Republic of the Philippines

SUPREME COURT
Manila

EN BANC

BAYAN MUNA, as represented by Rep. G.R. No. 159618

SATUR OCAMPO, Rep. CRISPIN
BELTRAN, and Rep. LIZA L. MAZA, Present:
Petitioner,
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
ALBERTO ROMULO, in his capacity as PEREZ,
Executive Secretary, and BLAS F. OPLE, in MENDOZA, and
his capacity as Secretary of Foreign Affairs, SERENO, JJ.
Respondents.
Promulgated:

February 1, 2011
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:
The Case
[1]
This petition for certiorari, mandamus and prohibition under Rule 65 assails and seeks to nullify the
Non-Surrender Agreement concluded by and between the Republic of the Philippines (RP) and the United
States of America (USA).

The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the marginalized
sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of Foreign Affairs during the
period material to this case. Respondent Alberto Romulo was impleaded in his capacity as then Executive
Secretary.[2]

Rome Statute of the International Criminal Court

Having a key determinative bearing on this case is the Rome Statute [3] establishing the International
Criminal Court (ICC) with the power to exercise its jurisdiction over persons for the most serious crimes of
international concern x x x and shall be complementary to the national criminal jurisdictions.[4] The serious
crimes adverted to coverthose considered grave under international law, such as genocide, crimes against
humanity, war crimes, and crimes of aggression.[5]

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

RP-US Non-Surrender Agreement

On May 9, 2003, then Ambassador Francis J. Ricciardone sent US Embassy Note No. 0470 to the
Department of Foreign Affairs (DFA) proposing the terms of the non-surrender bilateral agreement (Agreement,
hereinafter) between the USA and the RP.

Via Exchange of Notes No. BFO-028-03[7] dated May 13, 2003 (E/N BFO-028-03, hereinafter), the RP,
represented by then DFA Secretary Ople, agreed with and accepted the US proposals embodied under the US
Embassy Note adverted to and put in effect the Agreement with the US government. In esse,
the Agreement aims to protect what it refers to and defines as persons of the RP and US from frivolous and
harassment suits that might be brought against them in international tribunals. [8] It is reflective of the increasing
pace of the strategic security and defense partnership between the two countries. As of May 2, 2003, similar
bilateral agreements have been effected by and between the US and 33 other countries.[9]

The Agreement pertinently provides as follows:

1. For purposes of this Agreement, persons are current or former Government officials,
employees (including contractors), or military personnel or nationals of one Party.

2. Persons of one Party present in the territory of the other shall not, absent the express
consent of the first Party,

(a) be surrendered or transferred by any means to any international tribunal for any
purpose, unless such tribunal has been established by the UN Security Council, or

(b) be surrendered or transferred by any means to any other entity or third country, or
expelled to a third country, for the purpose of surrender to or transfer to any
international tribunal, unless such tribunal has been established by the UN Security
Council.

3. When the [US] extradites, surrenders, or otherwise transfers a person of the Philippines
to a third country, the [US] will not agree to the surrender or transfer of that person by the third
country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the Republic of the
Philippines [GRP].

4. When the [GRP] extradites, surrenders, or otherwise transfers a person of the [USA] to
a third country, the [GRP] will not agree to the surrender or transfer of that person by the third
 country to any international tribunal, unless such tribunal has been established by the UN
Security Council, absent the express consent of the Government of the [US].

5. This Agreement shall remain in force until one year after the date on which one party
notifies the other of its intent to terminate the Agreement. The provisions of this Agreement shall
continue to apply with respect to any act occurring, or any allegation arising, before the effective
date of termination.

In response to a query of then Solicitor General Alfredo L. Benipayo on the status of the non-surrender
agreement, Ambassador Ricciardone replied in his letter of October 28, 2003 that the exchange of diplomatic
notes constituted a legally binding agreement under international law; and that, under US law, the said
agreement did not require the advice and consent of the US Senate.[10]

In this proceeding, petitioner imputes grave abuse of discretion to respondents in concluding and
ratifying the Agreement and prays that it be struck down as unconstitutional, or at least declared as without force
and effect.

For their part, respondents question petitioners standing to maintain a suit and counter that
the Agreement, being in the nature of an executive agreement, does not require Senate concurrence for its
efficacy. And for reasons detailed in their comment, respondents assert the constitutionality of the Agreement.

The Issues

I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY

ABUSED THEIR DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION FOR CONCLUDING THE RP-US NON SURRENDER
AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY 2003, WHEN THE
PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF THE
[ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through the Rome Statute of the [ICC] to prosecute and try persons as
defined in the x x x Agreement, x x x or literally any conduit of American interests, who
have committed crimes of genocide, crimes against humanity, war crimes and the crime
of aggression, thereby abdicating Philippine Sovereignty.

B. Whether after the signing and pending ratification of the Rome Statute of the [ICC] the
[RP] President and the [DFA] Secretary x x x are obliged by the principle of good faith to
refrain from doing all acts which would substantially impair the value of the undertaking
as signed.

C. Whether the x x x Agreement constitutes an act which defeats the object and purpose
of the Rome Statute of the International Criminal Court and contravenes the obligation of
good faith inherent in the signature of the President affixed on the Rome Statute of the
International Criminal Court, and if so whether the x x x Agreementis void and
unenforceable on this ground.
 D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for grave
abuse of discretion amounting to lack or excess of jurisdiction in connection with its
execution.

II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT
VARIANCE WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL
LAW.

III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND

EFFECTIVE WITHOUT THE CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF
ALL THE MEMBERS OF THE SENATE x x x.[11]

The foregoing issues may be summarized into two: first, whether or not the Agreement was contracted
validly, which resolves itself into the question of whether or not respondents gravely abused their discretion in
concluding it; and second, whether or not the Agreement, which has not been submitted to the Senate for
concurrence, contravenes and undermines the Rome Statute and other treaties. But because respondents
expectedly raised it, we shall first tackle the issue of petitioners legal standing.

The Courts Ruling

This petition is bereft of merit.

Procedural Issue: Locus Standi of Petitioner

Petitioner, through its three party-list representatives, contends that the issue of the validity or invalidity
of the Agreement carries with it constitutional significance and is of paramount importance that justifies its
standing. Cited in this regard is what is usually referred to as the emergency powers cases, [12] in which ordinary
citizens and taxpayers were accorded the personality to question the constitutionality of executive issuances.
Locus standi is a right of appearance in a court of justice on a given question.[13] Specifically, it is a
partys personal and substantial interest in a case where he has sustained or will sustain direct injury as a
result[14] of the act being challenged, and calls for more than just a generalized grievance. [15] The term interest
refers to material interest, as distinguished from one that is merely incidental. [16] The rationale for requiring a
party who challenges the validity of a law or international agreement to allege such a personal stake in the
outcome of the controversy is to assure the concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.[17]

Locus standi, however, is merely a matter of procedure and it has been recognized that, in some cases,
suits are not brought by parties who have been personally injured by the operation of a law or any other
government act, but by concerned citizens, taxpayers, or voters who actually sue in the public interest.
[18]
Consequently, in a catena of cases,[19] this Court has invariably adopted a liberal stance on locus standi.
 Going by the petition, petitioners representatives pursue the instant suit primarily as concerned citizens
raising issues of transcendental importance, both for the Republic and the citizenry as a whole.

When suing as a citizen to question the validity of a law or other government action, a petitioner needs
to meet certain specific requirements before he can be clothed with standing. Francisco, Jr. v. Nagmamalasakit
na mga Manananggol ng mga Manggagawang Pilipino, Inc.[20] expounded on this requirement, thus:

In a long line of cases, however, concerned citizens, taxpayers and legislators when
specific requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a
statute must be direct and personal. He must be able to show, not only that the law or any
government act is invalid, but also that he sustained or is in imminent danger of sustaining some
direct injury as a result of its enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. In fine, when the proceeding
involves the assertion of a public right, the mere fact that he is a citizen satisfies the requirement
of personal interest.[21]

In the case at bar, petitioners representatives have complied with the qualifying conditions or specific
requirements exacted under the locus standi rule. As citizens, their interest in the subject matter of the petition is
direct and personal. At the very least, their assertions questioning the Agreement are made of a public right, i.e.,
to ascertain that theAgreement did not go against established national policies, practices, and obligations bearing
on the States obligation to the community of nations.

At any event, the primordial importance to Filipino citizens in general of the issue at hand impels the
Court to brush aside the procedural barrier posed by the traditional requirement of locus standi, as we have done
in a long line of earlier cases, notably in the old but oft-cited emergency powers cases [22] and Kilosbayan v.
Guingona, Jr.[23] In cases of transcendental importance, we wrote again in Bayan v. Zamora,[24] The Court may
relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party
claiming the right of judicial review.

Moreover, bearing in mind what the Court said in Taada v. Angara, that it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government,[25] we cannot but resolve head on the issues raised before us. Indeed, where an
action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave
abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this
petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of
the Rome Statute.
 Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being that E/N
BFO-028-03 cannot be a valid medium for concluding theAgreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international doctrines,
practices, and jargonsis untenable. One of these is the doctrine of incorporation, as expressed in Section 2,
Article II of the Constitution, wherein the Philippines adopts the generally accepted principles of international
law and international jurisprudence as part of the law of the land and adheres to the policy of peace,
cooperation, and amity with all nations.[26] An exchange of notes falls into the category of inter-governmental
agreements,[27] which is an internationally accepted form of international agreement. The United Nations Treaty
Collections (Treaty Reference Guide) defines the term as follows:

An exchange of notes is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.[28]

In another perspective, the terms exchange of notes and executive agreements have been used
interchangeably, exchange of notes being considered a form of executive agreement that becomes binding
through executive action.[29] On the other hand, executive agreements concluded by the President sometimes
take the form of exchange of notes and at other times that of more formal documents denominated agreements
or protocols.[30] As former US High Commissioner to the Philippines Francis B. Sayre observed in his
work, The Constitutionality of Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment.[31] x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the Non-Surrender
Agreement itself, or as an integral instrument of acceptance thereof or as consent to be boundis a recognized
mode of concluding a legally binding international written contract among nations.

Senate Concurrence Not Required

Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as an international agreement
concluded between states in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation.[32] International
agreements may be in the form of (1) treaties that require legislative concurrence after executive ratification; or
(2) executive agreements that are similar to treaties, except that they do not require legislative concurrence and
are usually less formal and deal with a narrower range of subject matters than treaties.[33]
 Under international law, there is no difference between treaties and executive agreements in terms of
their binding effects on the contracting states concerned, [34] as long as the negotiating functionaries have
remained within their powers.[35] Neither, on the domestic sphere, can one be held valid if it violates the
Constitution.[36] Authorities are, however, agreed that one is distinct from another for accepted reasons apart
from the concurrence-requirement aspect.[37] As has been observed by US constitutional scholars, a treaty has
greater dignity than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty having
behind it the authority of the President, the Senate, and the people; [38] a ratified treaty, unlike an executive
agreement, takes precedence over any prior statutory enactment.[39]

Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the nature
of a treaty; hence, it must be duly concurred in by the Senate.Petitioner takes a cue from Commissioner of
Customs v. Eastern Sea Trading, in which the Court reproduced the following observations made by US legal
scholars: [I]nternational agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties [while] those embodying
adjustments of detail carrying out well established national policies and traditions and those involving
arrangements of a more or less temporary nature take the form of executive agreements. [40]

Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of the
subject-categories that are enumerated in the Eastern Sea Trading case, and that may be covered by an
executive agreement, such as commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and settlement of claims.

In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,[41] holding that an executive agreement through an exchange of notes cannot be used to amend a
treaty.

We are not persuaded.

The categorization of subject matters that may be covered by international agreements mentioned
in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the propriety of entering, on a
given subject, into a treaty or an executive agreement as an instrument of international relations. The primary
consideration in the choice of the form of agreement is the parties intent and desire to craft an international
agreement in the form they so wish to further their respective interests. Verily, the matter of form takes a back
seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement,
as the parties in either international agreement each labor under the pacta sunt servanda[42] principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea
Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international
law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone,
the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and
nuclear safety, among others.[43] Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option
of each state on the matter of which the international agreement format would be convenient to serve its best
interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive
agreements as such concluded from time to time. Hundreds of executive agreements, other than
those entered into under the trade-agreement act, have been negotiated with foreign
governments. x x x They cover such subjects as the inspection of vessels, navigation dues,
income tax on shipping profits, the admission of civil air craft, custom matters and commercial
relations generally, international claims, postal matters, the registration of trademarks and
copyrights, etc. x x x

And lest it be overlooked, one type of executive agreement is a treaty-authorized [44] or a treaty-
implementing executive agreement,[45] which necessarily would cover the same matters subject of the
underlying treaty.

But over and above the foregoing considerations is the fact thatsave for the situation and matters
contemplated in Sec. 25, Art. XVIII of the Constitution[46]when a treaty is required, the Constitution does not
classify any subject, like that involving political issues, to be in the form of, and ratified as, a treaty. What the
Constitution merely prescribes is that treaties need the concurrence of the Senate by a vote defined therein to
complete the ratification process.

Petitioners reliance on Adolfo[47] is misplaced, said case being inapplicable owing to different factual
milieus. There, the Court held that an executive agreement cannot be used to amend a duly ratified and existing
treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does not require the concurrence of the Senate
for its ratification may not be used to amend a treaty that, under the Constitution, is the product of the ratifying
acts of the Executive and the Senate. The presence of a treaty, purportedly being subject to amendment by an
executive agreement, does not obtain under the premises.

Considering the above discussion, the Court need not belabor at length the third main issue raised,
referring to the validity and effectivity of the Agreement without the concurrence by at least two-thirds of all the
members of the Senate. The Court has, in Eastern Sea Trading,[48] as reiterated in Bayan,[49] given recognition to
the obligatory effect of executive agreements without the concurrence of the Senate:

x x x [T]he right of the Executive to enter into binding agreements without the necessity
of subsequent Congressional approval has been confirmed by long usage. From the earliest days
of our history, we have entered executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.
 The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment of the ICC and is
null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the effectivity of the Rome
Statute. Petitioner posits that the Agreement was constituted solely for the purpose of providing individuals or
groups of individuals with immunity from the jurisdiction of the ICC; and such grant of immunity through non-
surrender agreements allegedly does not legitimately fall within the scope of Art. 98 of the Rome Statute. It
concludes that state parties with non-surrender agreements are prevented from meeting their obligations under
the Rome Statute, thereby constituting a breach of Arts. 27,[50] 86,[51] 89[52] and 90[53] thereof.
Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that those
responsible for the worst possible crimes are brought to justice in all cases, primarily by states, but as a last
resort, by the ICC; thus, any agreementlike the non-surrender agreementthat precludes the ICC from exercising
its complementary function of acting when a state is unable to or unwilling to do so, defeats the object and
purpose of the Rome Statute.

Petitioner would add that the President and the DFA Secretary, as representatives of a signatory of the
Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts that substantially
devalue the purpose and object of the Statute, as signed. Adding a nullifying ingredient to the Agreement,
according to petitioner, is the fact that it has an immoral purpose or is otherwise at variance with a priorly
executed treaty.

Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it differ
from, the Rome Statute. Far from going against each other, one complements the other. As a matter of fact, the
principle of complementarity underpins the creation of the ICC. As aptly pointed out by respondents and
admitted by petitioners, the jurisdiction of the ICC is to be complementary to national criminal jurisdictions [of
the signatory states].[54] Art. 1 of the Rome Statute pertinently provides:

Article 1

The Court

An International Crimininal Court (the Court) is hereby established. It x x x shall have

the power to exercise its jurisdiction over persons for the most serious crimes of international
concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions
of this Statute. (Emphasis ours.)

Significantly, the sixth preambular paragraph of the Rome Statute declares that it is the duty of every
State to exercise its criminal jurisdiction over those responsible for international crimes. This provision
indicates that primary jurisdiction over the so-called international crimes rests, at the first instance, with the
state where the crime was committed; secondarily, with the ICC in appropriate situations contemplated under
Art. 17, par. 1[55] of the Rome Statute.

Of particular note is the application of the principle of ne bis in idem[56] under par. 3 of Art. 20, Rome
Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of the ICC. As far as
relevant, the provision states that no person who has been tried by another court for conduct x x x [constituting
crimes within its jurisdiction] shall be tried by the [International Criminal] Court with respect to the same
conduct x x x.

The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of jurisdictional
conflict between the Philippines, as party to the non-surrender agreement, and the ICC; or the idea of
the Agreement substantially impairing the value of the RPs undertaking under the Rome Statute. Ignoring for a
while the fact that the RP signed the Rome Statute ahead of the Agreement, it is abundantly clear to us that the
Rome Statute expressly recognizes the primary jurisdiction of states, like the RP, over serious crimes committed
within their respective borders, the complementary jurisdiction of the ICC coming into play only when the
signatory states are unwilling or unable to prosecute.

Given the above consideration, petitioners suggestionthat the RP, by entering into the Agreement,
violated its duty required by the imperatives of good faith and breached its commitment under the Vienna
Convention[57] to refrain from performing any act tending to impair the value of a treaty, e.g., the Rome
Statutehas to be rejected outright. For nothing in the provisions of the Agreement, in relation to the Rome
Statute, tends to diminish the efficacy of the Statute, let alone defeats the purpose of the ICC. Lest it be
overlooked, the Rome Statute contains a proviso that enjoins the ICC from seeking the surrender of an erring
person, should the process require the requested state to perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:

Article 98

Cooperation with respect to waiver of immunity

and consent to surrender

xxxx

2. The Court may not proceed with a request for surrender which would require the
requested State to act inconsistently with its obligations under international agreements
pursuant to which the consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation of the sending State for
the giving of consent for the surrender.

Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is only obliged to
refrain from acts which would defeat the object and purpose of a treaty; [58] whereas a State-Party, on the other
hand, is legally obliged to follow all the provisions of a treaty in good faith.

In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute and not
a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from acts which would
defeat the object and purpose of the Rome Statute. Any argument obliging the Philippines to follow any
provision in the treaty would be premature.

As a result, petitioners argument that State-Parties with non-surrender agreements are prevented from
meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89 and 90, must fail. These articles
are only legally binding upon State-Parties, not signatories.

Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible with
the Rome Statute. Specifically, Art. 90(4) provides that [i]f the requesting State is a State not Party to this
Statute the requested State, if it is not under an international obligation to extradite the person to the requesting
State, shall give priority to the request for surrender from the Court. x x x In applying the provision, certain
undisputed facts should be pointed out: first, the US is neither a State-Party nor a signatory to the Rome Statute;
and second, there is an international agreement between the US and the Philippines regarding extradition or
surrender of persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the Rome
Statute still recognizes the primacy of international agreements entered into between States, even when one of
the States is not a State-Party to the Rome Statute.

Sovereignty Limited by International Agreements

Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by bargaining
away the jurisdiction of the ICC to prosecute US nationals, government officials/employees or military
personnel who commit serious crimes of international concerns in the Philippines. Formulating petitioners
argument a bit differently, the RP, by entering into the Agreement, does thereby abdicate its sovereignty,
abdication being done by its waiving or abandoning its right to seek recourse through the Rome Statute of the
ICC for erring Americans committing international crimes in the country.

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as explained above,
it is always the responsibility and within the prerogative of the RP either to prosecute criminal offenses equally
covered by the Rome Statute or to accede to the jurisdiction of the ICC. Thus, the Philippines may decide to try
persons of the US, as the term is understood in the Agreement, under our national criminal justice system. Or it
may opt not to exercise its criminal jurisdiction over its erring citizens or over US persons committing high
crimes in the country and defer to the secondary criminal jurisdiction of the ICC over them. As to persons of the
US whom the Philippines refuses to prosecute, the country would, in effect, accord discretion to the US to
exercise either its national criminal jurisdiction over the person concerned or to give its consent to the referral of
the matter to the ICC for trial. In the same breath, the US must extend the same privilege to the Philippines with
respect to persons of the RP committing high crimes within US territorial jurisdiction.

In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdictionto the extent
agreed uponto subjects of another State due to the recognition of the principle of extraterritorial immunity. What
the Court wrote inNicolas v. Romulo[59]a case involving the implementation of the criminal jurisdiction
provisions of the RP-US Visiting Forces Agreementis apropos:

Nothing in the Constitution prohibits such agreements recognizing immunity from

jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-recognized
subjects of such immunity like Heads of State, diplomats and members of the armed forces
contingents of a foreign State allowed to enter another States territory. x x x

To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the postulate that
some of its provisions constitute a virtual abdication of its sovereignty. Almost every time a state enters into an
international agreement, it voluntarily sheds off part of its sovereignty. The Constitution, as drafted, did not
envision a reclusive Philippines isolated from the rest of the world. It even adheres, as earlier stated, to the
policy of cooperation and amity with all nations.[60]

By their nature, treaties and international agreements actually have a limiting effect on the otherwise
encompassing and absolute nature of sovereignty. By their voluntary act, nations may decide to surrender or
waive some aspects of their state power or agree to limit the exercise of their otherwise exclusive and absolute
jurisdiction. The usual underlying consideration in this partial surrender may be the greater benefits derived
from a pact or a reciprocal undertaking of one contracting party to grant the same privileges or immunities to
the other. On the rationale that the Philippines has adopted the generally accepted principles of international law
as part of the law of the land, a portion of sovereignty may be waived without violating the Constitution.
[61]
Such waiver does not amount to an unconstitutional diminution or deprivation of jurisdiction of Philippine
courts.[62]

Agreement Not Immoral/Not at Variance

with Principles of International Law

Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral obligations
and/or being at variance with allegedly universally recognized principles of international law. The immoral
aspect proceeds from the fact that the Agreement, as petitioner would put it, leaves criminals immune from
responsibility for unimaginable atrocities that deeply shock the conscience of humanity; x x x it precludes our
country from delivering an American criminal to the [ICC] x x x.[63]
 The above argument is a kind of recycling of petitioners earlier position, which, as already discussed,
contends that the RP, by entering into the Agreement, virtually abdicated its sovereignty and in the process
undermined its treaty obligations under the Rome Statute, contrary to international law principles.[64]

The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement, as aptly
described by the Solicitor General, is an assertion by the Philippinesof its desire to try and punish crimes under
its national law. x x x The agreement is a recognition of the primacy and competence of the countrys judiciary
to try offenses under its national criminal laws and dispense justice fairly and judiciously.

Petitioner, we believe, labors under the erroneous impression that the Agreement would allow Filipinos
and Americans committing high crimes of international concern to escape criminal trial and punishment. This is
manifestly incorrect. Persons who may have committed acts penalized under the Rome Statute can be
prosecuted and punished in thePhilippines or in the US; or with the consent of the RP or the US, before the ICC,
assuming, for the nonce, that all the formalities necessary to bind both countries to the Rome Statute have been
met. For perspective, what the Agreement contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party, which may desire to prosecute the
crime under its existing laws. With the view we take of things, there is nothing immoral or violative of
international law concepts in the act of the Philippines of assuming criminal jurisdiction pursuant to the non-
surrender agreement over an offense considered criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the Agreement. And
without specifically saying so, petitioner would argue that the non-surrender agreement was executed by the
President, thru the DFA Secretary, in grave abuse of discretion.

The Court need not delve on and belabor the first portion of the above posture of petitioner, the same
having been discussed at length earlier on. As to the second portion, We wish to state that petitioner virtually
faults the President for performing, through respondents, a task conferred the President by the Constitutionthe
power to enter into international agreements.

By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country. [65] The Constitution vests in the
President the power to enter into international agreements, subject, in appropriate cases, to the required
concurrence votes of the Senate.But as earlier indicated, executive agreements may be validly entered into
without such concurrence. As the President wields vast powers and influence, her conduct in the external affairs
of the nation is, as Bayan would put it, executive altogether. The right of the President to enter into or ratify
binding executive agreements has been confirmed by long practice.[66]

In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria Macapagal-
Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the authority and discretion
vested in her by the Constitution. At the end of the day, the Presidentby ratifying, thru her deputies, the non-
surrender agreementdid nothing more than discharge a constitutional duty and exercise a prerogative that
pertains to her office.

While the issue of ratification of the Rome Statute is not determinative of the other issues raised herein,
it may perhaps be pertinent to remind all and sundry that about the time this petition was interposed, such issue
of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive Secretary. [67] As the Court emphasized in
said case, the power to ratify a treaty, the Statute in that instance, rests with the President, subject to the
concurrence of the Senate, whose role relative to the ratification of a treaty is limited merely to concurring in or
withholding the ratification. And concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters consent to the ratification of
the treaty, refuse to ratify it. [68] This prerogative, the Court hastened to add, is the Presidents alone and cannot be
encroached upon via a writ of mandamus. Barring intervening events, then, the Philippines remains to be just a
signatory to the Rome Statute. Under Art. 125[69] thereof, the final acts required to complete the treaty process
and, thus, bring it into force, insofar as the Philippines is concerned, have yet to be done.

Agreement Need Not Be in the Form of a Treaty

On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851, otherwise
known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes
Against Humanity. Sec. 17 of RA 9851, particularly the second paragraph thereof, provides:

Section 17. Jurisdiction. x x x x

In the interest of justice, the relevant Philippine authorities may dispense with the
investigation or prosecution of a crime punishable under this Act if another court or international
tribunal is already conducting the investigation or undertaking the prosecution of such
crime. Instead, the authorities may surrender or extradite suspected or accused persons in
thePhilippines to the appropriate international court, if any, or to another State pursuant
to the applicable extradition laws and treaties. (Emphasis supplied.)

A view is advanced that the Agreement amends existing municipal laws on the States obligation in
relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity and war
crimes. Relying on the above-quoted statutory proviso, the view posits that the Philippine is required to
surrender to the proper international tribunal those persons accused of the grave crimes defined under RA 9851,
if it does not exercise its primary jurisdiction to prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign national for
violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the accused to the proper
international tribunal; or (2) surrender the accused to another State if such surrender is pursuant to the
applicable extradition laws and treaties. But the Philippines may exercise these options only in cases where
another court or international tribunal is already conducting the investigation or undertaking the prosecution of
such crime; otherwise, the Philippines must prosecute the crime before its own courts pursuant to RA 9851.
 Posing the situation of a US national under prosecution by an international tribunal for any crime under
RA 9851, the Philippines has the option to surrender such USnational to the international tribunal if it decides
not to prosecute such US national here. The view asserts that this option of the Philippines under Sec. 17 of RA
9851 is not subject to the consent of the US, and any derogation of Sec. 17 of RA 9851, such as requiring the
consent of the US before the Philippines can exercise such option, requires an amendatory law. In line with this
scenario, the view strongly argues that the Agreement prevents the Philippineswithout the consent of
the USfrom surrendering to any international tribunal US nationals accused of crimes covered by RA 9851, and,
thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly impressed that
theAgreement cannot be embodied in a simple executive agreement in the form of an exchange of notes but
must be implemented through an extradition law or a treaty with the corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where
the Philippines adopts, as a national policy, the generally accepted principles of international law as part of
the law of the land, the Court is further impressed to perceive the Rome Statute as declaratory of customary
international law. In other words, the Statute embodies principles of law which constitute customary
international law or custom and for which reason it assumes the status of an enforceable domestic law in the
context of the aforecited constitutional provision. As a corollary, it is argued that any derogation from the Rome
Statute principles cannot be undertaken via a mere executive agreement, which, as an exclusive act of the
executive branch, can only implement, but cannot amend or repeal, an existing law. The Agreement, so the
argument goes, seeks to frustrate the objects of the principles of law or alters customary rules embodied in the
Rome Statute.

Prescinding from the foregoing premises, the view thus advanced considers the Agreement inefficacious,
unless it is embodied in a treaty duly ratified with the concurrence of the Senate, the theory being that a Senate-
ratified treaty partakes of the nature of a municipal law that can amend or supersede another law, in this instance
Sec. 17 of RA 9851 and the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2,
Art. II of the Constitution.

We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does not
amend or is repugnant to RA 9851. For another, the view does not clearly state what precise principles of law, if
any, the Agreement alters. And for a third, it does not demonstrate in the concrete how the Agreement seeks to
frustrate the objectives of the principles of law subsumed in the Rome Statute.

Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the former
merely reinforces the primacy of the national jurisdiction of the US and the Philippines in prosecuting criminal
offenses committed by their respective citizens and military personnel, among others. The jurisdiction of the
ICC pursuant to the Rome Statute over high crimes indicated thereat is clearly and unmistakably
complementary to the national criminal jurisdiction of the signatory states.
 Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international humanitarian
law, genocide and other crimes against humanity;[70] (2) provides penal sanctions and criminal liability for their
commission;[71] and (3) establishes special courts for the prosecution of these crimes and for the State to exercise
primary criminal jurisdiction.[72] Nowhere in RA 9851 is there a proviso that goes against the tenor of
the Agreement.

The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the Philippine
State to surrender to the proper international tribunal those persons accused of crimes sanctioned under said law
if it does not exercise its primary jurisdiction to prosecute such persons. This view is not entirely correct, for the
above quoted proviso clearly provides discretion to the Philippine State on whether to surrender or not a person
accused of the crimes under RA 9851. The statutory proviso uses the wordmay. It is settled doctrine in statutory
construction that the word may denotes discretion, and cannot be construed as having mandatory effect. [73] Thus,
the pertinent second pararagraph of Sec. 17, RA 9851 is simply permissive on the part of the Philippine State.

Besides, even granting that the surrender of a person is mandatorily required when the Philippines does
not exercise its primary jurisdiction in cases where another court or international tribunal is already conducting
the investigation or undertaking the prosecution of such crime, still, the tenor of the Agreement is not repugnant
to Sec. 17 of RA 9851. Said legal proviso aptly provides that the surrender may be made to another State
pursuant to the applicable extradition laws and treaties. The Agreement can already be considered a treaty
following this Courts decision in Nicolas v. Romulo[74] which cited Weinberger v. Rossi.[75] In Nicolas, We held
that an executive agreement is a treaty within the meaning of that word in international law and constitutes
enforceable domestic law vis--vis the United States.[76]

Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US Extradition
Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on the other hand, is
Presidential Decree No. 1069, issued on January 13, 1977. Thus, the Agreement, in conjunction with the RP-US
Extradition Treaty, would neither violate nor run counter to Sec. 17 of RA 9851.

The views reliance on Suplico v. Neda[77] is similarly improper. In that case, several petitions were filed
questioning the power of the President to enter into foreign loan agreements. However, before the petitions
could be resolved by the Court, the Office of the Solicitor General filed a Manifestation and Motion averring
that the Philippine Government decided not to continue with the ZTE National Broadband Network Project,
thus rendering the petition moot. In resolving the case, the Court took judicial notice of the act of the executive
department of the Philippines (the President) and found the petition to be indeed moot. Accordingly, it
dismissed the petitions.

In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that an executive agreement has the force and effect of law x x x [it] cannot
amend or repeal prior laws.[78] Hence, this argument finds no application in this case seeing as RA 9851 is a
subsequent law, not a prior one. Notably, this argument cannot be found in the ratio decidendi of the case, but
only in the dissenting opinion.

The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the reason
that under par. 1, Art. 2 of the RP-US Extradition Treaty, [a]n offense shall be an extraditable offense if it
is punishable under the laws in both Contracting Parties x x x,[79] and thereby concluding that while the
Philippines has criminalized under RA 9851 the acts defined in the Rome Statute as war crimes, genocide and
other crimes against humanity, there is no similar legislation in the US. It is further argued that, citing U.S. v.
Coolidge, in the US, a person cannot be tried in the federal courts for an international crime unless Congress
adopts a law defining and punishing the offense.

This view must fail.

On the contrary, the US has already enacted legislation punishing the high crimes mentioned earlier. In
fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section 2441, Chapter 118, Part
I, Title 18 of the United States Code Annotated (USCA) provides for the criminal offense of war crimes which
is similar to the war crimes found in both the Rome Statute and RA 9851, thus:

(a) Offense Whoever, whether inside or outside the United States, commits a war crime, in any
of the circumstances described in subsection (b), shall be fined under this title or imprisoned
for life or any term of years, or both, and if death results to the victim, shall also be subject to
the penalty of death.
(b) Circumstances The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed Forces
of the United States or a national of the United States (as defined in Section 101 of the
Immigration and Nationality Act).
(c) Definition As used in this Section the term war crime means any conduct
(1) Defined as a grave breach in any of the international conventions signed at Geneva 12
August 1949, or any protocol to such convention to which the United States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection [d])
when committed in the context of and in association with an armed conflict not of an
international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions of the
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996),
when the United States is a party to such Protocol, willfully kills or causes serious injury
to civilians.[80]

Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:

1091. Genocide

(a) Basic Offense Whoever, whether in the time of peace or in time of war and
with specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).[81]
 Arguing further, another view has been advanced that the current US laws do not cover every crime
listed within the jurisdiction of the ICC and that there is a gap between the definitions of the different crimes
under the US laws versus the Rome Statute. The view used a report written by Victoria K. Holt and Elisabeth W.
Dallas, entitled On Trial: The US Military and the International Criminal Court, as its basis.

At the outset, it should be pointed out that the report used may not have any weight or value under international
law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the sources of international law, as
follows: (1) international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states; (2) international custom, as evidence of a general practice accepted as law; (3) the general
principles of law recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial
decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law. The report does not fall under any of the foregoing enumerated
sources. It cannot even be considered as the teachings of highly qualified publicists. A highly qualified publicist
is a scholar of public international law and the term usually refers to legal scholars or academic writers. [82] It has
not been shown that the authors[83] of this report are highly qualified publicists.

Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the crimes
are nonexistent. To highlight, the table below shows the definitions of genocide and war crimes under the
Rome Statute vis--vis the definitions under US laws:

Rome Statute US Law

Article 6
Genocide
For the purpose of this Statute, genocide
means any of the following acts committed
with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group,
as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm
to members of the group;
(c) Deliberately inflicting on the group
conditions of life calculated to bring
about its physical destruction in whole
or in part;
(d) Imposing measures intended to prevent
births within the group;
(e) Forcibly transferring children of the
group to another group.
Article 8
War Crimes
2. For the purpose of this Statute, war
crimes means:
(a) Grave breaches of the Geneva
1091. Genocide
(a) Basic Offense Whoever, whether in the
time of peace or in time of war and with
specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members
of that group;
(3) causes the permanent impairment of the
mental faculties of members of the
group through drugs, torture, or
similar techniques;
(4) subjects the group to conditions of life
that are intended to cause the
physical destruction of the group in
whole or in part;
(5) imposes measures intended to prevent
births within the group; or
(6) transfers by force children of the group
to another group;
shall be punished as provided in subsection
(b).
(a) Definition As used in this Section the
term war crime means any conduct
(1) Defined as a grave breach in any of
the international conventions signed
at Geneva12 August 1949, or any
Conventions of 12 August 1949, namely,
any of the following acts against persons or
property protected under the provisions of
the relevant Geneva Convention: x x x[84]
(b) Other serious violations of the laws and
customs applicable in international armed
conflict, within the established framework
of international law, namely, any of the
following acts:
xxxx
(c) In the case of an armed conflict not of
an international character, serious
violations of article 3 common to the four
Geneva Conventions of 12 August 1949,
namely, any of the following acts
committed against persons taking no active
part in the hostilities, including members of
armed forces who have laid down their
arms and those placed hors de combat by
sickness, wounds, detention or any other
cause:
xxxx
(d) Paragraph 2 (c) applies to armed
conflicts not of an international character
and thus does not apply to situations of
internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence
or other acts of a similar nature.
(e) Other serious violations of the laws and
customs applicable in armed conflicts not
of an international character, within the
established framework of international law,
namely, any of the following acts: x x x.
protocol to such convention to which
the United States is a party;
(2) Prohibited by Article 23, 25, 27 or
28 of the Annex to the
Hague Convention IV, Respecting
the Laws and Customs of War on
Land, signed 18 October 1907;
(3) Which constitutes a grave breach of
common Article 3 (as defined in
subsection [d][85]) when committed in
the context of and in association with
an armed conflict not of an
international character; or
(4) Of a person who, in relation to an
armed conflict and contrary to the
provisions of the Protocol on
Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and
Other Devices as amended at Geneva
on 3 May 1996 (Protocol II as
amended on 3 May 1996), when the
United States is a party to such
Protocol, willfully kills or causes
serious injury to civilians.[86]

Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the report itself stated
as much, to wit:

Few believed there were wide differences between the crimes under the jurisdiction of the
Court and crimes within the Uniform Code of Military Justice that would expose US personnel
to the Court. Since US military lawyers were instrumental in drafting the elements of crimes
outlined in the Rome Statute, they ensured that most of the crimes were consistent with those
outlined in the UCMJ and gave strength to complementarity for the US. Small areas of potential
gaps between the UCMJ and the Rome Statute, military experts argued, could be addressed
through existing military laws.[87] x x x

The report went on further to say that [a]ccording to those involved, the elements of crimes laid out in
the Rome Statute have been part of US military doctrine for decades.[88] Thus, the argument proffered cannot
stand.
 Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine of
incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana[89] case already held
international law as part of the law of the US, to wit:

International law is part of our law, and must be ascertained and administered by the
courts of justice of appropriate jurisdiction as often as questions of right depending upon it are
duly presented for their determination. For this purpose, where there is no treaty and no
controlling executive or legislative act or judicial decision, resort must be had to the customs and
usages of civilized nations, and, as evidence of these, to the works of jurists and commentators
who by years of labor, research, and experience have made themselves peculiarly well
acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals,
not for the speculations of their authors concerning what the law ought to be, but for the
trustworthy evidence of what the law really is.[90] (Emphasis supplied.)

Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,[91] which in turn is based on the holding in U.S. v. Hudson,
[92]
only applies to common law and not to the law of nations or international law. [93] Indeed, the Court in U.S. v.
Hudson only considered the question, whether the Circuit Courts of the United States can exercise a common
law jurisdiction in criminal cases.[94] Stated otherwise, there is no common law crime in theUS but this is
considerably different from international law.

The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute.[95] In fact, years later, US courts would apply international
law as a source of criminal liability despite the lack of a local statute criminalizing it as such. So it was that
in Ex Parte Quirin[96] the US Supreme Court noted that [f]rom the very beginning of its history this Court has
recognized and applied the law of war as including that part of the law of nations which prescribes, for the
conduct of war, the status, rights and duties of enemy nations as well as of enemy individuals. [97] It went on
further to explain that Congress had not undertaken the task of codifying the specific offenses covered in the
law of war, thus:

It is no objection that Congress in providing for the trial of such offenses has not itself
undertaken to codify that branch of international law or to mark its precise boundaries, or
to enumerate or define by statute all the acts which that law condemns. An Act of Congress
punishing the crime of piracy as defined by the law of nations is an appropriate exercise of its
constitutional authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by
reference the sufficiently precise definition of international law. x x x Similarly by the reference
in the 15th Article of War to offenders or offenses that x x x by the law of war may be triable by
such military commissions. Congress has incorporated by reference, as within the jurisdiction of
military commissions, all offenses which are defined as such by the law of war x x x, and which
may constitutionally be included within that jurisdiction.[98] x x x (Emphasis supplied.)

This rule finds an even stronger hold in the case of crimes against humanity. It has been held that
genocide, war crimes and crimes against humanity have attained the status of customary international
law. Some even go so far as to state that these crimes have attained the status of jus cogens.[99]

Customary international law or international custom is a source of international law as stated in the
Statute of the ICJ.[100] It is defined as the general and consistent practice of states recognized and followed by
them from a sense of legal obligation. [101] In order to establish the customary status of a particular norm, two
elements must concur: State practice, the objective element; and opinio juris sive necessitates, the subjective
element.[102]

State practice refers to the continuous repetition of the same or similar kind of acts or norms by States.
[103]
It is demonstrated upon the existence of the following elements: (1) generality; (2) uniformity and
consistency; and (3) duration.[104] While, opinio juris, the psychological element, requires that the state practice
or norm be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.[105]

The term jus cogens means the compelling law.[106] Corollary, a jus cogens norm holds the highest
hierarchical position among all other customary norms and principles. [107] As a result, jus cogens norms are
deemed peremptory and non-derogable.[108] When applied to international crimes, jus cogens crimes have been
deemed so fundamental to the existence of a just international legal order that states cannot derogate from them,
even by agreement.[109]

These jus cogens crimes relate to the principle of universal jurisdiction, i.e., any state may exercise
jurisdiction over an individual who commits certain heinous and widely condemned offenses, even when no
other recognized basis for jurisdiction exists.[110] The rationale behind this principle is that the crime committed
is so egregious that it is considered to be committed against all members of the international community [111] and
thus granting every State jurisdiction over the crime.[112]

Therefore, even with the current lack of domestic legislation on the part of the US, it still has both the doctrine
of incorporation and universal jurisdiction to try these crimes.

Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the Rome
Statute is not declaratory of customary international law.

The first element of customary international law, i.e., established, widespread, and consistent practice on
the part of States,[113] does not, under the premises, appear to be obtaining as reflected in this simple reality: As
of October 12, 2010, only 114[114] States have ratified the Rome Statute, subsequent to its coming into force
eight (8) years earlier, or on July 1, 2002. The fact that 114 States out of a total of 194 [115] countries in the world,
or roughly 58.76%, have ratified the Rome Statute casts doubt on whether or not the perceived principles
contained in the Statute have attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of establishing international criminal
courts envisioned in the Rome Statute. Lest it be overlooked, the Philippines, judging by the action or inaction
of its top officials, does not even feel bound by the Rome Statute. Res ipsa loquitur. More than eight (8) years
have elapsed since the Philippine representative signed the Statute, but the treaty has not been transmitted to the
Senate for the ratification process.

And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:

Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x. This statement contains
the two basic elements of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way they do.
 xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do because they
consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris,
or the belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[116] (Emphasis added.)

Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the different
countries in the world that the prosecution of internationally recognized crimes of genocide, etc. should be
handled by a particular international criminal court.

Absent the widespread/consistent-practice-of-states factor, the second or the psychological element must
be deemed non-existent, for an inquiry on why states behave the way they do presupposes, in the first place, that
they are actually behaving, as a matter of settled and consistent practice, in a certain manner. This implicitly
requires belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it.
[117]
Like the first element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes enumerated
therein as evidenced by it requiring State consent.[118] Even further, the Rome Statute specifically and
unequivocally requires that: This Statute is subject to ratification, acceptance or approval by signatory States.
[119]
These clearly negate the argument that such has already attained customary status.

More importantly, an act of the executive branch with a foreign government must be afforded great
respect. The power to enter into executive agreements has long been recognized to be lodged with the President.
As We held in Neri v. Senate Committee on Accountability of Public Officers and Investigations, [t]he power to
enter into an executive agreement is in essence an executive power. This authority of the President to enter into
executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence.[120] The rationale behind this principle is the inviolable doctrine of separation of powers among
the legislative, executive and judicial branches of the government. Thus, absent any clear contravention of the
law, courts should exercise utmost caution in declaring any executive agreement invalid.

In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
 WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack
of merit. No costs.

SO ORDERED.

PLARIDEL M. ABAYA, G.R. No. 167919

COMMODORE PLARIDEL C. GARCIA (retired) and PMA Present:
59 FOUNDATION, INC., rep. by its President, COMMODORE CARLOS L. AGUSTIN YNARES-
SANTIAGO, J.
(retired), Chairperson,
Petitioners, AUSTRIA-MARTINEZ,
CALLEJO, SR., and
CHICO-NAZARIO, JJ.
- versus -
HON. SECRETARY Promulgated:
HERMOGENES E. EBDANE, JR., in his capacity as Secretary of the DEPARTMENT OF
PUBLIC February 14, 2007
WORKS and HIGHWAYS, HON. SECRETARY EMILIA T. BONCODIN, in her capacity as Secretary of
the
DEPARTMENT OF BUDGET and MANAGEMENT, HON. SECRETARY CESAR V. PURISIMA, in his
capacity
as Secretary of the DEPARTMENT OF FINANCE, HON. TREASURER NORMA L. LASALA, in her
capacity as Treasurer
of the Bureau of Treasury, and CHINA ROAD and BRIDGE CORPORATION,
Respondents.
x------------------------------------------------------------------------------------------------------------------------------x

D E C I S I O N
CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition under Rule 65 of the Rules of Court seeking to set
aside and nullify Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the Bids and Awards Committee
(BAC) of the Department of Public Works and Highways (DPWH) and approved by then DPWH Acting
Secretary Florante Soriquez. The assailed resolution recommended the award to private respondent China Road
& Bridge Corporation of the contract for the implementation of civil works for Contract Package No. I (CP I),
which consists of the improvement/rehabilitation of the San Andres (Codon)-Virac-Jct. Bago-Viga road, with
the length of 79.818 kilometers, in the island province of Catanduanes.

The CP I project is one of the four packages comprising the project for the improvement/rehabilitation
of the Catanduanes Circumferential Road, covering a total length of about 204.515 kilometers, which is the
main highway in Catanduanes Province. The road section (Catanduanes Circumferential Road) is part of the
Arterial Road Links Development Project (Phase IV) funded under Loan Agreement No. PH-P204
dated December 28, 1999 between the Japan Bank for International Cooperation (JBIC) and the Government of
the Republic of the Philippines.
Background
Based on the Exchange of Notes dated December 27, 1999,[1] the Government of Japan and the
Government of the Philippines, through their respective representatives, namely, Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the Republic of the Philippines, and then Secretary
of Foreign Affairs Domingo L. Siazon, have reached an understanding concerning Japanese loans to be
extended to the Philippines. These loans were aimed at promoting our countrys economic stabilization and
development efforts.

The Exchange of Notes consisted of two documents: (1) a Letter from the Government of Japan, signed
by Ambassador Ara, addressed to then Secretary of Foreign Affairs Siazon, confirming the understanding
reached between the two governments concerning the loans to be extended by the Government of Japan to the
Philippines; and (2) a document denominated as Records of Discussion where the salient terms of the loans as
set forth by the Government of Japan, through the Japanese delegation, were reiterated and the said terms were
accepted by the Philippine delegation. Both Ambassador Ara and then Secretary Siazon signed the Records of
Discussion as representatives of the Government of Japan and Philippine Government, respectively.

The Exchange of Notes provided that the loans to be extended by the Government of Japan to
the Philippines consisted of two loans: Loan I and Loan II. The Exchange of Notes stated in part:

1. A loan in Japanese yen up to the amount of seventy-nine billion eight hundred and sixty-one
million yen (Y79,861,000,000) (hereinafter referred to as the Loan I) will be extended, in
accordance with the relevant laws and regulations of Japan, to the Government of the Republic
of the Philippines (hereinafter referred to as the Borrower I) by the Japan Bank for International
Cooperation (hereinafter referred to as the Bank) to implement the projects enumerated in the
List A attached hereto (hereinafter referred to as the List A) according to the allocation for each
project as specified in the List A.

2. (1) The Loan I will be made available by loan agreements to be concluded between the
Borrower I and the Bank. The terms and conditions of the Loan I as well as the procedure for its
utilization will be governed by said loan agreements which will contain, inter alia, the following
principles:
...

(2) Each of the loan agreements mentioned in sub-paragraph (1) above will be concluded after
the Bank is satisfied of the feasibility, including environmental consideration, of the project to
which such loan agreement relates.
 3. (1) The Loan I will be made available to cover payments to be made by the Philippine
executing agencies to suppliers, contractors and/or consultants of eligible source countries under
such contracts as may be entered into between them for purchases of products and/or services
required for the implementation of the projects enumerated in the List A, provided that such
purchases are made in such eligible source countries for products produced in and/or services
supplied from those countries.
(2) The scope of eligible source countries mentioned in sub-paragraph (1) above will be agreed
upon between the authorities concerned of the two Governments.
(3) A part of the Loan I may be used to cover eligible local currency requirements for the
implementation of the projects enumerated in the List A.

4. With regard to the shipping and marine insurance of the products purchased under the Loan I,
the Government of the Republic of the Philippines will refrain from imposing any restrictions
that may hinder fair and free competition among the shipping and marine insurance companies.

x x x x[2]

Pertinently, List A, which specified the projects to be financed under the Loan I, includes the Arterial Road
Links Development Project (Phase IV), to wit:

LIST A

Maximum amount
in million yen)

1. Secondary Education Development and

Improvement Project 7,210

2. Rural Water Supply Project (Phase V) 951

3. Bohol Irrigation Project (Phase II) 6,078

4. Agrarian Reform Infrastructure Support

Project (Phase II) 16,990
5. Arterial Road Links Development Project
(Phase IV) 15,384

6. Cordillera Road Improvement Project 5,852

7. Philippines-Japan Friendship Highway Mindanao

Section Rehabilitation Project (Phase II) 7,434

8. Rehabilitation and Maintenance of Bridges

Along Arterial Roads Project (Phase IV) 5,068

9. Maritime Safety Improvement Project

(Phase C) 4,714

10. Pinatubo Hazard Urgent Mitigation Project

(Phase II) 9,013

11. Pasig-Marikina River Channel Improvement

 Project (Phase I) 1,167
Total 79,861[3]

The Exchange of Notes further provided that:

III

xxxx
3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.

x x x x[4]

The Records of Discussion, which formed part of the Exchange of Notes, also stated in part, thus:
xxxx

1. With reference to sub-paragraph (3) of paragraph 3 of Part I of the Exchange of Notes

concerning the financing of eligible local currency requirements for the implementation of the
projects mentioned in the said sub-paragraph, the representative of the Japanese delegation stated
that:

(1) such requirement of local currency as general administrative expenses, interest

during construction, taxes and duties, expenses concerning office, remuneration to
employees of the executing agencies and housing, not directly related to the
implementation of the said projects, as well as purchase of land properties,
compensation and the like, however, will not be considered as eligible for financing
under the Loan I; and

(2) the procurement of products and/or services will be made in accordance with the
procedures of international competitive tendering except where such procedures are
inapplicable and inappropriate.

x x x x[5]

Thus, in accordance with the agreement reached by the Government of Japan and the Philippine Government, as
expressed in the Exchange of Notes between the representatives of the two governments,
the Philippines obtained from and was granted a loan by the JBIC. Loan Agreement No. PH-P204
dated December 28, 1999, in particular, stated as follows:

Loan Agreement No. PH-P204, dated December 28, 1999, between JAPAN BANK FOR
INTERNATIONAL COOPERATION and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.
 In the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic stabilization and development
efforts of the Republic of the Philippines.

JAPAN BANK FOR INTERNATIONAL COOPERATION (hereinafter referred to as the

BANK) and THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES (hereinafter
referred to as the Borrower) herewith conclude the following Loan Agreement (hereinafter
referred to as the Loan Agreement, which includes all agreements supplemental hereto).

x x x x[6]

Under the terms and conditions of Loan Agreement No. PH-P204, JBIC agreed to lend the Philippine
Government an amount not exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-FOUR MILLION
Japanese Yen (Y 15,384,000,000) as principal for the implementation of the Arterial Road Links Development
Project (Phase IV) on the terms and conditions set forth in the Loan Agreement and in accordance with the
relevant laws and regulations of Japan.[7] The said amount shall be used for the purchase of eligible goods and
services necessary for the implementation of the above-mentioned project from suppliers, contractors or
consultants.[8]

Further, it was provided under the said loan agreement that other terms and conditions generally
applicable thereto shall be set forth in the General Terms and Conditions, dated November 1987, issued by the
Overseas Economic Cooperation Fund (OECF) and for the purpose, reference to the OECF and Fund therein
(General Terms and Conditions) shall be substituted by the JBIC and Bank, respectively. [9] Specifically, the
guidelines for procurement of all goods and services to be financed out of the proceeds of the said loan shall be
as stipulated in the Guidelines for Procurement under OECF Loans dated December 1997 (herein referred to as
JBIC Procurement Guidelines).[10]
As mentioned earlier, the proceeds of Loan Agreement No. PH-P204 was to be used to finance the
Arterial Road Links Development Project (Phase IV), of which theCatanduanes Circumferential Road was a
part. This road section, in turn, was divided into four contract packages (CP):

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road - 79.818 kms

CP II: Viga-Bagamanoc Road - 10.40 kms.
CP III: Bagamanoc-Pandan Road - 47.50 kms.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.[11]

Subsequently, the DPWH, as the government agency tasked to implement the project, caused the
publication of the Invitation to Prequalify and to Bid for the implementation of the CP I project in two leading
national newspapers, namely, the Manila Times and Manila Standard on November 22 and 29, and December 5,
2002.
A total of twenty-three (23) foreign and local contractors responded to the invitation by submitting their
accomplished prequalification documents on January 23, 2003. In accordance with the established
prequalification criteria, eight contractors were evaluated or considered eligible to bid as concurred by the
JBIC. One of them, however, withdrew; thus, only seven contractors submitted their bid proposals.

The bid documents submitted by the prequalified contractors/bidders were examined to determine their
compliance with the requirements as stipulated in Article 6 of the Instruction to Bidders. [12] After the lapse of the
deadline for the submission of bid proposals, the opening of the bids commenced immediately. Prior to the
opening of the respective bid proposals, it was announced that the Approved Budget for the Contract (ABC)
was in the amount of P738,710,563.67.

The result of the bidding revealed the following three lowest bidders and their respective bids vis--vis
the ABC:[13]

Name of Bidder Original Bid As-Corrected

As Read Bid Amount Variance
(Pesos) (Pesos)
1) China Road
And Bridge P 993,183,904.98 P952,564,821.71 28.95%
Corporation
2) Cavite Ideal
Intl Const. P1,099,926,598.11 P1,099,926,598.11 48.90%
Devt. Corp.
3) Italian Thai
Devt. Public P1,125,022,075.34 P1,125,392,475.36 52.35%
Company, Ltd.

The bid of private respondent China Road & Bridge Corporation was corrected from the
original P993,183,904.98 (with variance of 34.45% from the ABC) toP952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated April 21, 2004.[14]

After further evaluation of the bids, particularly those of the lowest three bidders, Mr. Hedifume Ezawa,
Project Manager of the Catanduanes Circumferential Road Improvement Project (CCRIP), in his Contractors
Bid Evaluation Report dated April 2004, recommended the award of the contract to private respondent China
Road & Bridge Corporation:

In accordance with the Guidelines for the Procurements under ODA [Official Development
Assistance] Loans, the Consultant hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) Virac Jct. Bato Viga Section under the Arterial Road
Links Development Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest Complying
Bidder, China Road and Bridge Corporation, at its total corrected bid amount of Nine Hundred
Fifty-Two Million Five Hundred Sixty-Four Thousand Eight Hundred Twenty-One & 71/100
Pesos.[15]
The BAC of the DPWH, with the approval of then Acting Secretary Soriquez, issued the assailed Resolution
No. PJHL-A-04-012 dated May 7, 2004 recommending the award in favor of private respondent China Road &
Bridge Corporation of the contract for the implementation of civil works for CP I, San Andres (Codon) Virac
Jct. Bato Viga Road (Catanduanes Circumferential Road Improvement Project) of the Arterial Roads Links
Development Project, Phase IV, located in Catanduanes Province, under JBIC Loan Agreement No. PH-P204.
[16]
On September 29, 2004, a Contract of Agreement was entered into by and between the DPWH and private
respondent China Road & Bridge Corporation for the implementation of the CP I project.

The Parties
Petitioner Plaridel M. Abaya claims that he filed the instant petition as a taxpayer, former lawmaker, and
a Filipino citizen. Petitioner Plaridel C. Garcia likewise claims that he filed the suit as a taxpayer, former
military officer, and a Filipino citizen. Petitioner PMA 59 Foundation, Inc., on the other hand, is a non-stock,
non-profit corporation organized under the existing Philippine laws. It claims that its members are all taxpayers
and alumni of the Philippine Military Academy. It is represented by its President, Carlos L. Agustin.

Named as public respondents are the DPWH, as the government agency tasked with the implementation
of government infrastructure projects; the Department of Budget and Management (DBM) as the government
agency that authorizes the release and disbursement of public funds for the implementation of government
infrastructure projects; and the Department of Finance (DOF) as the government agency that acts as the
custodian and manager of all financial resources of the government. Also named as individual public
respondents are Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V. Purisima in their capacities as
former Secretaries of the DPWH, DBM and DOF, respectively. On the other hand, public respondent Norma L.
Lasala was impleaded in her capacity as Treasurer of the Bureau of Treasury.

Private respondent China Road & Bridge Corporation is a duly organized corporation engaged in the
business of construction.
The Petitioners Case

The petitioners mainly seek to nullify DPWH Resolution No. PJHL-A-04-012 dated May 7, 2004, which
recommended the award to private respondent China Road & Bridge Corporation of the contract for the
implementation of the civil works of CP I. They also seek to annul the contract of agreement subsequently
entered into by and between the DPWH and private respondent China Road & Bridge Corporation pursuant to
the said resolution.
They pose the following issues for the Courts resolution:
I. Whether or not Petitioners have standing to file the instant Petition.

II. Whether or not Petitioners are entitled to the issuance of a Writ of Certiorari reversing and
setting aside DPWH Resolution No. PJHL-A-04-012, recommending the award of the Contract
Agreement for the implementation of civil works for CPI, San Andres (CODON)-VIRAC-JCT
BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD IMPROVEMENT
PROJECT) of the Arterial Road Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC L/A No. PH-P204, to China Road & Bridge Corporation.

III. Whether or not the Contract Agreement executed by and between the Republic of the
Philippines, through the Department of Public Works and Highways, and the China Road &
Bridge Corporation, for the implementation of civil works for CPI, San Andres (CODON)-
VIRAC-JCT BATO-VIGA ROAD (CATANDUANES CIRCUMFERENTIAL ROAD
IMPROVEMENT PROJECT) of the Arterial Road Links Development Project, Phase IV, located
in Catanduanes Province, under JBIC L/A No. PH-P204, is void ab initio.

IV. Whether or not Petitioners are entitled to the issuance of a Writ of Prohibition permanently
prohibiting the implementation of DPWH Resolution No. PJHL-A-04-012 and the Contract
Agreement executed by and between the Republic of the Philippines (through the Department of
Public Works and Highways) and the China Road & Bridge Corporation, and the disbursement
of public funds by the [D]epartment of [B]udget and [M]anagement for such purpose.

V. Whether or not Petitioners are entitled to a Preliminary Injunction and/or a Temporary

Restraining Order immediately enjoining the implementation of DPWH Resolution No. PJHL-A-
04-012 and the Contract Agreement executed by and between the Republic of
the Philippines (through the Department of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds by the Department of Budget and
Management for such purpose, during the pendency of this case.[17]

Preliminarily, the petitioners assert that they have standing or locus standi to file the instant petition. They claim
that as taxpayers and concerned citizens, they have the right and duty to question the expenditure of public
funds on illegal acts. They point out that the Philippine Government allocates a peso-counterpart for CP I,
which amount is appropriated by Congress in the General Appropriations Act; hence, funds that are being
utilized in the implementation of the questioned project also partake of taxpayers money.The present action, as a
taxpayers suit, is thus allegedly proper.

They likewise characterize the instant petition as one of transcendental importance that warrants the Courts
adoption of a liberal stance on the issue of standing. It cited several cases where the Court brushed aside
procedural technicalities in order to resolve issues involving paramount public interest and transcendental
importance.[18] Further, petitioner Abaya asserts that he possesses the requisite standing as a former member of
the House of Representatives and one of the principal authors of Republic Act No. 9184 (RA 9184) [19] known as
the Government Procurement Reform Act, the law allegedly violated by the public respondents.
On the substantive issues, the petitioners anchor the instant petition on the contention that the award of the
contract to private respondent China Road & Bridge Corporation violates RA 9184, particularly Section 31
thereof which reads:

SEC. 31. Ceiling for Bid Prices. The ABC shall be the upper limit or ceiling for the Bid
prices. Bid prices that exceed this ceiling shall be disqualified outright from further participating
in the bidding. There shall be no lower limit to the amount of the award.

In relation thereto, the petitioners cite the definition of the ABC, thus:

SEC. 5. Definition of Terms.

xxx

(a) Approved Budget for the Contract (ABC). refers to the budget for the contract duly approved
by the Head of the Procuring Entity, as provided for in the General Appropriations Act and/or
continuing appropriations, in the case of National Government Agencies; the Corporate Budget
for the contract approved by the governing Boards, pursuant to E.O. No. 518, series of 1979, in
the case of Government-Owned and/or Controlled Corporations, Government Financial
Institutions and State Universities and Colleges; and the Budget for the contract approved by the
respective Sanggunian, in the case of Local Government Units.

xxx

The petitioners theorize that the foregoing provisions show the mandatory character of ceilings or upper limits
of every bid. Under the above-quoted provisions of RA 9184, all bids or awards should not exceed the ceilings
or upper limits; otherwise, the contract is deemed void and inexistent.

Resolution No. PJHL-A-04-012 was allegedly issued with grave abuse of discretion because it
recommended the award of the contract to private respondent China Road & Bridge Corporation whose bid was
more than P200 million overpriced based on the ABC. As such, the award is allegedly illegal and
unconscionable.

In this connection, the petitioners opine that the contract subsequently entered into by and between the
DPWH and private respondent China Road & Bridge Corporation is void ab initio for being prohibited by RA
9184. They stress that Section 31 thereof expressly provides that bid prices that exceed this ceiling shall be
disqualified outright from participating in the bidding. The upper limit or ceiling is called the ABC and since the
bid of private respondent China Road & Bridge Corporation exceeded the ABC for the CP I project, it should
have been allegedly disqualified from the bidding process and should not, by law, have been awarded the said
contract. They invoke Article 1409 of the Civil Code:
 ART. 1409. The following contracts are inexistent and void from the beginning:

(1) Those whose cause, object or purpose is contrary to law, morals, good customs, public
order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the principal object of the contract
cannot be ascertained;
(7) Those expressly prohibited or declared void by law.

For violating the above provision, the contract between the DPWH and private respondent China Road
& Bridge Corporation is allegedly inexistent and void ab initio and can produce no effects whatsoever.

It is the contention of the petitioners that RA 9184 is applicable to both local- and foreign-funded
procurement contracts. They cite the following excerpt of the deliberations of the Bicameral Conference
Committee on the Disagreeing Provisions of Senate Bill No. 2248 and House Bill No. 4809:[20]

REP. ABAYA. Mr. Chairman, can we just propose additional amendments? Can we go
back to Section 4, Mr. Chairman?

THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4? Definition definition
of terms.

REP. ABAYA. Sa House bill, it is sa scope and application.

THE CHAIRMAN (SEN. ANGARA). Okay.

REP. ABAYA. It should read as follows: This Act shall apply to the procurement of
goods, supplies and materials, infrastructure projects and consulting services regardless of
funding source whether local or foreign by the government.

THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept. The Senate accepts it.
[21]

xxx xxx xxx

THE CHAIRMAN (SEN ANGARA). Just take note of that ano. Medyo nga problematic
yan eh. Now, just for the record Del, can you repeat again the justification for including foreign
funded contracts within the scope para malinaw because the World Bank daw might raise some
objection to it.

REP. ABAYA. Well, Mr. Chairman, we should include foreign funded projects kasi these
are the big projects. To give an example, if you allow bids above government estimate, lets say
take the case of 500 million project, included in that 500 million is the 20 percent profit. If you
allow them to bid above government estimate, they will add another say 28 percent of (sic) 30
percent, 30 percent of 500 million is another 150 million. Ito, this is a rich source of graft money,
aregluhan na lang, 150 million, five contractors will gather, O eto 20 million, 20 million, 20
 million. So, it is rigged. Yun ang practice na nangyayari. If we eliminate that, if we have a ceiling
then, it will not be very tempting kasi walang extra money na pwedeng ibigay sa ibang
contractor. So this promote (sic) collusion among bidders, of course, with the cooperation of
irresponsible officials of some agencies. So we should have a ceiling to include foreign funded
projects.[22]
The petitioners insist that Loan Agreement No. PH-P204 between the JBIC and the Philippine
Government is neither a treaty, an international nor an executive agreement that would bar the application of RA
9184. They point out that to be considered a treaty, an international or an executive agreement, the parties must
be two sovereigns or States whereas in the case of Loan Agreement No. PH-P204, the parties are the Philippine
Government and the JBIC, a banking agency of Japan, which has a separate juridical personality from the
Japanese Government.

They further insist on the applicability of RA 9184 contending that while it took effect on January 26,
2003[23] and Loan Agreement No. PH-P204 was executed prior thereto or on December 28, 1999, the actual
procurement or award of the contract to private respondent China Road & Bridge Corporation was done after
the effectivity of RA 9184. The said law is allegedly specific as to its application, which is on the actual
procurement of infrastructure and other projects only, and not on the loan agreements attached to such
projects. Thus, the petition only prays for the annulment of Resolution No. PJHL-A-04-012 as well as the
contract between the DPWH and private respondent China Road & Bridge Corporation. The petitioners clarify
that they do not pray for the annulment of Loan Agreement No. PH-P204. Since the subject procurement and
award of the contract were done after the effectivity of RA 9184, necessarily, the procurement rules established
by that law allegedly apply, and not Presidential Decree No. 1594 (PD 1594)[24] and Executive Order No. 40 (EO
40), series of 2001, [25] as contended by the respondents. The latter laws, including their implementing rules,
have allegedly been repealed by RA 9184. Even RA 4860, as amended, known as the Foreign Borrowings Act,
the petitioners posit, may have also been repealed or modified by RA 9184 insofar as its provisions are
inconsistent with the latter.

The petitioners also argue that the Implementing Rules and Regulations (IRR) of RA 9184, Otherwise
Known as the Government Procurement Reform Act, Part A (IRR-A) cited by the respondents is not applicable
as these rules only govern domestically-funded procurement contracts. They aver that the implementing rules to
govern foreign-funded procurement, as in the present case, have yet to be drafted and in fact, there are
concurrent resolutions drafted by both houses of Congress for the Reconvening of the Joint Congressional
Oversight Committee for the formulation of the IRR for foreign-funded procurements under RA 9184.

The petitioners maintain that disbursement of public funds to implement a patently void and illegal
contract is itself illegal and must be enjoined. They bring to the Courts attention the fact that the works on the
CP I project have already commenced as early as October 2004. They thus urge the Court to issue a writ
of certiorari to set aside Resolution No. PJHL-A-04-012 as well as to declare null and void the contract entered
into between the DPWH and private respondent China Road & Bridge Corporation. They also pray for the
issuance of a temporary restraining order and, eventually, a writ of prohibition to permanently enjoin the DPWH
from implementing Resolution No. PJHL-A-04-012 and its contract with private respondent China Road &
Bridge Corporation as well as the DBM from disbursing funds for the said purpose.

The Respondents Counter-Arguments

The public respondents, namely the DPWH, DBM and DOF, and their respective named officials,
through the Office of the Solicitor General, urge the Court to dismiss the petition on grounds that the petitioners
have no locus standi and, in any case, Resolution No. PJHL-A-04-012 and the contract between the DPWH and
private respondent China Road & Bridge Corporation are valid.

According to the public respondents, a taxpayers locus standi was recognized in the following cases: (a)
where a tax measure is assailed as unconstitutional; [26] (b) where there is a question of validity of election laws;
[27]
(c) where legislators questioned the validity of any official action upon the claim that it infringes on their
prerogatives as legislators;[28] (d) where there is a claim of illegal disbursement or wastage of public funds
through the enforcement of an invalid or unconstitutional law; [29] (e) where it involves the right of members of
the Senate or House of Representatives to question the validity of a presidential veto or condition imposed on an
item in an appropriation bill;[30] or (f) where it involves an invalid law, which when enforced will put the
petitioner in imminent danger of sustaining some direct injury as a result thereof, or that he has been or is about
to be denied some right or privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute complained of. [31] None of the above considerations allegedly
obtains in the present case.

It is also the view of the public respondents that the fact that petitioner Abaya was a former lawmaker
would not suffice to confer locus standi on himself. Members of Congress may properly challenge the validity
of an official act of any department of the government only upon showing that the assailed official act affects or
impairs their rights and prerogatives as legislators.

The public respondents further assail the standing of the petitioners to file the instant suit claiming that
they failed to allege any specific injury suffered nor an interest that is direct and personal to them. If at all, the
interest or injuries claimed by the petitioners are allegedly merely of a general interest common to all members
of the public. Their interest is allegedly too vague, highly speculative and uncertain to satisfy the requirements
of locus standi.

The public respondents find it noteworthy that the petitioners do not raise issues of constitutionality but
only of contract law, which the petitioners not being privies to the agreement cannot raise. This is following the
principle that a stranger to a contract cannot sue either or both the contracting parties to annul and set aside the
same except when he is prejudiced on his rights and can show detriment which would positively result to him
from the implementation of the contract in which he has no intervention. There being no particularized interest
or elemental substantial injury necessary to confer locus standi, the public respondents implore the Court to
dismiss the petition.

On the merits, the public respondents maintain that the imposition of ceilings or upper limits on bid
prices in RA 9184 does not apply because the CP I project and the entire Catanduanes Circumferential Road
Improvement Project, financed by Loan Agreement No. PH-P204 executed between the Philippine Government
and the JBIC, is governed by the latters Procurement Guidelines which precludes the imposition of ceilings on
bid prices. Section 5.06 of the JBIC Procurement Guidelines reads:

Section 5.06. Evaluation and Comparison of Bids.

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.

It was explained that other foreign banks such as the Asian Development Bank (ADB) and the World
Bank (WB) similarly prohibit the bracketing or imposition of a ceiling on bid prices.
The public respondents stress that it was pursuant to Loan Agreement No. PH-P204 that the assailed
Resolution No. PJHL-A-04-012 and the subsequent contract between the DPWH and private respondent China
Road & Bridge Corporation materialized. They likewise aver that Loan Agreement No. PH-P204 is governed by
RA 4860, as amended, or the Foreign Borrowings Act. Section 4 thereof states:

SEC. 4. In the contracting of any loan, credit or indebtedness under this Act, the President of the
Philippines may, when necessary, agree to waive or modify, the application of any law granting
preferences or imposing restrictions on international competitive bidding, including among
others [Act No. 4239, Commonwealth Act No. 138], the provisions of [CA 541], insofar as such
provisions do not pertain to constructions primarily for national defense or security purposes,
[RA 5183]; Provided, however, That as far as practicable, utilization of the services of qualified
domestic firms in the prosecution of projects financed under this Act shall be
encouraged: Provided, further, That in case where international competitive bidding shall be
conducted preference of at least fifteen per centum shall be granted in favor of articles, materials
or supplies of the growth, production or manufacture of the Philippines: Provided, finally, That
 the method and procedure in comparison of bids shall be the subject of agreement between the
Philippine Government and the lending institution.

DOJ Opinion No. 46, Series of 1987, is relied upon by the public respondents as it opined that an
agreement for the exclusion of foreign assisted projects from the coverage of local bidding regulations does not
contravene existing legislations because the statutory basis for foreign loan agreements is RA 4860, as
amended, and under Section 4 thereof, the President is empowered to waive the application of any law imposing
restrictions on the procurement of goods and services pursuant to such loans.

Memorandum Circular Nos. 104 and 108, issued by the President, to clarify RA 4860, as amended, and
PD 1594, relative to the award of foreign-assisted projects, are also invoked by the public respondents, to wit:

Memorandum Circular No. 104:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the Foreign Borrowings Act

xxx

It is hereby clarified that foreign-assisted infrastructure projects may be exempted from the
application for the pertinent provisions of the Implementing Rules and Regulations (IRR) of
Presidential Decree (P.D.) No. 1594 relative to the method and procedure in the comparison of
bids, which matter may be the subject of agreement between the infrastructure agency concerned
and the lending institution. It should be made clear however that public bidding is still required
and can only be waived pursuant to existing laws.

Memorandum Circular No. 108:

In view of the provisions of Section 4 of Republic Act No. 4860, as amended, otherwise known
as the Foreign Borrowings Act, it is hereby clarified that, for projects supported in whole or in
part by foreign assistance awarded through international or local competitive bidding, the
government agency concerned may award the contract to the lowest evaluated bidder at his bid
price consistent with the provisions of the applicable loan/grant agreement.

Specifically, when the loan/grant agreement so stipulates, the government agency concerned may
award the contract to the lowest bidder even if his/its bid exceeds the approved agency estimate.

It is understood that the concerned government agency shall, as far as practicable, adhere closely
to the implementing rules and regulations of Presidential Decree No. 1594 during loan/grant
negotiation and the implementation of the projects.[32]

The public respondents characterize foreign loan agreements, including Loan Agreement No. PH-P204, as
executive agreements and, as such, should be observed pursuant to the fundamental principle in international
law of pacta sunt servanda.[33] They cite Section 20 of Article VII of the Constitution as giving the President the
authority to contract foreign loans:
 SEC. 20. The President may contract or guarantee foreign loans on behalf of the Republic of
the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations
as may be provided by law. The Monetary Board shall, within thirty days from the end of every
quarter of the calendar year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the Government or Government-owned
and Controlled Corporations which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.

The Constitution, the public respondents emphasize, recognizes the enforceability of executive
agreements in the same way that it recognizes generally accepted principles of international law as forming part
of the law of the land.[34] This recognition allegedly buttresses the binding effect of executive agreements to
which the Philippine Government is a signatory. It is pointed out by the public respondents that executive
agreements are essentially contracts governing the rights and obligations of the parties. A contract, being the
law between the parties, must be faithfully adhered to by them. Guided by the fundamental rule of pacta sunt
servanda, the Philippine Government bound itself to perform in good faith its duties and obligations under Loan
Agreement No. PH-P204.

The public respondents further argue against the applicability of RA 9184 stating that it was signed into
law on January 10, 2003.[35] On the other hand, Loan Agreement No. PH-P204 was executed on December 28,
1999, where the laws then in force on government procurements were PD 1594 and EO 40. The latter law (EO
40), in particular, excluded from its application any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international financing
institutions as well as from bilateral and other similar foreign sources.

The applicability of EO 40, not RA 9184, is allegedly bolstered by the fact that the Invitation to
Prequalify and to Bid for the implementation of the CP I project was published in two leading national
newspapers, namely, the Manila Times and Manila Standard on November 22, 29 and December 5, 2002, or
before the signing into law of RA 9184 on January 10, 2003. In this connection, the public respondents point to
Section 77 of IRR-A, which reads:
SEC. 77. Transitory Clause.

In all procurement activities, if the advertisement or invitation for bids was issued prior to the
effectivity of the Act, the provisions of EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its
IRR, or other applicable laws as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40 and its IRR, or other applicable
laws, as the case may be.
Section 4 of RA 9184 is also invoked by the public respondents as it provides:
 SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or controlled corporations and local government units, subject
to the provisions of Commonwealth Act No. 138. Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

It is also the position of the public respondents that even granting arguendo that Loan Agreement No.
PH-P204 were an ordinary loan contract, still, RA 9184 is inapplicable under the non-impairment clause [36] of
the Constitution. The said loan agreement expressly provided that the procurement of goods and services for the
project financed by the same shall be governed by the Guidelines for Procurement under OECF Loans dated
December 1997. Further, Section 5.06 of the JBIC Procurement Guidelines categorically provides that [a]ny
procedure under which bids above or below a predetermined bid value assessment are automatically
disqualified is not permitted.

The public respondents explain that since the contract is the law between the parties and Loan
Agreement No. PH-P204 states that the JBIC Procurement Guidelines shall govern the parties relationship and
further dictates that there be no ceiling price for the bidding, it naturally follows that any subsequent law passed
contrary to the letters of the said contract would have no effect with respect to the parties rights and obligations
arising therefrom.

To insist on the application of RA 9184 on the bidding for the CP I project would, notwithstanding the
terms and conditions of Loan Agreement No. PH-P204, allegedly violate the constitutional provision on non-
impairment of obligations and contracts, and destroy vested rights duly acquired under the said loan agreement.

Lastly, the public respondents deny that there was illegal disbursement of public funds by the
DBM. They asseverate that all the releases made by the DBM for the implementation of the entire Arterial Road
Links Project Phase IV, which includes the Catanduanes Circumferential Road Improvement Project, were
covered by the necessary appropriations made by law, specifically the General Appropriations Act
(GAA). Further, the requirements and procedures prescribed for the release of the said funds were duly
complied with.

For its part, private respondent China Road & Bridge Corporation similarly assails the standing of the
petitioners, either as taxpayers or, in the case of petitioner Abaya, as a former lawmaker, to file the present
suit. In addition, it is also alleged that, by filing the petition directly to this Court, the petitioners failed to
observe the hierarchy of courts.
 On the merits, private respondent China Road & Bridge Corporation asserts that the applicable law to
govern the bidding of the CP I project was EO 40, not RA 9184, because the former was the law governing the
procurement of government projects at the time that it was bidded out. EO 40 was issued by the Office of the
President on October 8, 2001 and Section 1 thereof states that:

SEC. 1. Scope and Application. This Executive Order shall apply to the procurement of: (a)
goods, supplies, materials and related services; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges (SUCs), Government-
Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
hereby referred to as the Agencies. This Executive Order shall cover the procurement process
from the pre-procurement conference up to the award of contract.

xxx
The Invitation to Prequalify and to Bid was first published on November 22, 2002. On the other hand, RA 9184
was signed into law only on January 10, 2003. Since the law in effect at the time the procurement process was
initiated was EO 40, private respondent China Road & Bridge Corporation submits that it should be the said law
which should govern the entire procurement process relative to the CP I project.
EO 40 expressly recognizes as an exception from the application of the provisions thereof on approved
budget ceilings, those projects financed by international financing institutions (IFIs) and foreign bilateral
sources. Section 1 thereof, quoted in part earlier, further states:
SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and other similar foreign sources.

Section 1.2 of the Implementing Rules and Regulations of EO 40 is likewise invoked as it provides:

For procurement financed wholly or partly from Official Development Assistance (ODA) funds
from International Financing Institutions (IFIs), as well as from bilateral and other similar
foreign sources, the corresponding loan/grant agreement governing said funds as negotiated and
agreed upon by and between the Government and the concerned IFI shall be observed.

Private respondent China Road & Bridge Corporation thus postulates that following EO 40, the procurement of
goods and services for the CP I project should be governed by the terms and conditions of Loan Agreement No.
PH-P204 entered into between the JBIC and the Philippine Government. Pertinently, Section 5.06 of the JBIC
Procurement Guidelines prohibits the setting of ceilings on bid prices.

Private respondent China Road & Bridge Corporation claims that when it submitted its bid for the CP I project,
it relied in good faith on the provisions of EO 40. It was allegedly on the basis of the said law that the DPWH
awarded the project to private respondent China Road & Bridge Coporation even if its bid was higher than the
ABC. Under the circumstances, RA 9184 could not be applied retroactively for to do so would allegedly impair
the vested rights of private respondent China Road & Bridge Corporation arising from its contract with the
DPWH.

It is also contended by private respondent China Road & Bridge Corporation that even assuming arguendo that
RA 9184 could be applied retroactively, it is still the terms of Loan Agreement No. PH-P204 which should
govern the procurement of goods and services for the CP I project. It supports its theory by characterizing the
said loan agreement, executed pursuant to the Exchange of Notes between the Government of Japan and the
Philippine Government, as an executive agreement.

Private respondent China Road & Bridge Corporation, like the public respondents, cites RA 4860 as the basis
for the Exchange of Notes and Loan Agreement No. PH-P204. As an international or executive agreement, the
Exchange of Notes and Loan Agreement No. PH-P204 allegedly created a legally binding obligation on the
parties.
The following excerpt of the deliberations of the Bicameral Conference Committee on the Disagreeing
Provision of Senate Bill No. 2248 and House Bill No. 4809 is cited by private respondent China Road & Bridge
Corporation to support its contention that it is the intent of the lawmakers to exclude from the application of RA
9184 those foreign-funded projects:
xxx

REP. MARCOS. Yes, Mr. Chairman, to respond and to put into the record, a justification for the
inclusion of foreign contracts, may we just state that foreign contracts have, of course, been
brought into the ambit of the law because of the Filipino counterpart for this foreign projects,
they are no longer strictly foreign in nature but fall under the laws of the Philippine government.

THE CHAIRMAN (SEN. ANGARA). Okay. I think thats pretty clear. I think the possible
concern is that some ODA are with strings attached especially the Japanese. The Japanese are
quite strict about that, that they are (sic) even provide the architect and the design, etcetera, plus,
of course, the goods that will be supplied.

Now, I think weve already provided that this is open to all and we will recognize our
international agreements so that this bill will not also restrict the flow of foreign funding,
because some countries now make it a condition that they supply both services and goods
especially the Japanese.

So I think we can put a sentence that we continue to honor our international obligations, di ba
Laura?

MR. ENCARNACION. Actually, subject to any treaty.

THE CHAIRMAN (SEN. ANGARA). Yun pala eh. That should allay their anxiety and
concern. Okay, buti na lang for the record para malaman nila na we are conscious sa ODA.[37]
Private respondent China Road & Bridge Corporation submits that based on the provisions of the Exchange of
Notes and Loan Agreement No. PH-P204, it was rightfully and legally awarded the CP I project. It urges the
Court to dismiss the petition for lack of merit.
The Courts Rulings

Petitioners, as taxpayers, possess locus standi to file the present suit

Briefly stated, locus standi is a right of appearance in a court of justice on a given question. [38] More particularly,
it is a partys personal and substantial interest in a case such that he has sustained or will sustain direct injury as
a result of the governmental act being challenged. It calls for more than just a generalized grievance. The term
interest means a material interest, an interest in issue affected by the decree, as distinguished from mere interest
in the question involved, or a mere incidental interest. [39] Standing or locus standi is a peculiar concept in
constitutional law[40] and the rationale for requiring a party who challenges the constitutionality of a statute to
allege such a personal stake in the outcome of the controversy is to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for illumination of difficult
constitutional questions.[41]

Locus standi, however, is merely a matter of procedure[42] and it has been recognized that in some cases, suits are
not brought by parties who have been personally injured by the operation of a law or any other government act
but by concerned citizens, taxpayers or voters who actually sue in the public interest. [43] Consequently, the Court,
in a catena of cases,[44] has invariably adopted a liberal stance on locus standi, including those cases involving
taxpayers.

The prevailing doctrine in taxpayers suits is to allow taxpayers to question contracts entered into by the national
government or government- owned or controlled corporations allegedly in contravention of law. [45] A taxpayer is
allowed to sue where there is a claim that public funds are illegally disbursed, or that public money is being
deflected to any improper purpose, or that there is a wastage of public funds through the enforcement of an
invalid or unconstitutional law.[46] Significantly, a taxpayer need not be a party to the contract to challenge its
validity.[47]

In the present case, the petitioners are suing as taxpayers. They have sufficiently demonstrated that,
notwithstanding the fact that the CP I project is primarily financed from loans obtained by the government from
the JBIC, nonetheless, taxpayers money would be or is being spent on the project considering that the
Philippine Government is required to allocate a peso-counterpart therefor. The public respondents themselves
admit that appropriations for these foreign-assisted projects in the GAA are composed of the loan proceeds and
the peso-counterpart. The counterpart funds, the Solicitor General explains, refer to the component of the
project cost to be financed from government-appropriated funds, as part of the governments commitment in the
implementation of the project.[48] Hence, the petitioners correctly asserted their standing since a part of the funds
being utilized in the implementation of the CP I project partakes of taxpayers money.

Further, the serious legal questions raised by the petitioners, e.g., whether RA 9184 applies to the CP I
project, in particular, and to foreign-funded government projects, in general, and the fact that public interest is
indubitably involved considering the public expenditure of millions of pesos, warrant the Court to adopt in the
present case its liberal policy on locus standi.

In any case, for reasons which will be discussed shortly, the substantive arguments raised by the
petitioners fail to persuade the Court as it holds that Resolution No. PJHL-A-04-012 is valid. As a corollary, the
subsequent contract entered into by and between the DPWH and private respondent China Road & Bridge
Corporation is likewise valid.

History of Philippine Procurement Laws

It is necessary, at this point, to give a brief history of Philippine laws pertaining to procurement through public
bidding. The United States Philippine Commission introduced the American practice of public bidding through
Act No. 22, enacted on October 15, 1900, by requiring the Chief Engineer, United States Army for the Division
of the Philippine Islands, acting as purchasing agent under the control of the then Military Governor, to
advertise and call for a competitive bidding for the purchase of the necessary materials and lands to be used for
the construction of highways and bridges in the Philippine Islands.[49] Act No. 74, enacted on January 21,
1901 by the Philippine Commission, required the General Superintendent of Public Instruction to purchase
office supplies through competitive public bidding.[50] Act No. 82, approved on January 31, 1901, and Act No.
83, approved on February 6, 1901, required the municipal and provincial governments, respectively, to hold
competitive public biddings in the making of contracts for public works and the purchase of office supplies.[51]

On June 21, 1901, the Philippine Commission, through Act No. 146, created the Bureau of Supply and with its
creation, public bidding became a popular policy in the purchase of supplies, materials and equipment for the
use of the national government, its subdivisions and instrumentalities. [52] On February 3, 1936, then President
Manuel L. Quezon issued Executive Order No. 16 declaring as a matter of general policy that government
contracts for public service or for furnishing supplies, materials and equipment to the government should be
subjected to public bidding.[53] The requirement of public bidding was likewise imposed for public works of
construction or repair pursuant to the Revised Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40 dated June 1, 1963, reiterated the directive that
no government contract for public service or for furnishing supplies, materials and equipment to the government
or any of its branches, agencies or instrumentalities, should be entered into without public bidding except for
very extraordinary reasons to be determined by a Committee constituted thereunder. Then President Ferdinand
Marcos issued PD 1594 prescribing guidelines for government infrastructure projects and Section 4 [54] thereof
stated that they should generally be undertaken by contract after competitive public bidding.

Then President Corazon Aquino issued Executive Order No. 301 (1987) prescribing guidelines for
government negotiated contracts. Pertinently, Section 62 of the Administrative Code of 1987 reiterated the
requirement of competitive public bidding in government projects. In 1990, Congress passed RA 6957, [55] which
authorized the financing, construction, operation and maintenance of infrastructure by the private sector. RA
7160 was likewise enacted by Congress in 1991 and it contains provisions governing the procurement of goods
and locally-funded civil works by the local government units.

Then President Fidel Ramos issued Executive Order No. 302 (1996), providing guidelines for the
procurement of goods and supplies by the national government. Then President Joseph Ejercito Estrada issued
Executive Order No. 201 (2000), providing additional guidelines in the procurement of goods and supplies by
the national government.Thereafter, he issued Executive Order No. 262 (2000) amending EO 302 (1996) and
EO 201 (2000).

On October 8, 2001, President Gloria Macapagal-Arroyo issued EO 40, the law mainly relied upon by the
respondents, entitled Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government-Owned or Controlled Corporations and Government Financial Institutions, and Requiring the Use
of the Government Procurement System. It accordingly repealed, amended or modified all executive issuances,
orders, rules and regulations or parts thereof inconsistent therewith.[56]

On January 10, 2003, President Arroyo signed into law RA 9184. It took effect on January 26, 2004, or fifteen
days after its publication in two newspapers of general circulation. [57] It expressly repealed, among others, EO
40, EO 262 (2000), EO 302(1996) and PD 1594, as amended:

SEC. 76. Repealing Clause. This law repeals Executive Order No. 40, series of 2001, entitled
Consolidating Procurement Rules and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or Government Financial Institutions, and
Requiring the Use of the Government Electronic Procurement System; Executive Order No. 262,
series of 1996, entitled Amending Executive Order No. 302, series of 1996, entitled Providing
Policies, Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the
National Government and Section 3 of Executive Order No. 201, series of 2000, entitled
Providing Additional Policies and Guidelines in the Procurement of Goods/Supplies by the
National Government; Executive Order No. 302, series of 1996, entitled Providing Policies,
 Guidelines, Rules and Regulations for the Procurement of Goods/Supplies by the National
Government and Presidential Decree No. 1594 dated June 11, 1978, entitled Prescribing Policies,
Guidelines, Rules and Regulations for Government Infrastructure Contracts. This law amends
Title Six, Book Two of Republic Act No. 7160, otherwise known as the Local Government Code
of 1991; the relevant provisions of Executive Order No. 164, series of 1987, entitled Providing
Additional Guidelines in the Processing and Approval of Contracts of the National Government;
and the relevant provisions of Republic Act No. 7898 dated February 23, 1995, entitled An Act
Providing for the Modernization of the Armed Forces of the Philippines and for Other
Purposes. Any other law, presidential decree or issuance, executive order, letter of instruction,
administrative order, proclamation, charter, rule or regulation and/or parts thereof contrary to or
inconsistent with the provisions of this Act is hereby repealed, modified or amended accordingly.

In addition to these laws, RA 4860, as amended, must be mentioned as Section 4 thereof provides that
[i]n the contracting of any loan, credit or indebtedness under this Act, the President of the Philippines may,
when necessary, agree to waive or modify the application of any law granting preferences or imposing
restrictions on international competitive bidding x x x Provided, finally, That the method and procedure in the
comparison of bids shall be the subject of agreement between the Philippine Government and the lending
institution.

EO 40, not RA 9184, is applicable to the procurement

process undertaken for the CP I project. RA 9184
cannot be given retroactive application.

It is not disputed that with respect to the CP I project, the Invitation to Prequalify and to Bid for its
implementation was published in two leading national newspapers, namely, the Manila Times and Manila
Standard on November 22, 29 and December 5, 2002. At the time, the law in effect was EO 40. On the other
hand, RA 9184 took effect two months later or on January 26, 2003. Further, its full implementation was even
delayed as IRR-A was only approved by President Arroyo on September 18, 2003 and subsequently published
on September 23, 2003 in the Manila Times and Malaya newspapers.[58]

The provisions of EO 40 apply to the procurement process pertaining to the CP I project as it is explicitly
provided in Section 1 thereof that:

SEC. 1. Scope and Application. This Executive Order shall apply to see procurement of (a)
goods, supplies, materials and related service; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and Colleges (SUCs), Government-
Owned or Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs),
hereby referred to as Agencies. This Executive Order shall cover the procurement process
from the pre-procurement conference up to the award of the contract.

Nothing in this Order shall negate any existing and future government commitments with respect
to the bidding and award of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and similar foreign sources.
The procurement process basically involves the following steps: (1) pre-procurement conference; (2)
advertisement of the invitation to bid; (3) pre-bid conference; (4) eligibility check of prospective bidders; (5)
submission and receipt of bids; (6) modification and withdrawal of bids; (7) bid opening and examination; (8)
bid evaluation; (9) post qualification; (10) award of contract and notice to proceed. [59] Clearly then, when the
Invitation to Prequalify and to Bid for the implementation of the CP I project was published on November 22,
29 and December 5, 2002, the procurement process thereof had already commenced and the application of EO
40 to the procurement process for the CP I project had already attached.

RA 9184 cannot be applied retroactively to govern the procurement process relative to the CP I project because
it is well settled that a law or regulation has no retroactive application unless it expressly provides for
retroactivity.[60] Indeed, Article 4 of the Civil Code is clear on the matter: [l]aws shall have no retroactive effect,
unless the contrary is provided. In the absence of such categorical provision, RA 9184 will not be applied
retroactively to the CP I project whose procurement process commenced even before the said law took effect.

That the legislators did not intend RA 9184 to have retroactive effect could be gleaned from the IRR-A
formulated by the Joint Congressional Oversight Committee (composed of the Chairman of the Senate
Committee on Constitutional Amendments and Revision of Laws, and two members thereof appointed by the
Senate President and the Chairman of the House Committee on Appropriations, and two members thereof
appointed by the Speaker of the House of Representatives) and the Government Procurement Policy Board
(GPPB). Section 77 of the IRR-A states, thus:

SEC. 77. Transitory Clause

In all procurement activities, if the advertisement or invitation for bids was issued prior to
the effectivity of the Act, the provisions of E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A.
7160 and its IRR, or other applicable laws, as the case may be, shall govern.

In cases where the advertisements or invitations for bids were issued after the effectivity of the
Act but before the effectivity of this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O. 40 and its IRR, P.D. 1594 and its
IRR, R.A. 7160 and its IRR, or other applicable laws, as the case may be.

In other words, under IRR-A, if the advertisement of the invitation for bids was issued prior to the effectivity of
RA 9184, such as in the case of the CP I project, the provisions of EO 40 and its IRR, and PD 1594 and its IRR
in the case of national government agencies, and RA 7160 and its IRR in the case of local government units,
shall govern.
Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement planning up
to contract implementation and that it is expressly stated that IRR-B for foreign-funded procurement activities
shall be subject of a subsequent issuance. [61] Nonetheless, there is no reason why the policy behind Section 77 of
IRR-A cannot be applied to foreign-funded procurement projects like the CP I project. Stated differently, the
policy on the prospective or non-retroactive application of RA 9184 with respect to domestically-funded
procurement projects cannot be any different with respect to foreign-funded procurement projects like the CP I
project. It would be incongruous, even absurd, to provide for the prospective application of RA 9184 with
respect to domestically-funded procurement projects and, on the other hand, as urged by the petitioners, apply
RA 9184 retroactively with respect to foreign- funded procurement projects. To be sure, the lawmakers could
not have intended such an absurdity.

Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as well as the fundamental rule embodied in
Article 4 of the Civil Code on prospectivity of laws, the Court holds that the procurement process for the
implementation of the CP I project is governed by EO 40 and its IRR, not RA 9184.

Under EO 40, the award of the contract to private

respondent China Road & Bridge Corporation is valid

Section 25 of EO 40 provides that [t]he approved budget of the contract shall be the upper limit or ceiling of the
bid price. Bid prices which exceed this ceiling shall be disqualified outright from further participating in the
bidding. There shall be no lower limit to the amount of the award. x x x It should be observed that this text is
almost similar to the wording of Section 31 of RA 9184, relied upon by the petitioners in contending that since
the bid price of private respondent China Road & Bridge Corporation exceeded the ABC, then it should not
have been awarded the contract for the CP I project.

Nonetheless, EO 40 expressly recognizes as an exception to its scope and application those government
commitments with respect to bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and other similar foreign sources. The pertinent
portion of Section 1 of EO 40 is quoted anew:

SEC. 1. Scope and Application. x x x

Nothing in this Order shall negate any existing and future government commitments with
respect to the bidding and award of contracts financed partly or wholly with funds from
international financing institutions as well as from bilateral and similar foreign sources.

In relation thereto, Section 4 of RA 4860, as amended, was correctly cited by the respondents as likewise
authorizing the President, in the contracting of any loan, credit or indebtedness thereunder, when
necessary, agree to waive or modify the application of any law granting preferences or imposing restrictions on
international competitive bidding x x x. The said provision of law further provides that the method and
procedure in the comparison of bids shall be the subject of agreement between the Philippine Government and
the lending institution.

Consequently, in accordance with these applicable laws, the procurement of goods and services for the CP I
project is governed by the corresponding loan agreement entered into by the government and the JBIC, i.e.,
Loan Agreement No. PH-P204. The said loan agreement stipulated that the procurement of goods and services
for the Arterial Road Links Development Project (Phase IV), of which CP I is a component, is to be governed
by the JBIC Procurement Guidelines. Section 5.06, Part II (International Competitive Bidding) thereof quoted
earlier reads:

Section 5.06. Evaluation and Comparison of Bids

xxx

(e) Any procedure under which bids above or below a predetermined bid value assessment are
automatically disqualified is not permitted.[62]

It is clear that the JBIC Procurement Guidelines proscribe the imposition of ceilings on bid prices. On
the other hand, it enjoins the award of the contract to the bidder whose bid has been determined to be the lowest
evaluated bid. The pertinent provision, quoted earlier, is reiterated, thus:
Section 5.09. Award of Contract
The contract is to be awarded to the bidder whose bid has been determined to be the lowest
evaluated bid and who meets the appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake responsibilities or work not
stipulated in the specifications or to modify the bid.[63]

Since these terms and conditions are made part of Loan Agreement No. PH-P204, the government is
obliged to observe and enforce the same in the procurement of goods and services for the CP I project. As
shown earlier, private respondent China Road & Bridge Corporations bid was the lowest evaluated bid, albeit
28.95% higher than the ABC.In accordance with the JBIC Procurement Guidelines, therefore, it was correctly
awarded the contract for the CP I project.

Even if RA 9184 were to be applied retroactively, the

terms of the Exchange of Notes dated December 27,
1999 and Loan Agreement No. PH-P204 would still
govern the procurement for the CP I project

For clarity, Section 4 of RA 9184 is quoted anew, thus:

 SEC. 4. Scope and Applications. This Act shall apply to the Procurement of Infrastructure
Projects, Goods and Consulting Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its departments, offices and agencies,
including government-owned and/or controlled corporations and local government units, subject
to the provisions of Commonwealth Act No. 138. Any treaty or international or executive
agreement affecting the subject matter of this Act to which the Philippine government is a
signatory shall be observed.

The petitioners, in order to place the procurement process undertaken for the CP I project within the ambit of
RA 9184, vigorously assert that Loan Agreement No. PH-P204 is neither a treaty, an international agreement
nor an executive agreement. They cite Executive Order No. 459 dated November 25, 1997 where the three
agreements are defined in this wise:

a) International agreement shall refer to a contract or understanding, regardless of

nomenclature, entered into between the Philippines and another government in written form
and governed by international law, whether embodied in a single instrument or in two or
more related instruments.

b) Treaties international agreements entered into by the Philippines which require legislative
concurrence after executive ratification. This term may include compacts like conventions,
declarations, covenants and acts.

c) Executive agreements similar to treaties except that they do not require legislative
concurrence.[64]

The petitioners mainly argue that Loan Agreement No. PH-P204 does not fall under any of the three
categories because to be any of the three, an agreement had to be one where the parties are the Philippines as a
State and another State. The JBIC, the petitioners maintain, is a Japanese banking agency, which presumably
has a separate juridical personality from the Japanese Government.

The petitioners arguments fail to persuade. The Court holds that Loan Agreement No. PH-P204 taken in
conjunction with the Exchange of Notes dated December 27, 1999between the Japanese Government and the
Philippine Government is an executive agreement.

To recall, Loan Agreement No. PH-P204 was executed by and between the JBIC and the Philippine
Government pursuant to the Exchange of Notes executed by and between Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Philippines, and then Foreign Affairs Secretary Siazon, in
behalf of their respective governments. The Exchange of Notes expressed that the two governments have
reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were
aimed at promoting our countrys economic stabilization and development efforts.
 Loan Agreement No. PH-P204 was subsequently executed and it declared that it was so entered by the
parties [i]n the light of the contents of the Exchange of Notes between the Government of Japan and the
Government of the Republic of the Philippines dated December 27, 1999, concerning Japanese loans to be
extended with a view to promoting the economic stabilization and development efforts of the Republic of the
Philippines.[65] Under the circumstances, the JBIC may well be considered an adjunct of the Japanese
Government. Further, Loan Agreement No. PH-P204 is indubitably an integral part of the Exchange of Notes. It
forms part of the Exchange of Notes such that it cannot be properly taken independent thereof.

In this connection, it is well to understand the definition of an exchange of notes under international
law. The term is defined in the United Nations Treaty Collection in this wise:

An exchange of notes is a record of a routine agreement that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent. The
signatories of the letters may be government Ministers, diplomats or departmental heads. The
technique of exchange of notes is frequently resorted to, either because of its speedy procedure,
or, sometimes, to avoid the process of legislative approval.[66]
It is stated that treaties, agreements, conventions, charters, protocols, declarations, memoranda of
understanding, modus vivendi and exchange of notes all refer to international instruments binding at
international law.[67] It is further explained that-

Although these instruments differ from each other by title, they all have common features and
international law has applied basically the same rules to all these instruments. These rules are the
result of long practice among the States, which have accepted them as binding norms in their
mutual relations. Therefore, they are regarded as international customary law. Since there was a
general desire to codify these customary rules, two international conventions were
negotiated. The 1969 Vienna Convention on the Law of Treaties (1969 Vienna Convention),
which entered into force on 27 January 1980, contains rules for treaties concluded between
States. The 1986 Vienna Convention on the Law of Treaties between States and International
Organizations (1986 Vienna Convention), which has still not entered into force, added rules for
treaties with international organizations as parties. Both the 1969 Vienna Convention and the
1986 Vienna Convention do not distinguish between the different designations of these
instruments. Instead, their rules apply to all of those instruments as long as they meet the
common requirements.[68]

Significantly, an exchange of notes is considered a form of an executive agreement, which becomes

binding through executive action without the need of a vote by the Senate or Congress. The following
disquisition by Francis B. Sayre, former United States High Commissioner to the Philippines, entitled The
Constitutionality of Trade Agreement Acts, quoted in Commissioner of Customs v. Eastern Sea Trading,[69] is
apropos:
 Agreements concluded by the President which fall short of treaties are commonly referred to as
executive agreements and are no less common in our scheme of government than are the more
formal instruments treaties and conventions. They sometimes take the form of exchange of
notes and at other times that of more formal documents denominated agreements or
protocols. The point where ordinary correspondence between this and other governments ends
and agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment. It would be useless to undertake to
discuss here the large variety of executive agreements as such, concluded from time to
time.Hundreds of executive agreements, other than those entered into under the trade-agreements
act, have been negotiated with foreign governments. x x x[70]
The Exchange of Notes dated December 27, 1999, stated, inter alia, that the Government of Japan
would extend loans to the Philippines with a view to promoting its economic stabilization and development
efforts; Loan I in the amount of Y79,8651,000,000 would be extended by the JBIC to the Philippine
Government to implement the projects in the List A (including the Arterial Road Links Development Project -
Phase IV); and that such loan (Loan I) would be used to cover payments to be made by the Philippine executing
agencies to suppliers, contractors and/or consultants of eligible source countries under such contracts as may be
entered into between them for purchases of products and/or services required for the implementation of the
projects enumerated in the List A.[71] With respect to the procurement of the goods and services for the projects,
it bears reiterating that as stipulated:

3. The Government of the Republic of the Philippines will ensure that the products and/or
services mentioned in sub-paragraph (1) of paragraph 3 of Part I and sub-paragraph (1) of
paragraph 4 of Part II are procured in accordance with the guidelines for procurement of the
Bank, which set forth, inter alia, the procedures of international tendering to be followed except
where such procedures are inapplicable or inappropriate.[72]

The JBIC Procurements Guidelines, as quoted earlier, forbids any procedure under which bids above or
below a predetermined bid value assessment are automatically disqualified. Succinctly put, it absolutely
prohibits the imposition of ceilings on bids.

Under the fundamental principle of international law of pacta sunt servanda,[73] which is, in fact,
embodied in Section 4 of RA 9184 as it provides that [a]ny treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory shall be observed, the
DPWH, as the executing agency of the projects financed by Loan Agreement No. PH-P204, rightfully awarded
the contract for the implementation of civil works for the CP I project to private respondentChina Road &
Bridge Corporation.

WHEREFORE, premises considered, the petition is DISMISSED.

SO ORDERED.
G.R. No. L-14279 October 31, 1961

THE COMMISSIONER OF CUSTOMS and THE COLLECTOR OF CUSTOMS, petitioners,

vs.
EASTERN SEA TRADING, respondent.

Office of the Solicitor General for petitioners.

Valentin Gutierrez for respondent.

CONCEPCION, J.:

Petition for review of a judgment of the Court of Tax Appeals reversing a decision of the Commissioner of
Customs.

Respondent Eastern Sea Trading was the consignee of several shipments of onion and garlic which arrived at
the Port of Manila from August 25 to September 7, 1954. Some shipments came from Japan and others from
Hong Kong. In as much as none of the shipments had the certificate required by Central Bank Circulars Nos. 44
and 45 for the release thereof, the goods thus imported were seized and subjected to forfeiture proceedings for
alleged violations of section 1363(f) of the Revised Administrative Code, in relation to the aforementioned
circulars of the Central Bank. In due course, the Collector of Customs of Manila rendered a decision on
September 4, 1956, declaring said goods forfeited to the Government and — the goods having been, in the
meantime, released to the consignees on surety bonds, filed by the same, as principal, and the Alto Surety &
Insurance Co., Inc., as surety, in compliance with orders of the Court of First Instance of Manila, in Civil Cases
Nos. 23942 and 23852 thereof — directing that the amounts of said bonds be paid, by said principal and surety,
jointly and severally, to the Bureau of Customs, within thirty (30) days from notice.

On appeal taken by the consignee, said decision was affirmed by the Commissioner of Customs on December
27, 1956. Subsequently, the consignee sought a review of the decision of said two (2) officers by the Court of
Tax Appeals, which reversed the decision of the Commissioner of Customs and ordered that the aforementioned
bonds be cancelled and withdrawn. Hence, the present petition of the Commissioner of Customs for review of
the decision of the Court of Tax Appeals.

The latter is based upon the following premises, namely: that the Central Bank has no authority to regulate
transactions not involving foreign exchange; that the shipments in question are in the nature of "no-dollar"
imports; that, as such, the aforementioned shipments do not involve foreign exchange; that, insofar as a Central
Bank license and a certificate authorizing the importation or release of the goods under consideration are
required by Central Bank Circulars Nos. 44 and 45, the latter are null and void; and that the seizure and
forfeiture of the goods imported from Japan cannot be justified under Executive Order No. 328, 1 not only
because the same seeks to implement an executive agreement 2 — extending the effectivity of our3 Trades and
Financial Agreements4 with Japan — which (executive agreement), it believed, is of dubious validity, but, also,
because there is no governmental agency authorized to issue the import license required by the aforementioned
executive order.

The authority of the Central Bank to regulate no-dollar imports and the validity of the aforementioned Circulars
Nos. 44, and 45 have already been passed upon and repeatedly upheld by this Court (Pascual vs. Commissioner
of Customs, L-10979 [June 30, 1959]; Acting Commissioner of Customs vs. Leuterio, L-9142 [October 17,
1959] Commissioner of Customs vs. Pascual, L-9836 [November 18, 1959]; Commissioner of Customs vs.
Serree Investment Co., L-12007 [May 16, 1960]; Commissioner of Customs vs. Serree Investment Co., L-
14274 [November 29, 1960]), for the reason that the broad powers of the Central Bank, under its charter, to
maintain our monetary stability and to preserve the international value of our currency, under section 2 of
Republic Act No. 265, in relation to section 14 of said Act — authorizing the bank to issue such rules and
regulations as it may consider necessary for the effective discharge of the responsibilities and the exercise of the
powers assigned to the Monetary Board and to the Central Bank — connote the authority to regulate no-dollar
imports, owing to the influence and effect that the same may and do have upon the stability of our peso and its
international value.

The Court of Tax Appeals entertained doubts on the legality of the executive agreement sought to be
implemented by Executive Order No. 328, owing to the fact that our Senate had not concurred in the making of
said executive agreement. The concurrence of said House of Congress is required by our fundamental law in the
making of "treaties" (Constitution of the Philippines, Article VII, Section 10[7]), which are, however, distinct
and different from "executive agreements," which may be validly entered into without such concurrence.

Treaties are formal documents which require ratification with the approval of two thirds of the Senate.
Executive agreements become binding through executive action without the need of a vote by the Senate or by
Congress.

xxx xxx xxx

. . . the right of the Executive to enter into binding agreements without the necessity of subsequent
Congressional approval has been confirmed by long usage. From the earliest days of our history we have
entered into executive agreements covering such subjects as commercial and consular relations, most-favored-
nation rights, patent rights, trademark and copyright protection, postal and navigation arrangements and the
settlement of claims. The validity of these has never been seriously questioned by our courts.

xxx xxx xxx

Agreements with respect to the registration of trade-marks have been concluded by the Executive with various
countries under the Act of Congress of March 3, 1881 (21 Stat. 502). Postal conventions regulating the
reciprocal treatment of mail matters, money orders, parcel post, etc., have been concluded by the Postmaster
General with various countries under authorization by Congress beginning with the Act of February 20, 1792 (1
Stat. 232, 239). Ten executive agreements were concluded by the President pursuant to the McKinley Tariff Act
of 1890 (26 Stat. 567, 612), and nine such agreements were entered into under the Dingley Tariff Act 1897 (30
Stat. 151, 203, 214). A very much larger number of agreements, along the lines of the one with Rumania
previously referred to, providing for most-favored-nation treatment in customs and related matters have been
entered into since the passage of the Tariff Act of 1922, not by direction of the Act but in harmony with it.

xxx xxx xxx

International agreements involving political issues or changes of national policy and those involving
international arrangements of a permanent character usually take the form of treaties. But international
agreements embodying adjustments of detail carrying out well-established national policies and traditions and
those involving arrangements of a more or less temporary nature usually take the form of executive agreements.

xxx xxx xxx

Furthermore, the United States Supreme Court has expressly recognized the validity and constitutionality of
executive agreements entered into without Senate approval. (39 Columbia Law Review, pp. 753-754) (See, also,
U.S. vs. Curtis-Wright Export Corporation, 299 U.S. 304, 81 L. ed. 255; U.S. vs. Belmont, 301 U.S. 324, 81 L.
ed. 1134; U.S. vs. Pink, 315 U.S. 203, 86 L. ed. 796; Ozanic vs. U.S., 188 F. 2d. 288; Yale Law Journal, Vol. 15,
pp. 1905-1906; California Law Review, Vol. 25, pp. 670-675; Hyde on International Law [Revised Edition],
Vol. 2, pp. 1405, 1416-1418; Willoughby on the U.S. Constitutional Law, Vol. I [2d ed.], pp. 537-540; Moore,
International Law Digest, Vol. V, pp. 210-218; Hackworth, International Law Digest, Vol. V, pp. 390-407).
(Emphasis supplied.)

In this connection, Francis B. Sayre, former U.S. High Commissioner to the Philippines, said in his work on
"The Constitutionality of Trade Agreement Acts":

Agreements concluded by the President which fall short of treaties are commonly referred to as executive
agreements and are no less common in our scheme of government than are the more formal instruments —
treaties and conventions. They sometimes take the form of exchanges of notes and at other times that of more
formal documents denominated "agreements" time or "protocols". The point where ordinary correspondence
between this and other governments ends and agreements — whether denominated executive agreements or
exchanges of notes or otherwise — begin, may sometimes be difficult of ready ascertainment. It would be
useless to undertake to discuss here the large variety of executive agreements as such, concluded from time to
time. Hundreds of executive agreements, other than those entered into under the trade-agreements act, have
been negotiated with foreign governments. . . . It would seem to be sufficient, in order to show that the trade
agreements under the act of 1934 are not anomalous in character, that they are not treaties, and that they have
abundant precedent in our history, to refer to certain classes of agreements heretofore entered into by the
Executive without the approval of the Senate. They cover such subjects as the inspection of vessels, navigation
dues, income tax on shipping profits, the admission of civil aircraft, customs matters, and commercial relations
generally, international claims, postal matters, the registration of trademarks and copyrights, etcetera. Some of
them were concluded not by specific congressional authorization but in conformity with policies declared in
acts of Congress with respect to the general subject matter, such as tariff acts; while still others, particularly
those with respect of the settlement of claims against foreign governments, were concluded independently of
any legislation." (39 Columbia Law Review, pp. 651, 755.)

The validity of the executive agreement in question is thus patent. In fact, the so-called Parity Rights provided
for in the Ordinance Appended to our Constitution were, prior thereto, the subject of an executive agreement,
madewithout the concurrence of two-thirds (2/3) of the Senate of the United States.

Lastly, the lower court held that it would be unreasonable to require from respondent-appellee an import license
when the Import Control Commission was no longer in existence and, hence, there was, said court believed, no
agency authorized to issue the aforementioned license. This conclusion is untenable, for the authority to issue
the aforementioned licenses was not vested exclusively upon the Import Control Commission or Administration.
Executive Order No. 328 provided for export or import licenses "from the Central Bank of the Philippines or
the Import Control Administration" or Commission. Indeed, the latter was created only to perform the task of
implementing certain objectives of the Monetary Board and the Central Bank, which otherwise had to be
undertaken by these two (2) agencies. Upon the abolition of said Commission, the duty to provide means and
ways for the accomplishment of said objectives had merely to be discharged directly by the Monetary Board
and the Central Bank, even if the aforementioned Executive Order had been silent thereon.

WHEREFORE, the decision appealed from is hereby reversed and another one shall be entered affirming that of
the Commissioner of Customs, with cost against respondents defendant-appellee, Eastern Sea Trading. It is so
ordered.
DEPARTMENT of BUDGET G.R. No. 175608
andMANAGEMENT PROCUREMENT
SERVICE (DBM-PS) and the Inter-Agency Bids
and Awards Committee (IABAC),
Petitioners,

- versus -

KOLONWEL TRADING,
Respondent.

x --------------------------------------------------x
VIBAL PUBLISHING HOUSE, INC., LG &
M CORPORATION and SD PUBLICATIONS,
INC.,
Petitioners,

- versus -

KOLONWEL TRADING,
Respondent.
x------------------------------------------------x
DEPARTMENT OF EDUCATION,
Petitioner,

- versus -

KOLONWEL TRADING,
Respondent.
Present:

*
PUNO, C.J.,
**
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
***
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR., and
NACHURA, JJ.

Promulgated:

June 8, 2007

G.R. No. 175616

G.R. No. 175659

x-----------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

Before the Court are these consolidated three (3) petitions for review under Rule 45 of the Rules of Court, with
a prayer for a temporary restraining order, to nullify and set asidethe Order[1] dated December 4, 2006 of the
Manila Regional Trial Court (RTC), Branch 18, in SP Civil Case No. 06-116010, a special civil action
for certiorari and prohibition thereat commenced by herein respondent Kolonwel Trading (Kolonwel for short)
against the Department of Budget and Management Procurement Service (DBM-PS), et al.
At the core of the controversy are the bidding and the eventual contract awards for the supply and delivery of
some 17.5 million copies of Makabayan (social studies) textbooks and teachers manuals, a project of the
Department of Education (DepEd).

The factual antecedents:

In the middle of 2005, the DepEd requested the services of the DBM-PS to undertake the aforementioned
procurement project which is to be jointly funded by the World Bank (WB), through the Second Social
Expenditure Management Program (SEMP2) of the Philippines (RP) International Bank for Reconstruction and
Development (IBRD) Loan Agreement No. 7118-PH[2] (Loan No. 7118-PH, hereinafter) dated September 12,
2002; and the Asian Development Bank (ADB), through SEDIP Loan No. 1654-PHI. Earlier, the Executive
Director of the Government Procurement Policy Board (GPPB), in reply to a DepEd query, stated
that procurement[s] for MAKABAYAN textbooks where funds therefore (sic) are sourced from World Bank Loan
shall be governed by the applicable procurement guidelines of the foreign lending institution. The 2005 Call for
Submission of Textbooks and Teachers Manuals shall be viewed vis--vis relevant World Bank guidelines.[3]

On October 27, 2005, the DBM-PS Inter-Agency Bids and Awards Committee (IABAC) called for a bidding for
the supply of the Makabayan textbooks and manuals, divided into three (3) lots, to wit: Lot 1 for Sibika Grades
1-3; Lot 2 for HeKaSi Grades 4-6 and Lot 3 for Araling Panlipunan Years I-IV. Of the entities, foreign and
local, which responded and procured the Bidding Documents,[4] only eleven (11) bidders submitted, either as
principal or in joint venture arrangement, proposals for the different lots. Among them were Watana Phanit
Printing & Publishing Co., Ltd., of Thailand (Watana, for short), petitioner Vibal Publishing House, Inc.,
(Vibal, hereinafter), Daewoo International Corporation of South Korea (Daewoo, for brevity) and
respondent Kolonwel. Kolonwels tender appeared to cover all three (3) lots.[5]

Following the bid and the book content/body evaluation process, the IABAC, via Resolution (Res.) No. 001-
2006[6] dated March 9, 2006, resolved to recommend to the [WB] and the [ADB] failure of bids for all lots in
view of the abovementioned disqualifications, non-compliance and reservations of [DepEd]. Issues of Conflict
of interest with respect to Watana and Vibal, failure in cover stock testing for Kolonwel and
DepEds reservation were among the disqualifying reasons stated in the resolution.

On March 15, 2006, the IABAC submitted to WB for its review and information Res. No. 001-2006. Appended
to the covering letter was a document entitled Bid Evaluation Report and Recommendation for Award of
Contract.[7]

The following events, as recited in the assailed Manila RTC order and as borne out by the records, then
transpired:

1. In a letter[8] dated April 24, 2006 to the DepEd and the DBM-PS IABAC Chairman, the WB, through its
Regional Senior Economist, Ms. Rekha Menon, disagreed, for stated reasons, with the IABACsfinding of
conflict of interest on the part of Vibal and Watana and the rejection of their bids. Ms. Menon, however, upheld
the disqualification of all the other bidders. She thus asked the IABAC to review its evaluation and to provide
the WB with the revised Bid Evaluation Report (BER), taking into account the December 31, 2006 RP-IBRD
Loan closing date.

2. On May 11, 2006, the IABAC informed Kolonwel of its or its bids failure to post qualify and of the grounds
for the failure.[9]

In its reply-letter of May 18, 2006,[10] Kolonwel raised several issues and requested that its disqualification be
reconsidered and set aside. In reaction, IABAC apprised WB of Kolonwels concerns stated in its letter-reply.

3) Subsequently, the IABAC, agreeing with WBs position articulated in Ms. Menon, issued Res. No. 001-2006-
A effectively recommending to WB the contract award to Vibal of Sibika 1 & 3 and HekaSi5;
to Watana of Sibika 2 and HeKaSi 4 & 5 and to Daewoo of Sibika 3. Upon review, WB offered no objection to
the recommended award.[11]
4) The issuance of notices of award and the execution on September 12, 2006 of the corresponding Purchaser-
Supplier contracts followed.[12]

5. On June 23, 2006, the DBM-PS IABAC chairman informed Kolonwel of the denial of its request
for reconsideration and of the WBs concurrence with the denial.[13] The IABAC denied, on September 8, 2006, a
second request for reconsideration of Kolonwel[14] after WB found the reasons therefor, as detailed in PS IABAC
Res. No. 001-2006-B[15] dated July 18, 2006, unmeritorious, particularly on the aspect of cover stock testing.

Such was the state of things when on, October 12, 2006, Kolonwel filed with the RTC of Manila a special civil
action for certiorari and prohibition with a prayer for a temporary restraining order (TRO) and/or writ of
preliminary injunction. Docketed as SP Civil Case No. 06-116010, and raffled to Branch 18 of the court, [16] the
petition sought to nullify IABAC Res. Nos. 001-2006 and 001-2006-A and to set aside the contract awards in
favor of Vibal and Watana. In support of its TRO application, Kolonwel alleged, among other things, that the
supply-awardees were rushing with the implementation of the void supply contracts to beat the loan closing-
date deadline.

A week after, the Manila RTC scheduled - and eventually conducted - a summary hearing on the TRO
application. In an order[17] of October 31, 2006, as amended in another order[18] dated November 20, 2006, the
court granted a 20-day TRO enjoining the IABAC, et al, starting November 6, 2006, from proceeding with the
subject September 12, 2006 purchase- supply contracts. In the original order, the court set the preliminary
conference and hearing for the applied preliminary injunction on November 7, and 8, 2006, respectively.

In the meantime, Vibal filed an urgent motion to dismiss [19] Kolonwels petition on several grounds, among them
want of jurisdiction and lack of cause of action, inter aliaalleging that the latter had pursued judicial relief
without first complying with the protest procedure prescribed by Republic Act (R.A.) No. 9184, otherwise
known as theGovernment Procurement Reform Act. The DepEd later followed with its own motion to dismiss,
partly based on the same protest provision. As records show, the trial court did not conduct a hearing on either
dismissal motions, albeit it heard the parties on their opposing claims respecting the propriety of issuing a writ
of preliminary injunction.

On December 4, 2006, the Manila RTC issued its assailed Order [20]
finding for Kolonwel, as petitioner a quo,
disposing as follows:

WHEREFORE, the court grants the petition for certiorari and prohibition. The
IABAC Resolution No. 001-2006-A dated May 30, 2006 is annulled and set aside. IABAC
Resolution No. 001-2006 is declared validly and regularly issued in the absence of a showing of
grave abuse of discretion or excess of jurisdiction. All subsequent actions of the respondents
resulting from the issuance of IABAC Resolution No. 001-2006-A are consequently
nullified and set aside. This court grants a final injunction pursuant to Sec. 9 of Rule 58 of
the Rules of Court as amended, restraining respondents Department of Education and Culture
(sic), [DBM-PS], [IABAC], Vibal Publishing House, Inc., LG & M Corporation and SD
Publications from the commission or continuance of acts, contracts or transactions proceeding
from the issuance of IABAC Resolution No. 001-2006-A.
 SO ORDERED. (Emphasis and words in brackets supplied)

Hence, these three (3) petitions which the Court, per its Resolution [21] of January 16, 2007, ordered consolidated.
Earlier, the Court issued, in G. R. No. 175616, a TRO[22]enjoining the presiding judge[23] of the RTC of Manila,
Branch 18, from proceeding with SP Civil Case No. 06-116010 or implementing its assailed order.

Petitioners urge the annulment of the assailed RTC Order dated December 4, 2006, on jurisdictional ground,
among others. It is their parallel posture that the Manila RTC erred in assuming jurisdiction over the case
despite respondent Kolonwels failure to observe the protest mechanism provided under Sec. 55 in relation to
Secs. 57 and 58 of R.A. No. 9184, respectively reading as follows:

Sec. 55. Protest on Decision of the BAC.- Decisions of the BAC [Bids and Awards Committee]
in all stages of procurement may be protested to the head of the procuring entity. Decisions
of the BAC may be protested by filing a verified position paper and paying a non-refundable
protest fee. The amount of the protest fee and the periods during which the protest may be
filed and resolved shall be specific in the IRR.

Sec. 57. Non-interruption of the Bidding Process. In no case shall any process taken from any
decision treated in this Article stay or delay the bidding process. Protests must first be resolved
before any award is made.

Sec. 58. Report to Regular Courts; Certiorari.- Court action may be resorted to only after the
protests contemplated in this Article shall have been completed. Cases that are filed in
violation of the process specified in this article shall be dismissed for lack of jurisdiction.
The [RTC] shall have jurisdiction over final decisions of the head of the procuring entity.
(Emphasis and words in bracket added.)

As a counterpoint, the respondent draws attention to its having twice asked, and having been twice spurned by,
the IABAC to reconsider its disqualification, obviously agreeing with the Manila RTC that the judicial window
was already opened under the exhaustion of available administrative remedies principle. In the same breath,
however, the respondent would argue, again following the RTCs line, that it was prevented from filing a protest
inasmuch as the government had not issued the Implementing Rules and Regulations (IRR) of R.A.
No. 9184 to render the protest mechanism of the law operative for foreign-funded projects.

The Court is unable to lend concurrence to the trial courts and respondents positions on the interplay of the
protest and jurisdictional issues. As may be noted, the aforequoted Section 55 of R.A. No. 9184 sets three (3)
requirements that must be met by the party desiring to protest the decision of the Bids and Awards Committee
(BAC). These are: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must
be submitted to the head of the procuring entity; and 3) the payment of a non-refundable protest fee. The
jurisdictional caveat that authorizes courts to assume or, inversely, precludes courts from assuming, jurisdiction
over suits assailing the BACs decisions is in turn found in the succeeding Section 58 which provides that the
courts would have jurisdiction over such suits only if the protest procedure has already been completed.
Respondents letters of May 18, 2006[24] and June 28, 2006[25] in which it requested reconsideration of its
disqualification cannot plausibly be given the status of a protest in the context of the aforequoted provisions of
R.A. No. 9184. For one, neither of the letter-request was addressed to the head of the procuring entity, in this
case the DepEd Secretary or the head of the DBM Procurement Service, as required by law. For another, the
same letters were unverified. And not to be overlooked of course is the fact that the third protest-completing
requirement, i.e., payment of protest fee, was not complied with.

Given the above perspective, it cannot really be said that the respondent availed itself of the protest procedure
prescribed under Section 55 of R.A. No. 9184 before going to the RTC of Manila via a petition
for certiorari. Stated a bit differently, respondent sought judicial intervention even before duly completing the
protest process. Hence, its filing ofSP Civil Case No. 06-116010 was precipitate. Or, as the law itself would put
it, cases that are filed in violation of the protest process shall be dismissed for lack of jurisdiction.

Considering that the respondents petition in RTC Manila was actually filed in violation of the protest process set
forth in Section 55 of R.A. No. 9184, that court could not have lawfully acquired jurisdiction over the subject
matter of this case. In fact, Section 58, supra, of R.A. No. 9184 emphatically states that cases filed in violation
of the protest process therein provided shall be dismissed for lack of jurisdiction.

It is to be stressed that the protest mechanism adverted to is a built-in administrative remedy embodied in the
law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the
medium of interpretative circulars or bulletins. Ignoring thus this administrative remedy would be to defy the
law itself.

It will not avail the respondent any to argue that the absence of an IRR to make the protest mechanism under
R.A. No. 9184 become operative for foreign-funded projects was what prevented it from complying with the
protest procedure. As the last sentence of the afore-quoted Section 55 of R.A. No. 9184 is couched, the specific
office of an IRR for foreign-funded project, vis--vis the matter of protest, is limited to fixing the amount of the
protest fee and the periods during which the protest may be filed and resolved. Surely, the absence of provisions
on protest fee and reglementary period does not signify the deferment of the implementation of the protest
mechanism as a condition sine qua non to resort to judicial relief. As applied to the present case, the respondent
had to file a protest and pursue it until its completion before going to court. There was hardly any need to wait
for the specific filing period to be prescribed by the IRR because the protest, as a matter of necessity, has to be
lodged before court action.

Neither is it necessary that the amount of protest fee be prescribed first. Respondent could very well have
proceeded with its protest without paying the required protest fee, remitting the proper amount once the
appropriate IRR fixed the protest fee.
There may perhaps be room for relaxing the prescription on protest if a bona fide attempt to comply with legal
requirements had been made. But the fact alone that the respondent did not even submit a verified position
paper by way of protest argues against such plausibility. Significantly, none of the reconsideration-seeking
letters of the respondent advert to the protest procedure under Section 55 of R.A. No. 9184, even by way of
noting that it was at a loss as to the inoperativeness of such provision in the light of the absence of an IRR.

In its petition before the Manila RTC, the respondent veritably admitted to not complying with the protest
requirement, albeit with the lame excuse that it was effectively barred from complying with the required
administrative remedies of protest. Neither did the respondent then argue that it was not able to comply due to
the absence of an IRR for foreign- funded projects.

At any rate, there is, in fact a set of implementing rules and regulations, denominated as IRR-A, issued on July
11, 2003 by the GPPB and the Joint Congressional Oversight Committee, Section 55.1 [26] of which provides that
prior to a resort to protest, the aggrieved party must first file a motion for reconsideration of the decision of the
BAC. It is only after the BAC itself denies reconsideration that the protest, accompanied by a fixed protest fee,
shall be filed within the period defined in the IRR.

It may be that IRR-A specifically defines its coverage to all fully domestically-funded procurement activities, it
being also provided that foreign-funded procurement activitiesshall be the subject of a subsequent
issuance. [27] However, a similarly drawn argument involving IRR-A was set aside in Abaya v. Ebdane,[28] a case
involving Loan Agreement No. PH-P204 entered into by and between the RP and the Japan Bank for
International Cooperation (JBIC) for the implementation DPWH Contract Package No. I (CP I). Wrote the
Court in Abaya:

Admittedly, IRR-A covers only fully domestically-funded procurement activities from procurement
planning up to contract implementation and that it is expressly stated that IRR-B for foreign-
funded procurement activities shall be subject of a subsequent issuance. Nonetheless, there is no
reason why the policy behind Section 77 of IRR-A cannot be applied to foreign-funded
procurement projects like the CP I project. Stated differently, the policy on the prospective or
non-retroactive application of RA 9184 with respect to domestically-funded procurement
projects cannot be any different with respect to foreign-funded procurement projects . It would
be incongruous, even absurd, to provide for the prospective application of RA 9184 with respect
to domestically-funded procurement projects and, on the other hand, as urged by the petitioners,
apply RA 9184 retroactively with respect to foreign-funded procurement projects. To be sure, the
lawmakers could not have intended such an absurdity.

As in Abaya, there really should be no reason why the policy behind Section 55.l of IRR-A on the procedure for
protest cannot be applied, even analogously, to foreign-funded procurement projects, such as those in this case.
Indeed, there is no discernable justification why a different procedure should obtain with respect to foreign-
funded procurement undertakings as opposed to a locally funded project, and certainly there is no concrete
foundation in R.A. 9184 to indicate that Congress intended such a variance in the protest procedure.
The Manila RTC, in granting the petition for certiorari and prohibition, stated the observation that there
was substantial compliance of the requirement of protest.[29] Yet, it is not even clear that respondent Kolonwel, in
its dealings with the IABAC, particularly in seeking reconsideration of its decision, was even aware of the
protest requirements. What is beyond dispute, however, is that courts are precluded by express legislative
command from entertaining protests from decisions of the BAC. What Congress contextually intended under
the premises was that not only would there be a distinct administrative grievance mechanism to be observed in
assailing decisions of the BAC, but that courts would be without jurisdiction over actions impugning decisions
of the BACs, unless, in the meantime, the protest procedure mandated under Section 55 of R.A. No. 9184 is
brought to its logical completion.

It is Congress by law, not the courts by discretion, which defines the courts jurisdiction not otherwise conferred
by the Constitution. Through the same medium, Congress also draws the parameters in the exercise of the
functions of administrative agencies. Section 55 of R.A. No. 9184 could not be any clearer when it mandates the
manner of protesting the decision of bids and awards committees. Similarly, there can be no quibbling that,
under Section 58 of the same law, courts do not have jurisdiction over decisions of the BACs unless the
appropriate protest has been made and completed. The absence of the IRR does not detract from the reality that
R.A. No. 9184 requires a protest to be filed under the form therein prescribed.
Given the above perspective, the Manila RTC had no jurisdiction over respondent Kolonwels petition
for certiorari and prohibition. Accordingly, it ought to have granted herein petitioners motion to dismiss, but it
did not. Worse, the court even added another layer to its grievous error when it granted the respondents basic
petition for certiorari and prohibition itself.

Compounding the Manila RTCs error is its having proceeded with SP Civil Case No. 06-116010 even without
acquiring jurisdiction over Watana. As may be recalled, the respondent, in its petition before the RTC,
impleaded Watana as one of the defendants, the latter having been awarded by the IABAC Sibika 2 and HeKaSi
4 &5. The records, however, show that Watana was not served with summons. The Sheriffs Return
dated October 18, 2006, noted that summons was not served on Watana and another defendant atNo. 1281 G.
Araneta Avenue cor. Ma. Clara Street, Quezon City, on the ground that said companies were not holding office
thereat according to Mr. Marvin V. Catacutan.

There can be no dispute that Watana is an indispensable party to the respondents petition in SP Civil Case No.
06-116010, Kolonwel having therein assailed and sought to nullify the contract-award made in its and Vibals
favor. Indispensable parties are those with such interest in the controversy that a final decree would necessarily
affect their rights so that courts cannot proceed without their presence. [30] All of them must be included in a suit
for an action to prosper or for a final determination to be had. [31] Watana, to repeat, was never served with
summons; neither did it participate in the proceedings below. Plainly, then, the Manila RTC did not acquire
jurisdiction over one of the indispensable parties, the joinder of whom is compulsory.[32]
With the foregoing disquisitions, the Court finds it unnecessary to even dwell on the other points raised in this
consolidated cases. In the light, however, of the Manila RTCs holding that the WB Guidelines on Procurement
under IBRD Loans do not in any way provided superiority over local laws on the matter,[33] the Court wishes to
state the following observation:

As may be recalled, all interested bidders were put on notice that the DepEds procurement project was to be
funded from the proceeds of the RP-IBRD Loan No. 7118-PH, [34]Section 1, Schedule 4 of which stipulates that
Goods shall be procured in accordance with the provisions of Section 1 [35] of the Guidelines for Procurement
under IBRD Loans. Accordingly, the IABAC conducted the bidding for the supply of textbooks and manuals
based on the WB Guidelines, particularly the provisions on International Competitive Bidding (ICB). Section 4
of R.A. No. 9184 expressly recognized this particular process, thus:

Sec. 4. Scope and application. - This Act shall apply to the Procurement of Goods and
Consulting Services, regardless of source of funds, whether local or foreign by all branches and
instrumentalities of government . Any treaty or international or executive agreement
affecting the subject matter of this Act to which the Philippine government is a signatory
shall be observed. (Emphasis added.)

The question as to whether or not foreign loan agreements with international financial institutions, such as Loan
No. 7118-PH, partake of an executive or international agreement within the purview of the Section 4 of R.A.
No. 9184, has been answered by the Court in the affirmative in Abaya, supra. Significantly, Abaya declared that
the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC
Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods
necessary to implement the main project.
Under the fundamental international law principle of pacta sunt servanda,[36] which is in fact embodied in the
afore-quoted Section 4 of R.A. No. 9184, the RP, as borrower, bound itself to perform in good faith its duties
and obligation under Loan No. 7118- PH. Applying this postulate in the concrete to this case, the IABAC was
legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of
the bidding/procurement process in question.

WHEREFORE, the instant consolidated petitions are GRANTED and the assailed Order dated December 4,
2006 of the Regional Trial Court of Manila in its SP Case No. 06-116010 is NULLIFIED and SET ASIDE.

No cost.
SO ORDERED.

[G.R. No. 139465. October 17, 2000]

SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C. LANTION, Presiding Judge, Regional Trial
Court of Manila, Branch 25, and MARK B. JIMENEZ, respondents.
 RE S O LUTI ON
PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner 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.[1]
On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the
decision on the following grounds:

"The majority decision failed to appreciate the following facts and points of substance and of value which, if
considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the filing of an extradition
petition in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a denial of fundamental
fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is intended
to prevent flight.

V. There is a need to balance the interest between the discretionary powers of government and the rights of an
individual.

VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing may be
dispensed with in this case results in a non sequitur conclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice and
hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has encroached upon
the constitutional boundaries separating it from the other two co-equal branches of government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings."[2]

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing
petitioners Urgent Motion for Reconsideration.
On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action and
Filing of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached Note 327/00 from
the Embassy of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR Government
Secretariat. On August 15, 2000, private respondent filed a Manifestation and Motion for Leave to File
Rejoinder in the event that petitioner's April 5, 2000 Motion would be granted. Private respondent also filed on
August 18, 2000, a Motion to Expunge from the records petitioner's June 7, 2000 Manifestation with its
attached note verbales. Except for the Motion to Allow Continuation and Maintenance of Action, the Court
denies these pending motions and hereby resolves petitioner's Urgent Motion for Reconsideration.
The jugular issue is whether or not the private respondent is entitled to the due process right to notice and
hearing during the evaluation stage of the extradition process.
 We now hold that private respondent is bereft of the right to notice and hearing during the evaluation
stage of the extradition process.
First. P.D. No. 1069[3] which implements the RP-US Extradition Treaty provides the time when an
extraditee shall be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the
filing of the petition for extradition in the extradition court, viz:

"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 . . . Upon receipt of the answer, or should the
accused after having received the summons fail to 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."

It is of judicial notice that the summons includes the petition for extradition which will be answered by the
extraditee.
There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the
right to demand from the petitioner Secretary of Justice copies of the extradition request from the US
government and its supporting documents and to comment thereon while the request is still
undergoing evaluation. We cannot write a provision in the treaty giving private respondent that right where
there is none. It is well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any clause,
small or great, or dispense with any of its conditions and requirements or take away any qualification, or
integral part of any stipulation, upon any motion of equity, or general convenience, or substantial justice."[4]
Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their
intent. Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory
provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in light of its object and purpose."[5] (emphasis supplied) The
preambular paragraphs of P.D. No. 1069 define its intent, viz:

"WHEREAS, under the Constitution[,] the Philippines adopts the generally accepted principles of international
law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and
amity with all nations;

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;

WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty with the
Republic of Indonesia, and intends to conclude similar treaties with other interested countries;

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic
rise of international and transnational crimes like terrorism and drug trafficking.Extradition treaties provide the
assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial
sovereignty. Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes
will not be coddled by any signatory state.
 It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not
prevent the escape of extraditees from the long arm of the law and expedite their trial. The submission of the
private respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be furnished a
copy of the US government request for his extradition and its supporting documents even while they are still
under evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner
Secretary of Justice that the demanded notice is equivalent to a notice to flee must be deeply rooted on the
experience of the executive branch of our government. As it comes from the branch of our government in
charge of the faithful execution of our laws, it deserves the careful consideration of this Court. In addition, it
cannot be gainsaid that private respondents demand for advance notice can delay the summary process of
executive evaluation of the extradition request and its accompanying papers. The foresight of Justice Oliver
Wendell Holmes did not miss this danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at
common law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form according
to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good
faith to the demanding government requires his surrender."[6] (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is best
served when done without delay.
Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-
US Extradition Treaty as well as the general interpretation of the issue in question by other countries with
similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly charged with their negotiation
and enforcement is accorded great weight.[7] The reason for the rule is laid down in Santos III v. Northwest
Orient Airlines, et al.,[8] where we stressed that a treaty is a joint executive-legislative act which enjoys the
presumption that "it was first carefully studied and determined to be constitutional before it was adopted and
given the force of law in the country."
Our executive department of government, thru the Department of Foreign Affairs (DFA) and the
Department of Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D. No. 1069
do not grant the private respondent a right to notice and hearing during the evaluation stage of an extradition
process.[9] This understanding of the treaty is shared by the US government, the other party to the treaty.
[10]
This interpretation by the two governments cannot be given scant significance. It will be presumptuous for
the Court to assume that both governments did not understand the terms of the treaty they concluded.
Yet, this is not all. Other countries with similar extradition treaties with the Philippines have
expressed the same interpretation adopted by the Philippine and US governments. Canadian[11] and
Hongkong[12] authorities, thru appropriate note verbales communicated to our Department of Foreign Affairs,
stated in unequivocal language that it is not an international practice to afford a potential extraditee with a copy
of the extradition papers during the evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.
Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to notice and
hearing as required by our Constitution. He buttresses his position by likening an extradition proceeding to a
criminal proceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused. [13] His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional
rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still undergoing evaluation. [14] As held by the US
Supreme Court in United States v. Galanis:
"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a
criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty."[15]

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. [16] In contradistinction to
a criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards.[17] In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction[18] while a fugitive may be ordered extradited "upon showing of the existence of
a prima facie case."[19] Finally, unlike in a criminal case where judgment becomes executory upon being
rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President
has the final discretion to extradite him. [20] The United States adheres to a similar practice whereby the Secretary
of State exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign
relations before making the ultimate decision to extradite.[21]
As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former. This we hold for the procedural due process required by a given set of
circumstances "must begin with a determination of the precise nature of the government function involved as
well as the private interest that has been affected by governmental action."[22] The concept of due process is
flexible for "not all situations calling for procedural safeguards call for the same kind of procedure."[23]
Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and hearing
considering the alleged threat to his liberty "which may be more priceless than life." [24] The supposed threat to
private respondents liberty is perceived to come from several provisions of the RP-US Extradition Treaty and
P.D. No. 1069 which allow provisional arrest and temporary detention.
We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:

"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 statement 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 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." (emphasis supplied)
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." (emphasis supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be
provisionally arrested only pending receipt of the request for extradition.Our DFA has long received the
extradition request from the United States and has turned it over to the DOJ. It is undisputed that until today, the
United States has not requested for private respondents provisional arrest. Therefore, the threat to private
respondents liberty has passed. It is more imagined than real.
Nor can the threat to private respondents liberty come from Section 6 of P.D. No. 1069, which 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. [H]e 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. . .

(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." (emphasis supplied)

It is evident from the above provision that a warrant of arrest for the temporary detention of the accused
pending the extradition hearing may only be issued by the presiding judge of the extradition court upon filing
of the petition for extradition. As the extradition process is still in the evaluation stage of pertinent documents
and there is no certainty that a petition for extradition will be filed in the appropriate extradition court, the
threat to private respondents liberty is merely hypothetical.
Sixth. To be sure, private respondents plea for due process deserves serious consideration involving as it
does his primordial right to liberty. His plea to due process, however, collides with important state interests
which cannot also be ignored for they serve the interest of the greater majority. The clash of rights
demands a delicate balancing of interests approach which is a "fundamental postulate of constitutional
law."[25] The approach requires that we "take conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation."[26] These interests usually consist in the exercise by an
individual of his basic freedoms on the one hand, and the governments promotion of fundamental public interest
or policy objectives on the other.[27]
In the case at bar, on one end of the balancing pole is the private respondents claim to due process
predicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life,
liberty, or property without due process of law . . ." Without a bubble of doubt, procedural due process of law
lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has to
be accorded the weight it deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more
weight to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United
States of persons charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the
judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the
principle of separation of powers.
Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private respondent is nebulousand the degree of prejudice he will
allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the
petitioner Secretary of Justice. InAngara v. Electoral Commission, we held that the "Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."[28] Under our constitutional scheme, executive power is vested in the President
of the Philippines.[29] Executive power includes, among others, the power to contract or guarantee foreign loans
and the power to enter into treaties or international agreements.[30] The task of safeguarding that these treaties
are duly honored devolves upon the executive department which has the competence and authority to so act in
the international arena.[31] It is traditionally held that the President has power and even supremacy over the
countrys foreign relations.[32] The executive department is aptly accorded deference on matters of foreign
relations considering the Presidents most comprehensive and most confidential information about the
international scene of which he is regularly briefed by our diplomatic and consular officials. His access to ultra-
sensitive military intelligence data is also unlimited. [33]The deference we give to the executive department is
dictated by the principle of separation of powers. This principle is one of the cornerstones of our democratic
government. It cannot be eroded without endangering our government.
The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate
the extradition of persons covered by treaties duly entered by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal
whose activities threaten the peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially
transnational crimes.
In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that
the private respondent has no right to due process at all throughout the length and breadth of the
extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is
due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in turn depends on the extent to
which an individual will be "condemned to suffer grievous loss."[34] We have explained why an extraditee
has no right to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No.
1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the
evidence against him once the petition is filed in court. The time for the extraditee to know the basis of the
request for his extradition is merely moved to the filing in court of the formal petition for extradition. The
extraditee's right to know is momentarily withheld during the evaluation stage of the extradition process to
accommodate the more compelling interest of the State to prevent escape of potential extraditees which can be
precipitated by premature information of the basis of the request for his extradition. No less compelling at that
stage of the extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of
the government, the Executive, which has been endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of interests is not a static but a moving
balance which can be adjusted as the extradition process moves from the administrative stage to the judicial
stage and to the execution stage depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondent's privilege of notice and hearing is a soft restraint on his right to
due process which will not deprive him of fundamental fairness should he decide to resist the request for his
extradition to the United States. There is no denial of due process as long as fundamental fairness is assured
a party.
We end where we began. A myopic interpretation of the due process clause would not suffice to resolve the
conflicting rights in the case at bar. With the global village shrinking at a rapid pace, propelled as it is by
technological leaps in transportation and communication, we need to push further back our horizons and work
with the rest of the civilized nations and move closer to the universal goals of "peace, equality, justice, freedom,
cooperation and amity with all nations."[35] In the end, it is the individual who will reap the harvest of peace and
prosperity from these efforts.
WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar
promulgated on January18, 2000 is REVERSED. The assailed Order issued by the public respondent judge on
August 9, 1999 is SET ASIDE. The temporary restraining order issued by this Court on August 17, 1999 is
made PERMANENT. The Regional Trial Court of Manila, Branch 25 is enjoined from conducting further
proceedings in Civil Case No. 99-94684.
SO ORDERED.

PHARMACEUTICAL and HEALTH G.R. NO. 173034

CARE ASSOCIATION of the
PHILIPPINES,
Petitioner,
Present:

PUNO, C.J.
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
- versus - AUSTRIA-MARTINEZ,
CORONA,
CARPIO-MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA,
VELASCO, JR.,
NACHURA, and
REYES, JJ.
HEALTH SECRETARY
FRANCISCO T. DUQUE III;
HEALTH UNDERSECRETARIES
DR. ETHELYN P. NIETO,
DR. MARGARITA M. GALON,
ATTY. ALEXANDER A. PADILLA,
& DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES
DR. MARIO C. VILLAVERDE,
DR. DAVID J. LOZADA, AND
DR. NEMESIO T. GAKO, Promulgated:
Respondents. October 9, 2007
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is mother's
milk. There is nothing greater than for a mother to nurture her beloved child straight from her bosom. The ideal
is, of course, for each and every Filipino child to enjoy the unequaled benefits of breastmilk. But how should
this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations of
Executive Order No. 51, Otherwise Known as The Milk Code, Relevant International Agreements,
Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not valid as
it contains provisions that are not constitutional and go beyond the law it is supposed to implement.

Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of the Department
of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded as a co-respondent since
respondents issued the questioned RIRR in their capacity as officials of said executive agency.[1]

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986 by virtue of
the legislative powers granted to the president under the Freedom Constitution. One of the preambular clauses
of the Milk Code states that the law seeks to give effect to Article 11 [2] of the International Code of Marketing
of BreastmilkSubstitutes (ICMBS), a code adopted by the World Health Assembly (WHA) in 1981. From 1982
to 2006, the WHA adopted several Resolutions to the effect that breastfeeding should be supported, promoted
and protected, hence, it should be ensured that nutrition and health claims are not permitted
for breastmilk substitutes.

In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24 of said
instrument provides that State Parties should take appropriate measures to diminish infant and child mortality,
and ensure that all segments of society, specially parents and children, are informed of the advantages of
breastfeeding.

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.

However, on June 28, 2006, petitioner, representing its members that are manufacturers
of breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the Issuance of
a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and in violation of the
provisions of the Constitution in promulgating the RIRR.[3]
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from implementing
the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19, 2007. The
Court issued an Advisory (Guidance for Oral Arguments) datedJune 5, 2007, to wit:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

2.2 Whether pertinent international agreements1 entered into by the Philippines are part of the
law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process clause and
are in restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef 2002 Global
Strategy on Infant and Young Child Feeding; and (3) various World Health Assembly
(WHA) Resolutions.
The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

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

xxxx

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

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,[6] where the Court ruled that an
association has the legal personality to represent its members because the results of the case will affect their
vital interests.[7]

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in Executive
Secretary, that the association is formed to represent directly or through approved representatives the
pharmaceutical and health care industry before the Philippine Government and any of its agencies, the medical
professions and the general public.[8]Thus, as an organization, petitioner definitely has an interest in fulfilling its
avowed purpose of representing members who are part of the pharmaceutical and health care industry.Petitioner
is duly authorized[9] to take the appropriate course of action to bring to the attention of government agencies and
the courts any grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is
mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss in its duties
if it fails to act on governmental action that would affect any of its industry members, no matter how few or
numerous they are. Hence, petitioner, whose legal identity is deemed fused with its members, should be
considered as a real party-in-interest which stands to be benefited or injured by any judgment in the present
action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are part of the
law of the land.
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby amending and
expanding the coverage of said law. The defense of the DOH is that the RIRR implements not only the Milk
Code but also various international instruments[10] regarding infant and young child nutrition. It is respondents'
position that said international instruments are deemed part of the law of the land and therefore the DOH may
implement them through the RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1) The United
Nations Convention on the Rights of the Child; (2) The International Covenant on Economic, Social and
Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination Against Women,
only provide in general terms that steps must be taken by State Parties to diminish infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and well-being of families, and ensure that
women are provided with services and nutrition in connection with pregnancy and lactation. Said instruments
do not contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are the ICMBS
and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law either
by transformation or incorporation.[11] The transformation method requires that an international law be
transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation
method applies when, by mere constitutional declaration, international law is deemed to have the force of
domestic law.[12]

Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the
Constitution which provides that [n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate. Thus, treaties or conventional international
law must go through a process prescribed by the Constitution for it to be transformed into municipal law that
can be applied to domestic conflicts.[13]

The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least two-thirds of
all members of the Senate as required under Section 21, Article VII of the 1987 Constitution.

However, the ICMBS which was adopted by the WHA in 1981 had been transformed into domestic law through
local legislation, the Milk Code. Consequently, it is the Milk Code that has the force and effect of law in this
jurisdiction and not the ICMBS per se.

The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this point that the
Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or other forms of
promotion to the general public of products within the scope of the ICMBS. Instead, the Milk Code expressly
provides that advertising, promotion, or other marketing materials may be allowed if such materials are
duly authorized and approved by the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation and amity with all nations. (Emphasis
supplied)

embodies the incorporation method.[14]

In Mijares v. Ranada,[15] the Court held thus:

 [G]enerally accepted principles of international law, by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if they do not derive from treaty obligations.
The classical formulation in international law sees those customary rules accepted as
binding result from the combination [of] two elements: the established, widespread, and
consistentpractice on the part of States; and a psychological element known as
the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element
is a belief that the practice in question is rendered obligatory by the existence of a rule of
law requiring it.[16] (Emphasis supplied)
Generally accepted principles of international law refers to norms of general or customary international law
which are binding on all states,[17] i.e., renunciation of war as an instrument of national policy, the principle of
sovereign immunity,[18] a person's right to life, liberty and due process, [19] and pacta sunt servanda,[20] among
others. The concept of generally accepted principles of law has also been depicted in this wise:

Some legal scholars and judges look upon certain general principles of law as a primary source of
international law because they have the character of jus rationale and are valid through all
kinds of human societies. (Judge Tanaka in his dissenting opinion in the 1966 South West Africa
Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
because they are basic to legal systems generally and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning based on the common identity of
all legal systems. If there should be doubt or disagreement, one must look to state practice and
determine whether the municipal law principle provides a just and acceptable solution. x x x [21]
(Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]. (Restatement) This statement
contains the two basic elements of custom: the material factor, that is, how states behave,
and the psychological or subjective factor, that is, why they behave the way they do.

xxxx

The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the consistency and the
generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes necessary to determine why
states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the
 belief that a certain form of behavior is obligatory, is what makes practice an international
rule. Without it, practice is not law.[22] (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic system.[23]

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of customary
law and should they then be deemed incorporated as part of the law of the land?

The World Health Organization (WHO) is one of the international specialized agencies allied with the United
Nations (UN) by virtue of Article 57, [24] in relation to Article 63[25] of the UN Charter. Under the 1946 WHO
Constitution, it is the WHA which determines the policies of the WHO, [26] and has the power to adopt
regulations concerning advertising and labeling of biological, pharmaceutical and similar products moving in
international commerce,[27] and to make recommendations to members with respect to any matter within the
competence of the Organization.[28] The legal effect of its regulations, as opposed to recommendations, is quite
different.

Regulations, along with conventions and agreements, duly adopted by the WHA bind member states thus:

Article 19. The Health Assembly shall have authority to adopt conventions or agreements with
respect to any matter within the competence of the Organization. A two-thirds vote of the Health
Assembly shall be required for the adoption of such conventions or agreements, which shall
come into force for each Member when accepted by it in accordance with its constitutional
processes.

Article 20. Each Member undertakes that it will, within eighteen months after the adoption by
the Health Assembly of a convention or agreement, take action relative to the acceptance of
such convention or agreement. Each Member shall notify the Director-General of the action
taken, and if it does not accept such convention or agreement within the time limit, it will furnish
a statement of the reasons for non-acceptance. In case of acceptance, each Member agrees to
make an annual report to the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the international
spread of disease; (b) nomenclatures with respect to diseases, causes of death and public health
practices; (c) standards with respect to diagnostic procedures for international use; (d) standards
with respect to the safety, purity and potency of biological, pharmaceutical and similar products
moving in international commerce; (e) advertising and labeling of biological, pharmaceutical
and similar products moving in international commerce.

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except for
such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)
On the other hand, under Article 23, recommendations of the WHA do not come into force for members, in
the same way that conventions or agreements under Article 19 and regulations under Article 21 come into
force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations to Members
with respect to any matter within the competence of the Organization. (Emphasis supplied)

The absence of a provision in Article 23 of any mechanism by which the recommendation would come into
force for member states is conspicuous.

The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are generally not
binding, but they carry moral and political weight, as they constitute the judgment on a health issue of the
collective membership of the highest international body in the field of health. [29] Even the ICMBS itself was
adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution. (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously recommended to
the Thirty-fourth World Health Assembly the text of a resolution by which it would adopt the
code in the form of a recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to recommendations
made to it by the Organization, and with respect to conventions, agreements and regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging member states
to implement the ICMBS are merely recommendatory and legally non-binding. Thus, unlike what has been
done with the ICMBS whereby the legislature enacted most of the provisions into law which is the Milk
Code, the subsequent WHA Resolutions, [30] specifically providing for exclusive breastfeeding from 0-6
months, continued breastfeeding up to 24 months, and absolutely prohibiting advertisements and
promotions of breastmilk substitutes, have not been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute soft law or non-binding norms, principles and practices
that influence state behavior.[31]

Soft law does not fall into any of the categories of international law set forth in Article 38, Chapter III of the
1946 Statute of the International Court of Justice.[32] It is, however, an expression of non-binding norms,
principles, and practices that influence state behavior.[33] Certain declarations and resolutions of the UN General
Assembly fall under this category.[34] The most notable is the UN Declaration of Human Rights, which this
Court has enforced in various cases, specifically, Government of Hongkong Special Administrative Region
v. Olalia,[35] Mejoff v. Director of Prisons,[36] Mijares v. Raada[37] and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..[38]

The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN with the
mandate to promote and protect intellectual property worldwide, has resorted to soft law as a rapid means of
norm creation, in order to reflect and respond to the changing needs and demands of its constituents. [39] Other
international organizations which have resorted to soft law include the International Labor Organization and the
Food and Agriculture Organization (in the form of the Codex Alimentarius).[40]

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory Syndrome
(SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in international
relations. International lawyers typically distinguish binding rules of international law-"hard
law"-from non-binding norms, principles, and practices that influence state behavior-"soft
law." WHO has during its existence generated many soft law norms, creating a "soft law
regime" in international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These resolutions
clearly define WHO member states' normative duty to cooperate fully with other countries and
with WHO in connection with infectious disease surveillance and response to outbreaks.

This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the duty
is powerful politically for two reasons. First, the SARS outbreak has taught the lesson that
participating in, and enhancing, international cooperation on infectious disease controls is in a
country's self-interest x x x if this warning is heeded, the "soft law" in the SARS and IHR
Resolution could inform the development of general and consistent state practice on infectious
disease surveillance and outbreak response, perhaps crystallizing eventually into customary
international law on infectious disease prevention and control.[41]

In the Philippines, the executive department implemented certain measures recommended by WHO to address
the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on April 26, 2003 and E.O.
No. 280 on February 2, 2004, delegating to various departments broad powers to close down
schools/establishments, conduct health surveillance and monitoring, and ban importation of poultry and
agricultural products.

It must be emphasized that even under such an international emergency, the duty of a state to implement the
IHR Resolution was still considered not binding or enforceable, although said resolutions had great political
influence.

As previously discussed, for an international rule to be considered as customary law, it must be established that
such rule is being followed by states because they consider it obligatory to comply with such rules
(opinio juris). Respondents have not presented any evidence to prove that the WHA Resolutions, although
signed by most of the member states, were in fact enforced or practiced by at least a majority of the member
states; neither have respondents proven that any compliance by member states with said WHA Resolutions was
obligatory in nature.

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary international
law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into domestic
law. The provisions of the WHA Resolutions cannot be considered as part of the law of the land that can
be implemented by executive agencies without the need of a law enacted by the legislature.

Second, the Court will determine whether the DOH may implement the provisions of the WHA Resolutions by
virtue of its powers and functions under the Revised Administrative Code even in the absence of a domestic
law.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH shall define
the national health policy and implement a national health plan within the framework of the government's
general policies and plans, and issue orders and regulations concerning the implementation of established
health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and other forms of promotion
of breastmilk substitutes provided in some WHA Resolutions has been adopted as part of the national health
policy.

Respondents submit that the national policy on infant and young child feeding is embodied in A.O. No. 2005-
0014, dated May 23, 2005. Basically, the Administrative Order declared the following policy guidelines: (1)
ideal breastfeeding practices, such as early initiation of breastfeeding, exclusive breastfeeding for the first six
months, extended breastfeeding up to two years and beyond; (2) appropriate complementary feeding, which is
to start at age six months; (3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of
other feeding options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O. No. 2005-0014
is it declared that as part of such health policy, the advertisement or promotion of breastmilksubstitutes
should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding cannot automatically be equated with
a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising and promotion
of breastmilk substitutes, but instead, specifically creates an IAC which will regulate said advertising and
promotion, it follows that a total ban policy could be implemented only pursuant to a law amending the Milk
Code passed by the constitutionally authorized branch of government, the legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be validly
implemented by the DOH through the subject RIRR.

Third, the Court will now determine whether the provisions of the RIRR are in accordance with those of the
Milk Code.

In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the following:

1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its coverage
to young children or those from ages two years old and beyond:

MILK CODE RIRR

WHEREAS, in order to ensure that safe Section 2. Purpose These Revised Rules
and adequate nutrition for infants is and Regulations are hereby promulgated to
provided, there is a need to protect and
ensure the provision of safe and adequate
promote breastfeeding and to inform thenutritionfor infants and young children by
public about the proper use
the promotion, protection and support of
of breastmilk substitutes and supplements
breastfeeding and by ensuring the proper
and related products through adequate, use
consistent and objective information and
of breastmilk substitutes, breastmilksupple
appropriate regulation of the marketing and
ments and related products when these are
distribution of the said substitutes, medically indicated and only when
supplements and related products; necessary, on the basis of adequate
information and through appropriate
SECTION 4(e). Infant means a person marketing and distribution.
falling within the age bracket of 0-12
months. Section 5(ff). Young Child means a person
from the age of more than twelve (12)
months up to the age of three (3) years (36
months).
 2. The Milk Code recognizes that infant formula may be a proper and possible substitute
for breastmilk in certain instances; but the RIRR provides exclusive breastfeeding for infants from 0-
6 months and declares that there is no substitute nor replacement for breastmilk:

MILK CODE RIRR

WHEREAS, in order to ensure that safe Section 4. Declaration of Principles The
and adequate nutrition for infants is following are the underlying principles
provided, there is a need to protect and from which the revised rules and
promote breastfeeding and to inform the regulations are premised upon:
public about the proper use
of breastmilk substitutes and supplements a. Exclusive breastfeeding is for
and related products through adequate, infants from 0 to six (6) months.
consistent and objective information and
appropriate regulation of the marketing and b. There is no substitute or
distribution of the said substitutes, replacement forbreastmilk.
supplements and related products;

3. The Milk Code only regulates and does not impose unreasonable requirements for advertising and
promotion; RIRR imposes an absolute ban on such activities forbreastmilk substitutes intended for
infants from 0-24 months old or beyond, and forbids the use of health and nutritional claims. Section
13 of the RIRR, which provides for a total effect in the promotion of products within the scope of the
Code, is vague:

MILK CODE RIRR

SECTION 6. The General Public and
Mothers.
(a) No advertising, promotion or other
marketing materials, whether written, audio
or visual, for products within the scope of
this Code shall be printed, published,
distributed, exhibited and broadcast unless
such materials are duly authorized and
approved by an inter-agency
committee created herein pursuant to the
applicable standards provided for in this
Code.
Section 4. Declaration of Principles The
following are the underlying principles
from which the revised rules and
regulations are premised upon:
xxxx
f. Advertising, promotions, or sponsor-
shipsof infant
formula, breastmilk substitutes and other
related products are prohibited.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and
activities for breastmilksubstitutes
intended for infants and young children up
to twenty-four (24) months, shall be
allowed, because they tend to convey or
give subliminal messages or impressions
that undermine breastmilk and
breastfeeding or otherwise
exaggerate breastmilk substitutes and/or
replacements, as well as related products
covered within the scope of this Code.

Section 13. Total Effect - Promotion of

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

Section 15. Content of Materials. - The

following shall not be included in
advertising, promotional and marketing
materials:

a. Texts, pictures, illustrations or

information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilksubstitutes and milk
supplements. In this connection, no pictures
of babies and children together with their
mothers, fathers, siblings, grandparents,
other relatives or caregivers (oryayas) shall
be used in any advertisements for infant
formula and breastmilk supplements;
b. The term humanized, maternalized, close
to mother's milk or similar words in
describingbreastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the use of

infant and milk formula.

Section 16. All health and nutrition claims

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

MILK CODE RIRR

SECTION 10. Containers/Label.
(a) Containers and/or labels shall be
designed to provide the necessary
information about the appropriate
use of the products, and in such a
way as not to discourage
breastfeeding.
(b) Each container shall have a clear,
conspicuous and easily readable and
understandable message in Pilipino
or English printed on it, or on a
label, which message can not
readily become separated from it,
and which shall include the
following points:
(i) the words Important
Notice or their equivalent;
(ii) a statement of the
superiority of breastfeeding;
(iii) a statement that the product
shall be used only on the advice
of a health worker as to the
need for its use and the proper
methods of use;and
(iv) instructions for appropriate
preparation, and a warning
against the health hazards of
inappropriate preparation.
Section 26. Content Each container/label
shall contain such message, in both Filipino
and English languages, and which message
cannot be readily separated therefrom,
relative the following points:
(a) The words or phrase Important Notice or
Government Warning or their
equivalent;
(b) A statement of the superiority of
breastfeeding;
(c) A statement that there is no substitute
forbreastmilk;
(d) A statement that the product shall be
used only on the advice of a health
worker as to the need for its use and
the proper methods of use;
(e) Instructions for appropriate prepara-tion,
and a warning against the health
hazards of inappropriate
preparation;and
(f) The health hazards of unnecessary or
improper use of infant formula and
other related products including
information that powdered infant
formula may contain pathogenic
microorganisms and must be
prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health professionals; the
RIRR totally prohibits such activity:

MILK CODE RIRR

SECTION 7. Health Care System. Section 22. No manufacturer, distributor, or
(b) No facility of the health care system representatives of products covered by the
shall be used for the purpose of promoting Code shall be allowed to conduct or be
infant formula or other products within the involved in any activity on breastfeeding
scope of this Code. This Code does not, promotion, education and production of
however, preclude the dissemination of Information, Education and
information to health professionals as Communication (IEC) materials on
provided in Section 8(b). breastfeeding, holding of or participating as
speakers in classes or seminars for women
SECTION 8. Health Workers. - and children activities and to avoid the use
(b) Information provided by manufacturers of these venues to market their brands or
and distributors to health professionals company names.
regarding products within the scope of this
Code shall be restricted to scientific and
factual matters and such information shall
not imply or create a belief that bottle-
feeding is equivalent or superior to
breastfeeding. It shall also include the
information specified in Section 5(b).
6. The Milk Code permits milk manufacturers and distributors to extend assistance in research and
continuing education of health professionals; RIRR absolutely forbids the same.
MILK CODE
SECTION 8. Health Workers
(e) Manufacturers and distributors of
products within the scope of this Code may
assist in the research, scholarships and
continuing education, of health
professionals,in accordance with the rules
and regulations promulgated by the
Ministry of Health.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
SECTION 16. All health and nutrition
claims for products within the scope of the
Code are absolutely prohibited. For this
purpose, any phrase or words that
connotes to increase emotional, intellectual
abilities of the infant and young child and
other like phrases shall not be allowed.
RIRR
Section 4. Declaration of Principles
The following are the underlying principles
from which the revised rules and
regulations are premised upon:
i. Milk companies, and their
representatives, should not form part
of any policymaking body or entity
in relation to the advancement
ofbreasfeeding.
SECTION 22. No manufacturer,
distributor, or representatives of products
covered by the Code shall be allowed to
conduct or be involved in any activity on
breastfeeding promotion, education and
production of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or participating as
speakers in classes or seminars for women
and children activitiesand to avoid the use
of these venues to market their brands or
company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote, protect and support breastfeeding
and appropriate infant and young child
feeding. Part of this responsibility is to
continuously update their knowledge and
skills on breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.
RIRR
SECTION 6. The General Public and Section 51. Donations Within the Scope
Mothers. of This Code - Donations of products,
(f) Nothing herein contained shall prevent materials, defined and covered under the
donations from manufacturers and Milk Code and these implementing rules
distributors of products within the scope of and regulations, shall be strictly prohibited.
this Code upon request by or with the
approval of the Ministry of Health. Section 52. Other Donations By Milk
Companies Not Covered by this Code. -
Donations of products, equipments, and the
like, not otherwise falling within the scope
of this Code or these Rules, given by milk
companies and their agents, representatives,
whether in kind or in cash, may only be
coursed through the Inter Agency
Committee (IAC), which shall determine
whether such donation be accepted or
otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk Code.

MILK CODE RIRR

Section 46. Administrative
Sanctions. The following administrative
sanctions shall be imposed upon any
person, juridical or natural, found to have
violated the provisions of the Code and its
implementing Rules and Regulations:
a) 1st violation Warning;
b) 2nd violation Administrative fine of a
minimum of Ten Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on the
gravity and extent of the violation,
including the recall of the offending
product;
c) 3rd violation Administrative Fine of a
minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);
th
d) 4 violation Administrative Fine of a
minimum of Two Hundred Thousand
(P200,000.00) to Five Hundred
(P500,000.00) Thousand Pesos,
depending on the gravity and extent
 of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension of
the License to Operate (LTO) for
one year;
th
e) 5 and succeeding repeated violations
Administrative Fine of One Million
(P1,000,000.00) Pesos, the recall of
the offending product, cancellation of
the CPR, revocation of the License to
Operate (LTO) of the company
concerned, including the blacklisting
of the company to be furnished the
Department of Budget and
Management (DBM) and the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thou-sand
Five Hundred (P2,500.00) Pesos per
day shall be made for every day the
violation continues after having
received the order from the IAC or
other such appropriate body,
notifying and penalizing the company
for the infraction.
For purposes of determining whether or not
there is repeated violation, each product
violation belonging or owned by a
company, including those of their
subsidiaries, are deemed to be violations of
the concerned milk company and shall not
be based on the specific violating product
alone.

9. The RIRR provides for repeal of existing laws to the contrary.

The Court shall resolve the merits of the allegations of petitioner seriatim.

1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-
12 months old. Section 3 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and practices related thereto,
of the following products: breastmilk substitutes, including infant formula; other milk products,
foods and beverages, including bottle-fed complementary foods, when marketed or otherwise
represented to be suitable, with or without modification, for use as a partial or total replacement
 ofbreastmilk; feeding bottles and teats. It also applies to their quality and availability, and to
information concerning their use.

Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary food, and
breastmilk substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to their
physiological characteristics; while under Section 4(b), bottle-fed complementary food refers to any food,
whether manufactured or locally prepared, suitable as a complement to breastmilk or infant formula, when
either becomes insufficient to satisfy the nutritional requirements of the infant. An infant under Section 4(e) is a
person falling within the age bracket 0-12 months. It is the nourishment of this group of infants or children aged
0-12 months that is sought to be promoted and protected by the Milk Code.

But there is another target group. Breastmilk substitute is defined under Section 4(a) as any food being
marketed or otherwise presented as a partial or total replacement for breastmilk, whether or not suitable for that
purpose. This section conspicuously lacks reference to any particular age-group of children. Hence, the
provision of the Milk Code cannot be considered exclusive for children aged 0-12 months. In other
words, breastmilk substitutes may also be intended for young children more than 12 months of age.
Therefore, by regulating breastmilk substitutes, the Milk Code also intends to protect and promote the
nourishment of children more than 12 months old.

Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided in
Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be used by children
aged over 12 months.

There is, therefore, nothing objectionable with Sections 2[42] and 5(ff)[43] of the RIRR.

2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not
recognize that breastmilk substitutes may be a proper and possible substitute forbreastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must
be considered and construed together. As held in De Luna v. Pascual,[44] [t]he particular words, clauses and
phrases in the Rule should not be studied as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole.
Section 7 of the RIRR provides that when medically indicated and only when necessary, the use
of breastmilk substitutes is proper if based on complete and updated information. Section 8 of the RIRR also
states that information and educational materials should include information on the proper use of infant formula
when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use
of breastmilk substitutes may be proper.

3. The Court shall ascertain the merits of allegations 3[45] and 4[46] together as they are
interlinked with each other.

To resolve the question of whether the labeling requirements and advertising regulations under the RIRR are
valid, it is important to deal first with the nature, purpose, and depth of the regulatory powers of the
DOH, as defined in general under the 1987 Administrative Code,[47] and as delegated in particular under the
Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that matter precludes
the need to further discuss it..[48] However, health information, particularly advertising materials on apparently
non-toxic products likebreastmilk substitutes and supplements, is a relatively new area for regulation by the
DOH.[49]
As early as the 1917 Revised Administrative Code of the Philippine Islands, [50] health information was
already within the ambit of the regulatory powers of the predecessor of DOH. [51] Section 938 thereof charged it
with the duty to protect the health of the people, and vested it with such powers as (g) the dissemination of
hygienic information among the people and especially the inculcation of knowledge as to the proper care of
infants and the methods of preventing and combating dangerous communicable diseases.

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state policy
pronounced under Section 15, Article II of the 1987 Constitution, which is to protect and promote the right to
health of the people and instill health consciousness among them.[52] To that end, it was granted under Section 3
of the Administrative Code the power to (6) propagate health information and educate the population on
important health, medical and environmental matters which have health implications.[53]

When it comes to information regarding nutrition of infants and young children, however, the Milk
Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the power to ensure that
there is adequate, consistent and objective information on breastfeeding and use of breastmilk substitutes,
supplements and related products; and the power to control such information. These are expressly provided for
in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring

xxxx
 (b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:

(1) To promulgate such rules and regulations as are necessary or proper for
the implementation of this Code and the accomplishment of its purposes
and objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for
or incidental to the attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on infant
feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information, and
the control thereof, on infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any information on breastmilk vis--
vis breastmilk substitutes, supplement and related products, in the following manner:
SECTION 5. x x x

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

SECTION 8. Health Workers

xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding. It shall also include the information
specified in Section 5(b).

SECTION 10. Containers/Label

 (a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.

xxxx

(d) The term humanized, maternalized or similar terms shall not be used. (Emphasis supplied)

The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code [54]to ensure that the information that would
reach pregnant women, mothers of infants, and health professionals and workers in the health care system is
restricted to scientific and factual matters and shall not imply or create a belief that bottlefeeding is equivalent
or superior to breastfeeding.

It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does not encompass
the power to absolutely prohibit the advertising, marketing, and promotion of breastmilk substitutes.

The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated by the Code:

a) Section 2 which requires adequate information and appropriate marketing and distribution
of breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision of
safe and adequate nutrition for infants by the protection and promotion of breastfeeding and by
ensuring the proper use of breastmilk substitutes and breastmilk supplements when these are
necessary, on the basis of adequate information and through appropriate marketing and
distribution.

b) Section 3 which specifically states that the Code applies to the marketing of and practices related
to breastmilk substitutes, including infant formula, and to information concerning their use;

c) Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational materials
shall not use any picture or text which may idealize the use ofbreastmilk substitutes and should include
information on the health hazards of unnecessary or improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review and examine
advertising, promotion, and other marketing materials;
 f) Section 8(b) which states that milk companies may provide information to health professionals but
such information should be restricted to factual and scientific matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain information that would
discourage breastfeeding and idealize the use of infant formula.

It is in this context that the Court now examines the assailed provisions of the RIRR regarding labeling
and advertising.

Sections 13[55] on total effect and 26[56] of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be a statement
that powdered infant formula may contain pathogenic microorganisms and must be prepared and used
appropriately. Section 16[57]of the RIRR prohibits all health and nutrition claims for products within the scope of
the Milk Code, such as claims of increased emotional and intellectual abilities of the infant and young child.

These requirements and limitations are consistent with the provisions of Section 8 of the Milk Code, to
wit:

SECTION 8. Health workers -

xxxx
(b) Information provided by manufacturers and distributors to health professionals regarding
products within the scope of this Code shall be restricted to scientific and factual matters,
andsuch information shall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.[58] (Emphasissupplied)

and Section 10(d)[59] which bars the use on containers and labels of the terms humanized, maternalized, or
similar terms.

These provisions of the Milk Code expressly forbid information that would imply or create a belief that there is
any milk product equivalent to breastmilk or which is humanized or maternalized, as such information would be
inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health workers regarding
breastmilk substitutes, not to containers and labels thereof.However, such restrictive application of Section 8(b)
will result in the absurd situation in which milk companies and distributors are forbidden to claim to health
workers that their products are substitutes or equivalents of breastmilk, and yet be allowed to display on the
containers and labels of their products the exact opposite message. That askewed interpretation of the Milk
Code is precisely what Section 5(a) thereof seeks to avoid by mandating that all information regarding
breastmilk vis-a-vis breastmilk substitutes beconsistent, at the same time giving the government control over
planning, provision, design, and dissemination of information on infant feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product offered is not a
substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk Code and deterring
circumvention of the protection and promotion of breastfeeding as embodied in Section 2[60] of the Milk Code.

Section 26(f)[61] of the RIRR is an equally reasonable labeling requirement. It implements Section 5(b) of the
Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual, dealing with the
feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x x x (5) where needed, the proper
use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use
of infant formula and other breastmilk substitutes. Such materials shall not use any
picture or text which may idealize the use of breastmilk substitutes. (Emphasis supplied)

The label of a product contains information about said product intended for the buyers thereof. The buyers
of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely adds a fair warning about
the likelihood of pathogenic microorganisms being present in infant formula and other related products when
these are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula that
eliminates all forms of contamination.[62]
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message regarding
health hazards including the possibility of contamination with pathogenic microorganisms is in accordance with
Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes and
supplements and related products cannot be questioned. It is its intervention into the area of advertising,
promotion, and marketing that is being assailed by petitioner.

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

SECTION 6. The General Public and Mothers.

 (a) No advertising, promotion or other marketing materials, whether written, audio or visual, for
products within the scope of this Code shall be printed, published, distributed, exhibited and
broadcast unless such materials are duly authorized and approved by an inter-agency committee
created herein pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and marketing materials to an IAC,
thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:

Minister of Health -------------------------------------------- Chairman

Minister of Trade and Industry ---------------------------- Member
Minister of Justice -------------------------------------------- Member
Minister of Social Services and Development ----------- Member

The members may designate their duly authorized representative to every meeting of the
Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;

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

(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

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

prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk substitutes
in line with the RIRRs declaration of principle under Section 4(f), to wit:
 SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and other
related products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory authority given to the
IAC but also imposed absolute prohibition on advertising, promotion, and marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section 6 thereof for
prior approval by IAC of all advertising, marketing and promotional materials prior to dissemination.

Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted, during the
oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually operational, viz:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not there is
an absolute prohibition on advertising making AO 2006-12 unconstitutional. We maintained that
what AO 2006-12 provides is not an absolute prohibition because Section 11 while it states and it
is entitled prohibition it states that no advertising, promotion, sponsorship or marketing materials
and activities for breast milk substitutes intended for infants and young children up to 24 months
shall be allowed because this is the standard they tend to convey or give subliminal messages or
impression undermine that breastmilk or breastfeeding x x x.

We have to read Section 11 together with the other Sections because the other Section, Section
12, provides for the inter agency committee that is empowered to process and evaluate all the
advertising and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply regulates
the advertisement and the promotions of breastfeeding milk substitutes.
xxxx

Now, the prohibition on advertising, Your Honor, must be taken together with the provision on
the Inter-Agency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the AO
2006 is trying to prevent is any material that will undermine the practice of breastfeeding, Your
Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing
of BreastmilkSubstitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

x x x Don't you think that the Department of Health overstepped its rule making authority when it
totally banned advertising and promotion under Section 11 prescribed the total effect rule as well
as the content of materials under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute ban. Second, the
Inter-Agency Committee is under the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising
of breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that can
evaluate some advertising and promotional materials, subject to the standards that we have stated
earlier, which are- they should not undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other Sections,
particularly 12 and 13 and 15, Your Honor, because it is recognized that the Inter-Agency
Committee has that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

 So in short, will you please clarify there's no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency Committee can
allow if the advertising and promotions will not undermine breastmilk and breastfeeding, Your
Honor.[63]

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

However, although it is the IAC which is authorized to promulgate rules and regulations for the approval or
rejection of advertising, promotional, or other marketing materials under Section 12(a) of the Milk Code, said
provision must be related to Section 6 thereof which in turn provides that the rules and regulations must be
pursuant to the applicable standards provided for in this Code. Said standards are set forth in Sections 5(b), 8(b),
and 10 of the Code, which, at the risk of being repetitious, and for easy reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx

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

SECTION 8. Health Workers.

xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and
factual mattersand such information shall not imply or create a belief that bottle feeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).

xxxx

SECTION 10. Containers/Label

 (a) Containers and/or labels shall be designed to provide the necessary information about the
appropriate use of the products, and in such a way as not to discourage breastfeeding.

(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
becomeseparated from it, and which shall include the following points:

(i) the words Important Notice or their equivalent;

(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health
worker as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the enforcement
of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a) of the Milk Code states
that:

SECTION 5. Information and Education

(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of
information, and the control thereof, on infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational terms the standards set
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising, promotional,
or other marketing materials.

It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR which reads as
follows:

SECTION 13. Total Effect - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal
to breastmilk or breastfeeding in the advertising concept. It must not in any case
undermine breastmilk or breastfeeding. The total effect should not directly or indirectly suggest
that buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.

Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes, supplements
and other related products. It also sets a viable standard against which the IAC may screen such materials before
they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,[64] the Court held:

x x x [T]his Court had, in the past, accepted as sufficient standards the following: public interest,
justice and equity, public convenience and welfare, and simplicity, economy and welfare.[65]

In this case, correct information as to infant feeding and nutrition is infused with public interest and
welfare.

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

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of information to
health professionals on scientific and factual matters. What it prohibits is the involvement of the
manufacturer and distributor of the products covered by the Code in activities for the promotion, education and
production of Information, Education and Communication (IEC) materials regarding breastfeeding that
are intended for women and children. Said provision cannot be construed to encompass even
thedissemination of information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e) [68] of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health professionals, while
Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)[69] of the RIRR
prohibiting milk manufacturers' and distributors' participation in any policymaking body in relation to the
advancement of breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives should not form part of any
policymaking body or entity in relation to the advancement of breastfeeding. The Court finds nothing in said
provisions which contravenes the Milk Code. Note that under Section 12(b) of the Milk Code, it is the DOH
which shall be principally responsible for the implementation and enforcement of the provisions of said
Code. It is entirely up to the DOH to decide which entities to call upon or allow to bepart of policymaking
bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies participation in any
policymaking body in relation to the advancement of breastfeeding is in accord with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 22[70] of the RIRR does
not pertain to research assistance to or the continuing education of health professionals; rather, it deals
with breastfeeding promotion and education for women and children. Nothing in Section 22 of the RIRR
prohibits milk companies from giving assistance for research or continuing education to health professionals;
hence, petitioner's argument against this particular provision must be struck down.
 It is Sections 9[71] and 10[72] of the RIRR which govern research assistance. Said sections of the RIRR
provide that research assistance for health workers and researchers may be allowed upon approval of an
ethics committee, and with certain disclosure requirements imposed on the milk company and on the
recipient of the research award.

The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept the
assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research done or extent of
assistance given by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 32[73] of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the DOH under
Section 8(e)[74] of the Milk Code, which provides that manufacturers and distributors
of breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk
Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and distributors
of breastmilk substitutes upon the request or with the approval of the DOH. The law does not proscribe the
refusal of donations. The Milk Code leaves it purely to the discretion of the DOH whether to request or accept
such donations. The DOH then appropriately exercised its discretion through Section 51 [75] of the RIRR which
sets forth its policy not to request or approve donations from manufacturers and distributors
of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall determine
whether such donation should be accepted or refused. As reasoned out by respondents, the DOH is not
mandated by the Milk Code to accept donations. For that matter, no person or entity can be forced to accept a
donation. There is, therefore, no real inconsistency between the RIRR and the law because the Milk Code does
not prohibit the DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found in the
Milk Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc. [76] is misplaced. The
glaring difference in said case and the present case before the Court is that, in the Civil Aeronautics Board, the
Civil Aeronautics Administration (CAA) was expressly granted by the law (R.A. No. 776) the power to
impose fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted by the same law the
power to review on appeal the order or decision of the CAA and to determine whether to impose, remit,
mitigate, increase or compromise such fine and civil penalties. Thus, the Court upheld the CAB's Resolution
imposing administrative fines.

In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,[77] the Court upheld the
Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas Pambansa (B.P.) Blg. 33. The
circular provided for fines for the commission of prohibited acts. The Court found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose
fines or penalties.

In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH the
authority to fix or impose administrative fines. Thus, without any express grant of power to fix or impose such
fines, the DOH cannot provide for those fines in the RIRR. In this regard, the DOH again exceeded its authority
by providing for such fines or sanctions in Section 46 of the RIRR. Said provision is, therefore, null and void.

The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of the Milk
Code authorizes the DOH to cause the prosecution of the violators of this Code and other pertinent laws on
products covered by this Code. Section 13 of the Milk Code provides for the penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued pursuant to it, to wit:

SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the rules and regulations
issued pursuant to this Code shall, upon conviction, be punished by a penalty of two (2)
months to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be committed by
a juridical person, the chairman of the Board of Directors, the president, general manager, or the
partners and/or the persons directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of their
profession or occupation, or for the pursuit of their business, may, upon recommendation of the
Ministry of Health, be suspended or revoked in the event of repeated violations of this Code, or
of the rules and regulations issued pursuant to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the RIRR is frivolous.
Section 57 reads:

SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts thereof
inconsistent with these revised rules and implementing regulations are hereby repealed or
modified accordingly.

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules and
regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or the power to
make rules and regulations which results in delegated legislation that is within the confines of the granting
statute and the Constitution, and subject to the doctrine of non-delegability and separability of powers.[78] Such
express grant of rule-making power necessarily includes the power to amend, revise, alter, or repeal the same.
[79]
This is to allow administrative agencies flexibility in formulating and adjusting the details and manner by
which they are to implement the provisions of a law,[80] in order to make it more responsive to the times. Hence,
it is a standard provision in administrative rules that prior issuances of administrative agencies that are
inconsistent therewith are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate and in
contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the RIRR are in
consonance with the Milk Code.

Lastly, petitioner makes a catch-all allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary and

oppressive, and is offensive to the due process clause of the Constitution, insofar as the
same is in restraint of trade and because a provision therein is inadequate to provide the public
with a comprehensible basis to determine whether or not they have committed a violation. [81]
(Emphasis supplied)

Petitioner refers to Sections 4(f),[82] 4(i),[83] 5(w),[84] 11,[85] 22,[86] 32,[87] 46,[88] and 52[89] as the provisions that
suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of regulation for the
public good. Public interest must be upheld over business interests.[90] In Pest Management Association of
the Philippines v. Fertilizer and Pesticide Authority,[91] it was held thus:
x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine
Coconut Authority, despite the fact that our present Constitution enshrines free enterprise as
a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare. There can be no question that the unregulated use
or proliferation of pesticides would be hazardous to our environment. Thus, in
the aforecited case, the Court declared that free enterprise does not call for removal of
protective regulations. xx x It must be clearly explained and proven by competent evidence
just exactly how such protective regulation would result in the restraint of trade. [Emphasis
and underscoring supplied]

In this case, petitioner failed to show that the proscription of milk manufacturers participation in any
policymaking body (Section 4(i)), classes and seminars for women and children (Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of donations (Section 52) would
unreasonably hamper the trade ofbreastmilk substitutes. Petitioner has not established that the proscribed
activities are indispensable to the trade of breastmilk substitutes. Petitioner failed to demonstrate that the
aforementioned provisions of the RIRR are unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and oppressive. Said
section provides for the definition of the term milk company, to wit:

SECTION 5 x x x. (w) Milk Company shall refer to the owner, manufacturer, distributor of infant
formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or replacement, or
by any other description of such nature, including their representatives who promote or otherwise
advance their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) Distributor means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the
wholesale or retail level a product within the scope of this Code. A primary distributor
is a manufacturer's sales agent, representative, national distributor or broker.

xxxx

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

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

Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and distributors,
the Court sees no harm in the RIRR providing for just one term to encompass both entities. The
definition of milk company in the RIRR and the definitions of distributor and manufacturer provided for under
the Milk Code are practically the same.

The Court is not convinced that the definition of milk company provided in the RIRR would bring about any
change in the treatment or regulation of distributors and manufacturers of breastmilk substitutes, as defined
under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the objective,
purpose and intent of the Milk Code, constituting reasonable regulation of an industry which affects public
health and welfare and, as such, the rest of the RIRR do not constitute illegal restraint of trade nor are
they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative Order No.
2006-0012 dated May 12, 2006 are declared NULL and VOIDfor being ultra vires. The Department of Health
and respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the provisions of
Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

G.R. No. 182498

Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:

December 3, 2009
x-----------------------------------------------------------------------------------------x
DECISION
BRION, J.:

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of the Court of
Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision confirmed the enforced disappearance of
Engineer Morced N. Tagitis (Tagitis) and granted the Writ of Amparo at the petition of his wife, Mary Jean B.
Tagitis (respondent). The dispositive portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby GRANTED. The Court

hereby FINDS that this is an enforced disappearance within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal
Investigation and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE,
CIDG-9 Chief, Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief,
PNP, who should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional
Director of ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS,
and (c) respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-
 Crime and Emergency Response, to aid him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to protect the life, liberty and security of
Engr. Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced
Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way
ofPERIODIC REVIEW to enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER

YANO, Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL,
Chief Anti-Terror Task Force Comet, Zamboanga City, both being with the military, which is a
separate and distinct organization from the police and the CIDG, in terms of operations, chain of
command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against violations or threats of
violation against the rights to life, liberty and security. [3] It embodies, as a remedy, the courts directive to police
agencies to undertake specified courses of action to address the disappearance of an individual, in this case,
Engr. Morced N. Tagitis.It does not determine guilt nor pinpoint criminal culpability for the disappearance;
rather, it determines responsibility, or at least accountability, for the enforced disappearance for purposes of
imposing the appropriate remedies to address the disappearance. Responsibility refers to the extent the actors
have been established by substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among them, the directive to file the
appropriate criminal and civil cases against the responsible parties in the proper courts. Accountability, on the
other hand, refers to the measure of remedies that should be addressed to those who exhibited involvement in
the enforced disappearance without bringing the level of their complicity to the level of responsibility defined
above; or who are imputed with knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all these cases, the issuance of the Writ of Amparo is justified by
our primary goal of addressing the disappearance, so that the life of the victim is preserved and his liberty and
security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique situations that call for
the issuance of the writ, as well as the considerations and measures necessary to address these situations, may
not at all be the same as the standard measures and procedures in ordinary court actions and proceedings. In this
sense, the Rule on the Writ of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should
be read, too, as a work in progress, as its directions and finer points remain to evolve through time and
jurisprudence and through the substantive laws that Congress may promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are summarized below.
The established facts show that Tagitis, a consultant for the World Bank and the Senior Honorary Counselor for
the Islamic Development Bank (IDB) Scholarship Programme, was last seen in Jolo, Sulu. Together with
Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis arrived in Jolo by boat in the early morning of October
31, 2007 from a seminar in Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis
asked Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga.When Kunnong
returned from this errand, Tagitis was no longer around. [5] The receptionist related that Tagitis went out to buy
food at around 12:30 in the afternoon and even left his room key with the desk. [6] Kunnong looked for Tagitis
and even sent a text message to the latters Manila-based secretary who did not know of Tagitis whereabouts and
activities either; she advised Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor of Muslim studies and
Tagitis fellow student counselor at the IDB, reported Tagitis disappearance to the Jolo Police Station. [8] On
November 7, 2007, Kunnong executed a sworn affidavit attesting to what he knew of the circumstances
surrounding Tagitis disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition for the Writ
of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P. Arcilla. [10] The petition was
directed against Lt. Gen. Alexander Yano, Commanding General, Philippine Army; Gen. Avelino I. Razon,
Chief, Philippine National Police (PNP); Gen. Edgardo M. Doromal, Chief, Criminal Investigation and
Detention Group (CIDG); Sr. Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response;
Gen. Joel Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task Force
Comet [collectively referred to as petitioners]. After reciting Tagitis personal circumstances and the facts
outlined above, the petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early
lunch but while out on the street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor vehicle then sped
away without the knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the pension house, and was
surprised to find out that subject Engr. Tagitis cannot [sic] be contacted by phone and was not
also around and his room was closed and locked;

9. Kunnong requested for the key from the desk of the pension house who [sic] assisted him to open the
room of Engr. Tagitis, where they discovered that the personal belongings of Engr. Tagitis,
including cell phones, documents and other personal belongings were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar
and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts in trying to locate the
whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo, he
was immediately given a ready answer that Engr. Tagitis could have been abducted by the Abu
Sayyaf group and other groups known to be fighting against the government;

12. Being scared with [sic] these suggestions and insinuations of the police officers, Kunnong reported
the matter to the [respondent, wife of Engr. Tagitis] by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines, who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with the Land Bank in
Digos branch, Digos City, Davao del Sur who likewise sought help from some of their friends in
the military who could help them find/locate the whereabouts of her husband;

14. All of these efforts of the [respondent] did not produce any positive results except the information
from persons in the military who do not want to be identified that Engr. Tagitis is in the hands of
the uniformed men;

15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the
custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga
City,being held against his will in an earnest attempt of the police to involve and connect
Engr. Tagitis with the different terrorist groups;

xxxx
17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in Cotobato and in Jolo,
as suggested by her friends, seeking their help to find her husband, but [respondents] request and
pleadings failed to produce any positive results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by the police that her
husband, subject of the petition, was not missing but was with another woman having good time
somewhere, which is a clear indication of the [petitioners] refusal to help and provide police
assistance in locating her missing husband;

19. The continued failure and refusal of the [petitioners] to release and/or turn-over subject Engr. Tagitis
to his family or even to provide truthful information to [the respondent] of the subjects
whereabouts, and/or allow [the respondent] to visit her husband Engr. Morced Tagitis, caused so
much sleepless nights and serious anxieties;

20. Lately, [the respondent] was again advised by one of the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the different Police Headquarters including
[those] in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon City, and all
these places have been visited by the [respondent] in search for her husband, which entailed
expenses for her trips to these places thereby resorting her to borrowings and beggings [sic] for
financial help from friends and relatives only to try complying [sic] to the different suggestions
of these police officers, despite of which, her efforts produced no positive results up to the
present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings undergone by the
[respondent], informed her that they are not the proper persons that she should approach, but
assured her not to worry because her husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the [respondents] request for help and
failure and refusal of the [petitioners] to extend the needed help, support and assistance in
locating the whereabouts of Engr. Tagitis who had been declared missing since October 30, 2007
which is almost two (2) months now, clearly indicates that the [petitioners] are actually in
physical possession and custody of [respondents] husband, Engr. Tagitis;

xxxx

25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and
under the circumstances, [the respondent] has no other plain, speedy and adequate remedy to
protect and get the release of subject Engr. Morced Tagitis from the illegal clutches of the
[petitioners], their intelligence operatives and the like which are in total violation of the subjects
human and constitutional rights, except the issuance of a WRIT OF AMPARO. [Emphasis
supplied]

On the same day the petition was filed, the CA immediately issued the Writ of Amparo, set the case for hearing
on January 7, 2008, and directed the petitioners to file their verified return within seventy-two (72) hours from
service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the petitioners denied any
involvement in or knowledge of Tagitis alleged abduction. They argued that the allegations of the petition were
incomplete and did not constitute a cause of action against them; were baseless, or at best speculative; and were
merely based on hearsay evidence. [12]
 The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did not have
any personal knowledge of, or any participation in, the alleged disappearance; that he had been designated by
President Gloria Macapagal Arroyo as the head of a special body called TASK FORCE USIG, to address
concerns about extralegal killings and enforced disappearances; the Task Force, inter alia, coordinated with the
investigators and local police, held case conferences, rendered legal advice in connection to these cases; and
gave the following summary:[13]

xxxx
4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to the
said report, the victim checked-in at ASY Pension House on October 30, 2007 at about 6:00 in
the morning and then roamed around Jolo, Sulu with an unidentified companion. It was only
after a few days when the said victim did not return that the matter was reported to Jolo
MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace and locate
the whereabouts of the said missing person, but to no avail. The said PPO is still conducting
investigation that will lead to the immediate findings of the whereabouts of the person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the Director,
CIDG. The said report stated among others that: subject person attended an Education
Development Seminar set on October 28, 2007 conducted at Ateneo de Zamboanga, Zamboanga
City together with a Prof. Matli. On October 30, 2007, at around 5:00 oclock in the morning,
Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V Bounty Cruise, he was then
billeted at ASY Pension House. At about 6:15 oclock in the morning of the same date, he
instructed his student to purchase a fast craft ticket bound for Zamboanga City and will depart
from Jolo, Sulu on October 31, 2007. That on or about 10:00 oclock in the morning, Engr. Tagitis
left the premises of ASY Pension House as stated by the cashier of the said pension house. Later
in the afternoon, the student instructed to purchase the ticket arrived at the pension house and
waited for Engr. Tagitis, but the latter did not return. On its part, the elements of 9RCIDU is now
conducting a continuous case build up and information gathering to locate the whereabouts of
Engr. Tagitis.

c) That the Director, CIDG directed the conduct of the search in all divisions of the
CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search,
records show that no such person is being detained in CIDG or any of its department or
divisions.

5. On this particular case, the Philippine National Police exhausted all possible efforts, steps and
actions available under the circumstances and continuously search and investigate [sic] the
instant case. This immense mandate, however, necessitates the indispensable role of the citizenry,
as the PNP cannot stand alone without the cooperation of the victims and witnesses to identify
the perpetrators to bring them before the bar of justice and secure their conviction in court.

The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his affidavit, also attached to the
Return of the Writ, attesting that upon receipt of the Writ ofAmparo, he caused the following:[14]
xxxx
That immediately upon receipt on December 29, 2007 of the Resolution of the Honorable Special Fourth
Division of the Court of Appeals, I immediately directed the Investigation Division of this Group
[CIDG] to conduct urgent investigation on the alleged enforced disappearance of Engineer
Morced Tagitis.
 That based on record, Engr. Morced N. Tagitis attended an Education Development Seminar on
October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six oclock in the morning he arrived at Jolo, Sulu. He was
assisted by his student identified as Arsimin Kunnong of the Islamic Development Bank who
was also one of the participants of the said seminar. He checked in at ASY pension house located
[sic] Kakuyagan, Patikul, Sulu on October 30, 2007 with [sic] unidentified companion. At
around six oclock in the morning of even date, Engr. Tagitis instructed his student to purchase a
fast craft ticket for Zamboanga City. In the afternoon of the same date, Kunnong arrived at the
pension house carrying the ticket he purchased for Engr. Tagitis, but the latter was nowhere to be
found anymore. Kunnong immediately informed Prof. Abdulnasser Matli who reported the
incident to the police. The CIDG is not involved in the disappearance of Engr. Morced Tagitis to
make out a case of an enforced disappearance which presupposes a direct or indirect involvement
of the government.

That herein [petitioner] searched all divisions and departments for a person named Engr. Morced
N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-PNP Intelligence
Operatives since October 30, 2007 and after a diligent and thorough research records show that
no such person is being detained in CIDG or any of its department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr. Morced Tagitis
[sic] alleged enforced disappearance, the undersigned had undertaken immediate investigation
and will pursue investigations up to its full completion in order to aid in the prosecution of the
person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER [15] Chief PS Supt. Leonardo A. Espinas affidavit
which alleged that:[16]

xxxx

That, I and our men and women in PACER vehemently deny any participation in the alleged
abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30, 2007. As
a matter of fact, nowhere in the writ was mentioned that the alleged abduction was perpetrated
by elements of PACER nor was there any indication that the alleged abduction or illegal
detention of ENGR. TAGITIS was undertaken jointly by our men and by the alleged covert
CIDG-PNP intelligence operatives alleged to have abducted or illegally detained ENGR.
TAGITIS.
That I was shocked when I learned that I was implicated in the alleged disappearance of ENGR.
MORCED in my capacity as the chief PACER [sic] considering that our office, the Police Anti-
Crime and Emergency Response (PACER), a special task force created for the purpose of
neutralizing or eradicating kidnap-for-ransom groups which until now continue to be one of the
menace of our society is a respondent in kidnapping or illegal detention case. Simply put, our
task is to go after kidnappers and charge them in court and to abduct or illegally detain or kidnap
anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief of
PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the persons responsible, to recover and preserve
evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid in the
prosecution of the person or persons responsible, to identify witnesses and obtain statements
from them concerning the disappearance and to determine the cause, manner, location and time
 of disappearance as well as any pattern or practice that may have brought about the
disappearance.

That I further directed the chief of PACER-MOR, Police Superintendent JOSE ARNALDO
BRIONES JR., to submit a written report regarding the disappearance of ENGR. MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through fax his written
report.

That the investigation and measures being undertaken to locate/search the subject in coordination
with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-ARMM) and Jolo
Police Provincial Office (PPO) and other AFP and PNP units/agencies in the area are ongoing
with the instruction not to leave any stone unturned so to speak in the investigation until the
perpetrators in the instant case are brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF

AMPARO just issued.

Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao), also submitted his
affidavit detailing the actions that he had taken upon receipt of the report on Tagitis disappearance, viz:[17]
xxxx

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now and during the time
of the incident;

xxxx

4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office reported to me
through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4, 2007 at around 3:30
p.m., a certain Abdulnasser Matli, an employee of Islamic Development Bank, appeared before
the Office of the Chief of Police, Jolo Police Station, and reported the disappearance of Engr.
Morced Tagitis, scholarship coordinator of Islamic Development Bank, Manila;

6. There was no report that Engr. Tagibis was last seen in the company of or taken by any
member of the Philippine National Police but rather he just disappeared from ASY Pension
House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30, 2007, without any
trace of forcible abduction or arrest;

7. The last known instance of communication with him was when Arsimin Kunnong, a student
scholar, was requested by him to purchase a vessel ticket at the Office of Weezam Express,
however, when the student returned back to ASY Pension House, he no longer found Engr.
Tagitis there and when he immediately inquired at the information counter regarding his
whereabouts [sic], the person in charge in the counter informed him that Engr. Tagitis had left the
premises on October 30, 2007 around 1 oclock p.m. and never returned back to his room;
8. Immediately after learning the incident, I called and directed the Provincial Director of Sulu
Police Provincial Office and other units through phone call and text messages to conduct
investigation [sic] to determine the whereabouts of the aggrieved party and the person or persons
responsible for the threat, act or omission, to recover and preserve evidence related to the
disappearance of Engr. Tagitis, to identify witnesses and obtain statements from them concerning
his disappearance, to determine the cause and manner of his disappearance, to identify and
apprehend the person or persons involved in the disappearance so that they shall be brought
before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection Management

Division, I have caused the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD
Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD
Sulu PPO to expedite compliance to my previous directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our
series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of IDB in
order to secure corroborative statements regarding the disappearance and whereabouts of
said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary,
for them to voluntarily submit for polygraph examination with the NBI so as to expunge
all clouds of doubt that they may somehow have knowledge or idea to his disappearance;

e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting
assistance to investigate the cause and unknown disappearance of Engr. Tagitis
considering that it is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring them to submit complete investigation report
regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to conduct
investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and the
circumstances related to his disappearance and submitted the following:

a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-1106-
10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;
 11. This incident was properly reported to the PNP Higher Headquarters as shown in the
following:

a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of the
facts of the disappearance and the action being taken by our office;

b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for

Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be determined but
our office is continuously intensifying the conduct of information gathering, monitoring and
coordination for the immediate solution of the case.

Since the disappearance of Tagistis was practically admitted and taking note of favorable actions so far taken on
the disappearance, the CA directed Gen. Goltiao as the officer in command of the area of disappearance to form
TASK FORCE TAGITIS.[18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK FORCE
TAGITIS.[19] The CA subsequently set three hearings to monitor whether TASK FORCE TAGITIS was exerting
extraordinary efforts in handling the disappearance of Tagitis.[20] As planned, (1) the first hearing would be to
mobilize the CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu Sayyaf
and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo, Sulu and the Chief of
Police of Zamboanga City and other police operatives.[21]
In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an intelligence report from
PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station, stating a possible motive for Tagitis
disappearance.[22] The intelligence report was apparently based on the sworn affidavit dated January 4, 2008 of
Muhammad Abdulnazeir N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines
and an Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told the Provincial
Governor of Sulu that:[23]

[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00) deposited and
entrusted to his [personal] bank accounts by the Central Office of IDB, Jeddah, Kingdom of
Saudi Arabia, which [was] intended for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be responsible, he personally
went to the CIDG office in Zamboanga City to conduct an ocular inspection/investigation, particularly of their
detention cells.[24] PS Supt. Ajirim stated that the CIDG, while helping TASK FORCE TAGITIS investigate the
disappearance of Tagitis, persistently denied any knowledge or complicity in any abduction. [25] He further
testified that prior to the hearing, he had already mobilized and given specific instructions to their supporting
units to perform their respective tasks; that they even talked to, but failed to get any lead from the respondent in
Jolo.[26] In his submitted investigation report dated January 16, 2008, PS Supt. Ajirim concluded:[27]

9. Gleaned from the undersigned inspection and observation at the Headquarters 9 RCIDU and the
documents at hand, it is my own initial conclusion that the 9RCIDU and other PNP units in the
area had no participation neither [sic] something to do with [sic] mysterious disappearance of
Engr. Morced Tagitis last October 30, 2007. Since doubt has been raised regarding the
emolument on the Islamic Development Bank Scholar program of IDB that was reportedly
 deposited in the personal account of Engr. Tagitis by the IDB central office in Jeddah, Kingdom
of Saudi Arabia.Secondly, it could might [sic] be done by resentment or sour grape among
students who are applying for the scholar [sic] and were denied which was allegedly
conducted/screened by the subject being the coordinator of said program.

20. It is also premature to conclude but it does or it may and [sic] presumed that the motive behind the
disappearance of the subject might be due to the funds he maliciously spent for his personal
interest and wanted to elude responsibilities from the institution where he belong as well as to the
Islamic student scholars should the statement of Prof. Matli be true or there might be a
professional jealousy among them.

xxxx
It is recommended that the Writ of Amparo filed against the respondents be dropped and
dismissed considering on [sic] the police and military actions in the area particularly the CIDG
are exerting their efforts and religiously doing their tasked [sic] in the conduct of its intelligence
monitoring and investigation for the early resolution of this instant case. But rest assured, our
office, in coordination with other law-enforcement agencies in the area, are continuously and
religiously conducting our investigation for the resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE TAGITIS did not appear to be
exerting extraordinary efforts in resolving Tagitis disappearance on the following grounds:[28]

(1) This Court FOUND that it was only as late as January 28, 2008, after the
hearing, that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear
photographs when it should have been standard operating procedure in kidnappings or
disappearances that the first agenda was for the police to secure clear pictures of the missing
person, Engr. Morced Tagitis, for dissemination to all parts of the country and to neighboring
countries. It had been three (3) months since GEN. JOEL GOLTIAO admitted having
been informed on November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more than one (1) month since the Writ of Amparo had
been issued on December 28, 2007. It had been three (3) weeks when battle formation was
ordered through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when
the Task Force Tagitis requested for clear and recent photographs of the missing person, Engr.
Morced Tagitis, despite the Task Force Tagitis claim that they already had an all points bulletin,
since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could the police
look for someone who disappeared if no clear photograph had been disseminated?

(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court
that P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in the latters official
designated post. Yet, P/Supt KASIMs subpoena was returned to this Court unserved. Since this
Court was made to understand that it was P/Supt KASIM who was the petitioners unofficial
source of the military intelligence information that Engr. Morced Tagitis was abducted by bad
elements of the CIDG (par. 15 of the Petition), the close contact between P/Supt KASIM and
Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the appearance of Col.
KASIM in response to this courts subpoena and COL. KASIM could have confirmed the military
intelligence information that bad elements of the CIDG had abducted Engr. Morced Tagitis.

Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct examination that she went to Jolo
and Zamboanga in her efforts to locate her husband. She said that a friend from Zamboanga holding a high
position in the military (whom she did not then identify) gave her information that allowed her to specify her
allegations, particularly paragraph 15 of the petition. [29] This friend also told her that her husband [was] in good
hands.[30] The respondent also testified that she sought the assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who told her that PNP CIDG is holding [her husband], Engineer
Morced Tagitis.[31] The respondent recounted that she went to Camp Katitipan in Davao City where she met Col.
Julasirim Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then with her)
a highly confidential report that contained the alleged activities of Engineer Tagitis and informed her that her
husband was abducted because he is under custodial investigation for being a liaison for J.I. or Jemaah Islamiah.
[32]

On January 17, 2008, the respondent on cross-examination testified that she is Tagitis second wife, and they
have been married for thirteen years; Tagitis was divorced from his first wife.[33] She last communicated with
her husband on October 29, 2007 at around 7:31 p.m. through text messaging; Tagitis was then on his way to
Jolo, Sulu, from Zamboanga City.[34]

The respondent narrated that she learned of her husbands disappearance on October 30, 2007 when her
stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not heard from her father since the time they
arranged to meet in Manila on October 31, 2007. [35] The respondent explained that it took her a few days (or on
November 5, 2007) to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station,
since she had the impression that her husband could not communicate with her because his cellular phones
battery did not have enough power, and that he would call her when he had fully-charged his cellular phones
battery.[36]

The respondent also identified the high-ranking military friend, who gave her the information found in
paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col. Ancanan). She met him in Camp Karingal,
Zamboanga through her boss.[37] She also testified that she was with three other people, namely, Mrs. Marydel
Martin Talbin and her two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents
of the highly confidential report at Camp Katitipan, Davao City. The respondent further narrated that the report
indicated that her husband met with people belonging to a terrorist group and that he was under custodial
investigation. She then told Col. Kasim that her husband was a diabetic taking maintenance medication, and
asked that the Colonel relay to the persons holding him the need to give him his medication.[38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports, [39] signed by the
respondent, detailing her efforts to locate her husband which led to her meetings with Col. Ancanan of the
Philippine Army and Col. Kasim of the PNP. In her narrative report concerning her meeting with Col. Ancanan,
the respondent recounted, viz:[40]
On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel Talbin. Our
flight from Davao City is 9:00 oclock in the morning; we arrived at Zamboanga Airport at around
10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan. We immediately proceed
[sic] to West Mindanao Command (WESTMINCOM).
On that same day, we had private conversation with Col. Ancanan. He interviewed me and got
information about the personal background of Engr. Morced N. Tagitis. After he gathered all
information, he revealed to us the contents of text messages they got from the cellular phone of
the subject Engr. Tagitis. One of the very important text messages of Engr. Tagitis sent to his
daughter Zaynah Tagitis was that she was not allowed to answer any telephone calls in his
condominium unit.

While we were there he did not tell us any information of the whereabouts of Engr. Tagitis. After
the said meeting with Col. Ancanan, he treated us as guests to the city. His two staffs
accompanied us to the mall to purchase our plane ticket going back to Davao City on November
12, 2007.
When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col. Ancanan and
I were discussing some points through phone calls. He assured me that my husband is alive and
hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his given statements of the
 whereabouts of my husband, because I contacted some of my friends who have access to the
groups of MILF, MNLF and ASG. I called up Col. Ancanan several times begging to tell me the
exact location of my husband and who held him but he refused.

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the PNP, Jolo
did not give me any information of the whereabouts of my husband. Col. Ancanan told me that
Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo. When I was in Zamboanga, I
was thinking of dropping by the office of Col. Ancanan, but I was hesitant to pay him a visit for
the reason that the Chief of Police of Jolo told me not to contact any AFP officials and he
promised me that he can solve the case of my husband (Engr. Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr. Morced
Tagitis, yet failed to do so.

The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao City to
meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was presumed to
be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact his connections in
the military in Jolo, Sulu where the abduction of Engr. Tagitis took place. Mr. Salvador
immediately called up Camp Katitipan located in Davao City looking for high-ranking official
who can help me gather reliable information behind the abduction of subject Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col.
Kasim and we had a short conversation. And he assured me that hell do the best he can to help
me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me that I am to go to

Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to reveal.

On November 24, 2007, we went back to Camp Katitipan with my three friends. That was the
time that Col. Kasim read to us the confidential report that Engr. Tagitis was allegedly connected
[with] different terrorist [groups], one of which he mentioned in the report was OMAR PATIK
and a certain SANTOS - a Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of medicines for the injured terrorists as a
supplier. These are the two information that I can still remember. It was written in a long bond
paper with PNP Letterhead. It was not shown to us, yet Col. Kasim was the one who read it for
us.

He asked a favor to me that Please dont quote my Name! Because this is a raw report. He assured
me that my husband is alive and he is in the custody of the military for custodial investigation.I
told him to please take care of my husband because he has aliments and he recently took insulin
for he is a diabetic patient.

In my petition for writ of amparo, I emphasized the information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs. Talbin) to corroborate her
testimony regarding her efforts to locate her husband, in relation particularly with the information she received
from Col. Kasim. Mrs. Talbin testified that she was with the respondent when she went to Zamboanga to see
Col. Ancanan, and to Davao City at Camp Katitipan to meet Col. Kasim.[42]
In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them that there was a report
and that he showed them a series of text messages from Tagitis cellular phone, which showed that Tagitis and
his daughter would meet in Manila on October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the respondent together with two
other companions, namely, Salvacion Serrano and Mini Leong, to Camp Katitipan to talk to Col. Kasim. [44] The
respondent asked Col. Kasim if he knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis
was in good hands, although he was not certain whether he was with the PNP or with the Armed Forces of the
Philippines (AFP). She further recounted that based on the report Col. Kasim read in their presence, Tagitis was
under custodial investigation because he was being charged with terrorism; Tagitis in fact had been under
surveillance since January 2007 up to the time he was abducted when he was seen talking to Omar Patik and a
certain Santos of Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that he could not
give a copy of the report because it was a raw report. [45] She also related that the Col. Kasim did not tell them
exactly where Tagitis was being kept, although he mentioned Talipapao, Sulu. Prof., lalabas din yan.[50] Prof. Matli also
emphasized that despite what his January 4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made
any accusation, that Tagitis took away money entrusted to him. [52] Prof. Matli confirmed, however, that that he
had received an e-mail report[53] from Nuraya Lackian of the Office of Muslim Affairs in Manila that the IDB
was seeking assistance of the office in locating the funds of IDB scholars deposited in Tagitis personal account.
[54]

On cross-examination by the respondents counsel, Prof. Matli testified that his January 4, 2008 affidavit was
already prepared when PS Supt. Pingay asked him to sign it. [55]Prof Matli clarified that although he read the
affidavit before signing it, he was not so much aware of [its] contents.[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions of the respondents
testimony, particularly the allegation that he had stated that Tagitis was in the custody of either the military or
the PNP.[57] Col. Kasim categorically denied the statements made by the respondent in her narrative report,
specifically: (1) that Tagitis was seen carrying boxes of medicines as supplier for the injured terrorists; (2) that
Tagitis was under the custody of the military, since he merely said to the respondent that your husband is in
good hands and is probably taken cared of by his armed abductors; and (3) that Tagitis was under custodial
investigation by the military, the PNP or the CIDG Zamboanga City. [58] Col. Kasim emphasized that the
informal letter he received from his informant in Sulu did not indicate that Tagitis was in the custody of the
CIDG.[59] He also stressed that the information he provided to the respondent was merely a raw report sourced
from barangay intelligence that still needed confirmation and follow-up as to its veracity.[60]
On cross-examination, Col. Kasim testified that the information he gave the respondent was given to him by his
informant, who was a civilian asset, through a letter which he considered as unofficial. [61] Col. Kasim stressed
that the letter was only meant for his consumption and not for reading by others. [62] He testified further that he
destroyed the letter right after he read it to the respondent and her companions because it was not important to
him and also because the information it contained had no importance in relation with the abduction of Tagitis.
[63]
He explained that he did not keep the letter because it did not contain any information regarding the
whereabouts of Tagitis and the person(s) responsible for his abduction.[64]

In the same hearing on February 11, 2008, the petitioners also presented Police Senior Superintendent Jose
Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the respondents allegation that Tagitis was in the
custody of CIDG-Zamboanga City.[65] Col. Pante clarified that the CIDG was the investigative arm of the PNP,
and that the CIDG investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes.[66] Col. Pante further testified that the allegation that 9 RCIDU
personnel were involved in the disappearance of Tagitis was baseless, since they did not conduct any operation
in Jolo, Sulu before or after Tagitis reported disappearance. [67] Col. Pante added that the four (4) personnel
assigned to the Sulu CIDT had no capability to conduct any operation, since they were only assigned to
investigate matters and to monitor the terrorism situation.[68] He denied that his office conducted any
surveillance on Tagitis prior to the latters disappearance.[69] Col. Pante further testified that his investigation of
Tagitis disappearance was unsuccessful; the investigation was still facing a blank wall on the whereabouts of
Tagitis.[70]

THE CA RULING

On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of Tagitis was an enforced
disappearance under the United Nations (UN) Declaration on the Protection of All Persons from Enforced
Disappearances.[72] The CA ruled that when military intelligence pinpointed the investigative arm of the PNP
(CIDG) to be involved in the abduction, the missing-person case qualified as an enforced disappearance. The
conclusion that the CIDG was involved was based on the respondents testimony, corroborated by her
companion, Mrs. Talbin. The CA noted that the information that the CIDG, as the police intelligence arm, was
involved in Tagitis abduction came from no less than the military an independent agency of government. The
CA thus greatly relied on the raw report from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis
abduction.The CA held that raw reports from an asset carried great weight in the intelligence world. It also
labeled as suspect Col. Kasims subsequent and belated retraction of his statement that the military, the police, or
the CIDG was involved in the abduction of Tagitis.

The CA characterized as too farfetched and unbelievable and a bedlam of speculation police theories painting
the disappearance as intentional on the part of Tagitis. He had no previous brushes with the law or any record of
overstepping the bounds of any trust regarding money entrusted to him; no student of the IDB scholarship
program ever came forward to complain that he or she did not get his or her stipend. The CA also found no
basis for the police theory that Tagitis was trying to escape from the clutches of his second wife, on the basis of
the respondents testimony that Tagitis was a Muslim who could have many wives under the Muslim faith, and
that there was no issue at all when the latter divorced his first wife in order to marry the second. Finally, the CA
also ruled out kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for Tagitis
disappearance, since the respondent, the police and the military noted that there was no acknowledgement of
Tagitis abduction or demand for payment of ransom the usualmodus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis and his family, and
directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I. Razon, TASK FORCE TAGITIS heads
Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief Sr. Supt. Leonardo A. Espina to exert
extraordinary diligence and efforts to protect the life, liberty and security of Tagitis, with the obligation to
provide monthly reports of their actions to the CA. At the same time, the CA dismissed the petition against the
then respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the finding that it
was PNP-CIDG, not the military, that was involved.
On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA denied the motion in its
Resolution of April 9, 2008.[73]

THE PETITION

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners mainly dispute the
sufficiency in form and substance of the Amparo petition filed before the CA; the sufficiency of the legal
remedies the respondent took before petitioning for the writ; the finding that the rights to life, liberty and
security of Tagitis had been violated; the sufficiency of evidence supporting the conclusion that Tagitis was
abducted; the conclusion that the CIDG Zamboanga was responsible for the abduction; and, generally, the
ruling that the respondent discharged the burden of proving the allegations of the petition by substantial
evidence.[74]

THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance
In questioning the sufficiency in form and substance of the respondents Amparo petition, the petitioners
contend that the petition violated Section 5(c), (d), and (e) of theAmparo Rule. Specifically, the petitioners
allege that the respondent failed to:

1) allege any act or omission the petitioners committed in violation of Tagitis rights to life, liberty and
security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his
disappearance, and the respondents source of information;
3) allege that the abduction was committed at the petitioners instructions or with their consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody over her
husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their duties in the
investigation of Tagitis disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of her husband.

A petition for the Writ of Amparo shall be signed and verified and shall allege, among others (in terms of
the portions the petitioners cite):[75]

(c) The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or
violation is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct
of the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the person responsible for the threat, act or
omission; and

The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail in stating the
threatened or actual violation of a victims rights. As in any other initiatory pleading, the pleader must of course
state the ultimate facts constituting the cause of action, omitting the evidentiary details. [76] In
an Amparo petition, however, this requirement must be read in light of the nature and purpose of the proceeding,
which addresses a situation of uncertainty; the petitioner may not be able to describe with certainty how the
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the victim is
detained, because these information may purposely be hidden or covered up by those who caused the
disappearance. In this type of situation, to require the level of specificity, detail and precision that the petitioners
apparently want to read into the Amparo Rule is to make this Rule a token gesture of judicial concern for
violations of the constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the unique Amparo situation, the
test in reading the petition should be to determine whether it contains the details available to the petitioner
under the circumstances, while presenting a cause of action showing a violation of the victims rights to life,
liberty and security through State or private party action. The petition should likewise be read in its totality,
rather than in terms of its isolated component parts, to determine if the required elements namely, of the
disappearance, the State or private action, and the actual or threatened violations of the rights to life, liberty or
security are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances under which
Tagitis suddenly dropped out of sight after engaging in normal activities, and thereafter was nowhere to be
found despite efforts to locate him. The petition alleged, too, under its paragraph 7, in relation to paragraphs 15
and 16, that according to reliable information, police operatives were the perpetrators of the abduction. It also
clearly alleged how Tagitis rights to life, liberty and security were violated when he was forcibly taken and
boarded on a motor vehicle by a couple of burly men believed to be police intelligence operatives, and then
taken into custody by the respondents police intelligence operatives since October 30, 2007, specifically by the
CIDG, PNP Zamboanga City, x x x held against his will in an earnest attempt of the police to involve and
connect [him] with different terrorist groups.[77]

These allegations, in our view, properly pleaded ultimate facts within the pleaders knowledge about
Tagitis disappearance, the participation by agents of the State in this disappearance, the failure of the State to
release Tagitis or to provide sufficient information about his whereabouts, as well as the actual violation of his
right to liberty. Thus, the petition cannot be faulted for any failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit, as required
by Section 5(c) of the Amparo Rule. Owing to the summary nature of the proceedings for the writ and to
facilitate the resolution of the petition, the Amparo Rule incorporated the requirement for supporting affidavits,
with the annotation that these can be used as the affiants direct testimony. [78] This requirement, however, should
not be read as an absolute one that necessarily leads to the dismissal of the petition if not strictly
followed. Where, as in this case, the petitioner has substantially complied with the requirement by submitting
a verified petition sufficiently detailing the facts relied upon, the strict need for the sworn statement that an
affidavit represents is essentially fulfilled. We note that the failure to attach the required affidavits was fully
cured when the respondent and her witness (Mrs. Talbin) personally testified in the CA hearings held on January
7 and 17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus, even on this
point, the petition cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an alleged disappearance must have
been made, specifying the manner and results of the investigation.Effectively, this requirement seeks to
establish at the earliest opportunity the level of diligence the public authorities undertook in relation with the
reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not comply with the Section 5(d)
requirements of the Amparo Rule, as the petition specifies in its paragraph 11 that Kunnong and his companions
immediately reported Tagitis disappearance to the police authorities in Jolo, Sulu as soon as they were relatively
certain that he indeed had disappeared. The police, however, gave them the ready answer that Tagitis could
have been abducted by the Abu Sayyaf group or other anti-government groups. The respondent also alleged in
paragraphs 17 and 18 of her petition that she filed a complaint with the PNP Police Station in Cotobato and in
Jolo, but she was told of an intriguing tale by the police that her husband was having a good time with another
woman. The disappearance was alleged to have been reported, too, to no less than the Governor of the ARMM,
followed by the respondents personal inquiries that yielded the factual bases for her petition.[80]
These allegations, to our mind, sufficiently specify that reports have been made to the police authorities,
and that investigations should have followed. That the petition did not state the manner and results of the
investigation that the Amparo Rule requires, but rather generally stated the inaction of the police, their failure to
perform their duty to investigate, or at the very least, their reported failed efforts, should not be a reflection on
the completeness of the petition. To require the respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as well the manner and conduct of the investigation
is an overly strict interpretation of Section 5(d), given the respondents frustrations in securing an investigation
with meaningful results. Under these circumstances, we are more than satisfied that the allegations of the
petition on the investigations undertaken are sufficiently complete for purposes of bringing the petition forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not supported by
sufficient allegations to constitute a proper cause of action as a means to fish for evidence. [81] The petitioners
contend that the respondents petition did not specify what legally available efforts were taken by the respondent,
and that there was an undue haste in the filing of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Courts intervention.
 We do not see the respondents petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in the present case) allege the
actions and recourses taken to determine the fate or whereabouts of the aggrieved party and the identity of the
person responsible for the threat, act or omission. The following allegations of the respondents petition duly
outlined the actions she had taken and the frustrations she encountered, thus compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis went out of the pension house to take his early
lunch but while out on the street, a couple of burly men believed to be police intelligence
operatives, forcibly took him and boarded the latter on a motor vehicle then sped away without
the knowledge of his student, Arsimin Kunnong;

xxxx

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of another IDB scholar
and reported the matter to the local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts in trying to locate
the whereabouts of Engr. Tagitis and when he reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr. Tagitis could [have been] abducted by the
Abu Sayyaf group and other groups known to be fighting against the government;

12. Being scared with these suggestions and insinuations of the police officers, Kunnong reported the
matter to the [respondent](wife of Engr. Tagitis) by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the Philippines who alerted the office of the
Governor of ARMM who was then preparing to attend the OIC meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees with the Land
Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some of their
friends in the military who could help them find/locate the whereabouts of her husband;

xxxx
15. According to reliable information received by the [respondent], subject Engr. Tagitis is in the
custody of police intelligence operatives, specifically with the CIDG, PNP Zamboanga City,
being held against his will in an earnest attempt of the police to involve and connect Engr. Tagitis
with the different terrorist groups;

xxxx
17. [The respondent] filed her complaint with the PNP Police Station at the ARMM in Cotobato and in
Jolo, as suggested by her friends, seeking their help to find her husband, but [the respondents]
request and pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the different Police Headquarters including the
police headquarters in Davao City, in Zamboanga City, in Jolo, and in Camp Crame, Quezon
City, and all these places have been visited by the [respondent] in search for her husband, which
entailed expenses for her trips to these places thereby resorting her to borrowings and beggings
 [sic] for financial help from friends and relatives only to try complying to the different
suggestions of these police officers, despite of which, her efforts produced no positive results up
to the present time;

xxxx
25. [The respondent] has exhausted all administrative avenues and remedies but to no avail, and
under the circumstances, [respondent] has no other plain, speedy and adequate remedy to protect
and get the release of subject Engr. Morced Tagitis from the illegal clutches of [the petitioners],
their intelligence operatives and the like which are in total violation of the subjects human and
constitutional rights, except the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the respondents petition for the Writ of Amparo is sufficient
in form and substance and that the Court of Appeals had every reason to proceed with its consideration of the
case.

The Desaparecidos

The present case is one of first impression in the use and application of the Rule on the Writ
of Amparo in an enforced disappearance situation. For a deeper appreciation of the application of this Rule to an
enforced disappearance situation, a brief look at the historical context of the writ and enforced disappearances
would be very helpful.

The phenomenon of enforced disappearance arising from State action first attracted notice in Adolf
Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.[82] The Third Reichs Night and
Fog Program, a State policy, was directed at persons in occupied territories endangering German security; they
were transported secretly to Germany where they disappeared without a trace. In order to maximize the desired
intimidating effect, the policy prohibited government officials from providing information about the fate of
these targeted persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and outraging the
world when individuals, numbering anywhere from 6,000 to 24,000, were reported to have disappeared during
the military regime in Argentina. Enforced disappearances spread in Latin America, and the issue became an
international concern when the world noted its widespread and systematic use by State security forces in that
continent under Operation Condor[84] and during the Dirty War[85] in the 1970s and 1980s. The escalation of the
practice saw political activists secretly arrested, tortured, and killed as part of governments counter-insurgency
campaigns. As this form of political brutality became routine elsewhere in the continent, the Latin American
media standardized the term disappearance to describe the phenomenon. The victims of enforced
disappearances were called the desaparecidos,[86] which literally means the disappeared ones.[87] In general,
there are three different kinds of disappearance cases:
 1) those of people arrested without witnesses or without positive identification of the arresting
agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant and held in
complete isolation for weeks or months while their families are unable to discover their
whereabouts and the military authorities deny having them in custody until they eventually
reappear in one detention center or another; and

3) those of victims of salvaging who have disappeared until their lifeless bodies are later
discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two categories, [89] and 855
cases were recorded during the period of martial law from 1972 until 1986. Of this number, 595 remained
missing, 132 surfaced alive and 127 were found dead. During former President Corazon C. Aquinos term, 820
people were reported to have disappeared and of these, 612 cases were documented. Of this number, 407 remain
missing, 108 surfaced alive and 97 were found dead. The number of enforced disappearances dropped during
former President Fidel V. Ramos term when only 87 cases were reported, while the three-year term of former
President Joseph E. Estrada yielded 58 reported cases. KARAPATAN, a local non-governmental organization,
reports that as of March 31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The Commission on Human Rights
records show a total of 636 verified cases of enforced disappearances from 1985 to 1993. Of this number, 406
remained missing, 92 surfaced alive, 62 were found dead, and 76 still have undetermined status. [90] Currently,
the United Nations Working Group on Enforced or Involuntary Disappearance [91] reports 619 outstanding cases
of enforced or involuntary disappearances covering the period December 1, 2007 to November 30, 2008.[92]

Enforced Disappearances Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal killings and enforced
disappearances or threats thereof.[93] We note that although the writ specifically covers enforced disappearances,
this concept is neither defined nor penalized in this jurisdiction. The records of the Supreme Court Committee
on the Revision of Rules (Committee) reveal that the drafters of the Amparo Rule initially considered providing
an elemental definition of the concept of enforced disappearance:[94]

JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a
specific definition [for] extrajudicial killings and enforced disappearances. From that definition,
then we can proceed to formulate the rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial killings
and enforced disappearances so initially also we have to [come up with] the nature of these
 extrajudicial killings and enforced disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the jurisdiction of the courts. So well
have to agree among ourselves about the nature of killings and disappearances for instance, in
other jurisdictions, the rules only cover state actors. That is an element incorporated in their
concept of extrajudicial killings and enforced disappearances. In other jurisdictions, the concept
includes acts and omissions not only of state actors but also of non state actors. Well, more
specifically in the case of the Philippines for instance, should these rules include the killings, the
disappearances which may be authored by let us say, the NPAs or the leftist organizations and
others. So, again we need to define the nature of the extrajudicial killings and enforced
disappearances that will be covered by these rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of Representatives [96] and
in the Senate[97] on extrajudicial killings and enforced disappearances, and resolved to do away with a clear
textual definition of these terms in the Rule. The Committee instead focused on the nature and scope of the
concerns within its power to address and provided the appropriate remedy therefor, mindful that an elemental
definition may intrude into the ongoing legislative efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in this jurisdiction are not
crimes penalized separately from the component criminal acts undertaken to carry out these killings and
enforced disappearances and are now penalized under the Revised Penal Code and special laws. [99] The simple
reason is that the Legislature has not spoken on the matter; the determination of what acts are criminal and what
the corresponding penalty these criminal acts should carry are matters of substantive law that only the
Legislature has the power to enact under the countrys constitutional scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-judicial killings and enforced
disappearances, however, the Supreme Court is not powerless to act under its own constitutional mandate to
promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice and
procedure in all courts,[100]since extrajudicial killings and enforced disappearances, by their nature and purpose,
constitute State or private party violation of the constitutional rights of individuals to life, liberty and
security. Although the Courts power is strictly procedural and as such does not diminish, increase or modify
substantive rights, the legal protection that the Court can provide can be very meaningful through the
procedures it sets in addressing extrajudicial killings and enforced disappearances. The Court, through its
procedural rules, can set theprocedural standards and thereby directly compel the public authorities to act on
actual or threatened violations of constitutional rights. To state the obvious, judicial intervention can make a
difference even if only procedurally in a situation when the very same investigating public authorities may have
had a hand in the threatened or actual violations of constitutional rights.
 Lest this Court intervention be misunderstood, we clarify once again that we do not rule on any issue
of criminal culpability for the extrajudicial killing or enforced disappearance. This is an issue that requires
criminal action before our criminal courts based on our existing penal laws. Our intervention is in determining
whether an enforced disappearance has taken place and who is responsible or accountable for this
disappearance, and to define and impose the appropriate remedies to address it. The burden for the public
authorities to discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is to
ensure that all efforts at disclosure and investigation are undertaken under pain of indirect contempt from this
Court when governmental efforts are less than what the individual situations require. The second is to address
the disappearance, so that the life of the victim is preserved and his or her liberty and security restored. In these
senses, our orders and directives relative to the writ are continuing efforts that are not truly terminated until the
extrajudicial killing or enforced disappearance is fully addressed by the complete determination of the fate and
the whereabouts of the victim, by the production of the disappeared person and the restoration of his or her
liberty and security, and, in the proper case, by the commencement of criminal action against the guilty parties.

Enforced Disappearance Under International Law

From the International Law perspective, involuntary or enforced disappearance is considered a flagrant
violation of human rights.[101] It does not only violate the right to life, liberty and security of the desaparecido; it
affects their families as well through the denial of their right to information regarding the circumstances of the
disappeared family member. Thus, enforced disappearances have been said to be a double form of torture, with
doubly paralyzing impact for the victims, as they are kept ignorant of their own fates, while family members are
deprived of knowing the whereabouts of their detained loved ones and suffer as well the serious economic
hardship and poverty that in most cases follow the disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons in December 1978 under
Resolution 33/173. The Resolution expressed the General Assemblys deep concern arising from reports from
various parts of the world relating to enforced or involuntary disappearances, and requested the UN
Commission on Human Rights to consider the issue of enforced disappearances with a view to making
appropriate recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced disappearance had become a
global phenomenon, the UN General Assembly adopted theDeclaration on the Protection of All Persons from
Enforced Disappearance (Declaration).[104] This Declaration, for the first time, provided in its third preambular
clause a working description of enforced disappearance, as follows:
 Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted against
their will or otherwise deprived of their liberty by officials of different branches or levels of
Government, or by organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government, followed by a
refusal to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside the protection
of the law. [Emphasis supplied]

Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the International
Convention for the Protection of All Persons from Enforced Disappearance (Convention).[105] The Convention
was opened for signature in Paris, France on February 6, 2007. [106] Article 2 of the Convention defined enforced
disappearance as follows:

For the purposes of this Convention, enforced disappearance is considered to be the

arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or
by persons or groups of persons acting with the authorization, support or acquiescence of the
State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the
fate or whereabouts of the disappeared person, which place such a person outside the protection
of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a right not to be subject to
enforced disappearance[107] and that this right is non-derogable. [108] It provides that no one shall be subjected to
enforced disappearance under any circumstances, be it a state of war, internal political instability, or any other
public emergency. It obliges State Parties to codify enforced disappearance as an offense punishable with
appropriate penalties under their criminal law.[109] It also recognizes the right of relatives of the disappeared
persons and of the society as a whole to know the truth on the fate and whereabouts of the disappeared and on
the progress and results of the investigation.[110] Lastly, it classifies enforced disappearance as a continuing
offense, such that statutes of limitations shall not apply until the fate and whereabouts of the victim are
established.[111]

Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the country is not yet committed
to enact any law penalizing enforced disappearance as a crime.The absence of a specific penal law, however, is
not a stumbling block for action from this Court, as heretofore mentioned; underlying every enforced
disappearance is a violation of the constitutional rights to life, liberty and security that the Supreme Court is
mandated by the Constitution to protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is guided, in acting
on Amparo cases, by the reality that the Philippines is a member of the UN, bound by its Charter and by the
various conventions we signed and ratified, particularly the conventions touching on humans rights. Under the
UN Charter, the Philippines pledged to promote universal respect for, and observance of, human rights and
fundamental freedoms for all without distinctions as to race, sex, language or religion. [112]Although no universal
agreement has been reached on the precise extent of the human rights and fundamental freedoms guaranteed to
all by the Charter,[113] it was the UN itself that issued the Declaration on enforced disappearance, and this
Declaration states:[114]

Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of the

purposes of the Charter of the United Nations and as a grave and flagrant violation of
human rights and fundamental freedoms proclaimed in the Universal Declaration of
Human Rights and reaffirmed and developed in international instruments in this field.
[Emphasis supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a UN Declaration, the ban
on enforced disappearance cannot but have its effects on the country, given our own adherence to generally
accepted principles of international law as part of the law of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque III,[116] we
held that:

Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law. [Emphasis
supplied]
We characterized generally accepted principles of international law as norms of general or customary
international law that are binding on all states. We held further:[117]

[G]enerally accepted principles of international law, by virtue of the incorporation clause

of the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element known
as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is abelief that the practice in question is rendered obligatory by the existence of a
rule of law requiring it. [Emphasis in the original]

The most widely accepted statement of sources of international law today is Article 38(1) of the Statute
of the International Court of Justice, which provides that the Court shall apply international custom, as evidence
of a general practice accepted as law.[118] The material sources of custom include State practice, State legislation,
international and national judicial decisions, recitals in treaties and other international instruments, a pattern of
treaties in the same form, the practice of international organs, and resolutions relating to legal questions in the
UN General Assembly.[119] Sometimes referred to as evidence of international law,[120] these sources identify the
substance and content of the obligations of States and are indicative of the State practice and opinio
juris requirements of international law.[121] We note the following in these respects:

First, barely two years from the adoption of the Declaration, the Organization of American States (OAS)
General Assembly adopted the Inter-American Convention on Enforced Disappearance of Persons in June 1994.
[122]
State parties undertook under this Convention not to practice, permit, or tolerate the forced disappearance of
persons, even in states of emergency or suspension of individual guarantees. [123] One of the key provisions
includes the States obligation to enact the crime of forced disappearance in their respective national criminal
laws and to establish jurisdiction over such cases when the crime was committed within their jurisdiction, when
the victim is a national of that State, and when the alleged criminal is within its territory and it does not proceed
to extradite him, which can be interpreted as establishing universal jurisdiction among the parties to the Inter-
American Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and Venezuela have enacted
separate laws in accordance with the Inter-American Convention and have defined activities involving enforced
disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no explicit provision dealing with
the protection against enforced disappearance. The European Court of Human Rights (ECHR), however, has
applied the Convention in a way that provides ample protection for the underlying rights affected by enforced
disappearance through the Conventions Article 2 on the right to life; Article 3 on the prohibition of torture;
Article 5 on the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article 13 on
the right to an effective remedy. A leading example demonstrating the protection afforded by the European
Convention is Kurt v. Turkey,[126] where the ECHR found a violation of the right to liberty and security of the
disappeared person when the applicants son disappeared after being taken into custody by Turkish forces in the
Kurdish village of Agilli in November 1993. It further found the applicant (the disappeared persons mother) to
be a victim of a violation of Article 3, as a result of the silence of the authorities and the inadequate character of
the investigations undertaken. The ECHR also saw the lack of any meaningful investigation by the State as a
violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as part of customary
international law is recognized in the most recent edition ofRestatement of the Law: The Third, [128] which
provides that [a] State violates international law if, as a matter of State policy, it practices, encourages, or
condones (3) the murder or causing the disappearance of individuals. [129] We significantly note that in a related
matter that finds close identification with enforced disappearance the matter of torture the United States Court
of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala[130] that the prohibition on torture had
attained the status of customary international law. The court further elaborated on the significance of UN
declarations, as follows:

These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can no longer
contend that they do not know what human rights they promised in the Charter to promote.
Moreover, a U.N. Declaration is, according to one authoritative definition, "a formal and solemn
instrument, suitable for rare occasions when principles of great and lasting importance are being
enunciated. Accordingly, it has been observed that the Universal Declaration of Human Rights
"no longer fits into the dichotomy of binding treaty against non-binding pronouncement,' but is
rather an authoritative statement of the international community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the expectation is gradually justified by State practice,
a declaration may by custom become recognized as laying down rules binding upon the States."
Indeed, several commentators have concluded that the Universal Declaration has become, in toto,
a part of binding, customary international law. [Citations omitted]
Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International Convention
on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory and a State Party, the UN
Human Rights Committee, under the Office of the High Commissioner for Human Rights, has stated that the act
of enforced disappearance violates Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or
degrading treatment or punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act
may also amount to a crime against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International Criminal Court
(ICC) also covers enforced disappearances insofar as they are defined as crimes against humanity, [132] i.e.,
crimes committed as part of a widespread or systematic attack against any civilian population, with knowledge
of the attack. While more than 100 countries have ratified the Rome Statute, [133] the Philippines is still merely a
signatory and has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated in the
statutes of other international and hybrid tribunals, including Sierra Leone Special Court, the Special Panels for
Serious Crimes in Timor-Leste, and the Extraordinary Chambers in the Courts of Cambodia. [134] In addition, the
implementing legislation of State Parties to the Rome Statute of the ICC has given rise to a number of national
criminal provisions also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the Convention on enforced
disappearance (or by the specific terms of the Rome Statute) and has not formally declared enforced
disappearance as a specific crime, the above recital shows that enforced disappearance as a State practice has
been repudiated by the international community, so that the ban on it is now a generally accepted
principle of international law, which we should consider a part of the law of the land, and which we should
act upon to the extent already allowed under our laws and the international conventions that bind us.
 The following civil or political rights under the Universal Declaration of Human Rights, the ICCPR and
the International Convention on Economic, Social and Cultural Rights (ICESR) may be infringed in the course
of a disappearance:[136]

1) the right to recognition as a person before the law;

2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment or
punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the possibilities
of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted. [Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to an effective remedy
under Article 2 of the ICCPR includes the obligation of the State to investigate ICCPR violations promptly,
thoroughly, and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant

rights, States Parties must ensure that individuals also have accessible and effective
remedies to vindicate those rights The Committee attaches importance to States Parties'
establishing appropriate judicial and administrative mechanisms for addressing claims of rights
violations under domestic law Administrative mechanisms are particularly required to give
effect to the general obligation to investigate allegations of violations promptly, thoroughly
and effectivelythrough independent and impartial bodies. A failure by a State Party to
investigate allegations of violations could in and of itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an essential element of the right to an effective
remedy. [Emphasis supplied]
 The UN Human Rights Committee further stated in the same General Comment No. 31 that failure to
investigate as well as failure to bring to justice the perpetrators of ICCPR violations could in and of itself give
rise to a separate breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant
rights, States Parties must ensure that those responsible are brought to justice. As with
failure to investigate, failure to bring to justice perpetrators of such violations could in and
of itself give rise to a separate breach of the Covenant. These obligations arise notably in
respect of those violations recognized as criminal under either domestic or international
law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and
arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently,
6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the
Committee, may well be an important contributing element in the recurrence of the violations.
When committed as part of a widespread or systematic attack on a civilian population, these
violations of the Covenant are crimes against humanity (see Rome Statute of the International
Criminal Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to security of persons
is a guarantee of the protection of ones right by the government, held that:

The right to security of person in this third sense is a corollary of the policy that the State
guarantees full respect for human rights under Article II, Section 11 of the 1987 Constitution. As
the government is the chief guarantor of order and security, the Constitutional guarantee of the
rights to life, liberty and security of person is rendered ineffective if government does not
affordprotection to these rights especially when they are under threat. Protection includes
conducting effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats thereof)
and/or their families, and bringing offenders to the bar of justice. The Inter-American Court
of Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case, viz:

(The duty to investigate) must be undertaken in a serious

manner and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its own
legal duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without an
effective search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right to security not only as a
prohibition on the State against arbitrary deprivation of liberty, but also as the imposition of a positive duty to
afford protection to the right to liberty. The Court notably quoted the following ECHR ruling:

[A]ny deprivation of liberty must not only have been effected in conformity with the substantive
and procedural rules of national law but must equally be in keeping with the very purpose of
Article 5, namely to protect the individual from arbitrariness... Having assumed control over that
individual, it is incumbent on the authorities to account for his or her whereabouts. For this
reason, Article 5 must be seen as requiring the authorities to take effective measures to
safeguard against the risk of disappearance and to conduct a prompt effective investigation
into an arguable claim that a person has been taken into custody and has not been seen
since. [Emphasis supplied]
 These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which the Court
made effective on October 24, 2007. Although the Amparo Rule still has gaps waiting to be filled through
substantive law, as evidenced primarily by the lack of a concrete definition of enforced disappearance, the
materials cited above, among others, provide ample guidance and standards on how, through the medium
of the Amparo Rule, the Court can provide remedies and protect the constitutional rights to life, liberty
and security that underlie every enforced disappearance.

Evidentiary Difficulties Posed

by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the burden of proving the
allegations of the petition for the Writ of Amparo by the degree of proof required by the Amparo Rule, we shall
discuss briefly the unique evidentiary difficulties presented by enforced disappearance cases; these difficulties
form part of the setting that the implementation of the Amparo Rule shall encounter.

These difficulties largely arise because the State itself the party whose involvement is alleged
investigates enforced disappearances. Past experiences in other jurisdictions show that the evidentiary
difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct perpetrators. [141] Experts
note that abductors are well organized, armed and usually members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons acting under some form of
governmental authority. In many countries the units that plan, implement and execute the
program are generally specialized, highly-secret bodies within the armed or security forces. They
are generally directed through a separate, clandestine chain of command, but they have the
necessary credentials to avoid or prevent any interference by the "legal" police forces. These
authorities take their victims to secret detention centers where they subject them to interrogation
and torture without fear of judicial or other controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are usually afraid to
speak out publicly or to testify on the disappearance out of fear for their own lives. [143] We have had occasion to
note this difficulty in Secretary of Defense v. Manalo[144] when we acknowledged that where powerful military
officers are implicated, the hesitation of witnesses to surface and testify against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the disappearance is a distinct possibility;

the central piece of evidence in an enforced disappearance i.e., thecorpus delicti or the victims body is usually
concealed to effectively thwart the start of any investigation or the progress of one that may have begun. [145] The
problem for the victims family is the States virtual monopoly of access to pertinent evidence. The Inter-
American Court of Human Rights (IACHR) observed in the landmark case of Velasquez Rodriguez[146] that
inherent to the practice of enforced disappearance is the deliberate use of the States power to destroy the
pertinent evidence. The IACHR described the concealment as a clear attempt by the State to commit the perfect
crime.[147]

Third is the element of denial; in many cases, the State authorities deliberately deny that the enforced
disappearance ever occurred.[148] Deniability is central to the policy of enforced disappearances, as the absence
of any proven disappearance makes it easier to escape the application of legal standards ensuring the victims
human rights.[149]Experience shows that government officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any disappearance, that the missing people may have
fled the country, or that their names have merely been invented.[150]

These considerations are alive in our minds, as these are the difficulties we confront, in one form or
another, in our consideration of this case.

Evidence and Burden of Proof in

Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and the degree
and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to simplify the issues and determine
the possibility of obtaining stipulations and admissions from the parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence Required. The parties shall establish their
claims by substantial evidence.
The respondent who is a private individual must prove that ordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.
The respondent who is a public official or employee must prove that extraordinary
diligence as required by applicable laws, rules and regulations was observed in the performance
of duty.
The respondent public official or employee cannot invoke the presumption that official
duty has been regularly performed or evade responsibility or liability.
Section 18. Judgment. If the allegations in the petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such reliefs as may be proper and
appropriate;otherwise, the privilege shall be denied. [Emphasis supplied]
 These characteristics namely, of being summary and the use of substantial evidence as the required level
of proof (in contrast to the usual preponderance of evidence or proof beyond reasonable doubt in court
proceedings) reveal the clear intent of the framers of the Amparo Rule to have the equivalent of an
administrative proceeding, albeit judicially conducted, in addressing Amparo situations. The standard of
diligence required the duty of public officials and employees to observe extraordinary diligence point, too, to
the extraordinary measures expected in the protection of constitutional rights and in the consequent handling
and investigation of extra-judicial killings and enforced disappearance cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the substance and
form requirements of a Writ of Amparo petition, as discussed above, and prove the allegations by substantial
evidence. Once a rebuttable case has been proven, the respondents must then respond and prove their defenses
based on the standard of diligence required. The rebuttable case, of course, must show that an enforced
disappearance took place under circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations [151] provided the Court its first opportunity
to define the substantial evidence required to arrive at a valid decision in administrative proceedings. To directly
quote Ang Tibay:

Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. [citations omitted] The
statute provides that the rules of evidence prevailing in courts of law and equity shall not be
controlling. The obvious purpose of this and similar provisions is to free administrative boards
from the compulsion of technical rules so that the mere admission of matter which would be
deemed incompetent in judicial proceedings would not invalidate the administrative order.
[citations omitted] But this assurance of a desirable flexibility in administrative procedure does
not go so far as to justify orders without a basis in evidence having rational probative force.
[Emphasis supplied]

In Secretary of Defense v. Manalo,[152] which was the Courts first petition for a Writ of Amparo, we
recognized that the full and exhaustive proceedings that the substantial evidence standard regularly requires do
not need to apply due to the summary nature of Amparo proceedings. We said:

The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or
administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings. [Emphasis supplied]
 Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the unique difficulties
presented by the nature of enforced disappearances, heretofore discussed, which difficulties this Court must
frontally meet if the Amparo Rule is to be given a chance to achieve its objectives. These evidentiary difficulties
compel the Court to adopt standards appropriate and responsive to the circumstances, without transgressing the
due process requirements that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of direct evidence that the
government of Honduras was involved in Velasquez Rodriguez disappearance adopted a relaxed and informal
evidentiary standard, and established the rule that presumes governmental responsibility for a disappearance if it
can be proven that the government carries out a general practice of enforced disappearances and the specific
case can be linked to that practice.[154] The IACHR took note of the realistic fact that enforced disappearances
could be proven only through circumstantial or indirect evidence or by logical inference; otherwise, it was
impossible to prove that an individual had been made to disappear. It held:

130. The practice of international and domestic courts shows that direct evidence, whether
testimonial or documentary, is not the only type of evidence that may be legitimately considered
in reaching a decision. Circumstantial evidence, indicia, and presumptions may be
considered, so long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to suppress
all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]
In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried out by agents who
acted under cover of public authority, the IACHR relied on circumstantial evidence including the hearsay
testimony of Zenaida Velsquez, the victims sister, who described Manfredos kidnapping on the basis of
conversations she had with witnesses who saw Manfredo kidnapped by men in civilian clothes in broad
daylight. She also told the Court that a former Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders of the Chief of the Armed Forces. [155] The IACHR
likewise considered the hearsay testimony of a second witness who asserted that he had been told by a
Honduran military officer about the disappearance, and a third witness who testified that he had spoken in
prison to a man who identified himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique circumstances that enforced
disappearance cases pose to the courts; to have an effective remedy, the standard of evidence must be
responsive to the evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the admission and
appreciation of evidence, as arbitrariness entails violation of rights and cannot be used as an effective counter-
measure; we only compound the problem if a wrong is addressed by the commission of another wrong. On the
other hand, we cannot be very strict in our evidentiary rules and cannot consider evidence the way we do in the
usual criminal and civil cases; precisely, the proceedings before us are administrative in nature where, as a rule,
technical rules of evidence are not strictly observed. Thus, while we must follow the substantial evidence rule,
we must observe flexibility in considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to
consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the
admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason i.e., to the
relevance of the evidence to the issue at hand and its consistency with all other pieces of adduced
evidence. Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not at all novel in the
Philippine legal system. In child abuse cases, Section 28 of the Rule on Examination of a Child Witness [157] is
expressly recognized as an exception to the hearsay rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted act of sexual abuse in any criminal or non-criminal
proceeding, subject to certain prerequisites and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of specified subjective and objective
considerations that provide sufficient indicia of reliability of the child witness. [158] These requisites for
admission find their counterpart in the present case under the above-described conditions for the exercise of
flexibility in the consideration of evidence, including hearsay evidence, in extrajudicial killings and enforced
disappearance cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced disappearance within the meaning of
this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such a person outside the
protection of the law.[159] Under this definition, the elements that constitute enforced disappearance are
essentially fourfold:[160]

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;
(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the
disappeared person; and

(d) placement of the disappeared person outside the protection of the law. [Emphasis supplied]
 We find no direct evidence indicating how the victim actually disappeared. The direct evidence at hand
only shows that Tagitis went out of the ASY Pension House after depositing his room key with the hotel desk
and was never seen nor heard of again. The undisputed conclusion, however, from all concerned the petitioner,
Tagitis colleagues and even the police authorities is that Tagistis disappeared under mysterious circumstances
and was never seen again. The respondent injected the causal element in her petition and testimony, as we shall
discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga abducted or
arrested Tagitis. If at all, only the respondents allegation that Tagistis was under CIDG Zamboanga custody
stands on record, but it is not supported by any other evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of information as her bases for her
allegation that Tagistis had been placed under government custody (in contrast with CIDG Zamboanga
custody). The first was an unnamed friend in Zamboanga (later identified as Col. Ancanan), who occupied a
high position in the military and who allegedly mentioned that Tagitis was in good hands. Nothing came out of
this claim, as both the respondent herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan
gave them any information that Tagitis was in government custody. Col. Ancanan, for his part, admitted the
meeting with the respondent but denied giving her any information about the disappearance.

The more specific and productive source of information was Col. Kasim, whom the respondent,
together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To quote the relevant portions of
the respondents testimony:

Q: Were you able to speak to other military officials regarding the whereabouts of your husband
particularly those in charge of any records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me that
my husband is being abducted [sic] because he is under custodial investigation
because he is allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of those visits of yours in that
Camp?

A: Col. Casim did not furnish me a copy of his report because he said those reports are
highly confidential, sir.
 Q: Was it read to you then even though you were not furnished a copy?

A: Yes, sir. In front of us, my friends.

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was abducted and under custodial
investigation?

A: Yes, maam.

Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, maam.

Q: But you were able to read the contents?

A: No. But he read it in front of us, my friends, maam.

Q: How many were you when you went to see Col. Kasim?
A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental, maam.[162]
xxxx
Q: When you were told that your husband is in good hands, what was your reaction and what did
you do?

A: May binasa kasi sya that my husband has a parang meeting with other people na parang
mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial
investigation.So I told him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot, maam.
[163]

xxxx
Q: You mentioned that you received information that Engineer Tagitis is being held by the CIDG
in Zamboanga, did you go to CIDG Zamboanga to verify that information?
 A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun
na effort ko because I know that they would deny it, maam.[164]

On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony that her
husband was abducted and held under custodial investigation by the PNP-CIDG Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City sometime November 24, 2007, who
was with you when you went there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that time, sir.

Q: Who were they?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.

Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the exact location, if he can
furnish us the location of Engr. Tagitis. And he was reading this report. He told us that
Engr. Tagitis is in good hands. He is with the military, but he is not certain whether
he is with the AFP or PNP. He has this serious case. He was charged of terrorism
because he was under surveillance from January 2007 up to the time that he was
abducted. He told us that he was under custodial investigation. As Ive said earlier, he
was seen under surveillance from January. He was seen talking to Omar Patik, a
certain Santos of Bulacan who is also a Balik Islam and charged with terrorism. He
was seen carrying boxes of medicines.Then we asked him how long will he be in
custodial investigation. He said until we can get some information. But he also told us
that he cannot give us that report because it was a raw report. It was not official, sir.

Q: You said that he was reading a report, was that report in document form, in a piece of paper or
was it in the computer or what?

A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was computerized
but Im certain that it was typewritten. Im not sure if it used computer, fax or what, sir.
 Q: When he was reading it to you, was he reading it line by line or he was reading in a summary
form?

A: Sometimes he was glancing to the report and talking to us, sir.[165]

xxxx
Q: Were you informed as to the place where he was being kept during that time?

A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao,
Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because that raw information that he was
reading to us [sic] after the custodial investigation, Engineer Tagitis will be released.
[Emphasis supplied][166]

Col. Kasim never denied that he met with the respondent and her friends, and that he provided them
information based on the input of an unnamed asset. He simply claimed in his testimony that the informal letter
he received from his informant in Sulu did not indicate that Tagitis was in the custody of the CIDG. He also
stressed that the information he provided the respondent was merely a raw report from barangay intelligence
that still needed confirmation and follow up as to its veracity.[167]

To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the petitioners pointed
out. The respondent mistakenly characterized Col. Kasim as a military officer who told her that her husband is
being abducted because he is under custodial investigation because he is allegedly parang liason ng J.I. The
petitioners also noted that Mrs. Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr.
Tagitis is with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief, since Sr.
Supt. Kasim is a high ranking police officer who would certainly know that the PNP is not part of the military.

Upon deeper consideration of these inconsistencies, however, what appears clear to us is that the
petitioners never really steadfastly disputed or presented evidence to refute the credibility of the respondent and
her witness, Mrs. Talbin. The inconsistencies the petitioners point out relate, more than anything else, to details
that should not affect the credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material
points.[168] We note, for example, that these witnesses are lay people in so far as military and police matters are
concerned, and confusion between the police and the military is not unusual. As a rule, minor inconsistencies
such as these indicate truthfulness rather than prevarication [169]and only tend to strengthen their probative value,
in contrast to testimonies from various witnesses dovetailing on every detail; the latter cannot but generate
suspicion that the material circumstances they testified to were integral parts of a well thought of and
prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in enforced disappearance
cases, we hold it duly established that Col. Kasim informed the respondent and her friends, based on the
informants letter, that Tagitis, reputedly a liaison for the JI and who had been under surveillance since
January 2007, was in good hands and under custodial investigation for complicity with the JI after he
was seen talking to one Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. The respondents and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain
denial and his claim that he had destroyed his informants letter, the critical piece of evidence that supports or
negates the parties conflicting claims. Col. Kasims admitted destruction of this letter effectively, a suppression
of this evidence raises the presumption that the letter, if produced, would be proof of what the respondent
claimed.[171] For brevity, we shall call the evidence of what Col. Kasim reported to the respondent to be the
Kasim evidence.

Given this evidence, our next step is to decide whether we can accept this evidence, in lieu of direct
evidence, as proof that the disappearance of Tagitis was due to action with government participation,
knowledge or consent and that he was held for custodial investigation. We note in this regard that Col. Kasim
was never quoted to have said that the custodial investigation was by the CIDG Zamboanga. The Kasim
evidence only implies government intervention through the use of the term custodial investigation, and does not
at all point to CIDG Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., evidence whose
probative value is not based on the personal knowledge of the witnesses (the respondent, Mrs. Talbin and Col.
Kasim himself) but on the knowledge of some other person not on the witness stand (the informant).[172]

To say that this piece of evidence is incompetent and inadmissible evidence of what it substantively
states is to acknowledge as the petitioners effectively suggest that in the absence of any direct evidence, we
should simply dismiss the petition. To our mind, an immediate dismissal for this reason is no different from a
statement that the Amparo Rule despite its terms is ineffective, as it cannot allow for the special evidentiary
difficulties that are unavoidably present in Amparo situations, particularly in extrajudicial killings and enforced
disappearances. The Amparo Rule was not promulgated with this intent or with the intent to make it a token
gesture of concern for constitutional rights. It was promulgated to provide effective and timely remedies, using
and profiting from local and international experiences in extrajudicial killings and enforced disappearances, as
the situation may require. Consequently, we have no choice but to meet the evidentiary difficulties inherent in
enforced disappearances with the flexibility that these difficulties demand.

To give full meaning to our Constitution and the rights it protects, we hold that, as in Velasquez, we
should at least take a close look at the available evidence to determine the correct import of every piece of
evidence even of those usually considered inadmissible under the general rules of evidence taking into account
the surrounding circumstances and the test of reason that we can use as basic minimum admissibility
requirement. In the present case, we should at least determine whether the Kasim evidence before us is relevant
and meaningful to the disappearance of Tagistis and reasonably consistent with other evidence in the case.
The evidence about Tagitis personal circumstances surrounded him with an air of mystery. He was
reputedly a consultant of the World Bank and a Senior Honorary Counselor for the IDB who attended a seminar
in Zamboanga and thereafter proceded to Jolo for an overnight stay, indicated by his request to Kunnong for the
purchase of a return ticket to Zamboanga the day after he arrived in Jolo. Nothing in the records indicates the
purpose of his overnight sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police
that Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust, although he confirmed that the IDB was seeking assistance
in locating funds of IDB scholars deposited in Tagitis personal account. Other than these pieces of evidence, no
other information exists in the records relating to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal circumstances. While

the Amparo petition recited that he was taken away by burly men believed to be police intelligence operatives,
no evidence whatsoever was introduced to support this allegation. Thus, the available direct evidence is that
Tagitis was last seen at 12.30 p.m. of October 30, 2007 the day he arrived in Jolo and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct evidence on the above aspects
of the case, as it supplies the gaps that were never looked into and clarified by police investigation. It is the
evidence, too, that colors a simple missing person report into an enforced disappearance case, as it injects the
element of participation by agents of the State and thus brings into question how the State reacted to the
disappearance.

Denials on the part of the police authorities, and frustration on the part of the respondent, characterize
the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong that Tagitis could have been taken
by the Abu Sayyaf or other groups fighting the government. No evidence was ever offered on whether there was
active Jolo police investigation and how and why the Jolo police arrived at this conclusion. The respondents
own inquiry in Jolo yielded the answer that he was not missing but was with another woman
somewhere. Again, no evidence exists that this explanation was arrived at based on an investigation. As already
related above, the inquiry with Col. Ancanan in Zamboanga yielded ambivalent results not useful for
evidentiary purposes. Thus, it was only the inquiry from Col. Kasim that yielded positive results. Col. Kasims
story, however, confirmed only the fact of his custodial investigation (and, impliedly, his arrest or abduction),
without identifying his abductor/s or the party holding him in custody. The more significant part of Col. Kasims
story is that the abduction came after Tagitis was seen talking with Omar Patik and a certain Santos of Bulacan,
a Balik Islam charged with terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao,
Sulu. None of the police agencies participating in the investigation ever pursued these leads.Notably, TASK
FORCE TAGITIS to which this information was relayed did not appear to have lifted a finger to pursue these
aspects of the case.

More denials were manifested in the Returns on the writ to the CA made by the petitioners. Then PNP
Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM Regional Director and the
Regional Chief of the CIDG on Tagitis, and these reports merely reiterated the open-ended initial report of the
disappearance. The CIDG directed a search in all of its divisions with negative results. These, to the PNP Chief,
constituted the exhaustion of all possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part,
also reported negative results after searching all divisions and departments [of the CIDG] for a person named
Engr. Morced N. Tagitis . . . and after a diligent and thorough research, records show that no such person is
being detained in the CIDG or any of its department or divisions. PNP-PACER Chief PS Supt. Leonardo A.
Espina and PNP PRO ARMM Regional Director PC Superintendent Joel R. Goltiao did no better in their
affidavits-returns, as they essentially reported the results of their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA constituted TASK FORCE
TAGITIS, with specific directives on what to do. The negative results reflected in the Returns on the writ were
again replicated during the three hearings the CA scheduled. Aside from the previously mentioned retraction
that Prof. Matli made to correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim
reiterated in his testimony that the CIDG consistently denied any knowledge or complicity in any abduction and
said that there was no basis to conclude that the CIDG or any police unit had anything to do with the
disappearance of Tagitis; he likewise considered it premature to conclude that Tagitis simply ran away with the
money in his custody. As already noted above, the TASK FORCE notably did not pursue any investigation
about the personal circumstances of Tagitis, his background in relation to the IDB and the background and
activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his alleged custody in
Talipapao, Sulu. No attempt appears to have ever been made to look into the alleged IDB funds that Tagitis held
in trust, or to tap any of the assets who are indispensable in investigations of this nature. These omissions and
negative results were aggravated by the CA findings that it was only as late as January 28, 2008 or three months
after the disappearance that the police authorities requested for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served, despite the fact that he was designated as Ajirims
replacement in the latters last post. Thus, Col. Kasim was not then questioned. No investigation even an internal
one appeared to have been made to inquire into the identity of Col. Kasims asset and what he indeed wrote.

We glean from all these pieces of evidence and developments a consistency in the governments
denial of any complicity in the disappearance of Tagitis, disrupted only by the report made by Col. Kasim
to the respondent at Camp Katitipan. Even Col. Kasim, however, eventually denied that he ever made the
disclosure that Tagitis was under custodial investigation for complicity in terrorism. Another distinctive trait
that runs through these developments is the governments dismissive approach to the
disappearance, starting from the initial response by the Jolo police to Kunnongs initial reports of the
disappearance, to the responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.

As the CA found through TASK FORCE TAGITIS, the investigation was at best haphazard since the
authorities were looking for a man whose picture they initially did not even secure. The returns and reports
made to the CA fared no better, as the CIDG efforts themselves were confined to searching for custodial records
of Tagitis in their various departments and divisions. To point out the obvious, if the abduction of Tagitis was a
black operation because it was unrecorded or officially unauthorized, no record of custody would ever appear in
the CIDG records; Tagitis, too, would not be detained in the usual police or CIDG detention places . In sum,
none of the reports on record contains any meaningful results or details on the depth and extent of the
investigation made. To be sure, reports of top police officials indicating the personnel and units they directed to
investigate can never constitute exhaustive and meaningful investigation, or equal detailed investigative reports
of the activities undertaken to search for Tagitis. Indisputably, the police authorities from the very beginning
failed to come up to the extraordinary diligence that the Amparo Rule requires.

CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure, made in an unguarded moment,
unequivocally point to some government complicity in the disappearance. The consistent but unfounded denials
and the haphazard investigations cannot but point to this conclusion. For why would the government and its
officials engage in their chorus of concealment if the intent had not been to deny what they already knew of the
disappearance? Would not an in-depth and thorough investigation that at least credibly determined the fate of
Tagitis be a feather in the governments cap under the circumstances of the disappearance? From this
perspective, the evidence and developments, particularly the Kasim evidence, already establish a concrete case
of enforced disappearance that the Amparo Rule covers. From the prism of the UN Declaration, heretofore cited
and quoted,[173] the evidence at hand and the developments in this case confirm the fact of the enforced
disappearance and government complicity, under a background of consistent and unfounded government denials
and haphazard handling. The disappearance as well effectively placed Tagitis outside the protection of the law a
situation that will subsist unless this Court acts.

This kind of fact situation and the conclusion reached are not without precedent in international enforced
disappearance rulings. While the facts are not exactly the same, the facts of this case run very close to those
of Timurtas v. Turkey,[174] a case decided by ECHR. The European tribunal in that case acted on the basis of the
photocopy of a post-operation report in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and later
detained by agents (gendarmes) of the government of Turkey. The victim's father in this case brought a claim
against Turkey for numerous violations of the European Convention, including the right to life (Article 2) and
the rights to liberty and security of a person (Article 5). The applicant contended that on August 14,
1993, gendarmes apprehended his son, Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in
the Silopi region. The petition was filed in southeast Turkey nearly six and one half years after the
apprehension. According to the father, gendarmes first detained Abdulvahap and then transferred him to another
detainment facility. Although there was no eyewitness evidence of the apprehension or subsequent
detainment, the applicant presented evidence corroborating his version of events, including a photocopy
of a post-operation report signed by the commander of gendarme operations in Silopi, Turkey. The report
included a description of Abdulvahap's arrest and the result of a subsequent interrogation during detention
where he was accused of being a leader of the PKK in the Silopi region. On this basis, Turkey was held
responsible for Abdulvahaps enforced disappearance.

Following the lead of this Turkish experience - adjusted to the Philippine legal setting and the
Amparo remedy this Court has established, as applied to the unique facts and developments of this case
we believe and so hold that the government in general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together with Col. Kasim, should be held fully accountable
for the enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise known as
the PNP Law,[175] specifies the PNP as the governmental officewith the mandate to investigate and prevent
crimes, effect the arrest of criminal offenders, bring offenders to justice and assist in their prosecution. The
PNP-CIDG, as Col. Jose Volpane Pante (then Chief of CIDG Region 9) testified, is the investigative arm of the
PNP and is mandated to investigate and prosecute all cases involving violations of the Revised Penal Code,
particularly those considered as heinous crimes.[176] Under the PNP organizational structure, the PNP-CIDG is
tasked to investigate all major crimes involving violations of the Revised Penal Code and operates against
organized crime groups, unless the President assigns the case exclusively to the National Bureau of
Investigation (NBI).[177] No indication exists in this case showing that the President ever directly intervened by
assigning the investigation of Tagitis disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who were remiss in
their duties when the government completely failed to exercise the extral'>To fully enforce the Amparo remedy,
we refer this case back to the CA for appropriate proceedings directed at the monitoring of the PNP and the
PNP-CIDG investigations and actions, and the validation of their results through hearings the CA may deem
appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG shall initially present to the
CA a plan of action for further investigation, periodically reporting the detailed results of its investigation to the
CA for its consideration and action.On behalf of this Court, the CA shall pass upon: the need for the PNP and
the PNP-CIDG to make disclosures of matters known to them as indicated in this Decision and as further CA
hearings may indicate; the petitioners submissions; the sufficiency of their investigative efforts; and submit to
this Court a quarterly report containing its actions and recommendations, copy furnished the petitioners and
the respondent, with the first report due at the end of the first quarter counted from the finality of this
Decision. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA
shall submit its full report for the consideration of this Court at the end of the 4th quarter counted from the
finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition for review on certiorari for
lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7, 2008 under the following
terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced

disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility, declaring the
government (through the PNP and the PNP-CIDG) and Colonel Julasirim Ahadin Kasim
accountable for the enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
 d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief, directly
responsible for the disclosure of material facts known to the government and to their offices
regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct of proper
investigations using extraordinary diligence, with the obligation to show investigation results
acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him
accountable with the obligation to disclose information known to him and to his assets in relation
with the enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings directed at the
monitoring of the PNP and PNP-CIDG investigations, actions and the validation of their results;
the PNP and the PNP-CIDG shall initially present to the Court of Appeals a plan of action for
further investigation, periodically reporting their results to the Court of Appeals for consideration
and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners and
the respondent, with the first report due at the end of the first quarter counted from the finality of
this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their investigations;
the Court of Appeals shall submit its full report for the consideration of this Court at the end of
the 4th quarter counted from the finality of this Decision;
These directives and those of the Court of Appeals made pursuant to this Decision shall be given to, and
shall be directly enforceable against, whoever may be the incumbent Chiefs of the Philippine National Police
and its Criminal Investigation and Detection Group, under pain of contempt from this Court when the initiatives
and efforts at disclosure and investigation constitute less than the extraordinary diligence that the Rule on the
Writ of Amparo and the circumstances of this case demand. Given the unique nature of Amparo cases and their
varying attendant circumstances, these directives particularly, the referral back to and monitoring by the CA are
specific to this case and are not standard remedies that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding General,
Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force Comet, Zamboanga City, is
hereby AFFIRMED.

SO ORDERED.
CHINA NATIONAL MACHINERY & G.R. No. 185572
EQUIPMENT CORP. (GROUP),
Petitioner,
Present:

versus CORONA, C.J.,

CARPIO,
VELASCO, JR.,
HON. CESAR D. SANTAMARIA, in his official LEONARDO-DE CASTRO,
capacity as Presiding Judge of Branch 145, BRION,
Regional Trial Court of Makati City, PERALTA,
HERMINIO HARRY L. ROQUE, JR., JOEL R. BERSAMIN,
BUTUYAN, ROGER R. RAYEL, ROMEL R. DEL CASTILLO,
BAGARES, CHRISTOPHER FRANCISCO C. ABAD,
BOLASTIG, LEAGUE OF URBAN POOR FOR VILLARAMA, JR.,
ACTION (LUPA), KILUSAN NG MARALITA PEREZ,
SA MEYCAUAYAN (KMM-LUPA CHAPTER), MENDOZA,
DANILO M. CALDERON, VICENTE C. SERENO,
ALBAN, MERLYN M. VAAL, LOLITA S. REYES, and
QUINONES, RICARDO D. LANOZO, JR., PERLAS-BERNABE, JJ.
CONCHITA G. GOZO, MA. TERESA D.
ZEPEDA, JOSEFINA A. LANOZO, and
SERGIO C. LEGASPI, JR., KALIPUNAN NG Promulgated:
DAMAYANG MAHIHIRAP (KADAMAY), EDY
CLERIGO, RAMMIL DINGAL, NELSON B. February 7, 2012
TERRADO, CARMEN DEUNIDA, and
EDUARDO LEGSON,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
SERENO, J.:

This is a Petition for Review on Certiorari with Prayer for the Issuance of a Temporary Restraining Order
(TRO) and/or Preliminary Injunction assailing the 30 September 2008 Decision and 5 December 2008
Resolution of the Court of Appeals (CA) in CAG.R. SP No. 103351. [1]

On 14 September 2002, petitioner China National Machinery & Equipment Corp. (Group) (CNMEG),
represented by its chairperson, Ren Hongbin, entered into a Memorandum of Understanding with the North
Luzon Railways Corporation (Northrail), represented by its president, Jose L. Cortes, Jr. for the conduct of a
feasibility study on a possible railway line from Manila to San Fernando, La Union (the Northrail Project).[2]

On 30 August 2003, the Export Import Bank of China (EXIM Bank) and the Department of Finance of
the Philippines (DOF) entered into a Memorandum of Understanding (Aug 30 MOU), wherein China agreed to
extend Preferential Buyers Credit to the Philippine government to finance the Northrail Project. [3] The Chinese
government designated EXIM Bank as the lender, while the Philippine government named the DOF as the
borrower.[4] Under the Aug 30 MOU, EXIM Bank agreed to extend an amount not exceeding USD 400,000,000
in favor of the DOF, payable in 20 years, with a 5-year grace period, and at the rate of 3% per annum.[5]

On 1 October 2003, the Chinese Ambassador to the Philippines, Wang Chungui (Amb. Wang), wrote a letter to
DOF Secretary Jose Isidro Camacho (Sec. Camacho) informing him of CNMEGs designation as the Prime
Contractor for the Northrail Project.[6]

On 30 December 2003, Northrail and CNMEG executed a Contract Agreement for the construction of Section I,
Phase I of the North Luzon Railway System from Caloocan to Malolos on a turnkey basis (the Contract
Agreement).[7] The contract price for the Northrail Project was pegged at USD 421,050,000.[8]

On 26 February 2004, the Philippine government and EXIM Bank entered into a counterpart financial
agreement Buyer Credit Loan Agreement No. BLA 04055 (the Loan Agreement). [9] In the Loan Agreement,
EXIM Bank agreed to extend Preferential Buyers Credit in the amount of USD 400,000,000 in favor of the
Philippine government in order to finance the construction of Phase I of the Northrail Project.[10]

On 13 February 2006, respondents filed a Complaint for Annulment of Contract and Injunction with
Urgent Motion for Summary Hearing to Determine the Existence of Facts and Circumstances Justifying the
Issuance of Writs of Preliminary Prohibitory and Mandatory Injunction and/or TRO against CNMEG, the Office
of the Executive Secretary, the DOF, the Department of Budget and Management, the National Economic
Development Authority and Northrail.[11] The case was docketed as Civil Case No. 06-203 before the Regional
Trial Court, National Capital Judicial Region, Makati City, Branch 145 (RTC Br. 145). In the Complaint,
respondents alleged that the Contract Agreement and the Loan Agreement were void for being contrary to (a)
the Constitution; (b) Republic Act No. 9184 (R.A. No. 9184), otherwise known as the Government Procurement
Reform Act; (c) Presidential Decree No. 1445, otherwise known as the Government Auditing Code; and (d)
Executive Order No. 292, otherwise known as the Administrative Code.[12]

RTC Br. 145 issued an Order dated 17 March 2006 setting the case for hearing on the issuance of
injunctive reliefs.[13] On 29 March 2006, CNMEG filed an Urgent Motion for Reconsideration of this Order.
[14]
Before RTC Br. 145 could rule thereon, CNMEG filed a Motion to Dismiss dated 12 April 2006, arguing that
the trial court did not have jurisdiction over (a) its person, as it was an agent of the Chinese government, making
it immune from suit, and (b) the subject matter, as the Northrail Project was a product of an executive
agreement.[15]

On 15 May 2007, RTC Br. 145 issued an Omnibus Order denying CNMEGs Motion to Dismiss and
setting the case for summary hearing to determine whether the injunctive reliefs prayed for should be issued.
[16]
CNMEG then filed a Motion for Reconsideration,[17] which was denied by the trial court in an Order dated 10
March 2008.[18] Thus, CNMEG filed before the CA a Petition for Certiorari with Prayer for the Issuance of TRO
and/or Writ of Preliminary Injunction dated 4 April 2008.[19]

In the assailed Decision dated 30 September 2008, the appellate court dismissed the Petition for
Certiorari.[20] Subsequently, CNMEG filed a Motion for Reconsideration, [21] which was denied by the CA in a
Resolution dated 5 December 2008.[22] Thus, CNMEG filed the instant Petition for Review on Certiorari dated
21 January 2009, raising the following issues: [23]

Whether or not petitioner CNMEG is an agent of the sovereign Peoples Republic

of China.

Whether or not the Northrail contracts are products of an executive agreement between
two sovereign states.

Whether or not the certification from the Department of Foreign Affairs is necessary
under the foregoing circumstances.

Whether or not the act being undertaken by petitioner CNMEG is an act jure imperii.

Whether or not the Court of Appeals failed to avoid a procedural limbo in the lower
court.

Whether or not the Northrail Project is subject to competitive public bidding.

Whether or not the Court of Appeals ignored the ruling of this Honorable Court in
the Neri case.

CNMEG prays for the dismissal of Civil Case No. 06-203 before RTC Br. 145 for lack of jurisdiction. It
likewise requests this Court for the issuance of a TRO and, later on, a writ of preliminary injunction to restrain
public respondent from proceeding with the disposition of Civil Case No. 06-203.

The crux of this case boils down to two main issues, namely:

1. Whether CNMEG is entitled to immunity, precluding it from being sued before a local court.
2. Whether the Contract Agreement is an executive agreement, such that it cannot be questioned by or
before a local court.

First issue: Whether CNMEG is entitled to immunity

This Court explained the doctrine of sovereign immunity in Holy See v. Rosario,[24] to wit:

There are two conflicting concepts of sovereign immunity, each widely held and firmly
established. According to the classical or absolute theory, a sovereign cannot, without its
consent, be made a respondent in the courts of another sovereign. According to the newer or
restrictive theory, the immunity of the sovereign is recognized only with regard to public acts
or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis. (Emphasis supplied; citations omitted.)

xxx xxx xxx

The restrictive theory came about because of the entry of sovereign states into purely
commercial activities remotely connected with the discharge of governmental functions. This is
 particularly true with respect to the Communist states which took control of nationalized
business activities and international trading.

In JUSMAG v. National Labor Relations Commission,[25] this Court affirmed the Philippines adherence to
the restrictive theory as follows:

The doctrine of state immunity from suit has undergone further metamorphosis. The view
evolved that the existence of a contract does not, per se, mean that sovereign states may, at all
times, be sued in local courts. The complexity of relationships between sovereign states, brought
about by their increasing commercial activities, mothered a more restrictive application of the
doctrine.

xxx xxx xxx

As it stands now, the application of the doctrine of immunity from suit has
been restricted to sovereign or governmental activities (jure imperii). The mantle of state
immunity cannot be extended to commercial, private and proprietary acts (jure gestionis).
[26]
(Emphasis supplied.)

Since the Philippines adheres to the restrictive theory, it is crucial to ascertain the legal nature of the act
involved whether the entity claiming immunity performs governmental, as opposed to proprietary, functions. As
held in United States of America v. Ruiz [27]

The restrictive application of State immunity is proper only when the proceedings arise
out of commercial transactions of the foreign sovereign, its commercial activities or economic
affairs. Stated differently, a State may be said to have descended to the level of an individual and
can thus be deemed to have tacitly given its consent to be sued only when it enters into business
contracts. It does not apply where the contract relates to the exercise of its sovereign functions.[28]

A. CNMEG is engaged in a proprietary activity.

A threshold question that must be answered is whether CNMEG performs governmental or proprietary
functions. A thorough examination of the basic facts of the case would show that CNMEG is engaged in a
proprietary activity.

The parties executed the Contract Agreement for the purpose of constructing the Luzon Railways, viz:[29]

WHEREAS the Employer (Northrail) desired to construct the railways form Caloocan to
Malolos, section I, Phase I of Philippine North Luzon Railways Project (hereinafter referred to as
THE PROJECT);

AND WHEREAS the Contractor has offered to provide the Project on Turnkey basis,
including design, manufacturing, supply, construction, commissioning, and training of the
Employers personnel;
 AND WHEREAS the Loan Agreement of the Preferential Buyers Credit between Export-
Import Bank of China and Department of Finance of Republic of the Philippines;

NOW, THEREFORE, the parties agree to sign this Contract for the Implementation of the
Project.

The above-cited portion of the Contract Agreement, however, does not on its own reveal whether the
construction of the Luzon railways was meant to be a proprietary endeavor. In order to fully understand the
intention behind and the purpose of the entire undertaking, the Contract Agreement must not be read in
isolation. Instead, it must be construed in conjunction with three other documents executed in relation to the
Northrail Project, namely: (a) the Memorandum of Understanding dated 14 September 2002 between Northrail
and CNMEG;[30] (b) the letter of Amb. Wang dated 1 October 2003 addressed to Sec. Camacho; [31] and (c) the
Loan Agreement.[32]

1. Memorandum of Understanding dated 14 September 2002

The Memorandum of Understanding dated 14 September 2002 shows that CNMEG sought the
construction of the Luzon Railways as a proprietary venture. The relevant parts thereof read:

WHEREAS, CNMEG has the financial capability, professional competence and

technical expertise to assess the state of the [Main Line North (MLN)] and recommend
implementation plans as well as undertake its rehabilitation and/or modernization;

WHEREAS, CNMEG has expressed interest in the rehabilitation and/or

modernization of the MLN from Metro Manila to San Fernando, La Union passing through
the provinces of Bulacan, Pampanga, Tarlac, Pangasinan and La Union (the Project);

WHEREAS, the NORTHRAIL CORP. welcomes CNMEGs proposal to undertake a

Feasibility Study (the Study) at no cost to NORTHRAIL CORP.;

WHEREAS, the NORTHRAIL CORP. also welcomes CNMEGs interest in

undertaking the Project with Suppliers Credit and intends to employ CNMEG as the
Contractor for the Project subject to compliance with Philippine and Chinese laws, rules
and regulations for the selection of a contractor;

WHEREAS, the NORTHRAIL CORP. considers CNMEGs proposal advantageous to

the Government of the Republic of the Philippines and has therefore agreed to assist CNMEG
in the conduct of the aforesaid Study;

xxx xxx xxx

II. APPROVAL PROCESS

2.1 As soon as possible after completion and presentation of the Study in accordance
with Paragraphs 1.3 and 1.4 above and in compliance with necessary governmental
laws, rules, regulations and procedures required from both parties, the parties shall
commence the preparation and negotiation of the terms and conditions of the Contract
 (the Contract) to be entered into between them on the implementation of the
Project. The parties shall use their best endeavors to formulate and finalize a
Contract with a view to signing the Contract within one hundred twenty (120)
days from CNMEGs presentation of the Study.[33] (Emphasis supplied)

Clearly, it was CNMEG that initiated the undertaking, and not the Chinese government. The Feasibility
Study was conducted not because of any diplomatic gratuity from or exercise of sovereign functions by the
Chinese government, but was plainly a business strategy employed by CNMEG with a view to securing this
commercial enterprise.

2. Letter dated 1 October 2003

That CNMEG, and not the Chinese government, initiated the Northrail Project was confirmed by Amb.
Wang in his letter dated 1 October 2003, thus:

1. CNMEG has the proven competence and capability to undertake the

Project as evidenced by the ranking of 42 given by the ENR among 225 global construction
companies.

2. CNMEG already signed an MOU with the North Luzon Railways

Corporation last September 14, 2000 during the visit of Chairman Li Peng. Such being the
case, they have already established an initial working relationship with your North Luzon
Railways Corporation. This would categorize CNMEG as the state corporation within the
Peoples Republic of China which initiated our Governments involvement in the Project.

3. Among the various state corporations of the Peoples Republic of China,

only CNMEG has the advantage of being fully familiar with the current requirements of the
Northrail Project having already accomplished a Feasibility Study which was used as inputs
by the North Luzon Railways Corporation in the approvals (sic) process required by the
Republic of thePhilippines.[34] (Emphasis supplied.)

Thus, the desire of CNMEG to secure the Northrail Project was in the ordinary or regular course of its
business as a global construction company. The implementation of the Northrail Project was intended to generate
profit for CNMEG, with the Contract Agreement placing a contract price of USD 421,050,000 for the venture.
[35]
The use of the term state corporation to refer to CNMEG was only descriptive of its nature as a government-
owned and/or -controlled corporation, and its assignment as the Primary Contractor did not imply that it was
acting on behalf of China in the performance of the latters sovereign functions. To imply otherwise would result
in an absurd situation, in which all Chinese corporations owned by the state would be automatically considered
as performing governmental activities, even if they are clearly engaged in commercial or proprietary pursuits.

3. The Loan Agreement

CNMEG claims immunity on the ground that the Aug 30 MOU on the financing of the Northrail Project
was signed by the Philippine and Chinese governments, and its assignment as the Primary Contractor meant that it
was bound to perform a governmental function on behalf of China. However, the Loan Agreement, which
originated from the same Aug 30 MOU, belies this reasoning, viz:

Article 11. xxx (j) Commercial Activity The execution and delivery of this Agreement by
the Borrower constitute, and the Borrowers performance of and compliance with its obligations
under this Agreement will constitute, private and commercial acts done and performed for
commercial purposes under the laws of the Republic of the Philippines and neither the
Borrower nor any of its assets is entitled to any immunity or privilege (sovereign or
otherwise) from suit, execution or any other legal process with respect to its obligations under
this Agreement, as the case may be, in any jurisdiction. Notwithstanding the foregoing, the
Borrower does not waive any immunity with respect of its assets which are (i) used by a diplomatic
or consular mission of the Borrower and (ii) assets of a military character and under control of a
military authority or defense agency and (iii) located in the Philippines and dedicated to public or
governmental use (as distinguished from patrimonial assets or assets dedicated to commercial use).
(Emphasis supplied.)

(k) Proceedings to Enforce Agreement In any proceeding in the Republic of

the Philippines to enforce this Agreement, the choice of the laws of the Peoples Republic
of China as the governing law hereof will be recognized and such law will be applied. The waiver
of immunity by the Borrower, the irrevocable submissions of the Borrower to the non-exclusive
jurisdiction of the courts of the Peoples Republic of China and the appointment of the Borrowers
Chinese Process Agent is legal, valid, binding and enforceable and any judgment obtained in the
Peoples Republic of China will be if introduced, evidence for enforcement in any proceedings
against the Borrower and its assets in the Republic of the Philippines provided that (a) the court
rendering judgment had jurisdiction over the subject matter of the action in accordance with its
jurisdictional rules, (b) the Republic had notice of the proceedings, (c) the judgment of the court
was not obtained through collusion or fraud, and (d) such judgment was not based on a clear
mistake of fact or law.[36]

Further, the Loan Agreement likewise contains this express waiver of immunity:

15.5 Waiver of Immunity The Borrower irrevocably and unconditionally waives, any
immunity to which it or its property may at any time be or become entitled, whether characterized
as sovereign immunity or otherwise, from any suit, judgment, service of process upon it or any
agent, execution on judgment, set-off, attachment prior to judgment, attachment in aid of execution
to which it or its assets may be entitled in any legal action or proceedings with respect to this
Agreement or any of the transactions contemplated hereby or hereunder. Notwithstanding the
foregoing, the Borrower does not waive any immunity in respect of its assets which are (i) used by
a diplomatic or consular mission of the Borrower, (ii) assets of a military character and under
control of a military authority or defense agency and (iii) located in the Philippines and dedicated
to a public or governmental use (as distinguished from patrimonial assets or assets dedicated to
commercial use).[37]

Thus, despite petitioners claim that the EXIM Bank extended financial assistance to Northrail because the
bank was mandated by the Chinese government, and not because of any motivation to do business in the
Philippines,[38] it is clear from the foregoing provisions that the Northrail Project was a purely commercial
transaction.

Admittedly, the Loan Agreement was entered into between EXIM Bank and the Philippine government,
while the Contract Agreement was between Northrail and CNMEG. Although the Contract Agreement is silent on
the classification of the legal nature of the transaction, the foregoing provisions of the Loan Agreement, which is
an inextricable part of the entire undertaking, nonetheless reveal the intention of the parties to the Northrail Project
to classify the whole venture as commercial or proprietary in character.

Thus, piecing together the content and tenor of the Contract Agreement, the Memorandum of
Understanding dated 14 September 2002, Amb. Wangs letter dated 1 October 2003, and the Loan Agreement
would reveal the desire of CNMEG to construct the Luzon Railways in pursuit of a purely commercial activity
performed in the ordinary course of its business.

B. CNMEG failed to adduce evidence that it is immune

from suit under Chinese law.

Even assuming arguendo that CNMEG performs governmental functions, such claim does not
automatically vest it with immunity. This view finds support in Malong v. Philippine National Railways, in which
this Court held that (i)mmunity from suit is determined by the character of the objects for which the entity was
organized.[39]

In this regard, this Courts ruling in Deutsche Gesellschaft Fr Technische Zusammenarbeit (GTZ) v.
[40]
CA must be examined. In Deutsche Gesellschaft, Germany and thePhilippines entered into a Technical
Cooperation Agreement, pursuant to which both signed an arrangement promoting the Social Health
InsuranceNetworking and Empowerment (SHINE) project. The two governments named their respective
implementing organizations: the Department of Health (DOH) and the Philippine Health Insurance Corporation
(PHIC) for the Philippines, and GTZ for the implementation of Germanys contributions. In ruling that GTZ was
not immune from suit, this Court held:

The arguments raised by GTZ and the [Office of the Solicitor General (OSG)] are rooted
in several indisputable facts. The SHINE project was implemented pursuant to the bilateral
agreements between the Philippine and German governments. GTZ was tasked, under the
1991 agreement, with the implementation of the contributions of the German government.
The activities performed by GTZ pertaining to the SHINE project are governmental in nature,
related as they are to the promotion of health insurance in the Philippines. The fact that GTZ
entered into employment contracts with the private respondents did not disqualify it from
invoking immunity from suit, as held in cases such as Holy See v. Rosario, Jr., which set forth
what remains valid doctrine:

Certainly, the mere entering into a contract by a foreign state with a

private party cannot be the ultimate test. Such an act can only be the start of the
inquiry. The logical question is whether the foreign state is engaged in the activity
in the regular course of business. If the foreign state is not engaged regularly in a
business or trade, the particular act or transaction must then be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it
is an act jure imperii, especially when it is not undertaken for gain or profit.

Beyond dispute is the tenability of the comment points (sic) raised by GTZ and the OSG
that GTZ was not performing proprietary functions notwithstanding its entry into the particular
employment contracts. Yet there is an equally fundamental premise which GTZ and the OSG fail
to address, namely: Is GTZ, by conception, able to enjoy the Federal Republics immunity from
suit?

The principle of state immunity from suit, whether a local state or a foreign state, is
reflected in Section 9, Article XVI of the Constitution, which states that the State may not be
sued without its consent. Who or what consists of the State? For one, the doctrine is available to
foreign States insofar as they are sought to be sued in the courts of the local State, necessary as it
is to avoid unduly vexing the peace of nations.

If the instant suit had been brought directly against the Federal Republic of Germany,
there would be no doubt that it is a suit brought against a State, and the only necessary inquiry is
whether said State had consented to be sued. However, the present suit was brought against GTZ.
It is necessary for us to understand what precisely are the parameters of the legal personality of
GTZ.

Counsel for GTZ characterizes GTZ as the implementing agency of the Government
of the Federal Republic of Germany, a depiction similarly adopted by the OSG. Assuming that
the characterization is correct, it does not automatically invest GTZ with the ability to invoke
State immunity from suit. The distinction lies in whether the agency is incorporated or
unincorporated.

xxx xxx xxx

State immunity from suit may be waived by general or special law. The special law can
take the form of the original charter of the incorporated government agency. Jurisprudence is
replete with examples of incorporated government agencies which were ruled not entitled to
invoke immunity from suit, owing to provisions in their charters manifesting their consent to be
sued.

xxx xxx xxx

It is useful to note that on the part of the Philippine government, it had designated two
entities, the Department of Health and the Philippine Health Insurance Corporation (PHIC), as the
implementing agencies in behalf of the Philippines. The PHIC was established under Republic Act
No. 7875, Section 16 (g) of which grants the corporation the power to sue and be sued in court.
Applying the previously cited jurisprudence, PHIC would not enjoy immunity from suit even in the
performance of its functions connected with SHINE, however, (sic) governmental in nature as (sic)
they may be.

Is GTZ an incorporated agency of the German government? There is some mystery

surrounding that question. Neither GTZ nor the OSG go beyond the claim that petitioner
is the implementing agency of the Government of the Federal Republic of Germany. On
the other hand, private respondents asserted before the Labor Arbiter that GTZ was a private
corporation engaged in the implementation of development projects. The Labor Arbiter
accepted that claim in his Order denying the Motion to Dismiss, though he was silent on that
point in his Decision. Nevertheless, private respondents argue in their Comment that the finding
that GTZ was a private corporation was never controverted, and is therefore deemed
admitted. In its Reply, GTZ controverts that finding, saying that it is a matter of public
knowledge that the status of petitioner GTZ is that of the implementing agency, and not that of a
private corporation.
 In truth, private respondents were unable to adduce any evidence to substantiate their
claim that GTZ was a private corporation, and the Labor Arbiter acted rashly in accepting such
claim without explanation. But neither has GTZ supplied any evidence defining its legal
nature beyond that of the bare descriptive implementing agency. There is no doubt that the
1991 Agreement designated GTZ as the implementing agency in behalf of the German
government. Yet the catch is that such term has no precise definition that is responsive to
our concerns. Inherently, an agent acts in behalf of a principal, and the GTZ can be said to
act in behalf of the German state. But that is as far as implementing agency could take us.
The term by itself does not supply whether GTZ is incorporated or unincorporated, whether
it is owned by the German state or by private interests, whether it has juridical personality
independent of the German government or none at all.

xxx xxx xxx

Again, we are uncertain of the corresponding legal implications under German law
surrounding a private company owned by the Federal Republic of Germany. Yet taking the
description on face value, the apparent equivalent under Philippine law is that of a
corporation organized under the Corporation Code but owned by the Philippine
government, or a government-owned or controlled corporation without original charter.
And it bears notice that Section 36 of the Corporate Code states that [e]very corporation
incorporated under this Code has the power and capacity x x x to sue and be sued in its
corporate name.

It is entirely possible that under German law, an entity such as GTZ or particularly GTZ
itself has not been vested or has been specifically deprived the power and capacity to sue and/or
be sued. Yet in the proceedings below and before this Court, GTZ has failed to establish that
under German law, it has not consented to be sued despite it being owned by the Federal
Republic of Germany. We adhere to the rule that in the absence of evidence to the contrary,
foreign laws on a particular subject are presumed to be the same as those of the
Philippines, and following the most intelligent assumption we can gather, GTZ is akin to a
governmental owned or controlled corporation without original charter which, by virtue of
the Corporation Code, has expressly consented to be sued. At the very least, like the Labor
Arbiter and the Court of Appeals, this Court has no basis in fact to conclude or presume that GTZ
enjoys immunity from suit.[41] (Emphasis supplied.)

Applying the foregoing ruling to the case at bar, it is readily apparent that CNMEG cannot claim immunity
from suit, even if it contends that it performs governmental functions. Its designation as the Primary Contractor
does not automatically grant it immunity, just as the term implementing agency has no precise definition for
purposes of ascertaining whether GTZ was immune from suit. Although CNMEG claims to be a government-
owned corporation, it failed to adduce evidence that it has not consented to be sued under Chinese law. Thus,
following this Courts ruling in Deutsche Gesellschaft, in the absence of evidence to the contrary, CNMEG is to be
presumed to be a government-owned and -controlled corporation without an original charter. As a result, it has the
capacity to sue and be sued under Section 36 of the Corporation Code.
C. CNMEG failed to present a certification from the
Department of Foreign Affairs.

In Holy See,[42] this Court reiterated the oft-cited doctrine that the determination by the Executive that an
entity is entitled to sovereign or diplomatic immunity is a political question conclusive upon the courts, to wit:

In Public International Law, when a state or international agency wishes to plead sovereign
or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is
sued to convey to the court that said defendant is entitled to immunity.

xxx xxx xxx

In the Philippines, the practice is for the foreign government or the international
organization to first secure an executive endorsement of its claim of sovereign or diplomatic
immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies.
In International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990), the Secretary
of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing
the latter that the respondent-employer could not be sued because it enjoyed diplomatic
immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of
Foreign Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974),
the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to
make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales,
a suggestion to respondent Judge. The Solicitor General embodied the suggestion in a
Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal
Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court
allowed the said Department to file its memorandum in support of petitioners claim of sovereign
immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local
courts by the respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50
[1945]; Miquiabas v. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of
America v. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign
states bypass the Foreign Office, the courts can inquire into the facts and make their own
determination as to the nature of the acts and transactions involved.[43] (Emphasis supplied.)

The question now is whether any agency of the Executive Branch can make a determination of immunity from
suit, which may be considered as conclusive upon the courts. This Court, in Department of Foreign Affairs (DFA) v.
National Labor Relations Commission (NLRC),[44] emphasized the DFAs competence and authority to provide such
necessary determination, to wit:

The DFAs function includes, among its other mandates, the determination of
persons and institutions covered by diplomatic immunities, a determination which, when
challenge, (sic) entitles it to seek relief from the court so as not to seriously impair the
conduct of the country's foreign relations. The DFA must be allowed to plead its case
whenever necessary or advisable to enable it to help keep the credibility of the Philippine
government before the international community. When international agreements are
concluded, the parties thereto are deemed to have likewise accepted the responsibility of
 seeing to it that their agreements are duly regarded. In our country, this task falls
principally of (sic) the DFA as being the highest executive department with the competence
and authority to so act in this aspect of the international arena.[45] (Emphasis supplied.)

Further, the fact that this authority is exclusive to the DFA was also emphasized in this Courts ruling
in Deutsche Gesellschaft:

It is to be recalled that the Labor Arbiter, in both of his rulings, noted that it was
imperative for petitioners to secure from the Department of Foreign Affairs a certification of
respondents diplomatic status and entitlement to diplomatic privileges including immunity from
suits. The requirement might not necessarily be imperative. However, had GTZ obtained such
certification from the DFA, it would have provided factual basis for its claim of immunity
that would, at the very least, establish a disputable evidentiary presumption that the foreign
party is indeed immune which the opposing party will have to overcome with its own factual
evidence. We do not see why GTZ could not have secured such certification or endorsement
from the DFA for purposes of this case. Certainly, it would have been highly prudential for GTZ
to obtain the same after the Labor Arbiter had denied the motion to dismiss. Still, even at this
juncture,we do not see any evidence that the DFA, the office of the executive branch in
charge of our diplomatic relations, has indeed endorsed GTZs claim of immunity. It may be
possible that GTZ tried, but failed to secure such certification, due to the same concerns that we
have discussed herein.

Would the fact that the Solicitor General has endorsed GTZs claim of States
immunity from suit before this Court sufficiently substitute for the DFA certification?
Note that the rule in public international law quoted in Holy See referred to endorsement
by the Foreign Office of the State where the suit is filed, such foreign office in the
Philippines being the Department of Foreign Affairs. Nowhere in the Comment of the
OSG is it manifested that the DFA has endorsed GTZs claim, or that the OSG had
solicited the DFAs views on the issue. The arguments raised by the OSG are virtually the same
as the arguments raised by GTZ without any indication of any special and distinct perspective
maintained by the Philippine government on the issue. The Comment filed by the OSG does
not inspire the same degree of confidence as a certification from the DFA would have
elicited.[46] (Emphasis supplied.)

In the case at bar, CNMEG offers the Certification executed by the Economic and Commercial Office of
the Embassy of the Peoples Republic of China, stating that the Northrail Project is in pursuit of a sovereign
activity.[47] Surely, this is not the kind of certification that can establish CNMEGs entitlement to immunity from
suit, as Holy Seeunequivocally refers to the determination of the Foreign Office of the state where it is sued.

Further, CNMEG also claims that its immunity from suit has the executive endorsement of both the OSG
and the Office of the Government Corporate Counsel (OGCC), which must be respected by the courts. However,
as expressly enunciated in Deutsche Gesellschaft, this determination by the OSG, or by the OGCC for that matter,
does not inspire the same degree of confidence as a DFA certification. Even with a DFA certification, however, it
must be remembered that this Court is not precluded from making an inquiry into the intrinsic correctness of such
certification.

D. An agreement to submit any dispute to arbitration

may be construed as an implicit waiver of immunity from suit.
 In the United States, the Foreign Sovereign Immunities Act of 1976 provides for a waiver by implication
of state immunity. In the said law, the agreement to submit disputes to arbitration in a foreign country is construed
as an implicit waiver of immunity from suit. Although there is no similar law in the Philippines, there is reason to
apply the legal reasoning behind the waiver in this case.

The Conditions of Contract,[48] which is an integral part of the Contract Agreement,[49] states:

33. SETTLEMENT OF DISPUTES AND ARBITRATION

33.1. Amicable Settlement

Both parties shall attempt to amicably settle all disputes or controversies arising from this
Contract before the commencement of arbitration.

33.2. Arbitration

All disputes or controversies arising from this Contract which cannot be settled between the
Employer and the Contractor shall be submitted to arbitration in accordance with the UNCITRAL
Arbitration Rules at present in force and as may be amended by the rest of this Clause. The
appointing authority shall be Hong Kong International Arbitration Center. The place of arbitration
shall be in Hong Kong at Hong Kong International Arbitration Center (HKIAC).

Under the above provisions, if any dispute arises between Northrail and CNMEG, both parties are bound
to submit the matter to the HKIAC for arbitration. In case the HKIAC makes an arbitral award in favor of
Northrail, its enforcement in the Philippines would be subject to the Special Rules on Alternative Dispute
Resolution (Special Rules). Rule 13 thereof provides for the Recognition and Enforcement of a Foreign Arbitral
Award. Under Rules 13.2 and 13.3 of the Special Rules, the party to arbitration wishing to have an arbitral award
recognized and enforced in the Philippines must petition the proper regional trial court (a) where the assets to be
attached or levied upon is located; (b) where the acts to be enjoined are being performed; (c) in the principal place
of business in the Philippines of any of the parties; (d) if any of the parties is an individual, where any of those
individuals resides; or (e) in the National Capital Judicial Region.

From all the foregoing, it is clear that CNMEG has agreed that it will not be afforded immunity from suit.
Thus, the courts have the competence and jurisdiction to ascertain the validity of the Contract Agreement.

Second issue: Whether the Contract Agreement is an executive

agreement

Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as
follows:

[A]n international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation.
 In Bayan Muna v. Romulo, this Court held that an executive agreement is similar to a treaty, except that the
former (a) does not require legislative concurrence; (b) is usually less formal; and (c) deals with a narrower range
of subject matters.[50]

Despite these differences, to be considered an executive agreement, the following three requisites provided
under the Vienna Convention must nevertheless concur: (a) the agreement must be between states; (b) it must be
written; and (c) it must governed by international law. The first and the third requisites do not obtain in the case at
bar.

A. CNMEG is neither a government nor a government

agency.

The Contract Agreement was not concluded between the Philippines and China, but between Northrail and
CNMEG.[51] By the terms of the Contract Agreement, Northrail is a government-owned or -controlled corporation,
while CNMEG is a corporation duly organized and created under the laws of the Peoples Republic of China.
[52]
Thus, both Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct
and separate from the Philippine and Chinese governments, respectively.

Neither can it be said that CNMEG acted as agent of the Chinese government. As previously discussed, the
fact that Amb. Wang, in his letter dated 1 October 2003,[53]described CNMEG as a state corporation and declared
its designation as the Primary Contractor in the Northrail Project did not mean it was to perform sovereign
functions on behalf of China. That label was only descriptive of its nature as a state-owned corporation, and did
not preclude it from engaging in purely commercial or proprietary ventures.

B. The Contract Agreement is to be governed by

Philippine law.

Article 2 of the Conditions of Contract,[54] which under Article 1.1 of the Contract Agreement is an integral
part of the latter, states:

APPLICABLE LAW AND GOVERNING LANGUAGE

The contract shall in all respects be read and construed in accordance with the laws of
the Philippines.

The contract shall be written in English language. All correspondence and other documents
pertaining to the Contract which are exchanged by the parties shall be written in English language.

Since the Contract Agreement explicitly provides that Philippine law shall be applicable, the parties have
effectively conceded that their rights and obligations thereunder are not governed by international law.
 It is therefore clear from the foregoing reasons that the Contract Agreement does not partake of the nature
of an executive agreement. It is merely an ordinary commercial contract that can be questioned before the local
courts.

WHEREFORE, the instant Petition is DENIED. Petitioner China National Machinery & Equipment
Corp. (Group) is not entitled to immunity from suit, and the Contract Agreement is not an executive
agreement. CNMEGs prayer for the issuance of a TRO and/or Writ of Preliminary Injunction is DENIED for
being moot and academic. This case isREMANDED to the Regional Trial Court of Makati, Branch 145, for
further proceedings as regards the validity of the contracts subject of Civil Case No. 06-203.

No pronouncement on costs of suit.

SO ORDERED.