does not require the voluntary surrender of
a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a treaty
does exist, as between the Philippines and the United States, it must be presumed that the
contracting states perform their obligations under it with uberrimae fidei, treaty obligations being
essentially characterized internationally by comity and mutual respect.

The Need for Respondent Jimenez to Face Charges in the US

One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon
him. And because of the moral injury caused, he should be given the opportunity at the earliest
possible time to stop his extradition. I believe that any moral injury suffered by private respondent
had not been caused by the mere processing of the extradition request. And it will not cease
merely by granting him the opportunity to be heard by the executive authority. The concrete
charges that he has allegedly committed certain offenses already exist. These charges have
been filed in the United States and are part of public and official records there. Assuming the
existence of moral injury, the only means by which he can restore his good reputation is to prove
before the proper judicial authorities in the US that the charges against him are unfounded. Such
restoration cannot be accomplished by simply contending that the documents supporting the
request for his extradition are insufficient.

Conclusion

In the context of the factual milieu of private respondent, there is really no threat of any
deprivation of his liberty at the present stage of the extradition process. Hence, the constitutional
right to due process — particularly the right to be heard — finds no application. To grant private
respondent's request for copies of the extradition documents and for an opportunity to comment
thereon will constitute "over-due process" and unnecessarily delay the proceedings.

WHEREFORE, I vote to grant the Petition.

Footnotes

VITUG, J., separate opinion;

1
Sec. 7. The right of the people to information of public concern shall be recognized.
Access to official records, and to documents, and papers a pertaining to official acts,
transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.

2
Legaspi vs. Civil Service Commission, 150 SCRA 530; Valmonte vs. Belmonte, Jr., 170
SCRA 256.

3
Aniag, Jr. vs. Commission on Elections, 237 SCRA 424; Tupas vs. Court of Appeals,
193 SCRA 597.

4
Abraham, Henry J., Some Basic Guidelines of "Due Process of Law." The Lawyers
Review, Vol. IX, 30 April 1995, p. 1.

5
Cruz, Isagani A. Constitutional Law. 1995 Ed. pp. 94-95.

KAPUNAN, J., separate concurring opinion;

1
Annex "L," petition.

2
Petition, p. 4.
3
Edillon vs. Fernandos, 114 SCRA 153 (1982); Pangilinan vs. Zapata, 69 SCRA 334
(1976).

4
Stanley v. Illinois, 1405 U.S. 645, 647.

PUNO, J., dissenting opinion;

1
Weston, Falk, D'Amato, International Law and World Order, 2nd ed., p. 630 (1990).

2
International Extradition, United States Law and Practice, 2nd ed., p. 7 (1987).

3
The Practice of Extradition from Antiquity to Modern France and the United States: A
Brief History, 4 B.C. Int'l. & Comp. L. Rev. 39 (1981).

4
They were supported by scholars like Heineccuis, Burlamaqui, Rutherford, Schmelzing
and Kent. See Sheareer, Extradition in Internal Law, p. 24 (1971).

5
They were supported by scholars like Voet, Martons, Kuber, Leyser, Lint, Seafied,
Schmaltz, Mittermaier and Heffter. See Shearer, supra, p. 24.

6
119 US 407, 411, 7 S. Ct. 234, 236, 30 L. ed. 425 (1886).

7
See Universal Declaration of Human Rights (1948), The International Covenant on
Economic, Social and Cultural Rights (1966) and The International Covenant on Civil and
Political Rights (1966).

8
The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) otherwise known as "Bill of Rights for Women" was adopted by the UN
General Assembly in December 1979. As of November 1999, one hundred sixty seven
(167) states including the Philippines have ratified or acceded to it. See Statement of
Angela King, Special Adviser to the Secretary General of the UN on Gender Issues and
Advancement of Women, Judicial Colloquium on the Application of International Human
Rights Law at the Domestic Level, Vienna, Austria, October 27, 1999.

9
Blakesley and Lagodny, Finding armony Amidst Disagreement Over Extradition,
Jurisdiction, The Role of Human Rights and Issues of Extraterritoriality Under
International Criminal Law, Vanderbilt Journal of Transnational Law, Vol. 24, No. 1, pp.
44 (1991).

See generally Kelsen, Principles of International Law, 2nd ed., (1966); Korowicz, The
10

Problem of the International Personality of Individuals, 50 Am. J., Int'l. Law 553 (1966).

The Conquering March of an Idea, Speech before the 72nd Annual Meeting of the
11

American Bar Association, St. Louis, Mo., September 6, 1949.

See also R. Falk and S. Mendlovitz, Strategy of World Order, etc. (1996); G. Clark and
12

L. Sohn, World Peace Through World Law (1966); Bassiouni, International Extradition in
American Practice and World Public Order, 36 Tenn. L. Rev. 1 (1968).

13
Bassiouni, supra, p. 625.

14
US v. Curtiss-Wright Expert Corp., 299 US 304, 57 S Ct. 216, 81 L. ed. 255 (1936).
 Spencer, The Role of the Charter in Extradition Cases, University of Toronto L. Rev.,
15

vol. 51, pp. 62-63, (Winter, 1993).

16
Spencer, op cit., citing the decision in Soering, 11 E.H.R.R. 439 (1989).

17
Semmelman, Federal Courts, The Constitution and the Rule of Non-Inquiry in
International Extradition Proceedings, Cornell Law Rev., vol. 76, No. 5, p. 1198 (July
1991).

18
Sec. 9, P.D. No. 1069.

19
Ibid.

20
Sec. 2, Rule 133, Revised Rules of Court.

21
Sec. 10, P.D. No. 1069.

Referring to the Regional Trial Courts and the Court of Appeals whose decisions are
22

deemed final and executory. See Section 12, P.D. No. 1069.

23
Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.

24
Spencer, op cit., citing decided cases.

25
Weston, Falk and Amato, International Law and World Order, 2nd ed., p. 630 (1990).

26
Semmelman. op cit., p. 1206.

PANGANIBAN, J., dissenting opinion;

1
35 CJS § 14(1) Extradition 410. See also ponencia, p. 25.

2
See ponencia, pp. 11-12.

3
Ibid., Section 5, pars. (1) & (2), PD 1069.

4
Ponencia, p. 18.

5
TSN, p. 76.

6
See also TSN, p. 30.

7
§ 5 (2) & (3) in rel. to § 10, PD 1069. See also last par., p. 13 of ponencia.

8
18 USCS § 3184, n 58 Criminal Procedure 456; 31A Am Jur 2d § 109 Extradition 828.

9
18 USCS § 3184, n 64 Criminal Procedure 458.

10
See Wright v. Court of Appeals, 235 SCRA 341, August 15, 1994.

11
31A Am Jur 2d Extradition § 14.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-7995 May 31, 1957

LAO H. ICHONG, in his own behalf and in behalf of other alien residents, corporations and
partnerships adversely affected. by Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO SARMIENTO, City Treasurer
of Manila,respondents.

Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor Pacifico P. de Castro for respondent
Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S. Serrano for respondent City
Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.

LABRADOR, J.:

I. The case and issue, in general

This Court has before it the delicate task of passing upon the validity and constitutionality of a
legislative enactment, fundamental and far-reaching in significance. The enactment poses
questions of due process, police power and equal protection of the laws. It also poses an
important issue of fact, that is whether the conditions which the disputed law purports to remedy
really or actually exist. Admittedly springing from a deep, militant, and positive nationalistic
impulse, the law purports to protect citizen and country from the alien retailer. Through it, and
within the field of economy it regulates, Congress attempts to translate national aspirations for
economic independence and national security, rooted in the drive and urge for national survival
and welfare, into a concrete and tangible measures designed to free the national retailer from the
competing dominance of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and circumstances justify the
enactment?

II. Pertinent provisions of Republic Act No. 1180

Republic Act No. 1180 is entitled "An Act to Regulate the Retail Business." In effect it
nationalizes the retail trade business. The main provisions of the Act are: (1) a prohibition against
persons, not citizens of the Philippines, and against associations, partnerships, or corporations
the capital of which are not wholly owned by citizens of the Philippines, from engaging directly or
indirectly in the retail trade; (2) an exception from the above prohibition in favor of aliens actually
engaged in said business on May 15, 1954, who are allowed to continue to engaged therein,
unless their licenses are forfeited in accordance with the law, until their death or voluntary
retirement in case of natural persons, and for ten years after the approval of the Act or until the
expiration of term in case of juridical persons; (3) an exception therefrom in favor of citizens and
juridical entities of the United States; (4) a provision for the forfeiture of licenses (to engage in the
retail business) for violation of the laws on nationalization, control weights and measures and
labor and other laws relating to trade, commerce and industry; (5) a prohibition against the
establishment or opening by aliens actually engaged in the retail business of additional stores or
branches of retail business, (6) a provision requiring aliens actually engaged in the retail
business to present for registration with the proper authorities a verified statement concerning
their businesses, giving, among other matters, the nature of the business, their assets and
liabilities and their offices and principal offices of judicial entities; and (7) a provision allowing the
heirs of aliens now engaged in the retail business who die, to continue such business for a period
of six months for purposes of liquidation.

III. Grounds upon which petition is based-Answer thereto

Petitioner, for and in his own behalf and on behalf of other alien residents corporations and
partnerships adversely affected by the provisions of Republic Act. No. 1180, brought this action
to obtain a judicial declaration that said Act is unconstitutional, and to enjoin the Secretary of
Finance and all other persons acting under him, particularly city and municipal treasurers, from
enforcing its provisions. Petitioner attacks the constitutionality of the Act, contending that: (1) it
denies to alien residents the equal protection of the laws and deprives of their liberty and
property without due process of law ; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international and treaty obligations of the
Republic of the Philippines; (4) the provisions of the Act against the transmission by aliens of
their retail business thru hereditary succession, and those requiring 100% Filipino capitalization
for a corporation or entity to entitle it to engage in the retail business, violate the spirit of Sections
1 and 5, Article XIII and Section 8 of Article XIV of the Constitution.

In answer, the Solicitor-General and the Fiscal of the City of Manila contend that: (1) the Act was
passed in the valid exercise of the police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act has only one subject
embraced in the title; (3) no treaty or international obligations are infringed; (4) as regards
hereditary succession, only the form is affected but the value of the property is not impaired, and
the institution of inheritance is only of statutory origin.

IV. Preliminary consideration of legal principles involved

a. The police power. —

There is no question that the Act was approved in the exercise of the police power, but petitioner
claims that its exercise in this instance is attended by a violation of the constitutional
requirements of due process and equal protection of the laws. But before proceeding to the
consideration and resolution of the ultimate issue involved, it would be well to bear in mind
certain basic and fundamental, albeit preliminary, considerations in the determination of the ever
recurrent conflict between police power and the guarantees of due process and equal protection
of the laws. What is the scope of police power, and how are the due process and equal
protection clauses related to it? What is the province and power of the legislature, and what is
the function and duty of the courts? These consideration must be clearly and correctly
understood that their application to the facts of the case may be brought forth with clarity and the
issue accordingly resolved.

It has been said the police power is so far - reaching in scope, that it has become almost
impossible to limit its sweep. As it derives its existence from the very existence of the State itself,
it does not need to be expressed or defined in its scope; it is said to be co-extensive with self-
protection and survival, and as such it is the most positive and active of all governmental
processes, the most essential, insistent and illimitable. Especially is it so under a modern
democratic framework where the demands of society and of nations have multiplied to almost
unimaginable proportions; the field and scope of police power has become almost boundless,
just as the fields of public interest and public welfare have become almost all-embracing and
have transcended human foresight. Otherwise stated, as we cannot foresee the needs and
demands of public interest and welfare in this constantly changing and progressive world, so we
cannot delimit beforehand the extent or scope of police power by which and through which the
State seeks to attain or achieve interest or welfare. So it is that Constitutions do not define the
scope or extent of the police power of the State; what they do is to set forth the limitations
thereof. The most important of these are the due process clause and the equal protection clause.

b. Limitations on police power. —

The basic limitations of due process and equal protection are found in the following provisions of
our Constitution:

SECTION 1.(1) No person shall be deprived of life, liberty or property without due
process of law, nor any person be denied the equal protection of the laws. (Article III,
Phil. Constitution)

These constitutional guarantees which embody the essence of individual liberty and freedom in
democracies, are not limited to citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality. (Yick Wo vs. Hopkins, 30, L.
ed. 220, 226.)

c. The, equal protection clause. —

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit
legislation, which is limited either in the object to which it is directed or by territory within which is
to operate. It does not demand absolute equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection clause is not infringed by legislation which
applies only to those persons falling within a specified class, if it applies alike to all persons within
such class, and reasonable grounds exists for making a distinction between those who fall within
such class and those who do not. (2 Cooley, Constitutional Limitations, 824-825.)

d. The due process clause. —

The due process clause has to do with the reasonableness of legislation enacted in pursuance of
the police power. Is there public interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's purpose; is it not unreasonable,
arbitrary or oppressive? Is there sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative power? Can the aims
conceived be achieved by the means used, or is it not merely an unjustified interference with
private interest? These are the questions that we ask when the due process test is applied.

The conflict, therefore, between police power and the guarantees of due process and equal
protection of the laws is more apparent than real. Properly related, the power and the guarantees
are supposed to coexist. The balancing is the essence or, shall it be said, the indispensable
means for the attainment of legitimate aspirations of any democratic society. There can be no
absolute power, whoever exercise it, for that would be tyranny. Yet there can neither be absolute
liberty, for that would mean license and anarchy. So the State can deprive persons of life, liberty
and property, provided there is due process of law; and persons may be classified into classes
and groups, provided everyone is given the equal protection of the law. The test or standard, as
always, is reason. The police power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and means. And if distinction
and classification has been made, there must be a reasonable basis for said distinction.

e. Legislative discretion not subject to judicial review. —

Now, in this matter of equitable balancing, what is the proper place and role of the courts? It must
not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any
law promulgated in the exercise of the police power, or of the measures adopted to implement
the public policy or to achieve public interest. On the other hand, courts, although zealous
guardians of individual liberty and right, have nevertheless evinced a reluctance to interfere with
the exercise of the legislative prerogative. They have done so early where there has been a
clear, patent or palpable arbitrary and unreasonable abuse of the legislative prerogative.
Moreover, courts are not supposed to override legitimate policy, and courts never inquire into the
wisdom of the law.

V. Economic problems sought to be remedied

With the above considerations in mind, we will now proceed to delve directly into the issue
involved. If the disputed legislation were merely a regulation, as its title indicates, there would be
no question that it falls within the legitimate scope of legislative power. But it goes further and
prohibits a group of residents, the aliens, from engaging therein. The problem becomes more
complex because its subject is a common, trade or occupation, as old as society itself, which
from the immemorial has always been open to residents, irrespective of race, color or citizenship.

a. Importance of retail trade in the economy of the nation. —

In a primitive economy where families produce all that they consume and consume all that they
produce, the dealer, of course, is unknown. But as group life develops and families begin to live
in communities producing more than what they consume and needing an infinite number of
things they do not produce, the dealer comes into existence. As villages develop into big
communities and specialization in production begins, the dealer's importance is enhanced. Under
modern conditions and standards of living, in which man's needs have multiplied and diversified
to unlimited extents and proportions, the retailer comes as essential as the producer, because
thru him the infinite variety of articles, goods and needed for daily life are placed within the easy
reach of consumers. Retail dealers perform the functions of capillaries in the human body, thru
which all the needed food and supplies are ministered to members of the communities
comprising the nation.

There cannot be any question about the importance of the retailer in the life of the community.
He ministers to the resident's daily needs, food in all its increasing forms, and the various little
gadgets and things needed for home and daily life. He provides his customers around his store
with the rice or corn, the fish, the salt, the vinegar, the spices needed for the daily cooking. He
has cloths to sell, even the needle and the thread to sew them or darn the clothes that wear out.
The retailer, therefore, from the lowly peddler, the owner of a small sari-sari store, to the operator
of a department store or, a supermarket is so much a part of day-to-day existence.

b. The alien retailer's trait. —

The alien retailer must have started plying his trades in this country in the bigger centers of
population (Time there was when he was unknown in provincial towns and villages). Slowly but
gradually be invaded towns and villages; now he predominates in the cities and big centers of
population. He even pioneers, in far away nooks where the beginnings of community life appear,
ministering to the daily needs of the residents and purchasing their agricultural produce for sale
in the towns. It is an undeniable fact that in many communities the alien has replaced the native
retailer. He has shown in this trade, industry without limit, and the patience and forbearance of a
slave.

Derogatory epithets are hurled at him, but he laughs these off without murmur; insults of ill-bred
and insolent neighbors and customers are made in his face, but he heeds them not, and he
forgets and forgives. The community takes note of him, as he appears to be harmless and
extremely useful.

c. Alleged alien control and dominance. —

There is a general feeling on the part of the public, which appears to be true to fact, about the
controlling and dominant position that the alien retailer holds in the nation's economy. Food and
other essentials, clothing, almost all articles of daily life reach the residents mostly through him.
In big cities and centers of population he has acquired not only predominance, but apparent
control over distribution of almost all kinds of goods, such as lumber, hardware, textiles,
groceries, drugs, sugar, flour, garlic, and scores of other goods and articles. And were it not for
some national corporations like the Naric, the Namarco, the Facomas and the Acefa, his control
over principal foods and products would easily become full and complete.

Petitioner denies that there is alien predominance and control in the retail trade. In one breath it
is said that the fear is unfounded and the threat is imagined; in another, it is charged that the law
is merely the result of radicalism and pure and unabashed nationalism. Alienage, it is said, is not
an element of control; also so many unmanageable factors in the retail business make control
virtually impossible. The first argument which brings up an issue of fact merits serious
consideration. The others are matters of opinion within the exclusive competence of the
legislature and beyond our prerogative to pass upon and decide.

The best evidence are the statistics on the retail trade, which put down the figures in black and
white. Between the constitutional convention year (1935), when the fear of alien domination and
control of the retail trade already filled the minds of our leaders with fears and misgivings, and
the year of the enactment of the nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and control by the alien of the retail
trade, as witness the following tables:

Assets Gross Sales

Year and
No.- Per cent Per cent
Retailers Pesos Pesos
Establishments Distribution Distribution
Nationality
1941:
Filipino 106,671 200,323,138 55.82 174,181,924 51.74
..........
Chinese 15,356 118,348,692 32.98 148,813,239 44.21
...........
Others 1,646 40,187,090 11.20 13,630,239 4.05
............
1947:
Filipino 111,107 208,658,946 65.05 279,583,333 57.03
 ..........
Chinese 13,774 106,156,218 33.56 205,701,134 41.96
...........
Others 354 8,761,260 .49 4,927,168 1.01
...........
1948: (Census)
Filipino 113,631 213,342,264 67.30 467,161,667 60.51
..........
Chinese 12,087 93,155,459 29.38 294,894,227 38.20
..........
Others 422 10,514,675 3.32 9,995,402 1.29
..........
1949:
Filipino 113,659 213,451,602 60.89 462,532,901 53.47
..........
Chinese 16,248 125,223,336 35.72 392,414,875 45.36
..........
Others 486 12,056,365 3.39 10,078,364 1.17
..........
1951:
Filipino 119,352 224,053,620 61.09 466,058,052 53.07
.........
Chinese 17,429 134,325,303 36.60 404,481,384 46.06
..........
Others 347 8,614,025 2.31 7,645,327 87
..........

AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT

Item Gross
Year and Retailer's
Assets Sales
Nationality
(Pesos) (Pesos)

1941:

Filipino ............................................. 1,878 1,633

Chinese 7,707 9,691

..............................................

Others 24,415 8,281

...............................................

1947:

Filipino ............................................. 1,878 2,516

Chinese ........................................... 7,707 14,934

 Others .............................................. 24,749 13,919

1948: (Census)

Filipino ............................................. 1,878 4,111

Chinese 7,707 24,398

.............................................

Others .............................................. 24,916 23,686

1949:

Filipino ............................................. 1,878 4,069

Chinese 7,707 24,152

..............................................

Others .............................................. 24,807 20,737

1951:

Filipino ............................................. 1,877 3,905

Chinese 7,707 33,207

.............................................

Others 24,824 22,033

...............................................

(Estimated Assets and Gross Sales of Retail Establishments, By Year and Nationality of
Owners, Benchmark: 1948 Census, issued by the Bureau of Census and Statistics,
Department of Commerce and Industry; pp. 18-19 of Answer.)

The above statistics do not include corporations and partnerships, while the figures on Filipino
establishments already include mere market vendors, whose capital is necessarily small..

The above figures reveal that in percentage distribution of assests and gross sales, alien
participation has steadily increased during the years. It is true, of course, that Filipinos have the
edge in the number of retailers, but aliens more than make up for the numerical gap through their
assests and gross sales which average between six and seven times those of the very many
Filipino retailers. Numbers in retailers, here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and gains much more. The same official report,
pointing out to the known predominance of foreign elements in the retail trade, remarks that the
Filipino retailers were largely engaged in minor retailer enterprises. As observed by respondents,
the native investment is thinly spread, and the Filipino retailer is practically helpless in matters of
capital, credit, price and supply.

d. Alien control and threat, subject of apprehension in Constitutional convention. —

It is this domination and control, which we believe has been sufficiently shown to exist, that is the
legislature's target in the enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the existence of this alien dominance
and control when they approved a resolution categorically declaring among other things, that "it
is the sense of the Convention that the public interest requires the nationalization of the retail
trade; . . . ." (II Aruego, The Framing of the Philippine Constitution, 662-663, quoted on page 67
of Petitioner.) That was twenty-two years ago; and the events since then have not been either
pleasant or comforting. Dean Sinco of the University of the Philippines College of Law,
commenting on the patrimony clause of the Preamble opines that the fathers of our Constitution
were merely translating the general preoccupation of Filipinos "of the dangers from alien
interests that had already brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114); and analyzing the concern
of the members of the constitutional convention for the economic life of the citizens, in
connection with the nationalistic provisions of the Constitution, he says:

But there has been a general feeling that alien dominance over the economic life of the
country is not desirable and that if such a situation should remain, political independence
alone is no guarantee to national stability and strength. Filipino private capital is not big
enough to wrest from alien hands the control of the national economy. Moreover, it is but
of recent formation and hence, largely inexperienced, timid and hesitant. Under such
conditions, the government as the instrumentality of the national will, has to step in and
assume the initiative, if not the leadership, in the struggle for the economic freedom of
the nation in somewhat the same way that it did in the crusade for political freedom. Thus
. . . it (the Constitution) envisages an organized movement for the protection of the nation
not only against the possibilities of armed invasion but also against its economic
subjugation by alien interests in the economic field. (Phil. Political Law by Sinco, 10th ed.,
p. 476.)

Belief in the existence of alien control and predominance is felt in other quarters. Filipino
businessmen, manufacturers and producers believe so; they fear the dangers coming from alien
control, and they express sentiments of economic independence. Witness thereto is Resolution
No. 1, approved on July 18, 1953, of the Fifth National convention of Filipino Businessmen, and a
similar resolution, approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes, and fears, alien
predominance and control; so our newspapers, which have editorially pointed out not only to
control but to alien stranglehold. We, therefore, find alien domination and control to be a fact, a
reality proved by official statistics, and felt by all the sections and groups that compose the
Filipino community.

e. Dangers of alien control and dominance in retail. —

But the dangers arising from alien participation in the retail trade does not seem to lie in the
predominance alone; there is a prevailing feeling that such predominance may truly endanger the
national interest. With ample capital, unity of purpose and action and thorough organization, alien
retailers and merchants can act in such complete unison and concert on such vital matters as the
fixing of prices, the determination of the amount of goods or articles to be made available in the
market, and even the choice of the goods or articles they would or would not patronize or
distribute, that fears of dislocation of the national economy and of the complete subservience of
national economy and of the consuming public are not entirely unfounded. Nationals, producers
and consumers alike can be placed completely at their mercy. This is easily illustrated. Suppose
an article of daily use is desired to be prescribed by the aliens, because the producer or importer
does not offer them sufficient profits, or because a new competing article offers bigger profits for
its introduction. All that aliens would do is to agree to refuse to sell the first article, eliminating it
from their stocks, offering the new one as a substitute. Hence, the producers or importers of the
prescribed article, or its consumers, find the article suddenly out of the prescribed article, or its
consumers, find the article suddenly out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.

We can even go farther than theoretical illustrations to show the pernicious influences of alien
domination. Grave abuses have characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly overlook or ignore in the interests
of truth and justice, that there exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious and intolerable practices, the
mention of a few of which would suffice for our purposes; that at some time or other they have
cornered the market of essential commodities, like corn and rice, creating artificial scarcities to
justify and enhance profits to unreasonable proportions; that they have hoarded essential foods
to the inconvenience and prejudice of the consuming public, so much so that the Government
has had to establish the National Rice and Corn Corporation to save the public from their
continuous hoarding practices and tendencies; that they have violated price control laws,
especially on foods and essential commodities, such that the legislature had to enact a law (Sec.
9, Republic Act No. 1168), authorizing their immediate and automatic deportation for price control
convictions; that they have secret combinations among themselves to control prices, cheating the
operation of the law of supply and demand; that they have connived to boycott honest merchants
and traders who would not cater or yield to their demands, in unlawful restraint of freedom of
trade and enterprise. They are believed by the public to have evaded tax laws, smuggled goods
and money into and out of the land, violated import and export prohibitions, control laws and the
like, in derision and contempt of lawful authority. It is also believed that they have engaged in
corrupting public officials with fabulous bribes, indirectly causing the prevalence of graft and
corruption in the Government. As a matter of fact appeals to unscrupulous aliens have been
made both by the Government and by their own lawful diplomatic representatives, action which
impliedly admits a prevailing feeling about the existence of many of the above practices.

The circumstances above set forth create well founded fears that worse things may come in the
future. The present dominance of the alien retailer, especially in the big centers of population,
therefore, becomes a potential source of danger on occasions of war or other calamity. We do
not have here in this country isolated groups of harmless aliens retailing goods among nationals;
what we have are well organized and powerful groups that dominate the distribution of goods
and commodities in the communities and big centers of population. They owe no allegiance or
loyalty to the State, and the State cannot rely upon them in times of crisis or emergency. While
the national holds his life, his person and his property subject to the needs of his country, the
alien may even become the potential enemy of the State.

f. Law enacted in interest of national economic survival and security. —

We are fully satisfied upon a consideration of all the facts and circumstances that the disputed
law is not the product of racial hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their authorized representatives, to free
the nation from the economic situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the public, nay of the national
security itself, and indisputably falls within the scope of police power, thru which and by which the
State insures its existence and security and the supreme welfare of its citizens.

VI. The Equal Protection Limitation

a. Objections to alien participation in retail trade. — The next question that now poses solution is,
Does the law deny the equal protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien and the national as a trader.
The alien resident owes allegiance to the country of his birth or his adopted country; his stay here
is for personal convenience; he is attracted by the lure of gain and profit. His aim or purpose of
stay, we admit, is neither illegitimate nor immoral, but he is naturally lacking in that spirit of loyalty
and enthusiasm for this country where he temporarily stays and makes his living, or of that spirit
of regard, sympathy and consideration for his Filipino customers as would prevent him from
taking advantage of their weakness and exploiting them. The faster he makes his pile, the earlier
can the alien go back to his beloved country and his beloved kin and countrymen. The
experience of the country is that the alien retailer has shown such utter disregard for his
customers and the people on whom he makes his profit, that it has been found necessary to
adopt the legislation, radical as it may seem.

Another objection to the alien retailer in this country is that he never really makes a genuine
contribution to national income and wealth. He undoubtedly contributes to general distribution,
but the gains and profits he makes are not invested in industries that would help the country's
economy and increase national wealth. The alien's interest in this country being merely transient
and temporary, it would indeed be ill-advised to continue entrusting the very important function of
retail distribution to his hands.

The practices resorted to by aliens in the control of distribution, as already pointed out above,
their secret manipulations of stocks of commodities and prices, their utter disregard of the
welfare of their customers and of the ultimate happiness of the people of the nation of which they
are mere guests, which practices, manipulations and disregard do not attend the exercise of the
trade by the nationals, show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the legislative classification
adopted in the retail trade measure. These differences are certainly a valid reason for the State
to prefer the national over the alien in the retail trade. We would be doing violence to fact and
reality were we to hold that no reason or ground for a legitimate distinction can be found between
one and the other.

b. Difference in alien aims and purposes sufficient basis for distinction. —

The above objectionable characteristics of the exercise of the retail trade by the aliens, which are
actual and real, furnish sufficient grounds for legislative classification of retail traders into
nationals and aliens. Some may disagree with the wisdom of the legislature's classification. To
this we answer, that this is the prerogative of the law-making power. Since the Court finds that
the classification is actual, real and reasonable, and all persons of one class are treated alike,
and as it cannot be said that the classification is patently unreasonable and unfounded, it is in
duty bound to declare that the legislature acted within its legitimate prerogative and it can not
declare that the act transcends the limit of equal protection established by the Constitution.

Broadly speaking, the power of the legislature to make distinctions and classifications among
persons is not curtailed or denied by the equal protection of the laws clause. The legislative
power admits of a wide scope of discretion, and a law can be violative of the constitutional
limitation only when the classification is without reasonable basis. In addition to the authorities
we have earlier cited, we can also refer to the case of Linsey vs. Natural Carbonic Fas Co.
(1911), 55 L. ed., 369, which clearly and succinctly defined the application of equal protection
clause to a law sought to be voided as contrary thereto:

. . . . "1. The equal protection clause of the Fourteenth Amendment does not take from
the state the power to classify in the adoption of police laws, but admits of the exercise of
the wide scope of discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A classification having
some reasonable basis does not offend against that clause merely because it is not
made with mathematical nicety, or because in practice it results in some inequality. 3.
When the classification in such a law is called in question, if any state of facts reasonably
can be conceived that would sustain it, the existence of that state of facts at the time the
law was enacted must be assumed. 4. One who assails the classification in such a law
must carry the burden of showing that it does not rest upon any reasonable basis but is
essentially arbitrary."

c. Authorities recognizing citizenship as basis for classification. —

The question as to whether or not citizenship is a legal and valid ground for classification has
already been affirmatively decided in this jurisdiction as well as in various courts in the United
States. In the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the validity of Act No.
2761 of the Philippine Legislature was in issue, because of a condition therein limiting the
ownership of vessels engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to aliens, it was held that the
Philippine Legislature did not violate the equal protection clause of the Philippine Bill of Rights.
The legislature in enacting the law had as ultimate purpose the encouragement of Philippine
shipbuilding and the safety for these Islands from foreign interlopers. We held that this was a
valid exercise of the police power, and all presumptions are in favor of its constitutionality. In
substance, we held that the limitation of domestic ownership of vessels engaged in coastwise
trade to citizens of the Philippines does not violate the equal protection of the law and due
process or law clauses of the Philippine Bill of Rights. In rendering said decision we quoted with
approval the concurring opinion of Justice Johnson in the case of Gibbons vs. Ogden, 9 Wheat.,
I, as follows:

"Licensing acts, in fact, in legislation, are universally restraining acts; as, for example,
acts licensing gaming houses, retailers of spirituous liquors, etc. The act, in this instance,
is distinctly of that character, and forms part of an extensive system, the object of which
is to encourage American shipping, and place them on an equal footing with the shipping
of other nations. Almost every commercial nation reserves to its own subjects a
monopoly of its coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United States on this subject. It is
not to give the vessel an American character, that the license is granted; that effect has
been correctly attributed to the act of her enrollment. But it is to confer on her American
privileges, as contra distinguished from foreign; and to preserve the Government from
fraud by foreigners; in surreptitiously intruding themselves into the American commercial
marine, as well as frauds upon the revenue in the trade coastwise, that this whole system
is projected."

The rule in general is as follows:

Aliens are under no special constitutional protection which forbids a classification

otherwise justified simply because the limitation of the class falls along the lines of
nationality. That would be requiring a higher degree of protection for aliens as a class
than for similar classes than for similar classes of American citizens. Broadly speaking,
the difference in status between citizens and aliens constitutes a basis for reasonable
classification in the exercise of police power. (2 Am., Jur. 468-469.)

In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a statute on the licensing of

hawkers and peddlers, which provided that no one can obtain a license unless he is, or has
declared his intention, to become a citizen of the United States, was held valid, for the following
reason: It may seem wise to the legislature to limit the business of those who are supposed to
have regard for the welfare, good order and happiness of the community, and the court cannot
question this judgment and conclusion. In Bloomfield vs. State, 99 N. E. 309 (Ohio, 1912), a
statute which prevented certain persons, among them aliens, from engaging in the traffic of
liquors, was found not to be the result of race hatred, or in hospitality, or a deliberate purpose to
discriminate, but was based on the belief that an alien cannot be sufficiently acquainted with "our
institutions and our life as to enable him to appreciate the relation of this particular business to
our entire social fabric", and was not, therefore, invalid. In Ohio ex rel. Clarke vs. Deckebach,
274 U. S. 392, 71 L. ed. 115 (1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of licenses (pools and billiard rooms)
to aliens. It held that plainly irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances such a relation to a
legitimate object of legislation as to be made the basis of permitted classification, and that it
could not state that the legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative choice of methods for
controlling an apprehended evil. The case of State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a
parallel case to the one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington, 1922), the
business of pawn brooking was considered as having tendencies injuring public interest, and
limiting it to citizens is within the scope of police power. A similar statute denying aliens the right
to engage in auctioneering was also sustained in Wright vs. May, L.R.A., 1915 P. 151
(Minnesota, 1914). So also in Anton vs. Van Winkle, 297 F. 340 (Oregon, 1924), the court said
that aliens are judicially known to have different interests, knowledge, attitude, psychology and
loyalty, hence the prohibitions of issuance of licenses to them for the business of pawnbroker,
pool, billiard, card room, dance hall, is not an infringement of constitutional rights. In Templar vs.
Michigan State Board of Examiners, 90 N.W. 1058 (Michigan, 1902), a law prohibiting the
licensing of aliens as barbers was held void, but the reason for the decision was the court's
findings that the exercise of the business by the aliens does not in any way affect the morals, the
health, or even the convenience of the community. In Takahashi vs. Fish and Game
Commission, 92 L. ed. 1479 (1947), a California statute banning the issuance of commercial
fishing licenses to person ineligible to citizenship was held void, because the law conflicts with
Federal power over immigration, and because there is no public interest in the mere claim of
ownership of the waters and the fish in them, so there was no adequate justification for the
discrimination. It further added that the law was the outgrowth of antagonism toward the persons
of Japanese ancestry. However, two Justices dissented on the theory that fishing rights have
been treated traditionally as natural resources. In Fraser vs. McConway & Tarley Co., 82 Fed.
257 (Pennsylvania, 1897), a state law which imposed a tax on every employer of foreign-born
unnaturalized male persons over 21 years of age, was declared void because the court found
that there was no reason for the classification and the tax was an arbitrary deduction from the
daily wage of an employee.

d. Authorities contra explained. —

It is true that some decisions of the Federal court and of the State courts in the United States
hold that the distinction between aliens and citizens is not a valid ground for classification. But in
this decision the laws declared invalid were found to be either arbitrary, unreasonable or
capricious, or were the result or product of racial antagonism and hostility, and there was no
question of public interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed. 1059
(1925), the United States Supreme Court declared invalid a Philippine law making unlawful the
keeping of books of account in any language other than English, Spanish or any other local
dialect, but the main reasons for the decisions are: (1) that if Chinese were driven out of business
there would be no other system of distribution, and (2) that the Chinese would fall prey to all
kinds of fraud, because they would be deprived of their right to be advised of their business and
to direct its conduct. The real reason for the decision, therefore, is the court's belief that no public
benefit would be derived from the operations of the law and on the other hand it would deprive
Chinese of something indispensable for carrying on their business. In Yick Wo vs. Hopkins, 30 L.
ed 220 (1885) an ordinance conferring powers on officials to withhold consent in the operation of
laundries both as to persons and place, was declared invalid, but the court said that the power
granted was arbitrary, that there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive thereof was mere racial
hostility. In State vs. Montgomery, 47 A. 165 (Maine, 1900), a law prohibiting aliens to engage as
hawkers and peddlers was declared void, because the discrimination bore no reasonable and
just relation to the act in respect to which the classification was proposed.

The case at bar is radically different, and the facts make them so. As we already have said,
aliens do not naturally possess the sympathetic consideration and regard for the customers with
whom they come in daily contact, nor the patriotic desire to help bolster the nation's economy,
except in so far as it enhances their profit, nor the loyalty and allegiance which the national owes
to the land. These limitations on the qualifications of the aliens have been shown on many
occasions and instances, especially in times of crisis and emergency. We can do no better than
borrow the language of Anton vs. Van Winkle, 297 F. 340, 342, to drive home the reality and
significance of the distinction between the alien and the national, thus:

. . . . It may be judicially known, however, that alien coming into this country are without
the intimate knowledge of our laws, customs, and usages that our own people have. So it
is likewise known that certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose that the foreign born,
whose allegiance is first to their own country, and whose ideals of governmental
environment and control have been engendered and formed under entirely different
regimes and political systems, have not the same inspiration for the public weal, nor are
 they as well disposed toward the United States, as those who by citizenship, are a part of
the government itself. Further enlargement, is unnecessary. I have said enough so that
obviously it cannot be affirmed with absolute confidence that the Legislature was without
plausible reason for making the classification, and therefore appropriate discriminations
against aliens as it relates to the subject of legislation. . . . .

VII. The Due Process of Law Limitation.

a. Reasonability, the test of the limitation; determination by legislature decisive. —

We now come to due process as a limitation on the exercise of the police power. It has been
stated by the highest authority in the United States that:

. . . . And the guaranty of due process, as has often been held, demands only that the law
shall not be unreasonable, arbitrary or capricious, and that the means selected shall have
a real and substantial relation to the subject sought to be attained. . . . .

xxx xxx xxx

So far as the requirement of due process is concerned and in the absence of other
constitutional restriction a state is free to adopt whatever economic policy may
reasonably be deemed to promote public welfare, and to enforce that policy by legislation
adapted to its purpose. The courts are without authority either to declare such policy, or,
when it is declared by the legislature, to override it. If the laws passed are seen to have a
reasonable relation to a proper legislative purpose, and are neither arbitrary nor
discriminatory, the requirements of due process are satisfied, and judicial determination
to that effect renders a court functus officio. . . . (Nebbia vs. New York, 78 L. ed. 940,
950, 957.)

Another authority states the principle thus:

. . . . Too much significance cannot be given to the word "reasonable" in considering the
scope of the police power in a constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to inquire whether the
restriction it imposes on rights secured to individuals by the Bill of Rights are
unreasonable, and not whether it imposes any restrictions on such rights. . . .

xxx xxx xxx

. . . . A statute to be within this power must also be reasonable in its operation upon the
persons whom it affects, must not be for the annoyance of a particular class, and must
not be unduly oppressive. (11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)

In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:

. . . . To justify the state in thus interposing its authority in behalf of the public, it must
appear, first, that the interests of the public generally, as distinguished from those of a
particular class, require such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly oppressive upon
individuals. . . .

Prata Undertaking Co. vs. State Board of Embalming, 104 ALR, 389, 395, fixes this test of
constitutionality:
 In determining whether a given act of the Legislature, passed in the exercise of the police
power to regulate the operation of a business, is or is not constitutional, one of the first
questions to be considered by the court is whether the power as exercised has a
sufficient foundation in reason in connection with the matter involved, or is an arbitrary,
oppressive, and capricious use of that power, without substantial relation to the health,
safety, morals, comfort, and general welfare of the public.

b. Petitioner's argument considered. —

Petitioner's main argument is that retail is a common, ordinary occupation, one of those
privileges long ago recognized as essential to the orderly pursuant of happiness by free men;
that it is a gainful and honest occupation and therefore beyond the power of the legislature to
prohibit and penalized. This arguments overlooks fact and reality and rests on an incorrect
assumption and premise, i.e., that in this country where the occupation is engaged in by
petitioner, it has been so engaged by him, by the alien in an honest creditable and
unimpeachable manner, without harm or injury to the citizens and without ultimate danger to their
economic peace, tranquility and welfare. But the Legislature has found, as we have also found
and indicated, that the privilege has been so grossly abused by the alien, thru the illegitimate use
of pernicious designs and practices, that he now enjoys a monopolistic control of the occupation
and threatens a deadly stranglehold on the nation's economy endangering the national security
in times of crisis and emergency.

The real question at issue, therefore, is not that posed by petitioner, which overlooks and ignores
the facts and circumstances, but this, Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the illegitimate and pernicious form and
manner in which the aliens have heretofore engaged therein? As thus correctly stated the
answer is clear. The law in question is deemed absolutely necessary to bring about the desired
legislative objective, i.e., to free national economy from alien control and dominance. It is not
necessarily unreasonable because it affects private rights and privileges (11 Am. Jur. pp. 1080-
1081.) The test of reasonableness of a law is the appropriateness or adequacy under all
circumstances of the means adopted to carry out its purpose into effect (Id.) Judged by this test,
disputed legislation, which is not merely reasonable but actually necessary, must be considered
not to have infringed the constitutional limitation of reasonableness.

The necessity of the law in question is explained in the explanatory note that accompanied the
bill, which later was enacted into law:

This bill proposes to regulate the retail business. Its purpose is to prevent persons who
are not citizens of the Philippines from having a strangle hold upon our economic life. If
the persons who control this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our free institutions, and
who have no permanent stake in our people's welfare, we are not really the masters of
our destiny. All aspects of our life, even our national security, will be at the mercy of other
people.

In seeking to accomplish the foregoing purpose, we do not propose to deprive persons

who are not citizens of the Philippines of their means of livelihood. While this bill seeks to
take away from the hands of persons who are not citizens of the Philippines a power that
can be wielded to paralyze all aspects of our national life and endanger our national
security it respects existing rights.

The approval of this bill is necessary for our national survival.

If political independence is a legitimate aspiration of a people, then economic independence is

none the less legitimate. Freedom and liberty are not real and positive if the people are subject to
the economic control and domination of others, especially if not of their own race or country. The
removal and eradication of the shackles of foreign economic control and domination, is one of
the noblest motives that a national legislature may pursue. It is impossible to conceive that
legislation that seeks to bring it about can infringe the constitutional limitation of due process.
The attainment of a legitimate aspiration of a people can never be beyond the limits of legislative
authority.

c. Law expressly held by Constitutional Convention to be within the sphere of legislative action.
—

The framers of the Constitution could not have intended to impose the constitutional restrictions
of due process on the attainment of such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the Constitution must have
given to the legislature full authority and power to enact legislation that would promote the
supreme happiness of the people, their freedom and liberty. On the precise issue now before us,
they expressly made their voice clear; they adopted a resolution expressing their belief that the
legislation in question is within the scope of the legislative power. Thus they declared the their
Resolution:

That it is the sense of the Convention that the public interest requires the nationalization
of retail trade; but it abstain from approving the amendment introduced by the Delegate
for Manila, Mr. Araneta, and others on this matter because it is convinced that the
National Assembly is authorized to promulgate a law which limits to Filipino and
American citizens the privilege to engage in the retail trade. (11 Aruego, The Framing of
the Philippine Constitution, quoted on pages 66 and 67 of the Memorandum for the
Petitioner.)

It would do well to refer to the nationalistic tendency manifested in various provisions of the
Constitution. Thus in the preamble, a principle objective is the conservation of the patrimony of
the nation and as corollary the provision limiting to citizens of the Philippines the exploitation,
development and utilization of its natural resources. And in Section 8 of Article XIV, it is provided
that "no franchise, certificate, or any other form of authorization for the operation of the public
utility shall be granted except to citizens of the Philippines." The nationalization of the retail trade
is only a continuance of the nationalistic protective policy laid down as a primary objective of the
Constitution. Can it be said that a law imbued with the same purpose and spirit underlying many
of the provisions of the Constitution is unreasonable, invalid and unconstitutional?

The seriousness of the Legislature's concern for the plight of the nationals as manifested in the
approval of the radical measures is, therefore, fully justified. It would have been recreant to its
duties towards the country and its people would it view the sorry plight of the nationals with the
complacency and refuse or neglect to adopt a remedy commensurate with the demands of public
interest and national survival. As the repository of the sovereign power of legislation, the
Legislature was in duty bound to face the problem and meet, through adequate measures, the
danger and threat that alien domination of retail trade poses to national economy.

d. Provisions of law not unreasonable. —

A cursory study of the provisions of the law immediately reveals how tolerant, how reasonable
the Legislature has been. The law is made prospective and recognizes the right and privilege of
those already engaged in the occupation to continue therein during the rest of their lives; and
similar recognition of the right to continue is accorded associations of aliens. The right or
privilege is denied to those only upon conviction of certain offenses. In the deliberations of the
Court on this case, attention was called to the fact that the privilege should not have been denied
to children and heirs of aliens now engaged in the retail trade. Such provision would defeat the
law itself, its aims and purposes. Beside, the exercise of legislative discretion is not subject to
judicial review. It is well settled that the Court will not inquire into the motives of the Legislature,
nor pass upon general matters of legislative judgment. The Legislature is primarily the judge of
the necessity of an enactment or of any of its provisions, and every presumption is in favor of its
validity, and though the Court may hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative power. Furthermore, the test of the
validity of a law attacked as a violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not unreasonable. These principles also
answer various other arguments raised against the law, some of which are: that the law does not
promote general welfare; that thousands of aliens would be thrown out of employment; that
prices will increase because of the elimination of competition; that there is no need for the
legislation; that adequate replacement is problematical; that there may be general breakdown;
that there would be repercussions from foreigners; etc. Many of these arguments are directed
against the supposed wisdom of the law which lies solely within the legislative prerogative; they
do not import invalidity.

VIII. Alleged defect in the title of the law

A subordinate ground or reason for the alleged invalidity of the law is the claim that the title
thereof is misleading or deceptive, as it conceals the real purpose of the bill which is to
nationalize the retail business and prohibit aliens from engaging therein. The constitutional
provision which is claimed to be violated in Section 21 (1) of Article VI, which reads:

No bill which may be enacted in the law shall embrace more than one subject which shall
be expressed in the title of the bill.

What the above provision prohibits is duplicity, that is, if its title completely fails to appraise the
legislators or the public of the nature, scope and consequences of the law or its operation (I
Sutherland, Statutory Construction, Sec. 1707, p. 297.) A cursory consideration of the title and
the provisions of the bill fails to show the presence of duplicity. It is true that the term "regulate"
does not and may not readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and objectives of the law. But
"regulate" is a broader term than either prohibition or nationalization. Both of these have always
been included within the term regulation.

Under the title of an act to "regulate", the sale of intoxicating liquors, the Legislature may
prohibit the sale of intoxicating liquors. (Sweet vs. City of Wabash, 41 Ind., 7; quoted in
page 41 of Answer.)

Within the meaning of the Constitution requiring that the subject of every act of the
Legislature shall be stated in the tale, the title to regulate the sale of intoxicating liquors,
etc." sufficiently expresses the subject of an actprohibiting the sale of such liquors to
minors and to persons in the habit of getting intoxicated; such matters being properly
included within the subject of regulating the sale. (Williams vs. State, 48 Ind. 306, 308,
quoted in p. 42 of Answer.)

The word "regulate" is of broad import, and necessarily implies some degree of
restraint and prohibition of acts usually done in connection with the thing to be regulated.
While word regulate does not ordinarily convey meaning of prohibit, there is no absolute
reason why it should not have such meaning when used in delegating police power in
connection with a thing the best or only efficacious regulation of which involves
suppression. (State vs. Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)

The general rule is for the use of general terms in the title of a bill; it has also been said that the
title need not be an index to the entire contents of the law (I Sutherland, Statutory Construction,
See. 4803, p. 345.) The above rule was followed the title of the Act in question adopted the more
general term "regulate" instead of "nationalize" or "prohibit". Furthermore, the law also contains
other rules for the regulation of the retail trade which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from "regulate" to "nationalize" or
"prohibit", there would have been many provisions not falling within the scope of the title which
would have made the Act invalid. The use of the term "regulate", therefore, is in accord with the
principle governing the drafting of statutes, under which a simple or general term should be
adopted in the title, which would include all other provisions found in the body of the Act.

One purpose of the constitutional directive that the subject of a bill should be embraced in its title
is to apprise the legislators of the purposes, the nature and scope of its provisions, and prevent
the enactment into law of matters which have received the notice, action and study of the
legislators or of the public. In the case at bar it cannot be claimed that the legislators have been
appraised of the nature of the law, especially the nationalization and the prohibition provisions.
The legislators took active interest in the discussion of the law, and a great many of the persons
affected by the prohibitions in the law conducted a campaign against its approval. It cannot be
claimed, therefore, that the reasons for declaring the law invalid ever existed. The objection must
therefore, be overruled.

IX. Alleged violation of international treaties and obligations

Another subordinate argument against the validity of the law is the supposed violation thereby of
the Charter of the United Nations and of the Declaration of the Human Rights adopted by the
United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or
legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the
United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more
than a mere recommendation or a common standard of achievement for all peoples and all
nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of
Human Rights can be inferred the fact that members of the United Nations Organizations, such
as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of
the world laws against foreigners engaged in domestic trade are adopted.

The Treaty of Amity between the Republic of the Philippines and the Republic of China of April
18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is
equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other
country." But the nationals of China are not discriminating against because nationals of all other
countries, except those of the United States, who are granted special rights by the Constitution,
are all prohibited from engaging in the retail trade. But even supposing that the law infringes
upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent
law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the
scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

X. Conclusion

Resuming what we have set forth above we hold that the disputed law was enacted to remedy a
real actual threat and danger to national economy posed by alien dominance and control of the
retail business and free citizens and country from dominance and control; that the enactment
clearly falls within the scope of the police power of the State, thru which and by which it protects
its own personality and insures its security and future; that the law does not violate the equal
protection clause of the Constitution because sufficient grounds exist for the distinction between
alien and citizen in the exercise of the occupation regulated, nor the due process of law clause,
because the law is prospective in operation and recognizes the privilege of aliens already
engaged in the occupation and reasonably protects their privilege; that the wisdom and efficacy
of the law to carry out its objectives appear to us to be plainly evident — as a matter of fact it
seems not only appropriate but actually necessary — and that in any case such matter falls
within the prerogative of the Legislature, with whose power and discretion the Judicial
department of the Government may not interfere; that the provisions of the law are clearly
embraced in the title, and this suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be void for supposed conflict
with treaty obligations because no treaty has actually been entered into on the subject and the
police power may not be curtailed or surrendered by any treaty or any other conventional
agreement.

Some members of the Court are of the opinion that the radical effects of the law could have been
made less harsh in its impact on the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the time comes for them to close.
Our legal duty, however, is merely to determine if the law falls within the scope of legislative
authority and does not transcend the limitations of due process and equal protection guaranteed
in the Constitution. Remedies against the harshness of the law should be addressed to the
Legislature; they are beyond our power and jurisdiction.

The petition is hereby denied, with costs against petitioner.

Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.

Separate Opinions

PADILLA, J., concurring and dissenting:

I agree to the proposition, principle or rule that courts may not inquire into the wisdom of an the
Act passed by the Congress and duly approved by the President of the Republic. But the rule
does not preclude courts from inquiring and determining whether the Act offends against a
provision or provisions of the Constitution. I am satisfied that the Act assailed as violative of the
due process of law and the equal protection of the laws clauses of the Constitution does not
infringe upon them, insofar as it affects associations, partnership or corporations, the capital of
which is not wholly owned by the citizens of the Philippines, and aliens, who are not and have not
been engaged in the retail business. I am, however, unable to persuade myself that it does not
violate said clauses insofar as the Act applies to associations and partnerships referred to in the
Act and to aliens, who are and have heretofore been engaged in said business. When they did
engage in the retail business there was no prohibition on or against them to engage in it. They
assumed and believed in good faith they were entitled to engaged in the business. The Act
allows aliens to continue in business until their death or voluntary retirement from the business or
forfeiture of their license; and corporations, associations or partnership, the capital of which is not
wholly owned by the citizens of the Philippines to continue in the business for a period of ten
years from the date of the approval of the Act (19 June 1954) or until the expiry of term of the
existence of the association or partnership or corporation, whichever event comes first. The
prohibition on corporations, the capital of which is not wholly owned by citizens of the Philippines,
to engage in the retail business for a period of more than ten years from the date of the approval
of the Act or beyond the term of their corporate existence, whichever event comes first, is valid
and lawful, because the continuance of the existence of such corporations is subject to whatever
the Congress may impose reasonably upon them by subsequent legislation.1 But the prohibition
to engage in the retail business by associations and partnerships, the capital of which is not
wholly owned by citizen of the Philippines, after ten years from the date of the approval of the
Act, even before the end of the term of their existence as agreed upon by the associates and
partners, and by alien heirs to whom the retail business is transmitted by the death of an alien
engaged in the business, or by his executor or administrator, amounts to a deprivation of their
property without due process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence of the association and
partnership, whichever event comes first, and the six-month period granted to alien heirs of a
deceased alien, his executor or administrator, to liquidate the business, do not cure the defect of
the law, because the effect of the prohibition is to compel them to sell or dispose of their
business. The price obtainable at such forced sale of the business would be inadequate to
reimburse and compensate the associates or partners of the associations or partnership, and the
alien heirs of a deceased alien, engaged in the retail business for the capital invested in it. The
stock of merchandise bought and sold at retail does not alone constitute the business. The
goodwill that the association, partnership and the alien had built up during a long period of effort,
patience and perseverance forms part of such business. The constitutional provisions that no
person shall be deprived of his property without due process of law2 and that no person shall be
denied the equal protection of the laws3 would have no meaning as applied to associations or
partnership and alien heirs of an alien engaged in the retail business if they were to be compelled
to sell or dispose of their business within ten years from the date of the approval of the Act and
before the end of the term of the existence of the associations and partnership as agreed upon
by the associations and partners and within six months after the death of their predecessor-in-
interest.

The authors of the Constitution were vigilant, careful and zealous in the safeguard of the
ownership of private agricultural lands which together with the lands of the public domain
constitute the priceless patrimony and mainstay of the nation; yet, they did not deem it wise and
prudent to deprive aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act, insofar as it compels
associations and partnership referred to therein to wind up their retail business within ten years
from the date of the approval of the Act even before the expiry of the term of their existence as
agreed upon by the associates and partners and section 3 of the Act, insofar as it compels the
aliens engaged in the retail business in his lifetime his executor or administrator, to liquidate the
business, are invalid, for they violate the due process of law and the equal protection of the laws
clauses of the Constitution.

Footnotes

1 Section 76, Act No. 1459..

2 Section 1 (1), Article III, of the Constitution..

3 Ibid.

4 Section 5, Article XIII, of the Constitution.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21897 October 22, 1963

RAMON A. GONZALES, petitioner,

vs.
RUFINO G. HECHANOVA, as Executive Secretary, MACARIO PERALTA, JR., as Secretary
of Defense, PEDRO GIMENEZ, as Auditor General, CORNELIO BALMACEDA, as Secretary
of Commerce and Industry, and SALVADOR MARINO, Secretary of Justice, respondents.

Ramon A. Gonzales in his own behalf as petitioner.

Office of the Solicitor General and Estanislao Fernandez for respondents.

CONCEPCION, J.:

This is an original action for prohibition with preliminary injunction.

It is not disputed that on September 22, 1963, respondent Executive Secretary authorized the
importation of 67,000 tons of foreign rice to be purchased from private sources, and created a
rice procurement committee composed of the other respondents herein1 for the implementation
of said proposed importation. Thereupon, or September 25, 1963, herein petitioner, Ramon A.
Gonzales — a rice planter, and president of the Iloilo Palay and Corn Planters Association,
whose members are, likewise, engaged in the production of rice and corn — filed the petition
herein, averring that, in making or attempting to make said importation of foreign rice, the
aforementioned respondents "are acting without jurisdiction or in excess of jurisdiction", because
Republic Act No. 3452 which allegedly repeals or amends Republic Act No. 220 — explicitly
prohibits the importation of rice and corn "the Rice and Corn Administration or any other
government agency;" that petitioner has no other plain, speedy and adequate remedy in the
ordinary course of law; and that a preliminary injunction is necessary for the preservation of the
rights of the parties during the pendency this case and to prevent the judgment therein from
coming ineffectual. Petitioner prayed, therefore, that said petition be given due course; that a writ
of preliminary injunction be forthwith issued restraining respondent their agents or
representatives from implementing the decision of the Executive Secretary to import the
aforementioned foreign rice; and that, after due hearing, judgment be rendered making said
injunction permanent.

Forthwith, respondents were required to file their answer to the petition which they did, and
petitioner's pray for a writ of preliminary injunction was set for hearing at which both parties
appeared and argued orally. Moreover, a memorandum was filed, shortly thereafter, by the
respondents. Considering, later on, that the resolution said incident may require some
pronouncements that would be more appropriate in a decision on the merits of the case, the
same was set for hearing on the merits thereafter. The parties, however, waived the right to
argue orally, although counsel for respondents filed their memoranda.

I. Sufficiency of petitioner's interest.

Respondents maintain that the status of petitioner as a rice planter does not give him sufficient
interest to file the petition herein and secure the relief therein prayed for. We find no merit in this
pretense. Apart from prohibiting the importation of rice and corn "by the Rice and Corn
Administration or any other government agency". Republic Act No. 3452 declares, in Section 1
thereof, that "the policy of the Government" is to "engage in the purchase of these basic
foods directly from those tenants, farmers, growers, producers and landowners in the
Philippines who wish to dispose of their products at a price that will afford them a fair and just
return for their labor and capital investment. ... ." Pursuant to this provision, petitioner, as a
planter with a rice land of substantial proportion,2 is entitled to a chance to sell to the Government
the rice it now seeks to buy abroad. Moreover, since the purchase of said commodity will have to
be effected with public funds mainly raised by taxation, and as a rice producer and landowner
petitioner must necessarily be a taxpayer, it follows that he has sufficient personality and interest
to seek judicial assistance with a view to restraining what he believes to be an attempt to
unlawfully disburse said funds.

II. Exhaustion of administrative remedies.

Respondents assail petitioner's right to the reliefs prayed for because he "has not exhausted all
administrative remedies available to him before coming to court". We have already held,
however, that the principle requiring the previous exhaustion of administrative remedies is not
applicable where the question in dispute is purely a legal one",3 or where the controverted act is
"patently illegal" or was performed without jurisdiction or in excess of jurisdiction,4 or where the
respondent is a department secretary, whose acts as an alter-ego of the President bear the
implied or assumed approval of the latter,5 unless actually disapproved by him,6 or where there
are circumstances indicating the urgency of judicial intervention.7 The case at bar fails under
each one of the foregoing exceptions to the general rule. Respondents' contention is, therefore,
untenable.

III. Merits of petitioner's cause of action.

Respondents question the sufficiency of petitioner's cause of action upon the theory that the
proposed importation in question is not governed by Republic Acts Nos. 2207 and 3452, but was
authorized by the President as Commander-in-Chief "for military stock pile purposes" in the
exercise of his alleged authority under Section 2 of Commonwealth Act No. 1;8 that in cases of
necessity, the President "or his subordinates may take such preventive measure for the
restoration of good order and maintenance of peace"; and that, as Commander-in-Chief of our
armed forces, "the President ... is duty-bound to prepare for the challenge of threats of war or
emergency without waiting for any special authority".

Regardless of whether Republic Act No. 3452 repeals Republic Act No. 2207, as contended by
petitioner herein - on which our view need not be expressed — we are unanimously of the
opinion - assuming that said Republic Act No. 2207 is still in force — that the two Acts are
applicable to the proposed importation in question because the language of said laws is such as
to include within the purview thereof all importations of rice and corn into the Philippines".
Pursuant to Republic Act No. 2207, "it shall be unlawful for any person, association, corporation
or government agency to import rice and corn into any point in the Philippines", although, by way
of exception, it adds, that "the President of the Philippines may authorize the importation of these
commodities through any government agency that he may designate", is the conditions
prescribed in Section 2 of said Act are present. Similarly, Republic Act No. 3452 explicitly enjoins
"the Rice and Corn Administration or any government agency" from importing rice and corn.

Respondents allege, however, that said provisions of Republic Act Nos. 2207 and 3452,
prohibiting the importation of rice and corn by any "government agency", do not apply to
importations "made by the Government itself", because the latter is not a "government agency".
This theory is devoid of merit. The Department of National Defense and the Armed Forces of the
Philippines, as well as respondents herein, and each and every officer and employee of our
Government, our government agencies and/or agents. The applicability of said laws even to
importations by the Government as such, becomes more apparent when we consider that:

1. The importation permitted in Republic Act No. 2207 is to be authorized by the "President of the
Philippines" and, hence, by or on behalf of the Government of the Philippines;

2. Immediately after enjoining the Rice and Corn administration and any other government
agency from importing rice and corn, Section 10 of Republic Act No. 3452 adds "that the
importation of rice and corn is left to private parties upon payment of the corresponding taxes",
thus indicating that only "private parties" may import rice under its provisions; and

3. Aside from prescribing a fine not exceeding P10,000.00 and imprisonment of not more than
five (5) years for those who shall violate any provision of Republic Act No. 3452 or any rule and
regulation promulgated pursuant thereto, Section 15 of said Act provides that "if the offender is
a public official and/or employees", he shall be subject to the additional penalty specified therein.
A public official is an officer of the Government itself, as distinguished from officers or employees
of instrumentalities of the Government. Hence, the duly authorized acts of the former are those of
the Government, unlike those of a government instrumentality which may have a personality of
its own, distinct and separate from that of the Government, as such. The provisions of Republic
Act No. 2207 are, in this respect, even more explicit. Section 3 thereof provides a similar
additional penalty for any "officer or employee of the Government" who "violates, abets or
tolerates the violation of any provision" of said Act. Hence, the intent to apply the same to
transactions made by the very government is patent.

Indeed, the restrictions imposed in said Republic Acts are merely additional to those prescribed
in Commonwealth Act No. 138, entitled "An Act to give native products and domestic entities the
preference in the purchase of articles for the Government." Pursuant to Section 1 thereof:

The Purchase and Equipment Division of the Government of the Philippines and other
officers and employees of the municipal and provincial governments and the Government
of the Philippines and of chartered cities, boards, commissions, bureaus, departments,
offices, agencies, branches, and bodies of any description, including government-owned
companies, authorized to requisition, purchase, or contract or make disbursements for
articles, materials, and supplies for public use, public buildings, or public works shall give
preference to materials ... produced ... in the Philippines or in the United States, and to
domestic entities, subject to the conditions hereinbelow specified. (Emphasis supplied.)

Under this provision, in all purchases by the Government, including those made by and/or for the
armed forces, preference shall be given to materials produced in the Philippines. The importation
involved in the case at bar violates this general policy of our Government, aside from the
provisions of Republic Acts Nos. 2207 and 3452.
The attempt to justify the proposed importation by invoking reasons of national security —
predicated upon the "worsening situation in Laos and Vietnam", and "the recent tension created
by the Malaysia problem" - and the alleged powers of the President as Commander-in-Chief of
all armed forces in the Philippines, under Section 2 of the National Defense Act (Commonwealth
Act No. 1), overlooks the fact that the protection of local planters of rice and corn in a manner
that would foster and accelerate self-sufficiency in the local production of said commodities
constitutes a factor that is vital to our ability to meet possible national emergency. Even if the
intent in importing goods in anticipation of such emergency were to bolster up that ability, the
latter would, instead, be impaired if the importation were so made as to discourage our farmers
from engaging in the production of rice.

Besides, the stockpiling of rice and corn for purpose of national security and/or national
emergency is within the purview of Republic Act No. 3452. Section 3 thereof expressly
authorizes the Rice and Corn Administration "to accumulate stocks as a national reserve in such
quantities as it may deem proper and necessary to meet any contingencies". Moreover, it ordains
that "the buffer stocks held as a national reserve ... be deposited by the administration
throughout the country under the proper dispersal plans ... and may be released only upon the
occurrence of calamities or emergencies ...". (Emphasis applied.)

Again, the provisions of Section 2 of Commonwealth Act No. 1, upon which respondents rely so
much, are not self-executory. They merely outline the general objectives of said legislation. The
means for the attainment of those objectives are subject to congressional legislation. Thus, the
conditions under which the services of citizens, as indicated in said Section 2, may be availed of,
are provided for in Sections 3, 4 and 51 to 88 of said Commonwealth Act No. 1. Similarly,
Section 5 thereof specifies the manner in which resources necessary for our national defense
may be secured by the Government of the Philippines, but only "during a national
mobilization",9 which does not exist. Inferentially, therefore, in the absence of a national
mobilization, said resources shall be produced in such manner as Congress may by other laws
provide from time to time. Insofar as rice and corn are concerned, Republic Acts Nos. 2207 and
3452, and Commonwealth Act No. 138 are such laws.

Respondents cite Corwin in support of their pretense, but in vain. An examination of the work
cited10 shows that Corwin referred to the powers of the President during "war time"11 or when he
has placed the country or a part thereof under "martial law".12 Since neither condition obtains in
the case at bar, said work merely proves that respondents' theory, if accepted, would, in effect,
place the Philippines under martial law, without a declaration of the Executive to that effect. What
is worse, it would keep us perpetually under martial law.

It has been suggested that even if the proposed importation violated Republic Acts Nos. 2207
and 3452, it should, nevertheless, be permitted because "it redounds to the benefit of the
people". Salus populi est suprema lex, it is said.

If there were a local shortage of rice, the argument might have some value. But the respondents,
as officials of this Government, have expressly affirmed again and again that there is no rice
shortage. And the importation is avowedly for stockpile of the Army — not the civilian population.

But let us follow the respondents' trend of thought. It has a more serious implication that appears
on the surface. It implies that if an executive officer believes that compliance with a certain
statute will not benefit the people, he is at liberty to disregard it. That idea must be rejected - we
still live under a rule of law.

And then, "the people" are either producers or consumers. Now — as respondents explicitly
admit — Republic Acts Nos. 2207 and 3452 were approved by the Legislature for the benefit of
producers and consumers, i.e., the people, it must follow that the welfare of the people lies
precisely in the compliance with said Acts.
It is not for respondent executive officers now to set their own opinions against that of the
Legislature, and adopt means or ways to set those Acts at naught. Anyway, those laws permit
importation — but under certain conditions, which have not been, and should be complied with.

IV. The contracts with Vietnam and Burma —

It is lastly contended that the Government of the Philippines has already entered into two (2)
contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the
Government of Burma; that these contracts constitute valid executive agreements under
international law; that such agreements became binding effective upon the signing thereof by
representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and
3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail,
because, if a treaty and a statute are inconsistent with each other, the conflict must be resolved
— under the American jurisprudence — in favor of the one which is latest in point of time; that
petitioner herein assails the validity of acts of the Executive relative to foreign relations in the
conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have
already been consummated, the Government of the Philippines having already paid the price of
the rice involved therein through irrevocable letters of credit in favor of the sell of the said
commodity. We find no merit in this pretense.

The Court is not satisfied that the status of said tracts as alleged executive agreements has been
sufficiently established. The parties to said contracts do not pear to have regarded the same as
executive agreements. But, even assuming that said contracts may properly considered as
executive agreements, the same are unlawful, as well as null and void, from a constitutional
viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207
and 3452. Although the President may, under the American constitutional system enter into
executive agreements without previous legislative authority, he may not, by executive
agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under
the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The
former may not interfere in the performance of the legislative powers of the latter, except in the
exercise of his veto power. He may not defeat legislative enactments that have acquired the
status of law, by indirectly repealing the same through an executive agreement providing for the
performance of the very act prohibited by said laws.

The American theory to the effect that, in the event of conflict between a treaty and a statute, the
one which is latest in point of time shall prevail, is not applicable to the case at bar, for
respondents not only admit, but, also insist that the contracts adverted to are not treaties. Said
theory may be justified upon the ground that treaties to which the United States is signatory
require the advice and consent of its Senate, and, hence, of a branch of the legislative
department. No such justification can be given as regards executive agreements not authorized
by previous legislation, without completely upsetting the principle of separation of powers and the
system of checks and balances which are fundamental in our constitutional set up and that of the
United States.

As regards the question whether an international agreement may be invalidated by our courts,
suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by
providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the
law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All
cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or
regulation is in question". In other words, our Constitution authorizes the nullification of a treaty,
not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of
Congress.

The alleged consummation of the aforementioned contracts with Vietnam and Burma
does not render this case academic, Republic Act No. 2207 enjoins our Government not
from entering into contracts for the purchase of rice, but from importing rice, except under the
conditions Prescribed in said Act. Upon the other hand, Republic Act No. 3452 has two (2) main
features, namely: (a) it requires the Government to purchase rice and corn directly from our local
planters, growers or landowners; and (b) it prohibits importations of rice by the Government, and
leaves such importations to private parties. The pivotal issue in this case is whether the
proposed importation — which has not been consummated as yet — is legally feasible.

Lastly, a judicial declaration of illegality of the proposed importation would not compel our
Government to default in the performance of such obligations as it may have contracted with the
sellers of the rice in question, because, aside from the fact that said obligations may be complied
with without importing the commodity into the Philippines, the proposed importation may still be
legalized by complying with the provisions of the aforementioned laws.

V. The writ of preliminary injunction.

The members of the Court have divergent opinions on the question whether or not respondents
herein should be enjoined from implementing the aforementioned proposed importation.
However, the majority favors the negative view, for which reason the injunction prayed for cannot
be granted.

WHEREFORE, judgment is hereby rendered declaring that respondent Executive Secretary had
and has no power to authorize the importation in question; that he exceeded his jurisdiction in
granting said authority; said importation is not sanctioned by law and is contrary to its provisions;
and that, for lack of the requisite majority, the injunction prayed for must be and is, accordingly
denied. It is so ordered.

Bengzon, CJ, Padilla, Labrador, Reyes, J.B.L., Dizon and Makalintal, JJ., concur.
Paredes and Regala, JJ., concur in the result.

Separate Opinions

BAUTISTA ANGELO, J., concurring:

Under Republic Act No. 2207, which took effect on May 15, 1959, it is unlawful for any person,
association, corporation or government agency to import rice and corn into any point in the
Philippines. The exception is if there is an existing or imminent shortage of such commodity of
much gravity as to constitute national emergency in which case an importation may be
authorized by the President when so certified by the National Economic Council.

However, on June 14, 1962, Republic Act 3452 was enacted providing that the importation of rice
and corn can onlybe made by private parties thereby prohibiting from doing so the Rice and Corn
Administration or any other government agency. Republic Act 3452 does not expressly repeal
Republic Act 2207, but only repeals or modified those parts thereof that are inconsistent with its
provisions. The question that now arises is: Has the enactment of Republic Act 3452 the effect of
prohibiting completely the government from importing rice and corn into the Philippines?

My answer is in the negative. Since this Act does not in any manner provide for the importation of
rice and corn in case of national emergency, the provision of the former law on that matter should
stand, for that is not inconsistent with any provision embodied in Republic Act 3452. The Rice
and Corn Administration, or any other government agency, may therefore still import rice and
corn into the Philippines as provided in Republic Act 2207 if there is a declared national
emergency.
The next question that arises is: Can the government authorize the importation of rice and corn
regardless of Republic Act 2207 if that is authorized by the President as Commander-in-Chief of
the Philippine Army as a military precautionary measure for military stockpile?

Respondents answer this question in the affirmative. They advance the argument that it is the
President's duty to see to it that the Armed Forces of the Philippines are geared to the defenses
of the country as well as to the fulfillment of our international commitments in Southeast Asia in
the event the peace and security of the area are in danger. The stockpiling of rice, they aver, is
an essential requirement of defense preparation in view of the limited local supply and the
probable disruption of trade and commerce with outside countries in the event of armed
hostilities, and this military precautionary measure is necessary because of the unsettled
conditions in the Southeast Asia bordering on actual threats of armed conflicts as evaluated by
the Intelligence Service of the Military Department of our Government. This advocacy, they
contend, finds support in the national defense policy embodied in Section 2 of our National
Defense Act (Commonwealth Act No. 1), which provides:

(a) The preservation of the State is the obligation of every citizen. The security of the
Philippines and the freedom, independence and perpetual neutrality of the Philippine
Republic shall be guaranteed by the employment of all citizens, without distinction of sex
or age, and all resources.

(b) The employment of the nation's citizens and resources for national defense shall be
effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures necessary to
pass from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines as the
Commander-in-Chief of all military forces, shall be responsible that mobilization
measures are prepared at all times.(Emphasis supplied)

Indeed, I find in that declaration of policy that the security of the Philippines and its freedom
constitutes the core of the preservation of our State which is the basic duty of every citizen and
that to secure which it is enjoined that the President employ all the resources at his command.
But over and above all that power and duty, fundamental as they may seem, there is the
injunction that the civil authority shall always be supreme. This injunction can only mean that
while all precautions should be taken to insure the security and preservation of the State and to
this effect the employment of all resources may be resorted to, the action must always be taken
within the framework of the civil authority. Military authority should be harmonized and
coordinated with civil authority, the only exception being when the law clearly ordains otherwise.
Neither Republic Act 2207, nor Republic Act 3452, contains any exception in favor of military
action concerning importation of rice and corn. An exception must be strictly construed.

A distinction is made between the government and government agency in an attempt to take the
former out of the operation of Republic Act 2207. I disagree. The Government of the Republic of
the Philippines under the Revised Administrative Code refers to that entity through which the
functions of government are exercised, including the various arms through which political
authority is made effective whether they be provincial, municipal or other form of local
government, whereas a government instrumentality refers to corporations owned or controlled by
the government to promote certain aspects of the economic life of our people. A government
agency, therefore, must necessarily refer to the government itself of the Republic, as
distinguished from any government instrumentality which has a personality distinct and separate
from it (Section 2).

The important point to determine, however, is whether we should enjoin respondents from
carrying out the importation of the rice which according to the record has been authorized to be
imported on government to government level, it appearing that the arrangement to this effect has
already been concluded, the only thing lacking being its implementation. This is evident from the
manifestation submitted by the Solicitor General wherein it appears that the contract for the
purchase of 47,000 tons of rice from had been sign on October 5, 1963, and for the purchase of
20,000 tons from Burma on October 8, 1963, by the authorized representatives of both our
government and the governments of Vietnam and Burma, respectively. If it is true that, our
government has already made a formal commitment with the selling countries there arises the
question as to whether the act can still be impeded at this stage of the negotiations. Though on
this score there is a divergence of opinion, it is gratifying to note that the majority has expressed
itself against it. This is a plausible attitude for, had the writ been issued, our government would
have been placed in a predicament where, as a necessary consequence, it would have to
repudiate a duly formalized agreement to its great embarrassment and loss of face. This was
avoided by the judicial statesmanship evinced by the Court.

BARRERA, J., concurring:

Because of possible complications that might be aggravated by misrepresentation of the true

nature and scope of the case before this Court, it is well to restate as clearly as possible, the real
and only issue presented by the respondents representing the government.

From the answer filed by the Solicitor General, in behalf of respondents, we quote:

The importation of the rice in question by the Armed Forces of the Philippines is
for military stockpilingauthorized by the President pursuant to his inherent power as
commander-in-chief and as a military precautionary measure in view the worsening
situation in Laos and Vietnam and, it may added, the recent, tension created by the
Malaysia problem (Answer, p. 2; emphasis supplied.)

During the oral argument, Senator Fernandez, appealing in behalf of the respondents, likewise
reiterated the imported rice was for military stockpiling, and which he admitted that some of it
went to the Rice and Corn Administration, he emphasized again and again that rice was not
intended for the RCA for distribution to people, as there was no shortage of rice for that purpose
but it was only exchanged for palay because this could better preserved.

From the memorandum filed thereafter by the Solicits General, again the claim was made:

We respectfully reiterate the arguments in our answer dated October 4, 1963 that the
importation of rice sought be enjoined in this petition is in the exercise of the authority
vested in the President of the Philippines as Commander-in-Chief of the Armed
Forces, as a measure of military preparedness demanded by a real and actual threat of
emergency in the South East Asian countries. (p. 1, Emphasis supplied.)

xxx xxx xxx

It (the stressing of the unsettled conditions in Southeast Asia) is merely our intention to
show the necessity for the stockpiling of rice for army purposes, which is the very reason
for the importation.

xxx xxx xxx

 As it is, the importation in question is being made by the Republic of the Philippines for its
own use, and the rice is not supposed to be poured into the open market as to affect the
price to be paid by the public. (p. 4, Emphasis supplied.)

xxx xxx xxx

What we do contend is that the law, for want of express and clear provision to that
effect, does not include in its prohibition importation by the Government of rice for its own
use and not for the consuming public, regardless of whether there is or there is no
emergency. (p. 5, Emphasis supplied.)

From the above, it not only appears but is evident that the respondents were not concerned with
the present rice situation confronting the consuming public, but were solely and exclusively after
the stockpiling of rice for the futureuse of the army. The issue, therefore, in which the
Government was interested is not whether rice is imported to give the people a bigger or greater
supply to maintain the price at P.80 per ganta — for, to quote again their contention: "the rice is
not supposed to be poured into the open market to affect the price to be paid by the public, as it
is not for the consuming public, regardless of whether there is or there is no emergency", — but
whether rice can legally be imported by the Armed Forces of the Philippines avowedly for its
future use, notwithstanding the prohibitory provisions of Republic Acts Nos. 2207 and 3452. The
majority opinion ably sets forth the reasons why this Court can not accept the contention of the
respondents that this importation is beyond and outside the operation of these statutes. I can
only emphasize that I see in the theory advanced by the Solicitor General a dangerous trend —
that because the policies enunciated in the cited laws are for the protection of the producers and
the consumers, the army is removed from their application. To adopt this theory is to proclaim the
existence in the Philippines of three economic groups or classes: the producers, the consumers,
and the Armed Forces of the Philippines. What is more portentous is the effect to equate the
army with the Government itself.

Then again, the importation of this rice for military stockpiling is sought to be justified by the
alleged threat of emergency in the Southeast Asian countries. But the existence of this supposed
threat was unilaterally determined by the Department of National Defense alone. We recall that
there exists a body called the National Security Council in which are represented the Executive
as well as the Legislative department. In it sit not only members of the party in power but of the
opposition as well. To our knowledge, this is the highest consultative body which deliberates
precisely in times of emergency threatening to affect the security of the state. The democratic
composition of this council is to guarantee that its deliberations would be non-partisan and only
the best interests of the nation will be considered. Being a deliberative body, it insures against
precipitate action. This is as it should be. Otherwise, in these days of ever present cold war, any
change or development in the political climate in any region of the world is apt to be taken as an
excuse for the military to conjure up a crisis or emergency and thereupon attempt to override our
laws and legal processes, and imperceptibly institute some kind of martial law on the pretext of
precautionary mobilization measure avowedly in the interest of the security of the state. One
need not, be too imaginative to perceive a hint of this in the present case.

The Supreme Court, in arriving at the conclusion unanimously reached, is fully aware of the
difficult and delicate task it had to discharge. Its position is liable to be exploited by some for their
own purposes by claiming and making it appear that the Court is unmindful of the plight of our
people during these days of hardship; that it preferred to give substance to the "niceties of the
law than heed the needs of the people. Our answer is that the Court was left no alternative. It
had, in compliance with its duty, to decide the case upon the facts presented to it. The
respondents, representing the administration, steadfastly maintained and insisted that there is no
rice shortage; that the imported rice is not for the consuming public and is not supposed to be
placed in the open market to affect the price to be paid by the public; that it is solely for
stockpiling of the army for future use as a measure of mobilization in the face of what the
Department of National Defense unilaterally deemed a threatened armed conflict in Southeast
Asia. Confronted with these facts upon, which the Government has built and rested its case, we
have searched in vain for legal authority or cogent reasons to justify this importation made
admittedly contrary to the provisions of Republic Acts Nos. 2207 and 3452. I say admittedly,
because respondents never as much as pretended that the importation fulfills the conditions
specified in these laws, but limited themselves to the contention, which is their sole defense that
this importation does not fall within the scope of said laws. In our view, however, the laws are
clear. The laws are comprehensive and their application does not admit of any exception. The
laws are adequate. Compliance therewith is not difficult, much less impossible. The avowed
emergency, if at all, is not urgently immediate.

In this connection, it is pertinent to bear in mind that the Supreme Court has a duty to perform
under the Constitution. It has to decide, when called upon to do so in an appropriate proceeding,
all cases in which the constitutionality or validity of any treaty, law, ordinance, executive order or
regulation is in question. We can not elude this duty. To do so would be culpable dereliction on
our part. While we sympathize with the public that might be adversely affected as a result of this
decision yet our sympathy does not authorize us to sanction an act contrary to applicable laws.
The fault lies with those who stubbornly contended and represented before this Court that there
is no rice shortage, that the imported rice is not intended for the consuming public, but for
stockpiling of the army. And, if as now claimed before the public, contrary to the Government's
stand in this case, that there is need for imported rice to stave off hunger, our legislature has
provided for such a situation. As already stated, the laws are adequate. The importation of
rice under the conditions set forth in the laws may be authorized not only where there is
an existing shortage, but also when the shortage is imminent. In other words, lawful remedy to
solve the situation is available, if only those who have the duty to execute the laws perform their
duty. If there is really need for the importation of rice, who adopt some dubious means which
necessitates resort to doubtful exercise of the power of the President as Commander-in-Chief of
the Army? Why not comply with the mandate of the law? Ours is supposed to be a regime under
the rule of law. Adoption as a government policy of the theory of the end justifies the means
brushing aside constitutional and legal restraints, must be rejected, lest we end up with the end
of freedom.

For these reasons, I concur in the decision of the Court.

Separate Opinions

Footnotes

1The Secretary of National Defense, the Auditor General, the Secretary of Commerce
and Industry, and the Secretary Justice.

2 275 hectares.

3Tapales vs. The President and the Board of Regents of the U.P., L-17523, March 30,
1963.

4Mangubat vs. Osmeña, L-12837, April 30, 1959; Baguio vs. Hon. Jose Rodriguez, L-
11078, May 27, 1959; Pascual Provincial Board, L-11959, October 31, 1959.

5Marinduque Iron Mines Agents, Inc. vs. Secretary of Public Works, L-15982, May 31,
1963.

6In the present case, respondents allege in their answer that "the importation ... in
question ... is authorized by the President.
7Alzate vs. Aldaba, L-14407, February 29, 1960; Demaisip vs. Court of Appeals, L-
13000, September 25, 1959.

8 Which provides that the national defense policy of the Philippines shall be follows:

(a) The preservation of the state is the obligation of every citizen. The security of
the Philippines and the freedom, independence and perpetual neutrality of the
Philippine Republic shall be guaranteed by the employment of all citizens, without
distinction of sex or age, and all resources.

(b) The employment of the nation's citizens and resources for national defense
shall be effected by a national mobilization.

(c) The national mobilization shall include the execution of all measures
necessary to pass from a peace to a war footing.

(d) The civil authority shall always be supreme. The President of the Philippines
as the Commander-in-Chief of all military forces, shall be responsible that
mobilization measures are prepared at all times.

xxx xxx xxx

9 In line with the provisions of paragraphs b), c), e), and f) of section 2 of said Act.

10 The Constitution and What It Means Today, pp. 95-96.

11The Power of the President as Commander-in-Chief is primarily that of military

command in wartime, and as such includes, as against the persons and property
of enemies of the United States encountered within the theater of military operations, all
the powers allowed a military commander in such cases by the Law of Nations. President
Lincoln's famous Proclamation of Emancipation rested upon this ground. It was effective
within the theater of military operations while the war lasted, but no longer. (p. 93,
Emphasis supplied.)

12 From an early date the Commander-in-Chief power came to be merged with the
President's duty to take care that the laws be faithfully executed. So, while in using
military force against unlawful combinations too strong to be dealt with through the
ordinary processes of law the President acts by authorization of statute, his powers are
still those of Commander-in-Chief. ...

Under "preventive martial law", so-called because it authorizes "preventive" arrests and
detentions, the military acts as an adjunct of the civil authorities but not necessarily
subject to their orders. It may be established whenever the executive organ, State or
national, deems it to be necessary for the restoration of good order. The concept, being
of judicial origin, is of course for judicial application, and ultimately for application by the
Supreme Court, in enforcement of the due process clauses. (See, also, Section III of this
Article, and Article IV, Section IV.) (Pp. 95-96, Emphasis supplied.)
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS.
LEONARDO EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS
TANTOG; JEMILOYAO & JOEL OYAO, represented by their parents MR. & MRS. ELIEZER
OYAO; JANETH DIAMOS & JEREMIAS DIAMOS, represented by parents MR. & MRS.
GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA, represented by their parents
MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented by their
parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents
MR. & MRS. MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS.
FELIPE PINO; MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. &
MRS. HERMINIGILDO ALFAR; FREDESMINDA ALFAR & GUMERSINDO ALFAR,
represented by their parents ABDON ALFAR; ALBERTO ALFAR & ARISTIO ALFAR,
represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO VILLAR,
represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA &
CHAREN GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN
DOOP, represented by his parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE,
represented by her parents MR. & MRS. RENE LAUDE; LEOREMINDA MONARES,
represented by her parents, MR. & MRS. FLORENCIO MONARES; MERCY MONTECILLO,
represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO TANGAHA,
represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA,
represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG,
represented by his parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON
CUMON & JONATHAN CUMON, represented by their father RAFAEL CUMON; EVIE
LUMAKANG & JUNAR LUMAKANG, represented by their parents MR. & MRS.
LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE SARSOZO,
represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH &
HENRY JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON &
MASTERLOU TABLASON, represented by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD
ALSADO, JOEBERT ALSADO & RUDYARD ALSADO, represented by their parents MR. &
MRS. ABELARDO ALSADO; NELIA ALSADO, REU ALSADO & LILIBETH ALSADO,
represented by their parents MR. & MRS. ROLANDO ALSADO; SUZETTE NAPOLES,
represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES; JESICA
CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY
JEAN MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS;
GERALDINE ALSADO, represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL
DEMOTOR & LEAH DEMOTOR, represented by their parents MR. & MRS. LEONARDO
DEMOTOR; JURELL VILLA & MELONEY VILLA, represented by their parents MR. & MRS.
JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE MAHINAY and MAGDALENE
MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY; JONALYN ANTIOLA
and JERWIN ANTIOLA, represented by their parents FELIFE ANTIOLA and ANECITA
ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO
CABUYAO and ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents
MANUEL TURNO and VEVENCIA TURNO; SOLOMON PALATULON, SALMERO
PALATULON and ROSALINDA PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN,
respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school children who
are members or a religious sect known as Jehovah's Witnesses may be expelled from
school (both public and private), for refusing, on account of their religious beliefs, to take
part in the flag ceremony which includes playing (by a band) or singing the Philippine
national anthem, saluting the Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu
and Manuel F. Biongcog, Cebu District Supervisor," the petitioners are 43 high school and
elementary school students in the towns of Daan Bantayan, Pinamungajan, Carcar, and
Taburan Cebu province. All minors, they are assisted by their parents who belong to the
religious group known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and
Antonio A. Sangutan," the petitioners are 25 high school and grade school students
enrolled in public schools in Asturias, Cebu, whose parents are Jehovah's Witnesses.
Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their classes by the public
school authorities in Cebu for refusing to salute the flag, sing the national anthem and
recite the patriotic pledge as required by Republic Act No. 1265 of July 11, 1955, and by
Department Order No. 8 dated July 21, 1955 of the Department of Education, Culture and
Sports (DECS) making the flag ceremony compulsory in all educational institutions.
Republic Act No. 1265 provides:

Sec. 1. All educational institutions shall henceforth observe daily flag

ceremony, which shall be simple and dignified and shall include the playing
or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to

issue or cause to be issued rules and regulations for the proper conduct of
the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act
and in accordance with rules and regulations issued by the Secretary of
Education, after proper notice and hearing, shall subject the educational
institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of
general circulation.

In case of failure to observe for the second time the flag-ceremony provided
by this Act, the Secretary of Education, after proper notice and
hearing, shall cause the cancellation of the recognition or permit of the
private educational institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN

ALL EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public

and private, every school day throughout the year. It shall be raised at
sunrise and lowered at sunset. The flag-staff must be straight, slightly and
gently tapering at the end, and of such height as would give the Flag a
commanding position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising

ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat
shall be held in the afternoon of the same day. The flag-raising ceremony in
the morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who

are in school and its premises shall assemble in formation
facing the flag. At command, books shall be put away or held
in the left hand and everybody shall come to attention. Those
with hats shall uncover. No one shall enter or leave the
school grounds during the ceremony.

b. The assembly shall sing the Philippine National

Anthem accompanied by the school band or without the
accompaniment if it has none; or the anthem may be played
by the school band alone. At the first note of the Anthem, the
flag shall be raised briskly. While the flag is being raised, all
 persons present shall stand at attention and execute a
salute. Boys and men with hats shall salute by placing the
hat over the heart. Those without hat may stand with their
arms and hands down and straight at the sides. Those in
military or Boy Scout uniform shall give the salute prescribed
by their regulations. The salute shall be started as the Flag
rises, and completed upon last note of the anthem.

c. Immediately following the singing of the Anthem, the

assembly shall recite in unison the following patriotic
pledge (English or vernacular version), which may bring the
ceremony to a close. This is required of all public schools
and of private schools which are intended for Filipino
students or whose population is predominantly Filipino.

English Version

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the
national anthem, and recite the patriotic pledge for they believe that those are "acts of
worship" or "religious devotion" (p. 10, Rollo) which they "cannot conscientiously give . . .
to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's command
to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing
the State (p. 10, Rollo). They think the action of the local authorities in compelling the flag
salute and pledge transcends constitutional limitations on the State's power and invades
the sphere of the intellect and spirit which the Constitution protect against official control
(p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses
may be expelled from school for disobedience of R.A. No. 1265 and Department Order No.
8, series of 1955, has been raised before this Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106
Phil. 2 (1959) and Balbuna, et al. vs. Secretary of Education, 110 Phil. 150 (1960). This
Court in the Gerona case upheld the expulsion of the students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution guarantee and protect.
Under a system of complete separation of church and state in the
government, the flag is utterly devoid of any religious significance. Saluting
the flag does not involve any religious ceremony. The flag salute is no more
a religious ceremony than the taking of an oath of office by a public official
or by a candidate for admission to the bar.
 In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether
Christian, Moslem, Protestant or Jehovah's Witness. The State is merely
carrying out the duty imposed upon it by the Constitution which charges it
with supervision over and regulation of all educational institutions, to
establish and maintain a complete and adequate system of public
education, and see to it that all schools aim to develop, among other things,
civic conscience and teach the duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from

participation in the flag ceremony. They have no valid right to such
exemption. Moreover, exemption to the requirement will disrupt school
discipline and demoralize the rest of the school population which by far
constitutes the great majority.

The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru

Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony
but an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education,
et al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title
VI, Chapter 9 of the Administrative Code of 1987 (Executive Order No. 292) which took
effect on September 21, 1988 (one year after its publication in the Official Gazette, Vol. 63,
No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives legislative cachet to the
ruling in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the

flag ceremony may be dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above
provision of the new Administrative Code of 1987. They have targeted only Republic Act
No. 1265 and the implementing orders of the DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils
belonging to the Jehovah's Witnesses, and enrolled in various public and private schools,
who refused to sing the Philippine national anthem, salute the Philippine flag and recite
the patriotic pledge. Division Superintendent of Schools, Susana B. Cabahug of the Cebu
Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division Superintendent,
recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated
November 17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors,
High School Principals and Heads of Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to
 salute the Philippine flag or participate in the daily flag ceremony because
of some religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and
Regulations) but also strikes at the heart of the DECS sustained effort to
inculcate patriotism and nationalism.

3. Let it be stressed that any belief that considers the flag as an image is
not in any manner whatever a justification for not saluting the Philippine
flag or not participating in flag ceremony. Thus, the Supreme Court of the
Philippine says:

The flag is not an image but a symbol of the Republic of the

Philippines, an emblem of national sovereignty, of national
unity and cohesion and freedom and liberty which it and the
Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may

advance, the Supreme Court asserts:

But between the freedom of belief and the exercise of said

belief, there is quite a stretch of road to travel. If the exercise
of said religious belief clashes with the established
institutions of society and with the law, then the former must
yield and give way to the latter. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

5. Accordingly, teachers and school employees who choose not to

participate in the daily flag ceremony or to obey the flag salute regulation
spelled out in Department Order No. 8, Series of 1955, shall be considered
removed from the service after due process.

6. In strong language about pupils and students who do the same the
Supreme Court has this to say:

If they choose not to obey the flag salute regulation, they

merely lost the benefits of public education being maintained
at the expense of their fellow Citizens, nothing more.
According to a popular expression, they could take it or
leave it! Having elected not to comply with the regulation
about the flag salute they forfeited their right to attend public
schools. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil.
15.)

7. School administrators shall therefore submit to this Office a report on

those who choose not to participate in flag ceremony or salute the
Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's
Witnesses to obey the memorandum. In the Buenavista Elementary School, the children
were asked to sign an Agreement (Kasabutan) in the Cebuano dialect promising to sing
the national anthem, place their right hand on their breast until the end of the song and
recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p.
48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rolloof G.R.
No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with

the Jehovah's Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts
from which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines during Flag Ceremony and
other occasions, as mandated by law specifically Republic Act No. 1265,
this Office hereby orders the dropping from the list in the School Register
(BPS Form I) of all teachers, all Jehovah Witness pupils from Grade I up to
Grade VI effective today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989

dated November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated
July 21, 1955 in accordance with Republic Act No. 1265 and Supreme Court
Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs.
The Honorable Secretary of Education, et al., Respondents and Appellees'
dated August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the
"dropping from the rolls" of students who "opted to follow their religious belief which is
against the Flag Salute Law" on the theory that "they forfeited their right to attend public
schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo

Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief
which is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8,
series of 1955, having elected not to comply with the regulation about the
flag salute they forfeited their right to attend public schools (Gerona, et al.
vs. Sec. of Education, et al., 106 Philippines 15). However, should they
change their mind to respect and follow the Flag Salute Law they may be re-
accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan
National High School, Agujo Elementary School, Calape Barangay National High School,
Pinamungajan Provincial High School, Tabuelan Central School, Canasojan Elementary
School, Liboron Elementary School, Tagaytay Primary School, San Juan Primary School
and Northern Central Elementary School of San Fernando, Cebu, upon order of then
Acting Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in
Cebu to appeal to the Secretary of Education Isidro Cariño but the latter did not answer
their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled
because Dr. Pablo Antopina, who succeeded Susana Cabahug as Division Superintendent
of Schools, would not recall the expulsion orders of his predecessor. Instead, he verbally
caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions
for Mandamus, Certiorari and Prohibition alleging that the public respondents acted
without or in excess of their jurisdiction and with grave abuse of discretion — (1) in
ordering their expulsion without prior notice and hearing, hence, in violation of their right
to due process, their right to free public education, and their right to freedom of speech,
religion and worship (p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the

rolls of herein petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring

the petitioners from their classes or otherwise implementing
the expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him
to admit and order the re-admission of petitioners to their
respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining
order be issued enjoining the respondents from enforcing the expulsion of the petitioners
and to re-admit them to their respective classes.

On November 27, 1990, the Court issued a temporary restraining order and a writ of
preliminary mandatory injunction commanding the respondents to immediately re-admit
the petitioners to their respective classes until further orders from this Court (p.
57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F.
Biongcog to be impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p.
98, Rollo) defending the expulsion orders issued by the public respondents on the
grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses produce

rebellious and anti-social school children and consequently disloyal and
mutant Filipino citizens.

2. There are no new and valid grounds to sustain the charges of the
Jehovah's Witnesses that the DECS' rules and regulations on the flag
salute ceremonies are violative of their freedom of religion and worship.

3. The flag salute is devoid of any religious significance; instead, it

inculcates respect and love of country, for which the flag stands.
 4. The State's compelling interests being pursued by the DECS' lawful
regulations in question do not warrant exemption of the school children of
the Jehovah's Witnesses from the flag salute ceremonies on the basis of
their own self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and

jurisprudence.

6. State's power to regulate repressive and unlawful religious practices

justified, besides having scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court
in Gerona upholding the flag salute law and approving the expulsion of students who
refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet
by its in corporation in the Administrative Code of 1987, the present Court believes that
the time has come to re-examine it. The idea that one may be compelled to salute the flag,
sing the national anthem, and recite the patriotic pledge, during a flag ceremony on pain
of being dismissed from one's job or of being expelled from school, is alien to the
conscience of the present generation of Filipinos who cut their teeth on the Bill of Rights
which guarantees their rights to free speech ** and the free exercise of religious
profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV, Section 8, 1973
Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his
Creator (Chief Justice Enrique M. Fernando's separate opinion in German vs. Barangan,
135 SCRA 514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute
as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that
affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag
ceremony, they do not engage in "external acts" or behavior that would offend their
countrymen who believe in expressing their love of country through the observance of the
flag ceremony. They quietly stand at attention during the flag ceremony to show their
respect for the right of those who choose to participate in the solemn proceedings (Annex
F, Rollo of G.R. No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not
engage in disruptive behavior, there is no warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of

religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or
any other legitimate public interest, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted
with very few participants, and the time will come when we would have
citizens untaught and uninculcated in and not imbued with reverence for
the flag and love of country, admiration for national heroes, and patriotism
— a pathetic, even tragic situation, and all because a small portion of the
school population imposed its will, demanded and was granted an
exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses
from saluting the flag, singing the national anthem and reciting the patriotic pledge, this
religious group which admittedly comprises a "small portion of the school population"
will shake up our part of the globe and suddenly produce a nation "untaught and
uninculcated in and unimbued with reverence for the flag, patriotism, love of country and
admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all,
what the petitioners seek only is exemption from the flag ceremony, not exclusion from
the public schools where they may study the Constitution, the democratic way of life and
form of government, and learn not only the arts, sciences, Philippine history and culture
but also receive training for a vocation of profession and be taught the virtues of
"patriotism, respect for human rights, appreciation for national heroes, the rights and
duties of citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution)
as part of the curricula. Expelling or banning the petitioners from Philippine schools will
bring about the very situation that this Court had feared in Gerona. Forcing a small
religious group, through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of country or respect for
dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are

voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . .
When they [diversity] are so harmless to others or to the State as those we
deal with here, the price is not too great. But freedom to differ is not limited
to things that do not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the
country, . . . — assuming that such unity and loyalty can be attained
through coercion — is not a goal that is constitutionally obtainable at the
expense of religious liberty. A desirable end cannot be promoted by
prohibited means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they
are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to
receive free education, for it is the duty of the State to "protect and promote the right of all
citizens to quality education . . . and to make such education accessible to all (Sec. 1, Art.
XIV).

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the
exemption of members of the Iglesia ni Cristo, from the coverage of a closed shop
agreement between their employer and a union because it would violate the teaching of
their church not to join any labor group:
 . . . It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of
conscience, exemptions ought to be granted unless some "compelling
state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d
965, 970, 83 S. Ct. 1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with
regard to the observance of the flag ceremony out of respect for their religious beliefs,
however "bizarre" those beliefs may seem to others. Nevertheless, their right not to
participate in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA
523, 535, while the highest regard must be afforded their right to the free exercise of their
religion, "this should not be taken to mean that school authorities are powerless to
discipline them" if they should commit breaches of the peace by actions that offend the
sensibilities, both religious and patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates and teachers salute the flag,
sing the national anthem and recite the patriotic pledge, we do not see how such conduct
may possibly disturb the peace, or pose "a grave and present danger of a serious evil to
public safety, public morals, public health or any other legitimate public interest that the
State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our
country in 1942-1944 when every Filipino, regardless of religious persuasion, in fear of the
invader, saluted the Japanese flag and bowed before every Japanese soldier. Perhaps, if
petitioners had lived through that dark period of our history, they would not quibble now
about saluting the Philippine flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound
with pride and joy over the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution
to refuse to salute the Philippine flag on account of their religious beliefs, we hope,
nevertheless, that another foreign invasion of our country will not be necessary in order
for our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion
orders issued by the public respondents against the petitioners are hereby ANNULLED
AND SET ASIDE. The temporary restraining order which was issued by this Court is
hereby made permanent.

SO ORDERED.

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

Quiason, J., took no part.

Gutierrez, Jr., J., is on leave.

Separate Opinions
CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
affirmation of a vital postulate of freedom. I would only add my brief observations
concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that
promulgated it was apparently laboring under the conviction that the State had the right to
determine what was religious and what was not and to dictate to the individual what he
could and could not worship. In pronouncing that the flag was not a religious image but a
symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not
to worship it. This was no different from saying that the cult that reveres Rizal as a divinity
should not and cannot do so because he is only a civic figure deserving honor but not
veneration.

It seems to me that every individual is entitled to choose for himself whom or what to
worship or whether to worship at all. This is a personal decision he alone can make. The
individual may worship a spirit or a person or a beast or a tree (or a flag), and the State
cannot prevent him from doing so. For that matter, neither can it compel him to do so. As
long as his beliefs are not externalized in acts that offend the public interest, he cannot be
prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedrathat they are not violating the Bible by saluting the flag. This is to me
an unwarranted intrusion into their religious beliefs, which tell them the opposite. The
State cannot interpret the Bible for them; only they can read it as they see fit. Right or
wrong, the meaning they derive from it cannot be revised or reversed except perhaps by
their own acknowledged superiors. But certainly not the State. It has no competence in
this matter. Religion is forbidden territory that the State, for all its power and authority,
cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of

religious freedom terminated disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from conformity to religious dogma,
not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with
their own understanding of their religious obligations. Significantly, as
the ponencia notes, their intransigence does not disturb the peaceful atmosphere of the
school or otherwise prejudice the public order. Their refusal to salute the flag and recite
the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it.
The petitioners simply stand at attention and keep quiet "to show their respect for the
right of those who choose to participate in the solemn proceedings." It is for this
innocuous conduct that, pursuant to the challenged law and regulations, the teachers
have been dismissed and the students excelled.

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its message as clearly as the written or spoken
word. As a valid form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion bids
them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as in this case. The
conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that
school teachers and students who cannot salute the flag, sing the national anthem and
recite the pledge of loyalty to the country, on grounds of religious belief or conviction,
may not on this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be the

far-reaching consequences of our ruling in that, we may in effect be sanctioning
a privileged or elite class of teachers and students who will hereafter be exempt from
participating, even when they are in the school premises, in the flag ceremony in
deference to their religious scruples. What happens, for instance, if some citizens, based
also on their religious beliefs, were to refuse to pay taxes and license fees to the
government? Perhaps problems of this nature should not be anticipated. They will be
resolved when and if they ever arise. But with today's decision, we may have created
more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among
its citizens, especially the youth, love and country, respect for the flag and reverence for
its national heroes. It cannot also be disputed that the State has the right to adopt
reasonable means by which these laudable objectives can be effectively pursued and
achieved. The flag ceremony is one such device intended to inspire patriotism and evoke
the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For
a select few to be exempt from the flag ceremony and all that it represent seven if the
exemption is predicated on respect for religious scruples, could be divisive in its impact
on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious
scruples or beliefs cannot actively participate in the flag ceremony conducted in the
school premises should be excluded beforehand from such ceremony. Instead of allowing
the religious objector to attend the flag ceremony and display therein his inability to
salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic,
he or she should remain in the classroom while honors to the flag are conducted and
manifested in the "quadrangle" or equivalent place within school premises; or if the flag
ceremony must be held in a hall, the religious objector must take his or her place at the
rear of (or outside) the hall while those who actively participate in the ceremony must take
the front places. This arrangement can, in my view, achieve an accommodation and, to a
certain extent, harmonization of a citizen's constitutional right to freedom of religion and a
valid exercise of the State's fundamental and legitimate authority to require homage and
honor to the flag as the symbol of the Nation.
# Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent
affirmation of a vital postulate of freedom. I would only add my brief observations
concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that
promulgated it was apparently laboring under the conviction that the State had the right to
determine what was religious and what was not and to dictate to the individual what he
could and could not worship. In pronouncing that the flag was not a religious image but a
symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not
to worship it. This was no different from saying that the cult that reveres Rizal as a divinity
should not and cannot do so because he is only a civic figure deserving honor but not
veneration.

It seems to me that every individual is entitled to choose for himself whom or what to
worship or whether to worship at all. This is a personal decision he alone can make. The
individual may worship a spirit or a person or a beast or a tree (or a flag), and the State
cannot prevent him from doing so. For that matter, neither can it compel him to do so. As
long as his beliefs are not externalized in acts that offend the public interest, he cannot be
prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has
declared ex cathedrathat they are not violating the Bible by saluting the flag. This is to me
an unwarranted intrusion into their religious beliefs, which tell them the opposite. The
State cannot interpret the Bible for them; only they can read it as they see fit. Right or
wrong, the meaning they derive from it cannot be revised or reversed except perhaps by
their own acknowledged superiors. But certainly not the State. It has no competence in
this matter. Religion is forbidden territory that the State, for all its power and authority,
cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of

religious freedom terminated disabilities, it did not create new privileges. It gave religious
equality, not civil immunity. Its essence is freedom from conformity to religious dogma,
not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with
their own understanding of their religious obligations. Significantly, as
the ponencia notes, their intransigence does not disturb the peaceful atmosphere of the
school or otherwise prejudice the public order. Their refusal to salute the flag and recite
the patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it.
The petitioners simply stand at attention and keep quiet "to show their respect for the
right of those who choose to participate in the solemn proceedings." It is for this
innocuous conduct that, pursuant to the challenged law and regulations, the teachers
have been dismissed and the students excelled.

Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of
Rights that guarantees to the individual the liberty to utter what is in his mind also
guarantees to him the liberty not to utter what is not in his mind. The salute is a symbolic
manner of communication that conveys its message as clearly as the written or spoken
word. As a valid form of expression, it cannot be compelled any more than it can be
prohibited in the face of valid religious objections like those raised in this petition. To
impose it on the petitioners is to deny them the right not to speak when their religion bids
them to be silent. This coercion of conscience has no place in the free society.

The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it
cannot regiment thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as in this case. The
conscientious objections of the petitioners, no less than the impatience of those who
disagree with them, are protected by the Constitution. The State cannot make the
individual speak when the soul within rebels.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that
school teachers and students who cannot salute the flag, sing the national anthem and
recite the pledge of loyalty to the country, on grounds of religious belief or conviction,
may not on this ground alone be dismissed from the service or expelled from the school.

At the same time, I am really concerned with what could be the

far-reaching consequences of our ruling in that, we may in effect be sanctioning
a privileged or elite class of teachers and students who will hereafter be exempt from
participating, even when they are in the school premises, in the flag ceremony in
deference to their religious scruples. What happens, for instance, if some citizens, based
also on their religious beliefs, were to refuse to pay taxes and license fees to the
government? Perhaps problems of this nature should not be anticipated. They will be
resolved when and if they ever arise. But with today's decision, we may have created
more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among
its citizens, especially the youth, love and country, respect for the flag and reverence for
its national heroes. It cannot also be disputed that the State has the right to adopt
reasonable means by which these laudable objectives can be effectively pursued and
achieved. The flag ceremony is one such device intended to inspire patriotism and evoke
the finest sentiments of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For
a select few to be exempt from the flag ceremony and all that it represent seven if the
exemption is predicated on respect for religious scruples, could be divisive in its impact
on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious
scruples or beliefs cannot actively participate in the flag ceremony conducted in the
school premises should be excluded beforehand from such ceremony. Instead of allowing
the religious objector to attend the flag ceremony and display therein his inability to
salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic,
he or she should remain in the classroom while honors to the flag are conducted and
manifested in the "quadrangle" or equivalent place within school premises; or if the flag
ceremony must be held in a hall, the religious objector must take his or her place at the
rear of (or outside) the hall while those who actively participate in the ceremony must take
the front places. This arrangement can, in my view, achieve an accommodation and, to a
certain extent, harmonization of a citizen's constitutional right to freedom of religion and a
valid exercise of the State's fundamental and legitimate authority to require homage and
honor to the flag as the symbol of the Nation.

# Footnotes
 ** The flag salute, singing the national anthem and reciting the patriotic
pledge are all forms of utterances.

Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

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

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador
S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C.
Tansingco for themselves and on behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria
C. Tansingco & Juan Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta
for themselves and on behalf of their minor children, Ramon Carlos Z. Araneta & Maya
Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for themselves and on
behalf of their minor children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul
C. Castor & Raphael C. Castor, Spouses Alexander R. Racho & Zara Z. Racho for
themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin
Racho, Mari Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children Michael Racho, Mariana Racho, Rafael
Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A.
Racho for themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas
and on behalf of her minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare
and Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and
NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its
Chairperson, Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE
CORPORATION, represented by its President Eduardo Banzon, THE LEAGUE OF
PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali, THE
LEAGUE OF CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez,
and THE LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES, represented by its President
Donato Marcos,Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S.
AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management; HON. ENRIQUE T. ONA, Secretary,
Department of Education; and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D.,
as President and in his personal capacity, ROSEVALE FOUNDATION INC., represented by
Dr. Rodrigo M. Alenton, M.D., as member of the school board and in his personal capacity,
ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY
G. NAGAC, EARL ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE
T. ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary,
Department of Education and HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE
PRESIDENT, HON. SPEAKER OF THE HOUSE OF REPRESENTATIVES and HON.
SOLICITOR GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE

PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM
SECRETARY FLORENCIO B. ABAD, DILG SECRETARY MANUELA. ROXAS II, DECS
SECRETARY ARMIN A. LUISTRO, Respondents.

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

G.R. No. 205138

PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National

President, Atty. Ricardo M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas, Romeo B.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F. Mateo, Rolly
Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr.,
Landrito M. Diokno and Baldomero Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education,
HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government,
HON. CORAZON J. SOLIMAN, Secretary, Department of Social Welfare and Development,
HON. ARSENIO BALISACAN, Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration,
THE BOARD OF DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD
OF COMMISSIONERS, Philippine Commission on Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D.,

AND JOSEPHINE MILLADO-LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS ANTONIO PALAD, WILFREDO
JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD,
Secretary of the Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary of the Department of Health; HON. ARMIN A. LUISTRO, Secretary of the
Department of Education; and HON. MANUELA. ROXAS II, Secretary of the Department of
Interior and Local Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for
themselves, their Posterity, and the rest of Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive

Director, and in her personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL
A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL ANTONIO A.
NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF
REPRESENTATIVES, HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE
T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department
of Education and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA

BORROMEO-GARCIA, STELLAACEDERA, ATTY. BERTENI CATALUNA
CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT
OF HEALTH, DEPARTMENT OF EDUCATION, Respondents.

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

G.R. No. 207111

JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH

MARTIN Q. VERDEJO, ANTONIA EMMA R. ROXAS and LOTA LAT-
GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, Culture and Sports
and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI

SARMIENTO AND FRANCESCA ISABELLE BESINGA-SARMIENTO, AND SPOUSES LUIS
FRANCIS A. RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,

vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of
the Department of Health, and HON. ARMIN A. LUISTRO,Secretary of the Department of
Budget and Management,Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And
this Court has consistently affirmed this preferred status, well aware that it is "designed to protect
the broadest possible liberty of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs , and to live as he believes he ought to live, consistent with the
liberty of others and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed
country, leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization of the economy, the
bludgeoning dearth in social services remains to be a problem that concerns not only the poor,
but every member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino people and the
development of the country as a whole. The legislative branch, as the main facet of a
representative government, endeavors to enact laws and policies that aim to remedy looming
societal woes, while the executive is closed set to fully implement these measures and bring
concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly distant is the
judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful
eyes on clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its solemn duty to interpret legislation
vis-a-vis the most vital and enduring principle that holds Philippine society together - the
supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth
control, abortion and contraception. As in every democratic society, diametrically opposed views
on the subjects and their perceived consequences freely circulate in various media. From
television debates2 to sticker campaigns,3 from rallies by socio-political activists to mass
gatherings organized by members of the clergy4 - the clash between the seemingly antithetical
ideologies of the religious conservatives and progressive liberals has caused a deep division in
every level of the society. Despite calls to withhold support thereto, however, Republic Act (R.A.)
No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act of
2012 (RH Law), was enacted by Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various
sectors of society came knocking on the doors of the Court, beckoning it to wield the sword that
strikes down constitutional disobedience. Aware of the profound and lasting impact that its
decision may produce, the Court now faces the iuris controversy, as presented in fourteen (14)
petitions and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and
Lovely Ann C. Imbong, in their personal capacities as citizens, lawyers and taxpayers
and on behalf of their minor children; and the Magnificat Child Leaming Center, Inc., a
domestic, privately-owned educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines,
Inc., through its president, Atty. Maria Concepcion S. Noche7 and several others8 in their
personal capacities as citizens and on behalf of the generations unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and
Valeriano S. Avila, in their capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City,
Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned educational institution,
and several others,13 in their capacities as citizens (Serve Life);

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

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic
Xybrspace Apostolate of the Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians
Inc.,18 and several others19 in their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities
as citizens and taxpayers (Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C.
Tatad and Atty. Alan F. Paguia, in their capacities as citizens, taxpayers and on behalf of
those yet unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a member of
the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation
Inc.24 and several others,25 in their capacities as citizens and taxpayers and on behalf of
its associates who are members of the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon
Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni Catalufia Causing, in their
capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several
others,29 in their capacities as citizens (Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc.
and several others,31in their capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in
their capacities as citizens and taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a

citizen and a taxpayer (Alcantara); and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an

accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of
RH Law on the following GROUNDS:

• The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law
would authorize the purchase of hormonal contraceptives, intra-uterine devices and
injectables which are abortives, in violation of Section 12, Article II of the Constitution
which guarantees protection of both the life of the mother and the life of the unborn from
conception.35

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

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

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

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited
to, Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be considered as
conscientious objectors.40

It is also argued that the RH Law providing for the formulation of mandatory sex education in
schools should not be allowed as it is an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they
argue that the RH Law fails to satisfy the "clear and present danger test" and the "compelling
state interest test" to justify the regulation of the right to free exercise of religion and the right to
free speech.42

• The RH Law violates the constitutional provision on involuntary servitude. According to

the petitioners, the RH Law subjects medical practitioners to involuntary servitude
because, to be accredited under the PhilHealth program, they are compelled to provide
forty-eight (48) hours of pro bona services for indigent women, under threat of criminal
prosecution, imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to
avail of the practitioners services.44

• The RH Law violates the right to equal protection of the law. It is claimed that the RH
Law discriminates against the poor as it makes them the primary target of the
government program that promotes contraceptive use. The petitioners argue that, rather
 than promoting reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the poor.45

• The RH Law is "void-for-vagueness" in violation of the due process clause of the

Constitution. In imposing the penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to be treated as "violation" of the
RH Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer."47 It ignores the
management prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.

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

• The RH Law intrudes into the zone of privacy of one's family protected by the
Constitution. It is contended that the RH Law providing for mandatory reproductive health
education intrudes upon their constitutional right to raise their children in accordance with
their beliefs.49

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

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

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

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

• The RH Law violates Natural Law.53

• The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and
the Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law,
providing for reproductive health measures at the local government level and the ARMM,
infringes upon the powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54

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

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took
effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the
Status Quo Ante Order (SQAO), enjoining the effects and implementation of the assailed
legislation for a period of one hundred and twenty (120) days, or until July 17, 2013.62

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

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

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country
enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of
Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation and distribution is by
a duly licensed drug store or pharmaceutical company and with the prescription of a qualified
medical practitioner."65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to
"dispensing of abortifacients or anti-conceptional substances and devices." Under Section 37
thereof, it was provided that "no drug or chemical product or device capable of provoking
abortion or preventing conception as classified by the Food and Drug Administration shall be
delivered or sold to any person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-
term economic development, enacted measures that promoted male vasectomy and tubal
ligation to mitigate population growth.67 Among these measures included R.A. No. 6365,
approved on August 16, 1971, entitled "An Act Establishing a National Policy on Population,
Creating the Commission on Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational program; safe and effective means will
be provided to couples desiring to space or limit family size; mortality and morbidity rates will be
further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential
Decree. (P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning services as a part of over-all
health care," and made "available all acceptable methods of contraception, except abortion, to all
Filipino citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved
from being a component of demographic management, to one centered on the promotion of
public health, particularly, reproductive health.69 Under that policy, the country gave priority to
one's right to freely choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on Population and
Development.70 Thus, on August 14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to provide for comprehensive
health services and programs for women, including family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population
of the country reached over 76 million in the year 2000 and over 92 million in 2010.72 The
executive and the legislative, thus, felt that the measures were still not adequate. To rein in the
problem, the RH Law was enacted to provide Filipinos, especially the poor and the marginalized,
access and information to the full range of modem family planning methods, and to ensure that
its objective to provide for the peoples' right to reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health providers to provide information on the full
range of modem family planning methods, supplies and services, and for schools to provide
reproductive health education. To put teeth to it, the RH Law criminalizes certain acts of refusals
to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the
current laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner
ALFI, in particular, argues that the government sponsored contraception program, the very
essence of the RH Law, violates the right to health of women and the sanctity of life, which the
State is mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the
situation prior to the passage of the RH Law - must be maintained."73 It explains:

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

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has
synthesized and refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the
controversy.
 1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the
controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should
submit to the legislative and political wisdom of Congress and respect the compromises made in
the crafting of the RH Law, it being "a product of a majoritarian democratic process"75 and
"characterized by an inordinate amount of transparency."76 The OSG posits that the authority of
the Court to review social legislation like the RH Law by certiorari is "weak," since the
Constitution vests the discretion to implement the constitutional policies and positive norms with
the political departments, in particular, with Congress.77 It further asserts that in view of the
Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the acts of the
legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that
the assailed law has yet to be enforced and applied to the petitioners, and that the government
has yet to distribute reproductive health devices that are abortive. It claims that the RH Law
cannot be challenged "on its face" as it is not a speech-regulating measure.80

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

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

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers
which imposes upon the courts proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the acts of the Executive or the
Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution.86

It has also long been observed, however, that in times of social disquietude or political instability,
the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely
obliterated.87 In order to address this, the Constitution impresses upon the Court to respect the
acts performed by a co-equal branch done within its sphere of competence and authority, but at
the same time, allows it to cross the line of separation - but only at a very limited and specific
point - to determine whether the acts of the executive and the legislative branches are null
because they were undertaken with grave abuse of discretion.88 Thus, while the Court may not
pass upon questions of wisdom, justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion results.89 The Court must demonstrate
its unflinching commitment to protect those cherished rights and principles embodied in the
Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited,
the Constitution makes no distinction as to the kind of legislation that may be subject to judicial
scrutiny, be it in the form of social legislation or otherwise. The reason is simple and goes back to
the earlier point. The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make
sure that they have acted in consonance with their respective authorities and rights as mandated
of them by the Constitution. If after said review, the Court finds no constitutional violations of any
sort, then, it has no more authority of proscribing the actions under review.90 This is in line with
Article VIII, Section 1 of the Constitution which expressly provides:

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

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari,
prohibition and mandamus are appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and executive officials, as there is no other
plain, speedy or adequate remedy in the ordinary course of law. This ruling was later on applied
in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v. Ermita,94 and countless others.
In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not only the
right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. " Once a "controversy as to the application or interpretation of
constitutional provision is raised before this Court (as in the instant case), it becomes a legal
issue which the Court is bound by constitutional mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review
is essential for the maintenance and enforcement of the separation of powers and the balancing
of powers among the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them. To him, judicial review is
the chief, indeed the only, medium of participation - or instrument of intervention - of the judiciary
in that balancing operation.95

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

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions
raised by the petitions are not yet concrete and ripe for adjudication since no one has been
charged with violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court would amount to
an advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to
satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable-
definite and concrete, touching on the legal relations of parties having adverse legal interests. In
other words, the pleadings must show an active antagonistic assertion of a legal right, on the one
hand, and a denial thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting
of specific relief through a decree conclusive in nature, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A

question is ripe for adjudication when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite
that something has then been accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence of an immediate or threatened
injury to himself as a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act complained of102
In The Province of North Cotabato v. The Government of the Republic of the Philippines,103 where
the constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain
(MOA-AD) was put in question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly violate the
petitioners' and the intervenors' rights. Citing precedents, the Court ruled that the fact of the law
or act in question being not yet effective does not negate ripeness. Concrete acts under a law
are not necessary to render the controversy ripe. Even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.

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

Moreover, the petitioners have shown that the case is so because medical practitioners or
medical providers are in danger of being criminally prosecuted under the RH Law for vague
violations thereof, particularly public health officers who are threatened to be dismissed from the
service with forfeiture of retirement and other benefits. They must, at least, be heard on the
matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions,
contending that the RH Law cannot be challenged "on its face" as it is not a speech regulating
measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment
Challenge, is one that is launched to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.106 These include religious freedom,
freedom of the press, and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right to religious freedom,
freedom of the press and peaceful assembly are but component rights of the right to one's
freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally
maintained, albeit with some modifications. While this Court has withheld the application of facial
challenges to strictly penal statues,108 it has expanded its scope to cover statutes not only
regulating free speech, but also those involving religious freedom, and other fundamental
rights.109 The underlying reason for this modification is simple. For unlike its counterpart in the
U.S., this Court, under its expanded jurisdiction, is mandated by the Fundamental Law not only to
settle actual controversies involving rights which are legally demandable and enforceable, but
also to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the
framers of Our Constitution envisioned a proactive Judiciary, ever vigilant with its duty to
maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the
constitutional human rights to life, speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court has authority to take cognizance
of these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny.
To dismiss these petitions on the simple expedient that there exist no actual case or controversy,
would diminish this Court as a reactive branch of government, acting only when the Fundamental
Law has been transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed
law has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such
that the party has sustained or will sustain direct injury as a result of the challenged
governmental act.113 It requires a personal stake in the outcome of the controversy as to assure
the concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge
the constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits
one from challenging the constitutionality of the statute grounded on a violation of the rights of
third persons not before the court. This rule is also known as the prohibition against third-party
standing.115

Transcendental Importance

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

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party
claiming the right of judicial review. In the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they
had only an indirect and general interest shared in common with the public.

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

Granting arguendo that the present action cannot be properly treated as a petition for prohibition,
the transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of
this nation, specially the youth; hence, their proper and just determination is an imperative need.
This is in accordance with the well-entrenched principle that rules of procedure are not inflexible
tools designed to hinder or delay, but to facilitate and promote the administration of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate, rather than
promote substantial justice, must always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to
the bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH
Law drastically affects the constitutional provisions on the right to life and health, the freedom of
religion and expression and other constitutional rights. Mindful of all these and the fact that the
issues of contraception and reproductive health have already caused deep division among a
broad spectrum of society, the Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn which is primarily at issue, the
Court need not wait for a life to be taken away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in
the Constitution are being imperilled to be violated. To do so, when the life of either the mother or
her child is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory
relief over which the Court has no original jurisdiction.120 Suffice it to state that most of the
petitions are praying for injunctive reliefs and so the Court would just consider them as petitions
for prohibition under Rule 65, over which it has original jurisdiction. Where the case has far-
reaching implications and prays for injunctive reliefs, the Court may consider them as petitions
for prohibition under Rule 65.121

One Subject-One Title

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

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

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

For said reason, the manifest underlying objective of the RH Law is to reduce the number of
births in the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well.
A large portion of the law, however, covers the dissemination of information and provisions on
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
health care services, methods, devices, and supplies, which are all intended to prevent
pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of contraception
pervades the entire RH Law. It is, in fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH Law loses its very
foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and management of reproductive
tract infections including HIV/AIDS are already provided for in the Magna Carta for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E.
Cawaling, Jr. v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was
written:

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

In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes reproductive health, the right
to education and information, and the right to choose and make decisions for themselves in
accordance with their religious convictions, ethics, cultural beliefs, and the demands of
responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so
uncertain that the average person reading it would not be informed of the purpose of the
enactment or put on inquiry as to its contents, or which is misleading, either in referring to or
indicating one subject where another or different one is really embraced in the act, or in omitting
any expression or indication of the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood"
which bears to the attainment of the goal of achieving "sustainable human development" as
stated under its terms, the Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life

Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn
child under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130

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

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

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

Position of the Respondents

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

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

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

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life.137

Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes
and transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is
not of recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The
Sale, Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent fertilization,138 to the
promotion of male vasectomy and tubal ligation,139 and the ratification of numerous international
agreements, the country has long recognized the need to promote population control through the
use of contraceptives in order to achieve long-term economic development. Through the years,
however, the use of contraceptives and other family planning methods evolved from being a
component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.140

This has resulted in the enactment of various measures promoting women's rights and health
and the overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No.
6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The
Magna Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine
national population program has always been grounded two cornerstone principles: "principle of
no-abortion" and the "principle of non-coercion."141 As will be discussed later, these principles are
not merely grounded on administrative policy, but rather, originates from the constitutional
protection expressly provided to afford protection to life and guarantee religious freedom.

When Life Begins*

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

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of
Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the
family as a basic autonomous social institution. It shall equally protect the life of the mother and
the life of the unborn from conception. The natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral character shall receive the
support of the Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that
the Constitution is mute as to any proscription prior to conception or when life begins. The
problem has arisen because, amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization. They are waving the view that life
begins at implantation. Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with
"fertilization" of the female ovum by the male sperm.142 On the other side of the spectrum are
those who assert that conception refers to the "implantation" of the fertilized ovum in the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in
their plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the words of a statute
are clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the
language employed in the Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of the Constitution should be
understood in the sense they have in common use. What it says according to the text of the
provision to be construed compels acceptance and negates the power of the courts to alter it,
based on the postulate that the framers and the people mean what they say. Verba legis non est
recedendum - from the words of a statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words
in which constitutional provisions are couched express the objective sought to be attained; and
second, because the Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important condition for the rule
of law to prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant,
formation of a viable zygote; the fertilization that results in a new entity capable of developing into
a being like its parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the
female ovum by the male spermatozoon resulting in human life capable of survival and
maturation under normal conditions.146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano,147 it was
written:

Life is not synonymous with civil personality. One need not acquire civil personality first before
he/she could die. Even a child inside the womb already has life. No less than the Constitution
recognizes the life of the unborn from conception, that the State must protect equally with the life
of the mother. If the unborn already has life, then the cessation thereof even prior to the child
being delivered, qualifies as death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that
the State "has respect for human life at all stages in the pregnancy" and "a legitimate and
substantial interest in preserving and promoting fetal life." Invariably, in the decision, the fetus
was referred to, or cited, as a baby or a child.149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers
regarding the term "conception" used in Section 12, Article II of the Constitution. From their
deliberations, it clearly refers to the moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment
of conception."

When is the moment of conception?

xxx

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

xxx
As to why conception is reckoned from fertilization and, as such, the beginning of human life, it
was explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to
be answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized
ovum is alive. First of all, like all living organisms, it takes in nutrients which it processes by itself.
It begins doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell division. All these
processes are vital signs of life. Therefore, there is no question that biologically the fertilized
ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes
from the ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the
fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized
ovum is both alive and human, then, as night follows day, it must be human life. Its nature is
human.151

Why the Constitution used the phrase "from the moment of conception" and not "from the
moment of fertilization" was not because of doubt when human life begins, but rather, because:

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

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution,
it was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a
Constitution, without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the
Commissioner's own admission, he would leave it to Congress to define when life begins. So,
Congress can define life to begin from six months after fertilization; and that would really be very,
very, dangerous. It is now determined by science that life begins from the moment of conception.
There can be no doubt about it. So we should not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is
one of the questions I was going to raise during the period of interpellations but it has been
expressed already. The provision, as proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment
of conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the
sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the
so-called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already
occurred, the next process is for the fertilized ovum to travel towards the uterus and to take root.
What happens with some contraceptives is that they stop the opportunity for the fertilized ovum
to reach the uterus. Therefore, if we take the provision as it is proposed, these so called
contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not
these certain contraceptives are abortifacient. Scientifically and based on the provision as it is
now proposed, they are already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution
emphasized that the State shall provide equal protection to both the mother and the unborn child
from the earliest opportunity of life, that is, upon fertilization or upon the union of the male sperm
and the female ovum. It is also apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading
the need to have a constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact which should be left to
the courts to decide on based on established evidence.155

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

As emphasized by the Framers of the Constitution:

xxx xxx xxx

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

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

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no
unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives,
such as the intra-uterine device which actually stops the egg which has already been fertilized
from taking route to the uterus. So if we say "from the moment of conception," what really occurs
is that some of these contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.

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

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

Atty. Noche:

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

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

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

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning

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

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

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools
in the Philippines, also concludes that human life (human person) begins at the moment of
fertilization with the union of the egg and the sperm resulting in the formation of a new individual,
with a unique genetic composition that dictates all developmental stages that ensue.

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

The authors of Human Embryology & Teratology163 mirror the same position. They wrote:
"Although life is a continuous process, fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is thereby formed.... The combination
of 23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus
the diploid number is restored and the embryonic genome is formed. The embryo now exists as a
genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the
Reproductive Health Bill (Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its
strong position that fertilization is sacred because it is at this stage that conception, and thus
human life, begins. Human lives are sacred from the moment of conception, and that destroying
those new lives is never licit, no matter what the purported good outcome would be. In terms of
biology and human embryology, a human being begins immediately at fertilization and after that,
there is no point along the continuous line of human embryogenesis where only a "potential"
human being can be posited. Any philosophical, legal, or political conclusion cannot escape this
objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the
life of a new human being commences at a scientifically well defined "moment of conception."
This conclusion is objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human embryos.164

Conclusion: The Moment of Conception is Reckoned from

Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion
is that a zygote is a human organism and that the life of a new human being commences at a
scientifically well-defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that
life begins at implantation.165 According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not identical and synonymous."166 Citing
a letter of the WHO, he wrote that "medical authorities confirm that the implantation of the
fertilized ovum is the commencement of conception and it is only after implantation that
pregnancy can be medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It
does not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote
is not an inanimate object - it is a living human being complete with DNA and 46
chromosomes.168 Implantation has been conceptualized only for convenience by those who had
population control in mind. To adopt it would constitute textual infidelity not only to the RH Law
but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or
device that would prevent the implantation of the fetus at the uterine wall. It would be provocative
and further aggravate religious-based divisiveness.

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

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of
the unborn from conception was to prevent the Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court cannot interpret it otherwise. This intent of the
Framers was captured in the record of the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the protection of the unborn from
conception, explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by
Congress or any pro-abortion decision passed by the Supreme Court.169

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

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal
Code, which penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined
as follows:

xxx.

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

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

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

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential
decree or issuance, executive order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act including Republic Act No. 7392,
otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be
clear, Section 4(a) of the RH Law defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus
inside the mother's womb. Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent
with the Constitution, recognizes that the fertilized ovum already has life and that the State has a
bounden duty to protect it. The conclusion becomes clear because the RH Law, first, prohibits
any drug or device that induces abortion (first kind), which, as discussed exhaustively above,
refers to that which induces the killing or the destruction of the fertilized ovum, and, second,
prohibits any drug or device the fertilized ovum to reach and be implanted in the mother's womb
(third kind).
By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to
mean at all that life only begins only at implantation, as Hon. Lagman suggests. It also does not
declare either that protection will only be given upon implantation, as the petitioners likewise
suggest. Rather, it recognizes that: one, there is a need to protect the fertilized ovum which
already has life, and two, the fertilized ovum must be protected the moment it becomes existent -
all the way until it reaches and implants in the mother's womb. After all, if life is only recognized
and afforded protection from the moment the fertilized ovum implants - there is nothing to prevent
any drug or device from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum,
the RH Law does not sanction abortion. To repeat, it is the Court's position that life begins at
fertilization, not at implantation. When a fertilized ovum is implanted in the uterine wall , its
viability is sustained but that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces abortion, that is, which
kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in
the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product
or supply included or to be included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it is not to be used as an abortifacient"
as empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device
will not all be used as an abortifacient, since the agency cannot be present in every instance
when the contraceptive product or supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to
the legislative intent and mean that "any product or supply included or to be included in the EDL
must have a certification from the FDA that said product and supply is made available on the
condition that it cannot be used as abortifacient." Such a construction is consistent with the
proviso under the second paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means
emergency contraceptive pills, postcoital pills, abortifacients that will be used for such purpose
and their other forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their
office when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as
follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the FDA.

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

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted
in the mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis
supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family
planning method, device, or health product, whether natural or artificial, that prevents pregnancy
but does not primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted
in the mother's womb in doses of its approved indication as determined by the Food and Drug
Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as

"abortifacient" only those that primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they
pointed out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-
IRR173 must be struck down for being ultra vires.

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

For the same reason, this definition of "contraceptive" would permit the approval of
contraceptives which are actually abortifacients because of their fail-safe mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these
contraceptives cannot act as abortive. With this, together with the definition of an abortifacient
under Section 4 (a) of the RH Law and its declared policy against abortion, the undeniable
conclusion is that contraceptives to be included in the PNDFS and the EDL will not only be those
contraceptives that do not have the primary action of causing abortion or the destruction of a
fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted
in the mother's womb, but also those that do not have the secondary action of acting the same
way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle
that laws should be construed in a manner that its constitutionality is sustained, the RH Law and
its implementing rules must be consistent with each other in prohibiting abortion. Thus, the word
" primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have
the primary effect of being an abortive would effectively "open the floodgates to the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution."175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the
constitutional protection of life must be upheld.
2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion
of hormonal contraceptives, intrauterine devices, injectables and family products and supplies in
the National Drug Formulary and the inclusion of the same in the regular purchase of essential
medicines and supplies of all national hospitals.176Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly increased in
women who use oral contraceptives as compared to women who never use them. They point out
that the risk is decreased when the use of contraceptives is discontinued. Further, it is contended
that the use of combined oral contraceptive pills is associated with a threefold increased risk of
venous thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate
effect on risk of myocardial infarction.177 Given the definition of "reproductive health" and "sexual
health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners assert that the assailed
legislation only seeks to ensure that women have pleasurable and satisfying sex lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory,
it being a mere statement of the administration's principle and policy. Even if it were self-
executory, the OSG posits that medical authorities refute the claim that contraceptive pose a
danger to the health of women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution
is replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of
the people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system
and undertake appropriate health, manpower development, and research, responsive to the
country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation,
self-development, and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the
provisions clearly express the contrary, the provisions of the Constitution should be considered
self-executory. There is no need for legislation to implement these self-executing provisions.182 In
Manila Prince Hotel v. GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a

constitutional mandate, the presumption now is that all provisions of the constitution are self-
executing. If the constitutional provisions are treated as requiring legislation instead of self-
executing, the legislature would have the power to ignore and practically nullify the mandate of
the fundamental law. This can be cataclysmic. That is why the prevailing view is, as it has always
been, that –

... in case of doubt, the Constitution should be considered self-executing rather than non-self-
executing. . . . Unless the contrary is clearly intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule would give the legislature discretion to determine
when, or whether, they shall be effective. These provisions would be subordinated to the will of
the lawmaking body, which could make them entirely meaningless by simply refusing to pass the
needed implementing statute. (Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A.
No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when
they are dispensed by a prescription of a duly licensed by a physician - be maintained.185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the
provisions of R.A. No. 4729. There is no intention at all to do away with it. It is still a good law
and its requirements are still in to be complied with. Thus, the Court agrees with the observation
of respondent Lagman that the effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and dispensation of contraceptive drugs
and devices will still require the prescription of a licensed physician. With R.A. No. 4729 in place,
there exists adequate safeguards to ensure the public that only contraceptives that are safe are
made available to the public. As aptly explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed
and used without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice
of Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent
with the RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices
are particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or
otherwise distribute whether for or without consideration, any contraceptive drug or device,
unless such sale, dispensation or distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used
exclusively for the purpose of preventing fertilization of the female ovum: and
 "(b) "Contraceptive device" is any instrument, device, material, or agent introduced into
the female reproductive system for the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be
punished with a fine of not more than five hundred pesos or an imprisonment of not less than six
months or more than one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine,

pharmaceutical, or drug of whatever nature and kind or device shall be compounded, dispensed,
sold or resold, or otherwise be made available to the consuming public except through a
prescription drugstore or hospital pharmacy, duly established in accordance with the provisions
of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant
statutes, the pretension of the petitioners that the RH Law will lead to the unmitigated
proliferation of contraceptives, whether harmful or not, is completely unwarranted and
baseless.186 [Emphases in the Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which
provides:

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

(a) Number of women of reproductive age and couples who want to space or limit their
children;

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

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the
provisions of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a prescription of a
qualified medical practitioner. The distribution of contraceptive drugs and devices must not be
indiscriminately done. The public health must be protected by all possible means. As pointed out
by Justice De Castro, a heavy responsibility and burden are assumed by the government in
supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness
or loss of life resulting from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the
FDA pursuant to the RH Law. It behooves the Court to await its determination which drugs or
devices are declared by the FDA as safe, it being the agency tasked to ensure that food and
medicines available to the public are safe for public consumption. Consequently, the Court finds
that, at this point, the attack on the RH Law on this ground is premature. Indeed, the various
kinds of contraceptives must first be measured up to the constitutional yardstick as expounded
herein, to be determined as the case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of
Section 9 that ordains their inclusion by the National Drug Formulary in the EDL by using the
mandatory "shall" is to be construed as operative only after they have been tested, evaluated,
and approved by the FDA. The FDA, not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is safe and non-abortifacient. The
provision of the third sentence concerning the requirements for the inclusion or removal of a
particular family planning supply from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives,
intra-uterine devices, injectables, and other safe, legal, non-abortifacient and effective family
planning products and supplies by the National Drug Formulary in the EDL is not mandatory.
There must first be a determination by the FDA that they are in fact safe, legal, non-abortifacient
and effective family planning products and supplies. There can be no predetermination by
Congress that the gamut of contraceptives are "safe, legal, non-abortifacient and effective"
without the proper scientific examination.

3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

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

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

2. On Religious Accommodation and

The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments
by making provisions for a conscientious objector, the constitutional guarantee is nonetheless
violated because the law also imposes upon the conscientious objector the duty to refer the
patient seeking reproductive health services to another medical practitioner who would be able to
provide for the patient's needs. For the petitioners, this amounts to requiring the conscientious
objector to cooperate with the very thing he refuses to do without violating his/her religious
beliefs.190
They further argue that even if the conscientious objector's duty to refer is recognized, the
recognition is unduly limited, because although it allows a conscientious objector in Section 23
(a)(3) the option to refer a patient seeking reproductive health services and information - no
escape is afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health facilities referred to in Section
7; b) public officers involved in the implementation of the law referred to in Section 23(b ); and c)
teachers in public schools referred to in Section 14 of the RH Law, are also not recognize.191

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

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

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation
of religious freedom because it mentions no emergency, risk or threat that endangers state
interests. It does not explain how the rights of the people (to equality, non-discrimination of rights,
sustainable human development, health, education, information, choice and to make decisions
according to religious convictions, ethics, cultural beliefs and the demands of responsible
parenthood) are being threatened or are not being met as to justify the impairment of religious
freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to
attend family planning and responsible parenthood seminars and to obtain a certificate of
compliance. They claim that the provision forces individuals to participate in the implementation
of the RH Law even if it contravenes their religious beliefs.195 As the assailed law dangles the
threat of penalty of fine and/or imprisonment in case of non-compliance with its provisions, the
petitioners claim that the RH Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific
mode or type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions
any religion or belief.196 They point out that the RH Law only seeks to serve the public interest by
providing accessible, effective and quality reproductive health services to ensure maternal and
child health, in line with the State's duty to bring to reality the social justice health guarantees of
the Constitution,197 and that what the law only prohibits are those acts or practices, which deprive
others of their right to reproductive health.198 They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be compelled to violate his
religion against his free will.199

The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same
right they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural family planning methods and impose
this on the entire citizenry.201

With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between
the interests of the religious objector, on one hand, who is allowed to keep silent but is required
to refer -and that of the citizen who needs access to information and who has the right to expect
that the health care professional in front of her will act professionally. For the respondents, the
concession given by the State under Section 7 and 23(a)(3) is sufficient accommodation to the
right to freely exercise one's religion without unnecessarily infringing on the rights of others.202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact.203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it
is a reasonable regulation providing an opportunity for would-be couples to have access to
information regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued
that those who object to any information received on account of their attendance in the required
seminars are not compelled to accept information given to them. They are completely free to
reject any information they do not agree with and retain the freedom to decide on matters of
family life without intervention of the State.204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is
the only method acceptable to Catholics and the Catholic hierarchy. Citing various studies and
surveys on the matter, they highlight the changing stand of the Catholic Church on contraception
throughout the years and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of
people of diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us
that our government, in law and in practice, has allowed these various religious, cultural, social
and racial groups to thrive in a single society together. It has embraced minority groups and is
tolerant towards all - the religious people of different sects and the non-believers. The undisputed
fact is that our people generally believe in a deity, whatever they conceived Him to be, and to
whom they call for guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations,
promote the common good, conserve and develop our patrimony, and secure to ourselves and
our posterity, the blessings of independence and democracy under the rule of law and a regime
of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in
our nature and consciousness as a people, shaped by tradition and historical experience. As this
is embodied in the preamble, it means that the State recognizes with respect the influence of
religion in so far as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and 1987 constitutions
contain benevolent and accommodating provisions towards religions such as tax exemption of
church property, salary of religious officers in government institutions, and optional religious
instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so that the State would not
encroach into the affairs of the church, and vice-versa. The principle of separation of Church and
State was, thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect. Generally,
1âw phi1

the State cannot meddle in the internal affairs of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one religion and discriminate against another. On the
other hand, the church cannot impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if it sincerely believes that they
are good for the country.

Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which
refers to a temple, a mosque, an iglesia, or any other house of God which metaphorically
symbolizes a religious organization. Thus, the "Church" means the religious congregations
collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect
the State from the pursuit of its secular objectives, the Constitution lays down the following
mandate in Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No religious test shall be required for the
exercise of civil or political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or

indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution,
or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as
such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces,
or to any penal institution, or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the
Establishment Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring
any religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public
resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the
human conscience.207 Under this part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and faith.208 Explaining the
concept of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union209 wrote:

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

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes.
They have a single goal-to promote freedom of individual religious beliefs and practices. In
simplest terms, the free exercise clause prohibits government from inhibiting religious beliefs with
penalties for religious beliefs and practice, while the establishment clause prohibits government
from inhibiting religious belief with rewards for religious beliefs and practices. In other words, the
two religion clauses were intended to deny government the power to use either the carrot or the
stick to influence individual religious beliefs and practices.210

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

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

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

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v.
Escritor, (Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether
mandatory or permissive, is the spirit, intent and framework underlying the Philippine
Constitution."215 In the same case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of
religion, but to allow individuals and groups to exercise their religion without hindrance. "The
purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person's or
institution's religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its
'burdensome effect,' whether by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to strict scrutiny.219 In Escritor, it
was written:

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

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni
Cristo where the "clear and present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate effects. The Gerona and German
doctrine, aside from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the present case involves
purely conduct arising from religious belief. The "compelling state interest" test is proper where
conduct is involved for the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a substantive evil, whether
immediate or delayed, is therefore necessary. However, not any interest of the state would
suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all human
rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government
is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and establish a government." As
held in Sherbert, only the gravest abuses, endangering paramount interests can limit this
fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail
over the fundamental right to religious liberty. The test requires the state to carry a heavy burden,
a compelling one, for to do otherwise would allow the state to batter religion, especially the less
powerful ones until they are destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide. The "compelling state interest"
serves the purpose of revering religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in Sherbert which involved conduct, i.e.
refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty
will not be preserved. [Emphases in the original. Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is
moral from a religious standpoint or whether the same is right or wrong according to one's
dogma or belief. For the Court has declared that matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and rule of a church ... are unquestionably
ecclesiastical matters which are outside the province of the civil courts."220 The jurisdiction of the
Court extends only to public and secular morality. Whatever pronouncement the Court makes in
the case at bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical matters, as vanguard
of the Constitution, it does have authority to determine whether the RH Law contravenes the
guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs
and convictions. It is replete with assurances the no one can be compelled to violate the tenets of
his religion or defy his religious convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to sustainable human development, the
right to health which includes reproductive health, the right to education and information, and the
right to choose and make decisions for themselves in accordance with their religious convictions,
ethics, cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of
Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the
family which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of
family planning, including effective natural and modern methods which have been proven
medically safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-
based medical research standards such as those registered and approved by the FDA for the
poor and marginalized as identified through the NHTS-PR and other government measures of
identifying marginalization: Provided, That the State shall also provide funding support to
promote modern natural methods of family planning, especially the Billings Ovulation Method,
consistent with the needs of acceptors and their religious convictions. [Section 3(e), Declaration
of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number
of children they desire with due consideration to the health, particularly of women, and the
resources available and affordable to them and in accordance with existing laws, public morals
and their religious convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that
are in accordance with their religious convictions and cultural beliefs, taking into consideration
the State's obligations under various human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's

organizations, civil society, faith-based organizations, the religious sector and communities is
crucial to ensure that reproductive health and population and development policies, plans, and
programs will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children
according to their own family life aspirations, taking into account psychological preparedness,
health status, sociocultural and economic concerns consistent with their religious convictions.
[Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives.
To some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with
religion, it also limits what religious sects can or cannot do with the government. They can neither
cause the government to adopt their particular doctrines as policy for everyone, nor can they not
cause the government to restrict other groups. To do so, in simple terms, would cause the State
to adhere to a particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance
its population control program through the RH Law simply because the promotion of
contraceptive use is contrary to their religious beliefs. Indeed, the State is not precluded to
pursue its legitimate secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one render unto Caesar the things
that are Caesar's and unto God the things that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects
diverse religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot
be reached with respect to Sections 7, 23 and 24 thereof. The said provisions commonly
mandate that a hospital or a medical practitioner to immediately refer a person seeking health
care and services under the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation
or practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's
claim to religious freedom would warrant an exemption from obligations under the RH Law,
unless the government succeeds in demonstrating a more compelling state interest in the
accomplishment of an important secular objective. Necessarily so, the plea of conscientious
objectors for exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious
freedom has been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues
a conscientious objector. One side coaxes him into obedience to the law and the abandonment
of his religious beliefs, while the other entices him to a clean conscience yet under the pain of
penalty. The scenario is an illustration of the predicament of medical practitioners whose
religious beliefs are incongruent with what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious
belief and conviction of a conscientious objector. Once the medical practitioner, against his will,
refers a patient seeking information on modem reproductive health products, services,
procedures and methods, his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas)
has written, "at the basis of the free exercise clause is the respect for the inviolability of the
human conscience.222

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

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free
speech, it being an externalization of one's thought and conscience. This in turn includes the
right to be silent. With the constitutional guarantee of religious freedom follows the protection that
should be afforded to individuals in communicating their beliefs to others as well as the protection
for simply being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in
his mind and the liberty not to utter what is not in his mind.223 While the RH Law seeks to provide
freedom of choice through informed consent, freedom of choice guarantees the liberty of the
religious conscience and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one's religion.224

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

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the
case of Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board,225 that the
midwives claiming to be conscientious objectors under the provisions of Scotland's Abortion Act
of 1967, could not be required to delegate, supervise or support staff on their labor ward who
were involved in abortions.226 The Inner House stated "that if 'participation' were defined
according to whether the person was taking part 'directly' or ' indirectly' this would actually mean
more complexity and uncertainty."227

While the said case did not cover the act of referral, the applicable principle was the same - they
could not be forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of
the RH Law penalizes such institutions should they fail or refuse to comply with their duty to refer
under Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being
violative of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to
Section 24, considering that in the dissemination of information regarding programs and services
and in the performance of reproductive health procedures, the religious freedom of health care
service providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive
Secretary228 it was stressed:

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

The Court is not oblivious to the view that penalties provided by law endeavour to ensure
compliance. Without set consequences for either an active violation or mere inaction, a law tends
to be toothless and ineffectual. Nonetheless, when what is bartered for an effective
implementation of a law is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health procedure on a patient
because incompatible religious beliefs, is a clear inhibition of a constitutional guarantee which the
Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers,
chiefs of hospital, head nurses, supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection
clause should be equally protective of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt from the mandates of the law.
The protection accorded to other conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public or private sector. After all, the
freedom to believe is intrinsic in every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of
human values. The mind must be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or through the media and, thus, seek
other candid views in occasions or gatherings or in more permanent aggrupation. Embraced in
such concept then are freedom of religion, freedom of speech, of the press, assembly and
petition, and freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law
itself but also because it is violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must
prevail.

Justice Mendoza:

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

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly
dissected the nuances of the provisions.

Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR
it says: " .... skilled health professionals such as provincial, city or municipal health officers, chief
of hospitals, head nurses, supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be
conscientious objectors, skilled health professionals cannot be considered conscientious
objectors. Do you agree with this? Is this not against the constitutional right to the religious
belief?

Congressman Lagman:

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

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof
that the obligatory character of the law is the least intrusive means to achieve the objectives of
the law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG
was curiously silent in the establishment of a more compelling state interest that would
rationalize the curbing of a conscientious objector's right not to adhere to an action contrary to
his religious convictions. During the oral arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

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

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:
What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this
is an ordinary health legislation involving professionals. This is not a free speech matter or a pure
free exercise matter. This is a regulation by the State of the relationship between medical doctors
and their patients.231

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

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

Apparently, in these cases, there is no immediate danger to the life or health of an individual in
the perceived scenario of the subject provisions. After all, a couple who plans the timing, number
and spacing of the birth of their children refers to a future event that is contingent on whether or
not the mother decides to adopt or use the information, product, method or supply given to her or
whether she even decides to become pregnant at all. On the other hand, the burden placed upon
those who object to contraceptive use is immediate and occurs the moment a patient seeks
consultation on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the
conscientious objector's religious freedom, the respondents have failed to demonstrate "the
gravest abuses, endangering paramount interests" which could limit or override a person's
fundamental right to religious freedom. Also, the respondents have not presented any
government effort exerted to show that the means it takes to achieve its legitimate state objective
is the least intrusive means.234 Other than the assertion that the act of referring would only be
momentary, considering that the act of referral by a conscientious objector is the very action
being contested as violative of religious freedom, it behooves the respondents to demonstrate
that no other means can be undertaken by the State to achieve its objective without violating the
rights of the conscientious objector. The health concerns of women may still be addressed by
other practitioners who may perform reproductive health-related procedures with open
willingness and motivation. Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right
to health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna Carta on
comprehensive health services and programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at
all times, provide for a comprehensive, culture-sensitive, and gender-responsive health services
and programs covering all stages of a woman's life cycle and which addresses the major causes
of women's mortality and morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious convictions, the rights of the
spouses to found a family in accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from hazardous drugs, devices,
interventions, and substances.
Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy
and infant health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate their
children;

(5) Prevention and management of reproductive tract infections, including

sexually transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims
and survivors shall be provided with comprehensive health services that include
psychosocial, therapeutic, medical, and legal interventions and assistance
towards healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to

ethical norms and medical standards;

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

(11) Management, treatment, and intervention of mental health problems of

women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all
sectors with appropriate, timely, complete, and accurate information and education on all the
above-stated aspects of women's health in government education and training programs, with
due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of the youth
and the development of moral character and the right of children to be brought up
in an atmosphere of morality and rectitude for the enrichment and strengthening
of character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state
interest was "Fifteen maternal deaths per day, hundreds of thousands of unintended
pregnancies, lives changed, x x x."235 He, however, failed to substantiate this point by concrete
facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization reported that the Filipino
maternal mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no
RH Law at that time. Despite such revelation, the proponents still insist that such number of
maternal deaths constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs
for Filipino women, they could not be solved by a measure that puts an unwarrantable
stranglehold on religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law.
While generally healthcare service providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical
practitioner would amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are objecting on grounds of violation of freedom of
religion does not contemplate an emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally
obliged always to try to save both lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the
House of Representatives of the principle of double-effect wherein intentional harm on the life of
either the mother of the child is never justified to bring about a "good" effect. In a conflict situation
between the life of the child and the life of the mother, the doctor is morally obliged always to try
to save both lives. However, he can act in favor of one (not necessarily the mother) when it is
medically impossible to save both, provided that no direct harm is intended to the other. If the
above principles are observed, the loss of the child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother
is never pitted against the child because both their lives are equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the
child may be resorted to even if is against the religious sentiments of the medical practitioner. As
quoted above, whatever burden imposed upon a medical practitioner in this case would have
been more than justified considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government.
A cursory reading of the assailed provision bares that the religious freedom of the petitioners is
not at all violated. All the law requires is for would-be spouses to attend a seminar on
parenthood, family planning breastfeeding and infant nutrition. It does not even mandate the type
of family planning methods to be included in the seminar, whether they be natural or artificial. As
correctly noted by the OSG, those who receive any information during their attendance in the
required seminars are not compelled to accept the information given to them, are completely free
to reject the information they find unacceptable, and retain the freedom to decide on matters of
family life without the intervention of the State.

4-The Family and the Right to Privacy

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

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it
shall strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection
from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their
development;

The right of the family to a family living wage and income; and

The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains
provisions which tend to wreck the family as a solid social institution. It bars the husband and/or
the father from participating in the decision making process regarding their common future
progeny. It likewise deprives the parents of their authority over their minor daughter simply
because she is already a parent or had suffered a miscarriage.

The Family and Spousal Consent

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

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of
legal age on the ground of lack of consent or authorization of the following persons in the
following instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the
decision of the one undergoing the procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal litigation and vasectomy
which, by their very nature, should require mutual consent and decision between the husband
and the wife as they affect issues intimately related to the founding of a family. Section 3, Art. XV
of the Constitution espouses that the State shall defend the "right of the spouses to found a
family." One person cannot found a family. The right, therefore, is shared by both spouses. In the
same Section 3, their right "to participate in the planning and implementation of policies and
programs that affect them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result
in bitter animosity, and endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to protect marriage as
an inviolable social institution.241

Decision-making involving a reproductive health procedure is a private matter which belongs to

the couple, not just one of them. Any decision they would reach would affect their future as a
family because the size of the family or the number of their children significantly matters. The
decision whether or not to undergo the procedure belongs exclusively to, and shared by, both
spouses as one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed
private right. Unless it prejudices the State, which has not shown any compelling interest, the
State should see to it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known
as the "Magna Carta for Women," provides that women shall have equal rights in all matters
relating to marriage and family relations, including the joint decision on the number and spacing
of their children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a
shared responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed
to betray the constitutional mandate to protect and strengthen the family by giving to only one
spouse the absolute authority to decide whether to undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and
such state intervention would encroach into the zones of spousal privacy guaranteed by the
Constitution. In our jurisdiction, the right to privacy was first recognized in Marje v.
Mutuc,243 where the Court, speaking through Chief Justice Fernando, held that "the right to
privacy as such is accorded recognition independently of its identification with liberty; in itself, it is
fully deserving of constitutional protection."244 Marje adopted the ruling of the US Supreme Court
in Griswold v. Connecticut,245 where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older
than our school system. Marriage is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a
criminal offense on the ground of its amounting to an unconstitutional invasion of the right to
privacy of married persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by
couples. Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have
penumbras, formed by emanations from those guarantees that help give them life and
substance. Various guarantees create zones of privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law
provides:

SEC. 7. Access to Family Planning. – x x x.

No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a
parent or has had a miscarriage.

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

It is precisely in such situations when a minor parent needs the comfort, care, advice, and
guidance of her own parents. The State cannot replace her natural mother and father when it
comes to providing her needs and comfort. To say that their consent is no longer relevant is
clearly anti-family. It does not promote unity in the family. It is an affront to the constitutional
mandate to protect and strengthen the family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and
primary right and duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the Government."247 In this regard,
Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their
minor-child or the right of the spouses to mutually decide on matters which very well affect the
very purpose of marriage, that is, the establishment of conjugal and family life, would result in the
violation of one's privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the recognition that
the State affords couples entering into the special contract of marriage to as one unit in forming
the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care
and custody of a minor child, whether or not the latter is already a parent or has had a
miscarriage. Only a compelling state interest can justify a state substitution of their parental
authority.

First Exception: Access to Information

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

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In such cases, the life of the minor who
has already suffered a miscarriage and that of the spouse should not be put at grave risk simply
for lack of consent. It should be emphasized that no person should be denied the appropriate
medical care urgently needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By
effectively limiting the requirement of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where what is involved are "non-
surgical procedures." Save for the two exceptions discussed above, and in the case of an
abused child as provided in the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny them of this right would be an
affront to the constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the
teaching of Age-and Development-Appropriate Reproductive Health Education under threat of
fine and/or imprisonment violates the principle of academic freedom . According to the
petitioners, these provisions effectively force educational institutions to teach reproductive health
education even if they believe that the same is not suitable to be taught to their students.250 Citing
various studies conducted in the United States and statistical data gathered in the country, the
petitioners aver that the prevalence of contraceptives has led to an increase of out-of-wedlock
births; divorce and breakdown of families; the acceptance of abortion and euthanasia; the
"feminization of poverty"; the aging of society; and promotion of promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is
premature because the Department of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education. One can only speculate on the
content, manner and medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this particular issue, the Court
declines to rule on its constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and development of moral
character shall receive the support of the Government. Like the 1973 Constitution and the 1935
Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents
in preparing the youth to become productive members of society. Notably, it places more
importance on the role of parents in the development of their children by recognizing that said
role shall be "primary," that is, that the right of parents in upbringing the youth is superior to that
of the State.252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral
development of the youth. Indeed, the Constitution makes mention of the importance of
developing the youth and their important role in nation building.253 Considering that Section 14
provides not only for the age-appropriate-reproductive health education, but also for values
formation; the development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of gender based
violence and teen pregnancy; physical, social and emotional changes in adolescents; women's
rights and children's rights; responsible teenage behavior; gender and development; and
responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the
RH Law itself provides for the teaching of responsible teenage behavior, gender sensitivity and
physical and emotional changes among adolescents - the Court finds that the legal mandate
provided under the assailed provision supplements, rather than supplants, the rights and duties
of the parents in the moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education
program shall be developed in conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it will be in line with the religious
beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit.254

While the Court notes the possibility that educators might raise their objection to their
participation in the reproductive health education program provided under Section 14 of the RH
Law on the ground that the same violates their religious beliefs, the Court reserves its judgment
should an actual case be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due
process clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private
health service provider" among those who may be held punishable but does not define who is a
"private health care service provider." They argue that confusion further results since Section 7
only makes reference to a "private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals
operated by religious groups from rendering reproductive health service and modern family
planning methods. It is unclear, however, if these institutions are also exempt from giving
reproductive health information under Section 23(a)(l), or from rendering reproductive health
procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of
incorrect information, but at the same time fails to define "incorrect information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards
that men of common intelligence must necessarily guess its meaning and differ as to its
application. It is repugnant to the Constitution in two respects: (1) it violates due process for
failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid;
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.255 Moreover, in determining whether the words used
in a statute are vague, words must not only be taken in accordance with their plain meaning
alone, but also in relation to other parts of the statute. It is a rule that every part of the statute
must be interpreted with reference to the context, that is, every part of it must be construed
together with the other parts and kept subservient to the general intent of the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service
provider," reference must be made to Section 4(n) of the RH Law which defines a "public health
service provider," viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly
licensed and accredited and devoted primarily to the maintenance and operation of facilities for
health promotion, disease prevention, diagnosis, treatment and care of individuals suffering from
illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and
nursing care; (2) public health care professional, who is a doctor of medicine, a nurse or a
midvvife; (3) public health worker engaged in the delivery of health care services; or (4) barangay
health worker who has undergone training programs under any accredited government and NGO
and who voluntarily renders primarily health care services in the community after having been
accredited to function as such by the local health board in accordance with the guidelines
promulgated by the Department of Health (DOH) .

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

The Court need not belabor the issue of whether the right to be exempt from being obligated to
render reproductive health service and modem family planning methods, includes exemption
from being obligated to give reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to
be exempt from being obligated to render reproductive health service and modem family
planning methods, necessarily includes exemption from being obligated to give reproductive
health information and to render reproductive health procedures. The terms "service" and
"methods" are broad enough to include the providing of information and the rendering of medical
procedures.

The same can be said with respect to the contention that the RH Law punishes health care
service providers who intentionally withhold, restrict and provide incorrect information regarding
reproductive health programs and services. For ready reference, the assailed provision is hereby
quoted as follows:

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

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally
provide incorrect information regarding programs and services on reproductive health including
the right to informed choice and access to a full range of legal, medically-safe, non-abortifacient
and effective family planning methods;

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

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the
Constitution as it discriminates against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue that, rather than promoting
reproductive health among the poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various provisions in the RH Law dealing
with the poor, especially those mentioned in the guiding principles259 and definition of terms260 of
the law.

They add that the exclusion of private educational institutions from the mandatory reproductive
health education program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the
concept of equal protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the
laws is embraced in the concept of due process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or hostility from the
government. Arbitrariness in general may be challenged on the basis of the due process clause.
But if the particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat similarly situated individuals in a
similar manner." "The purpose of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination, whether occasioned by the
express terms of a statue or by its improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective."

The equal protection clause is aimed at all official state actions, not just those of the legislature.
Its inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is
not limited to existing conditions only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all
persons who naturally belong to the class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights conferred and obligations
imposed. It is not necessary that the classification be made with absolute symmetry, in the sense
that the members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to

preclude addition to the number included in the class. It must be of such a nature as to embrace
all those who may thereafter be in similar circumstances and conditions. It must not leave out or
"underinclude" those that should otherwise fall into a certain classification. [Emphases supplied;
citations excluded]
To provide that the poor are to be given priority in the government's reproductive health care
program is not a violation of the equal protection clause. In fact, it is pursuant to Section 11,
Article XIII of the Constitution which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the health development of
the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who
are suffering from fertility issues and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce their number. While the RH
Law admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As
Section 3(1) explains, the "promotion and/or stabilization of the population growth rate is
incidental to the advancement of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does
not impose conditions upon couples who intend to have children. While the petitioners surmise
that the assailed law seeks to charge couples with the duty to have children only if they would
raise them in a truly humane way, a deeper look into its provisions shows that what the law
seeks to do is to simply provide priority to the poor in the implementation of government
programs to promote basic reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive
health education program under Section 14, suffice it to state that the mere fact that the children
of those who are less fortunate attend public educational institutions does not amount to
substantial distinction sufficient to annul the assailed provision. On the other hand, substantial
distinction rests between public educational institutions and private educational institutions,
particularly because there is a need to recognize the academic freedom of private educational
institutions especially with respect to religious instruction and to consider their sensitivity towards
the teaching of reproductive health education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers to render forty-eight (48)
hours of pro bono reproductive health services, actually amounts to involuntary servitude
because it requires medical practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers
have the discretion as to the manner and time of giving pro bono services. Moreover, the OSG
points out that the imposition is within the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest
that it is both a power and a duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of medicine is not a right but a
privileged burdened with conditions as it directly involves the very lives of the people. A fortiori,
this power includes the power of Congress263 to prescribe the qualifications for the practice of
professions or trades which affect the public welfare, the public health, the public morals, and the
public safety; and to regulate or control such professions or trades, even to the point of revoking
such right altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion.265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do otherwise. Private
and non-government reproductive healthcare service providers also enjoy the liberty to choose
which kind of health service they wish to provide, when, where and how to provide it or whether
to provide it all. Clearly, therefore, no compulsion, force or threat is made upon them to render
pro bono service against their will. While the rendering of such service was made a prerequisite
to accreditation with PhilHealth, the Court does not consider the same to be an unreasonable
burden, but rather, a necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to
determine whether or not a supply or product is to be included in the Essential Drugs List
(EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but
also the competency to evaluate, register and cover health services and methods. It is the only
government entity empowered to render such services and highly proficient to do so. It should be
understood that health services and methods fall under the gamut of terms that are associated
with what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the
Food and Drug Administration (FDA) in the Department of Health (DOH). Said Administration
shall be under the Office of the Secretary and shall have the following functions, powers and
duties:

"(a) To administer the effective implementation of this Act and of the rules and
regulations issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this
Act;

"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill
of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for
the issuance of appropriate authorization and spot-check for compliance with regulations
regarding operation of manufacturers, importers, exporters, distributors, wholesalers,
 drug outlets, and other establishments and facilities of health products, as determined by
the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,

retailers, consumers, and non-consumer users of health products to report to the FDA
any incident that reasonably indicates that said product has caused or contributed to the
death, serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health
products, whether or not registered with the FDA Provided, That for registered health
products, the cease and desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product
found to have caused death, serious illness or serious injury to a consumer or patient, or
is found to be imminently injurious, unsafe, dangerous, or grossly deceptive, and to
require all concerned to implement the risk management plan which is a requirement for
the issuance of the appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to
enable the agency to carry out the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to the public, the FDA was
equipped with the necessary powers and functions to make it effective. Pursuant to the principle
of necessary implication, the mandate by Congress to the FDA to ensure public health and safety
by permitting only food and medicines that are safe includes "service" and "methods." From the
declared policy of the RH Law, it is clear that Congress intended that the public be given only
those medicines that are proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research standards. The philosophy
behind the permitted delegation was explained in Echagaray v. Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of
the legislature to cope directly with the many problems demanding its attention. The growth of
society has ramified its activities and created peculiar and sophisticated problems that the
legislature cannot be expected reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon present day undertakings, the
legislature may not have the competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon
the powers devolved to local government units (LGUs) under Section 17 of the Local
Government Code. Said Section 17 vested upon the LGUs the duties and functions pertaining to
the delivery of basic services and facilities, as follows:

SECTION 17. Basic Services and Facilities. –

 (a) Local government units shall endeavor to be self-reliant and shall continue exercising
the powers and discharging the duties and functions currently vested upon them. They
shall also discharge the functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units shall likewise exercise
such other powers and discharge such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

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

(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by the National
Government under the annual General Appropriations Act, other special laws, pertinent
executive orders, and those wholly or partially funded from foreign sources, are not
covered under this Section, except in those cases where the local government unit
concerned is duly designated as the implementing agency for such projects, facilities,
programs and services. [Emphases supplied]

The essence of this express reservation of power by the national government is that, unless an
LGU is particularly designated as the implementing agency, it has no power over a program for
which funding has been provided by the national government under the annual general
appropriations act, even if the program involves the delivery of basic services within the
jurisdiction of the LGU.269 A complete relinquishment of central government powers on the matter
of providing basic facilities and services cannot be implied as the Local Government Code itself
weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment
of health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay
health workers,273 it will be the national government that will provide for the funding of its
implementation. Local autonomy is not absolute. The national government still has the say when
it comes to national priority programs which the local government is called upon to implement like
the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide
these services. There is nothing in the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said reason, it cannot be said that the
RH Law amounts to an undue encroachment by the national government upon the autonomy
enjoyed by the local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally
applied to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner
Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to
the policy statements for the guidance of the regional government. These provisions relied upon
by the petitioners simply delineate the powers that may be exercised by the regional government,
which can, in no manner, be characterized as an abdication by the State of its power to enact
legislation that would benefit the general welfare. After all, despite the veritable autonomy
granted the ARMM, the Constitution and the supporting jurisprudence, as they now stand, reject
the notion of imperium et imperio in the relationship between the national and the regional
governments.274 Except for the express and implied limitations imposed on it by the Constitution,
Congress cannot be restricted to exercise its inherent and plenary power to legislate on all
subjects which extends to all matters of general concern or common interest.275

11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the
Court does not duly recognize it as a legal basis for upholding or invalidating a law. Our only
guidepost is the Constitution. While every law enacted by man emanated from what is perceived
as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in
conformity to it. To begin with, it is not enacted by an acceptable legitimate body. Moreover,
natural laws are mere thoughts and notions on inherent rights espoused by theorists,
philosophers and theologists. The jurists of the philosophical school are interested in the law as
an abstraction, rather than in the actual law of the past or present.277 Unless, a natural right has
been transformed into a written law, it cannot serve as a basis to strike down a law. In Republic
v. Sandiganbayan,278 the very case cited by the petitioners, it was explained that the Court is not
duty-bound to examine every law or action and whether it conforms with both the Constitution
and natural law. Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is applicable.279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does
not allow abortion in any shape or form. It only seeks to enhance the population control program
of the government by providing information and making non-abortifacient contraceptives more
readily available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide
access to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier pointed out, however, the
religious freedom of some sectors of society cannot be trampled upon in pursuit of what the law
hopes to achieve. After all, the Constitutional safeguard to religious freedom is a recognition that
man stands accountable to an authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough
room for diversity and pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what
it seeks to address is the problem of rising poverty and unemployment in the country. Let it be
said that the cause of these perennial issues is not the large population but the unequal
distribution of wealth. Even if population growth is controlled, poverty will remain as long as the
country's wealth remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The
European and Asian countries, which embarked on such a program generations ago , are now
burdened with ageing populations. The number of their young workers is dwindling with adverse
effects on their economy. These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their economy. These countries are now
trying to reverse their programs, but they are still struggling. For one, Singapore, even with
incentives, is failing.
And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would
happen if the country would be weighed down by an ageing population and the fewer younger
generation would not be able to support them? This would be the situation when our total fertility
rate would go down below the replacement level of two (2) children per woman.280

Indeed, at the present, the country has a population problem, but the State should not use
coercive measures (like the penal provisions of the RH Law against conscientious objectors) to
solve it. Nonetheless, the policy of the Court is non-interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what
the law is as enacted by the lawmaking body. That is not the same as saying what the law should
be or what is the correct rule in a given set of circumstances. It is not the province of the judiciary
to look into the wisdom of the law nor to question the policies adopted by the legislative branch.
Nor is it the business of this Tribunal to remedy every unjust situation that may arise from the
application of a particular law. It is for the legislature to enact remedial legislation if that would be
necessary in the premises. But as always, with apt judicial caution and cold neutrality, the Court
must carry out the delicate function of interpreting the law, guided by the Constitution and
existing legislation and mindful of settled jurisprudence. The Court's function is therefore limited,
and accordingly, must confine itself to the judicial task of saying what the law is, as enacted by
the lawmaking body.281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of
the prior existing contraceptive and reproductive health laws, but with coercive measures. Even if
the Court decrees the RH Law as entirely unconstitutional, there will still be the Population Act
(R.A. No. 6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or
The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed
legislation. All the same, the principle of "no-abortion" and "non-coercion" in the adoption of any
family planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A.
No. 10354 as NOT UNCONSTITUTIONAL except with respect to the following provisions which
are declared UNCONSTITUTIONAL:

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

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5
.24 thereof, insofar as they punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs and services on reproductive
health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they
allow a married individual, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to undergo reproductive health procedures without the consent of
the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit
the requirement of parental consent only to elective surgical procedures.
 5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section
5.24 thereof, insofar as they punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health care service provider within the same facility or
one which is conveniently accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5
.24 thereof, insofar as they punish any public officer who refuses to support reproductive
health programs or shall do any act that hinders the full implementation of a reproductive
health program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of
pro bona reproductive health service in so far as they affect the conscientious objector in
securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier
"primarily" in defining abortifacients and contraceptives, as they are ultra vires and,
therefore, null and void for contravening Section 4(a) of the RH Law and violating Section
12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order,
dated July 16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have
been herein declared as constitutional.

SO ORDERED.