158-A Phil.

FIRST DIVISION

G.R. No. L-35546, September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON
MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, PETITIONERS, VS. HON. JUAN PONCE
ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED
FORCES OF THE PHILIPPINES AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY,
RESPONDENTS.

[NO. L-35538. SEPTEMBER 17, 1974]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M.
LOCSIN, SR., ROLANDO FADUL, ROSALIND GALANG, GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO
CONSTANTINO, AND LUIS R. MAURICIO, PETITIONERS, VS. THE SECRETARY OF NATIONAL
DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; THE CHIEF, PHILIPPINE
CONSTABULARY, ET AL., RESPONDENTS.

[NO. L-35539. SEPTEMBER 17, 1974]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I.
DIOKNO, PETITIONER, VS. JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE;
ROMEO ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, RESPONDENTS.

[NO. L-35540. SEPTEMBER 17, 1974]

MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ, PETITIONERS, VS. HON. JUAN
PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO TATAD, PRESS
SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, RESPONDENTS.

[NO. L-35547. SEPTEMBER 17, 1974]

ENRIQUE VOLTAIRE GARCIA II, PETITIONER, VS. BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE
CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES;
AND HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE, RESPONDENTS.

[NO. L-35556. SEPTEMBER 17, 1974]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN
CHIN HIAN, PETITIONERS, VS. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT.
GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN.
FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY, RESPONDENTS.

[NO. L-35567. SEPTEMBER 17, 1974]

1
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO DORONILA, JUAN L.
MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN HIAN, BREN
GUIAO, RUBEN CUSIPAG, ROBERTO ORDOÑEZ, MANUEL ALMARIO AND WILLIE BAUN,
PETITIONERS, VS. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN.
ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V.
RAMOS, CHIEF, PHILIPPINE CONSTABULARY, RESPONDENTS.

[NO. L-35571. SEPTEMBER 17, 1974]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M. GUIAO,
PETITIONER, VS. JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN.
ROMEO ESPINO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN.
FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE. CONSTABULARY, RESPONDENTS.

[NO. L-35573. SEPTEMBER 17, 1974]

ERNESTO RONDON, PETITIONER, VS. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL
DEFENSE; GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY; AND MAJOR RODULFO
MIANA, RESPONDENTS.

DECISION

MAKALINTAL, C.J.:

These cases are all petitions for habeas corpus, the petitioners having been arrested and detained by the military by virtue
of the President's Proclamation No. 1081, dated September 21, 1972.

At the outset a word of clarification is in order. This is not the decision of the Court in the sense that a decision
represents a consensus of the required majority of its members not only on the judgment itself but also on the
rationalization of the issues and the conclusions arrived at. On the final result the vote is practically unanimous; this is a
statement of my individual opinion as well as a summary of the voting on the major issues. Why no particular Justice has
been designated to write just one opinion for the entire Court will presently be explained.

At one point during our deliberations on these cases it was suggested that as Chief Justice I should write that opinion. The
impracticability of the suggestion shortly became apparent for a number of reasons, only two of which need be
mentioned. First, the discussions, as they began to touch on particular issues, revealed a lack of agreement among the
Justices as to whether some of those issues should be taken up although it was not necessary to do so, they being merely
convenient for the purpose of ventilating vexing questions of public interest, or whether the decision should be limited to
those issues which are really material and decisive in these cases. Similarly, there was no agreement as to the manner the
issues should be treated and developed. The same destination would be reached, so to speak, but through different routes
and by means of different vehicles of approach. The writing of separate opinions by individual Justices was thus
unavoidable, and understandably so for still another reason, namely, that although little overt reference to it was made at
the time, the future verdict of history was very much a factor in the thinking of the members, no other case of such
transcendental significance to the life of the nation having before confronted this Court. Second — and this to me was the
insuperable obstacle — I was and am of the opinion, which was shared by six other Justices[1] at the time the question was
voted upon, that petitioner Jose W. Diokno's motion of December 28, 1973 to withdraw his petition. (G.R. No. L-35539)
should be granted, and therefore I was in no position to set down the ruling of the Court on each of the arguments raised
by him, except indirectly, insofar as they had been raised likewise in the other cases.

2
It should be explained at this point that when the Court voted on Diokno's motion to withdraw his petition he was still
under detention without charges, and continued to remain so up to the time the separate opinions of the individual Justices
were put in final form preparatory to their promulgation on September 12, which was the last day of Justice Zaldivar's
tenure in the Court.[2] Before they could be promulgated, however, a major development supervened: petitioner Diokno
was released by the President in the morning of September 11, 1974. In view thereof all the members of this Court except
Justice Castro agreed to dismiss Diokno's petition on the ground that it had become moot, with those who originally voted
to grant the motion for withdrawal citing said motion as an additional ground for such dismissal.

The petitioners in the other cases, except Benigno Aquino, Jr. (G.R. No. L-35546), either have been permitted to withdraw
their petitions or have been released from detention subject to certain restrictions.[3] In the case of Aquino, formal charges
of murder, subversion and illegal possession of firearms were lodged against him with a Military Commission on August
11, 1973; and on the following August 23 he challenged the jurisdiction of said Commission as well as his continued
detention by virtue of those charges in a petition for certiorari and prohibition filed in this Court (G.R. No. L-37364).
The question came up as to whether or not Aquino's petition for habeas corpus should be dismissed on the ground that the
case as to him should more appropriately be resolved in this new petition. Of the twelve Justices, however, eight voted
against such dismissal and chose to consider the case on the merits.[4]

On Diokno's motion to withdraw his petition I voted in favor of granting it for two reasons. In the first place such
withdrawal would not emasculate the decisive and fundamental issues of public interest that demanded to be resolved, for
they were also raised in the other cases which still remained pending. Secondly, since it was this petitioner's personal
liberty that was at stake, I believed he had the right to renounce the application for habeas corpus he initiated. Even if that
right were not absolute I still would respect his choice to remove the case from this Court's cognizance, regardless of the
fact that I disagreed with many of his reasons for so doing. I could not escape a sense of irony in this Court's turning
down the plea to withdraw on the ground, so he alleges among others, that this is no longer the Court to which he
originally applied for relief because its members have taken new oaths of office under the 1973 Constitution and then
ruling adversely to him on the merits of his petition.

It is true that some of the statements in the motion are an affront to the dignity of this Court and therefore should not be
allowed to pass unanswered. Any answer, however, would not be foreclosed by allowing the withdrawal. For my part,
since most of those statement s are of a subjective character, being matters of personal belief and opinion, I see no point in
refuting them in these cases. Indeed my impression is that they were beamed less to this Court than to the world outside
and designed to make political capital of his personal situation, as the publicity given to them by some segments of the
foreign press and by local underground propaganda newssheets subsequently confirmed. It was in fact from that
perspective that I deemed it proper to respond in kind, that is, from a non-judicial forum, in an address I delivered on
February 19, 1974 before the LAWASIA, the Philippine Bar Association and the Philippine Lawyers' Association.

Justice Teehankee, it may be stated, is of the opinion that a simple majority of seven votes out of twelve is legally
sufficient to make the withdrawal of Diokno's petition effective, on the theory that the requirement of a majority of eight
votes applies only to a decision on the merits.

In any event, as it turned out, after petitioner Diokno was released by the President on September 11 all the members of
this Court except Justice Castro were agreed that his petition had become moot and therefore should no longer be
considered on the merits. This notwithstanding, some of the opinions of the individual members, particularly Justices
Castro and Teehankee, should be taken in the time setting in which they were prepared, that is, before the order for the
release of Diokno was issued.

The Cases.

3
The events which form the background of these nine petitions are related, either briefly or in great detail, in the separate
opinions filed by the individual Justices. The petitioners were arrested and held pursuant to General Order No. 2 of the
President (September 22, 1972), "for being participants or for having given aid and comfort in the conspiracy to seize
political and state power in the country and to take over the Government by force . . ."

General Order No. 2 was issued by the President in the exercise of the powers he assumed by virtue of Proclamation No.
1081 (September 21, 1972) placing the entire country under martial law. The portions of the proclamation immediately
in point read as follows:

“* * * *** ***

"NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon
me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in
Article I, Section 1 of the Constitution under martial law and, in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress
all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and
decrees, orders and regulations promulgated by me personally or upon my direction.

"In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly
detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the
occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of
nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names,
uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that
I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation
promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered
released by me or by my duly designated representative."

The provision of the 1935 Constitution referred to in the proclamation reads: "the President shall be commander-in-chief
of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under martial law."

1. The first major issue raised by the parties is whether this Court may inquire into the validity of Proclamation No. 1081.
Stated more concretely, is the existence of conditions claimed to justify the exercise of the power to declare martial law
subject to judicial inquiry? Is the question political or justiciable in character?

Justices Makasiar, Antonio, Esguerra, Fernandez, and Aquino hold that the question is political and therefore its
determination is beyond the jurisdiction of this Court. The reasons are given at length in the separate opinions they have
respectively signed. Justice Fernandez adds that as a member of the Convention that drafted the 1973 Constitution he
believes that "the Convention put an imprimatur on the proposition that the validity of a martial law proclamation and its
continuation is political and non-justiciable in character."

Justice Barredo, on the other hand, believes that political questions are not per se beyond the Court's jurisdiction, the
judicial power vested in it by the Constitution being plenary and all-embracing, but that as a matter of policy implicit in
the Constitution itself the Court should abstain from interfering with the Executive's Proclamation, dealing as it does with
national security, for which the responsibility is vested by the charter in him alone. But the Court should act, Justice
Barredo opines, when its abstention from acting would result in manifest and palpable transgression of the Constitution
proven by facts of judicial notice, no reception of evidence being contemplated for purposes of such judicial action.

4
It may be noted that the postulate of non-justiciability as discussed in those opinions involves disparate methods of
approach. Justice Esguerra maintains that the findings of the President on the existence of the grounds for the declaration
of martial law are final and conclusive upon the Court. He disagrees vehemently with the ruling in Lansang vs. Garcia, 42
SCRA 448, December 11, 1971, and advocates a return to Barcelon vs. Baker, 5 Phil. 87 (1905), and Montenegro vs.
Castañeda, 91 Phil. 882 (1952). Justice Barredo, for his part, holds that Lansang need not be overturned, indeed does not
control in these cases. He draws a distinction between the power of the President to suspend the privilege of the writ of
habeas corpus, which was the issue in Lansang, and his power to proclaim martial law, calling attention to the fact that
while the Bill of Rights prohibits suspension of the privilege except in the instances specified therein, it places no such
prohibition or qualification with respect to the declaration of martial law.

Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there is no dispute as to the
existence of a state of rebellion in the country, and on that premise emphasizes the factor of necessity for the exercise by
the President of his power under the Constitution to declare martial law, holding that the decision as to whether or not
there is such necesssity is wholly confided to him and therefore is not subject to judicial inquiry, his responsibility being
directly to the people.

Arrayed on the side of justiciability are Justices Castro, Fernando, Teehankee and Muñoz Palma. They hold that the
constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus apply the principle laid
down in Lansang although that case refers to the power of the President to suspend the privilege of the writ of habeas
corpus. The recognition of justiciability accorded to the question in Lansang, it should be emphasized, is there expressly
distinguished from the power of judicial review in ordinary civil or criminal cases, and is limited to ascertaining "merely
whether he (the President) has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act." The test is not whether the President's decision is correct but whether, in
suspending the writ, he did or did not act arbitrarily. Applying this test, the finding by the Justices just mentioned is that
there was no arbitrariness in the President's proclamation of martial law pursuant to the 1935 Constitution; and I concur
with them in that finding. The factual bases for the suspension of the privilege of the writ of habeas corpus, particularly in
regard to the existence of a state of rebellion in the country, had not disappeared, indeed had been exacerbated, as events
shortly before said proclamation clearly demonstrated. On this point the Court is practically unanimous; Justice
Teehankee merely refrains from discussing it.

Insofar as my own opinion is concerned the cleavage in the Court on the issue of justiciability is of not much more than
academic interest for purposes of arriving at a judgment. I am not unduly exercised by American decisions on the subject
written in another age and political clime, or by theories, of foreign authors in political science. The present state of
martial law in the Philippines is peculiarly Filipino and fits into no traditional patterns or judicial precedents.

In the first place I am convinced (as are the other Justices), without need of receiving evidence as in an ordinary adversary
court proceeding, that a state of rebellion existed in the country when Proclamation No. 1081 was issued. It was a matter
of contemporary history within the cognizance not only of the courts but of all observant people residing here at the time.
Many of the facts and events recited in detail in the different "Whereases" of the proclamation are of common
knowledge. The state of rebellion continues up to the present. The argument that while armed hostilities go on in several
provinces in Mindanao there are none in other regions except in isolated pockets in Luzon, and that therefore there is no
need to maintain martial law all over the country, ignores the sophisticated nature and ramifications of rebellion in a
modern setting. It does not consist simply of armed clashes between organized and identifiable groups on fields of their
own choosing. It includes subversion of the most subtle kind, necessarily clandestine and operating precisely where there
is no actual fighting. Underground propaganda, through printed newssheets or rumors disseminated in whispers;
recruitment of armed and ideological adherents, raising of funds, procurement of arms and materiel, fifth-column
activities including sabotage and intelligence — all these are part of the rebellion which by their nature are usually
conducted far from the battle fronts. They cannot be counteracted effectively unless recognized and dealt with in that
context.
5
Secondly, my view, which coincides with that of other members of the Court as stated in their opinions, is that the
question of validity of Proclamation No. 1081 has been foreclosed by the transitory provision of the 1973 Constitution
[Art. XVII, Sec. 3(2)] that "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land and shall remain valid, legal, binding and effective even after . . .
the ratification of this Constitution ..." To be sure, there is an attempt in these cases to resuscitate the issue of the
effectivity of the new Constitution. All that, however, is behind us now. The question has been laid to rest by our
decision in Javellana vs. Executive Secretary (L-36142, 50 SCRA 30, March 31, 1973), and of course by the existing
political realities both in the conduct of national affairs and in our relations with other countries.

On the effect of the transitory provision Justice Muñoz Palma withholds her assent to any sweeping statement that the
same in effect validated, in the constitutional sense, all "such proclamations, decrees, instructions, and acts promulgated,
issued, or done by the incumbent President." All that she concedes is that the transitory provision merely gives them "the
imprimatur of a law but not of a constitutional mandate," and as such therefore "are subject to judicial review when proper
under the Constitution."

Finally, the political-or-justiciable question controversy — indeed, any inquiry by this Court in the present cases into the
constitutional sufficiency of the factual bases for the proclamation of martial law — has become moot and purposeless as
a consequence of the general referendum of July 27-28, 1973. The question propounded to the voters was: "Under the
(1973) Constitution, the President, if he so desires, can continue in office beyond 1973. Do you want President Marcos to
continue beyond 1973 and finish the reforms he initiated under Martial Law?" The overwhelming majority of those who
cast their ballots, including citizens between 15 and 18 years, voted affirmatively on the proposal. The question was
thereby 'removed from the area of presidential power under the Constitution and transferred to the seat of sovereignty
itself. Whatever may be the nature of the exercise of that power by the President in the beginning — whether or not
purely political and therefore non-justiciable — this Court is precluded from applying its judicial yardstick to the act of
the sovereign.

2. With respect to the petitioners who have been released from detention but have not withdrawn their petitions because
they are still subject to certain restrictions,[5] the ruling of the Court is that the petitions should be dismissed. The power to
detain persons even without charges for acts related to the situation which justifies the proclamation of martial law, such
as the existence of a state of rebellion, necessarily implies the power (subject, in the opinion of the Justices who consider
Lansang applicable to the same test of arbitrariness laid down therein), to impose upon the released detainees conditions
or restrictions which are germane to and necessary to carry out the purposes of the proclamation. Justice Fernando,
however, "is for easing the restrictions on the right to travel of petitioner Rodrigo" and others similarly situated and so to
this extent dissents from the ruling of the majority; while Justice Teehankee believes that those restrictions do not
constitute deprivation of physical liberty within the meaning of the constitutional provision on the privilege of the writ of
habeas corpus.

It need only be added that, to my mind, implicit in a state of martial law is the suspension of the said privilege with
respect to persons arrested or detained for acts related to the basic objective of the proclamation, which is to suppress
invasion, insurrection, or rebellion, or to safeguard public safety against imminent danger thereof. The preservation of
society and national survival take precedence. On this particular point, that is, that the proclamation of martial law
automatically suspends the privilege of the writ as to the persons referred to, the Court is practically unanimous. Justice
Fernando, however, says that to him that is still an open question; and Justice Muñoz Palma qualifiedly dissents from the
majority in her separate opinion, but for the reasons she discusses therein votes for the dismissal of the petitions.

IN VIEW OF ALL THE FOREGOING AND FOR THE REASONS STATED BY THE MEMBERS OF THE COURT
IN THEIR SEPARATE OPINIONS, JUDGMENT IS HEREBY RENDERED DISMISSING ALL THE PETITIONS,
EXCEPT THOSE WHICH HAVE BEEN PREVIOUSLY WITHDRAWN BY THE RESPECTIVE PETITIONERS
WITH THE APPROVAL OF THIS COURT, AS HEREINABOVE MENTIONED. NO COSTS.
6
Makasiar and Aquino, JJ., concur.
Castro, J., in a separate opinion, explains his reasons for his concurrence in the dismissal of all the petitions.
Fernando, J., concurs and dissents in a separate opinion.
Teehankee, J., files a separate opinion.
Barredo, J., concurs in the dismissals in a separate opinion.
Antonio, J., concurs in a separate opinion.
Esguerra, J., concurs in a separate opinion.
Fernandez, J., concurs in a separate opinion.
Munoz Palma, J., concurs in the dismissals in a separate opinion.

7
264 Phil. 593

EN BANC

G.R. No. 92163, June 05, 1990

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, PETITIONER, VS.
JUDGE JAIME SALAZAR (PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF QUEZON CITY

[BR. 103], SENIOR STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R.

ABESAMIS, AND CITY ASSISTANT CITY PROSECUTOR EULOGIO MANANGUIL, NATIONAL BUREAU
OF INVESTIGATION DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES
(SUPERINTENDENT OF THE NORTHERN POLICE DISTRICT) AND/OR ANY AND ALL PERSONS WHO
MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF JUAN PONCE ENRILE, RESPONDENTS.

[G.R. NO. 92164. JUNE 5, 1990]

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, PETITIONERS, VS. PROSECUTORS

FERNANDO DE LEON, AURELIO C. TRAMPE, FERDINAND R. ABESAMIS, AND EULOGIO C.
MANANQUIL, AND HON. JAIME W. SALAZAR, JR., IN HIS CAPACITY AS PRESIDING JUDGE,
REGIONAL TRIAL COURT, QUEZON CITY, BRANCH 103, RESPONDENTS.

DECISION

NARVASA, J.:

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez[1] once more takes center
stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its
applicability. To be sure, the intervening period saw a number of similar cases[2] that took issue with the ruling -- all with
a marked lack of success -- but none, it would seem, where season and circumstance had more effectively conspired to
attract wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the
kind and range of arguments that are now brought to bear on the same question.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile was
arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the strength
of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in Criminal Case No.
90-10941. The warrant had issued on an information signed and earlier that day filed by a panel of prosecutors composed
of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis and Assistant City Prosecutor
Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda PanIilio, and Gregorio Honasan with
the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed
coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI

8
headquarters on Taft Avenue, Manila, without bail, none having been recommended in the information and none fixed in
the arrest warrant. The following morning, February 28, 1990, he was brought to Camp Tomas Karingal in Quezon City
where he was given over to the custody of the Superintendent of the Northern Police District, Brig. Gen. Edgardo Dula
Torres.[3]

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpus herein (which
was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his constitutional rights
in being, or having been:

(a) held to answer for a criminal offense which does not exist in the statute books;

(b) charged with a criminal offense in an information for which no complaint was initially filed or preliminary
investigation was conducted, hence was denied due process;

(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who issued it first having personally
determined the existence of probable cause.[4]

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990.[5] On March
5, 1990, the Solicitor General filed a consolidated return[6] for the respondents in this case and in G.R. No. 92164,[7] which
had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and Erlinda
Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez ruling
because -- and this is putting it very simply -- the information in Hernandez charged murders and other common crimes
committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al.
charged murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise,
the Solicitor General would distinguish between the complex crime ("delito complejo") arising from an offense being a
necessary means for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and
is the subject of the Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting
two or more grave or less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was
not concerned and to which, therefore, it should not apply.

9
The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its Resolution of
the same date[8] granting Senator Enrile and the Panlilio Spouses provisional liberty conditioned upon their filing, within
24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the Panlilios),
respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the matter of the
provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both cases. Four
Members of the Court[9] voted against granting bail to Senator Enrile, and two[10] against granting bail to the Panlilios.

The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No. 92163.

The parties oral and written pleas presented the Court with the following options:

(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice Montemayor in said case
that rebellion cannot absorb more serious crimes, and that under Article 48 of the Revised Penal Code rebellion may
properly be complexed with common offenses, so-called; this option was suggested by the Solicitor General in oral
argument although it is not offered in his written pleadings;

(b) hold Fernandez applicable only to offenses committed in furtherance, or as a necessary means for the commission, of
rebellion, but not to acts committed in the course of a rebellion which also constitute "common" crimes of grave or less
grave character;

(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course, whether or not
necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt that
the doctrine should be re-examined.10-A In the view of the majority, the ruling remains good law, its substantive and
logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant a
complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her
powers under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former
regime which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the
Revised Penal Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter
(Chapter I of Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed
by law are committed, the penalty for the most serious offense in its maximum period shall be imposed upon the
offender."[11] In thus acting, the President in effect by legislative fiat reinstated Hernandez as binding doctrine with the

10
effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason
against so doing.

On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its
application to offenses committed as a necessary means for the commission of rebellion and that the ruling should not be
interpreted as prohibiting the compelling of rebellion with other common crimes committed on the occasion, but not in
furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not entirely devoid of
merit, the consensus was that they were not sufficient to overcome what appears to be the real thrust of Hernandez to rule
out the complexing of rebellion with any other offense committed in its course under either of the aforecited clauses of
Article 48, as is made clear by the following excerpt from the majority opinion in that case:

"There is one other reason -- and a fundamental one at that -- why Article 48 of our Penal Code cannot be applied in the
case at bar. If murder were not complexed with rebellion, and the two crimes were punished separately (assuming that
this could be done), the following penalties would be imposable upon the movant, namely: (1) for the crime of rebellion,
a fine not exceeding P20,000 and prision mayor, in the corresponding period, depending upon the modifying
circumstances present, but never exceeding 12 years of prision mayor; and (2) for the crime of murder, reclusion temporal
in its maximum period to death, depending upon the modifying circumstances present. In other words, in the absence of
aggravating circumstances, the extreme penalty could not be imposed upon him. However, under Article 48 said penalty
would have to be meted out to him, even in the absence of a single aggravating circumstance. Thus, said provision, if
construed in conformity with the theory of the prosecution, would be unfavorable to the movant.

"Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of sentencing him to a
penalty more severe than that which would be proper if the several acts performed by him were punished separately. In
the words of Rodriguez Navarro:

‘La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo (75 del Codigo de 1932),
esta basado francamente en el principio pro reo.’ (II Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)

"We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal code (the counterpart of
our Article 48), as amended in 1908 and then in 1932, reading:

‘Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho constituya dos o mas delitos, o
cuando el uno de ellos sea medio necesario para cometer el otro.

'En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo, hasta el limite que
represente la suma de las que pudieran imponerse, penando separadamente los delitos.

‘Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado.' (Rodriguez Navarro,
Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain the qualification inserted in said amendment, restricting the imposition of the
penalty for the graver offense in its maximum period to the case when it does not exceed the sum total of the penalties
imposable if the acts charged were dealt with separately. The absence of said limitation in our Penal Code does not, to
our mind, affect substantially the spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be
no reason to inflict a punishment graver than that prescribed for each one of said offenses put together. In directing that
the penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have had no other
purpose than to prescribe a penalty lower than the aggregate of the penalties for each offense, if imposed separately. The

11
reason for this benevolent spirit of Article 48 is readily discernible. When two or more crimes are the result of a single
act, the offender is deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of
sentencing him for each crime independently from the other, he must suffer the maximum of the penalty for the more
serious one, on the assumption that it is less grave than the sum total of the separate penalties for each offense.”[12]

The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less
adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for the
disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the propriety of
the recourse he has taken.

The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an
offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated
murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:

"In conclusion, we hold that, under the allegations of the amended information against defendant-appellant Amado V.
Hernandez, the murders, arsons and robberies described therein are mere ingredients of the crime of rebellion allegedly
committed by said defendants, as means "necessary" (4) for the perpetration of said offense of rebellion; that the crime
charged in the aforementioned amended information is, therefore, simple rebellion, not the complex crime of rebellion
with multiple murder, arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve
(12) years of prision mayor and a fine of P2H, HHH; and that, in conformity with the policy of this court in dealing with
accused persons amenable to a similar punishment, said defendant may be allowed bail.”[13]

The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while technically
correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed on the occasion
thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez, the information does
indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: simple rebellion.

Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted?
The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the Director of the
National Bureau of Investigation, and that on the strength of said complaint a preliminary investigation was conducted by
the respondent prosecutors, culminating in the filing of the questioned information.[14] There is nothing inherently
irregular or contrary to law in filing against a respondent an indictment for an offense different from what is charged in
the initiatory complaint, if warranted by the evidence developed during the preliminary investigation.

12
It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personally determining
the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of
Art. III, sec. 2, of the Constitution.[15] This Court has already ruled, however, that it is not the unavoidable duty of the
judge to make such a personal examination, it being sufficient that he follows established procedure by personally
evaluating the report and the supporting documents submitted by the prosecutor.[16] Petitioner claims that the warrant of
arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which hardly gave
the latter sufficient time to personally go over the voluminous records of the preliminary investigation.[17] Merely because
said respondent had what some might consider only a relatively brief period within which to comply with that duty, gives
no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to
overcome the legal presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as
applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be
considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be accepted
as a correct proposition. But the question remains: Given the facts from which this case arose, was a petition for habeas
corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have provisional
liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said respondent. The correct
course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per
se or by reason of the weakness of the evidence against him. Only after that remedy was denied by the trial court should
the review jurisdiction of this Court have been invoked, and even then, not without first applying to the Court of Appeals
if appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent crime
or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify his improper
choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the
criminal action before the respondent Judge.[18]

There thus seems to be no question that all the grounds upon which petitioner has founded the present petition, whether
these went into the substance of what is charged in the information or imputed error or omission on the part of the
prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally justiciable in the
criminal case before said Judge and should have been brought up there instead of directly to this Court.

13
There was and is no reason to assume that the resolution of any of these questions was beyond the ability or competence
of the respondent Judge -- indeed such an assumption would be demeaning and less than fair to our trial courts; none
whatever to hold them to be of such complexity or transcendental importance as to disqualify every court, except this
Court, from deciding them; none, in short that would justify by-passing established judicial processes designed to orderly
move litigation through the hierarchy of our courts. Parenthetically, this is the reason behind the vote of four Members of
the Court against the grant of bail to petitioner: the view that the trial court should not thus be precipitately ousted of its
original jurisdiction to grant or deny bail and, if it erred in that matter, denied an opportunity to correct its error. It makes
no difference that the respondent Judge here issued a warrant of arrest fixing no bail. Immemorial practice sanctions
simply following the prosecutor's recommendation regarding bail, though it may be perceived as the better course for the
judge motu proprio to set a bail hearing where a capital offense is charged.[19] It is, in any event, incumbent on the accused
as to whom no bail has been recommended or fixed to claim the right to a bail hearing and thereby put to proof the
strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar situation, all
apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the regular manner
just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may have hoped to avoid
by coming directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also because to wash the
Court's hands off it on jurisdictional grounds would only compound the delay that it has already gone through, the Court
now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said petition
interdicted the ordered and orderly progression of proceedings that should have started with the trial court and reached
this Court only if the relief applied for was denied by the former and, in a proper case, by the Court of Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like the
present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within the
original competence of the lower courts.

What has thus far been stated is equally applicable to and decisive of the petition of the Panlilio spouses (G.R. No. 92164)
which is virtually identical to that of petitioner Enrile in factual milieu and is therefore determinable on the same
principles already set forth. Said spouses have uncontestedly pleaded[20] that warrants of arrest issued against them as co-
accused of petitioner Enrile in Criminal Case No. 90-10941, that when they appeared before NBI Director Alfredo Lim in
the afternoon of March 1, 1990, they were taken into custody and detained without bail on the strength of said warrants in
violation -- they claim -- of their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quintessentially quixotic quality that
justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less impelled by
love of country than by lust for power and have become no better than mere terrorists to whom nothing, not even the
sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this aberration as the
rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the news these days, as

14
often perpetrated against innocent civilians as against the military, but by and large attributable to, or even claimed by so-
called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause -- and the Court is no exception -- that not even the crowded streets of our capital City
seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national
economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor or to
clearly define and delimit the other offenses to be considered at absorbed thereby, so that it cannot be conveniently
utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power to effect such
change, for can only interpret the law as it stands at any given time, and what is needed lies beyond interpretation.
Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is properly within its
province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned
information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read as
charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of right. The
Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both cases are ordered
REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners. Once bail is fixed by said
respondent for any of the petitioners, the corresponding bail bond filed with this Court shall become functus oficio. No
pronouncement as to costs.

SO ORDERED.

Cruz, Paras, Gancayco, and Regalado, JJ., concur.

Fernan, C.J., see separate dissenting and concurring opinion.
Melencio-Herrera and Feliciano, JJ., see separate opinion.
Gutierrez, Jr., J., see concurring opinion.
Padilla, J., see dissenting opinion.
Bidin, J., see concurring and dissenting opinion.
Sarmiento, J., see concurring and dissenting in part.
Cortes and Grino-Aquino, J., on leave.
Medialdea, J., concurring in G.R. No. 92164; no part in G.R. No. 92163.

15
EN BANC

G.R. No. 213847, August 18, 2015

JUAN PONCE ENRILE, PETITIONER, VS. SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE
PHILIPPINES, RESPONDENTS.

DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and during trial is ultimately an incident of the judicial power
to hear and determine his criminal case. The strength of the Prosecution’s case, albeit a good measure of the accused’s
propensity for flight or for causing harm to the public, is subsidiary to the primary objective of bail, which is to ensure
that the accused appears at trial.[1]

The Case

Before the Court is the petition for certiorari filed by Senator Juan Ponce Enrile to assail and annul the resolutions dated
July 14, 2014[2] and August 8, 2014[3] issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238,
where he has been charged with plunder along with several others. Enrile insists that the resolutions, which respectively
denied his Motion To Fix Bail and his Motion For Reconsideration, were issued with grave abuse of discretion amounting
to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and several others with plunder in the Sandiganbayan on
the basis of their purported involvement in the diversion and misuse of appropriations under the Priority Development
Assistance Fund (PDAF).[4] On June 10, 2014 and June 16, 2014, Enrile respectively filed his Omnibus Motion[5] and
Supplemental Opposition,[6] praying, among others, that he be allowed to post bail should probable cause be found against
him. The motions were heard by the Sandiganbayan after the Prosecution filed its Consolidated Opposition.[7]

On July 3, 2014, the Sandiganbayan issued its resolution denying Enrile’s motion, particularly on the matter of bail, on the
ground of its prematurity considering that Enrile had not yet then voluntarily surrendered or been placed under the
custody of the law.[8] Accordingly, the Sandiganbayan ordered the arrest of Enrile.[9]

On the same day that the warrant for his arrest was issued, Enrile voluntarily surrendered to Director Benjamin Magalong
of the Criminal Investigation and Detection Group (CIDG) in Camp Crame, Quezon City, and was later on confined at the
Philippine National Police (PNP) General Hospital following his medical examination.[10]

Thereafter, Enrile filed his Motion for Detention at the PNP General Hospital ,[11] and his Motion to Fix Bail,[12] both
dated July 7, 2014, which were heard by the Sandiganbayan on July 8, 2014.[13] In support of the motions, Enrile argued
that he should be allowed to post bail because: (a) the Prosecution had not yet established that the evidence of his guilt
was strong; (b) although he was charged with plunder, the penalty as to him would only be reclusion temporal, not
reclusion perpetua; and (c) he was not a flight risk, and his age and physical condition must further be seriously
considered.

16
On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying Enrile’s Motion to Fix Bail, disposing
thusly:

x x x [I]t is only after the prosecution shall have presented its evidence and the Court shall have made a determination that
the evidence of guilt is not strong against accused Enrile can he demand bail as a matter of right. Then and only then will
the Court be duty-bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In fact, accused Enrile has not filed an application for bail.
Necessarily, no bail hearing can even commence. It is thus exceedingly premature for accused Enrile to ask the Court to
fix his bail.

xxxx

Accused Enrile next argues that the Court should grant him bail because while he is charged with plunder, “the maximum
penalty that may be possibly imposed on him is reclusion temporal, not reclusion perpetua.” He anchors this claim on
Section 2 of R.A. No. 7080, as amended, and on the allegation that he is over seventy (70) years old and that he
voluntarily surrendered. “Accordingly, it may be said that the crime charged against Enrile is not punishable by reclusion
perpetua, and thus bailable.”

The argument has no merit.

xxxx

x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not taken into consideration. These
circumstances will only be appreciated in the imposition of the proper penalty after trial should the accused be found
guilty of the offense charged. x x x

xxxx

Lastly, accused Enrile asserts that the Court should already fix his bail because he is not a flight risk and his physical
condition must also be seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a flight risk are among the factors that are considered in
fixing a reasonable amount of bail. However, as explained above, it is premature for the Court to fix the amount of bail
without an anterior showing that the evidence of guilt against accused Enrile is not strong.

WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix Bail dated July 7, 2014 is DENIED for
lack of merit.

SO ORDERED.[14]

On August 8, 2014, the Sandiganbayan issued its second assailed resolution to deny Enrile’s motion for reconsideration
filed vis-à-vis the July 14, 2014 resolution.[15]

Enrile raises the following grounds in support of his petition for certiorari, namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter of right. Enrile may be deemed to fall
within the exception only upon concurrence of two (2) circumstances: (i) where the offense is punishable by

17
 reclusion perpetua, and (ii) when evidence of guilt is strong.

xxxx

B. The prosecution failed to show clearly and conclusively that Enrile, if ever he would be convicted, is
punishable by reclusion perpetua; hence, Enrile is entitled to bail as a matter of right.

xxxx

C. The prosecution failed to show clearly and conclusively that evidence of Enrile’s guilt (if ever) is strong;
hence, Enrile is entitled to bail as a matter of right.

xxxx

D. At any rate, Enrile may be bailable as he is not a flight risk.[16]

Enrile claims that before judgment of conviction, an accused is entitled to bail as matter of right; that it is the duty and
burden of the Prosecution to show clearly and conclusively that Enrile comes under the exception and cannot be excluded
from enjoying the right to bail; that the Prosecution has failed to establish that Enrile, if convicted of plunder, is
punishable by reclusion perpetua considering the presence of two mitigating circumstances – his age and his voluntary
surrender; that the Prosecution has not come forward with proof showing that his guilt for the crime of plunder is strong;
and that he should not be considered a flight risk taking into account that he is already over the age of 90, his medical
condition, and his social standing.

In its Comment,[17] the Ombudsman contends that Enrile’s right to bail is discretionary as he is charged with a capital
offense; that to be granted bail, it is mandatory that a bail hearing be conducted to determine whether there is strong
evidence of his guilt, or the lack of it; and that entitlement to bail considers the imposable penalty, regardless of the
attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.

Bail protects the right of the accused to due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved. [18] The presumption of
innocence is rooted in the guarantee of due process, and is safeguarded by the constitutional right to be released on bail,[19]
and further binds the court to wait until after trial to impose any punishment on the accused.[20]

It is worthy to note that bail is not granted to prevent the accused from committing additional crimes. [21] The purpose of
bail is to guarantee the appearance of the accused at the trial, or whenever so required by the trial court. The amount of
bail should be high enough to assure the presence of the accused when so required, but it should be no higher than is
reasonably calculated to fulfill this purpose.[22] Thus, bail acts as a reconciling mechanism to accommodate both the
accused’s interest in his provisional liberty before or during the trial, and the society’s interest in assuring the accused’s
presence at trial.[23]

18
2.

Bail may be granted as a matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall
not be required.

This constitutional provision is repeated in Section 7, Rule 114[24] of the Rules of Court, as follows:

Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. — No person
charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.

A capital offense in the context of the rule refers to an offense that, under the law existing at the time of its commission
and the application for admission to bail, may be punished with death.[25]

The general rule is, therefore, that any person, before being convicted of any criminal offense, shall be bailable, unless he
is charged with a capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong. Hence, from the moment he is placed under arrest, or is detained or restrained by the
officers of the law, he can claim the guarantee of his provisional liberty under the Bill of Rights, and he retains his right to
bail unless he is charged with a capital offense, or with an offense punishable with reclusion perpetua or life
imprisonment, and the evidence of his guilt is strong.[26] Once it has been established that the evidence of guilt is strong,
no right to bail shall be recognized.[27]

As a result, all criminal cases within the competence of the Metropolitan Trial Court, Municipal Trial Court, Municipal
Trial Court in Cities, or Municipal Circuit Trial Court are bailable as matter of right because these courts have no
jurisdiction to try capital offenses, or offenses punishable with reclusion perpetua or life imprisonment. Likewise, bail is a
matter of right prior to conviction by the Regional Trial Court (RTC) for any offense not punishable by death, reclusion
perpetua, or life imprisonment, or even prior to conviction for an offense punishable by death, reclusion perpetua, or life
imprisonment when evidence of guilt is not strong.[28]

On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC of an offense not punishable by
death, reclusion perpetua or life imprisonment;[29] or (2) if the RTC has imposed a penalty of imprisonment exceeding six
years, provided none of the circumstances enumerated under paragraph 3 of Section 5, Rule 114 is present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the
circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail
without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

19
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

3.

Admission to bail in offenses punished

by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or not evidence of guilt is strong in criminal cases
involving capital offenses, or offenses punishable with reclusion perpetua or life imprisonment lies within the discretion
of the trial court. But, as the Court has held in Concerned Citizens v. Elma,[30] “such discretion may be exercised only after
the hearing called to ascertain the degree of guilt of the accused for the purpose of whether or not he should be granted
provisional liberty.” It is axiomatic, therefore, that bail cannot be allowed when its grant is a matter of discretion on the
part of the trial court unless there has been a hearing with notice to the Prosecution.[31] The indispensability of the hearing
with notice has been aptly explained in Aguirre v. Belmonte, viz.:[32]

x x x Even before its pronouncement in the Lim case, this Court already ruled in People vs. Dacudao, etc., et al. that a
hearing is mandatory before bail can be granted to an accused who is charged with a capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion asking for it,
without bothering to ask the prosecution for its conformity or comment, as it turned out later, over its strong objections.
The court granted bail on the sole basis of the complaint and the affidavits of three policemen, not one of whom
apparently witnessed the killing. Whatever the court possessed at the time it issued the questioned ruling was intended
only for prima facie determining whether or not there is sufficient ground to engender a well-founded belief that the crime
was committed and pinpointing the persons who probably committed it. Whether or not the evidence of guilt is strong for
each individual accused still has to be established unless the prosecution submits the issue on whatever it has already
presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be consulted or heard. It
is equally entitled as the accused to due process.

xxxx

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the
prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the
accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the
accused is a fugitive from justice, and whether or not the accused is under bond in other cases. (Section 6, Rule 114, Rules
of Court) It is highly doubtful if the trial court can appreciate these guidelines in an ex-parte determination where the
Fiscal is neither present nor heard.

The hearing, which may be either summary or otherwise, in the discretion of the court, should primarily determine
whether or not the evidence of guilt against the accused is strong. For this purpose, a summary hearing means: –

x x x such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with
the purpose of hearing which is merely to determine the weight of evidence for purposes of bail. On such hearing, the
court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the
evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be
therein offered or admitted. The course of inquiry may be left to the discretion of the court which may confine itself to
receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination
and cross examination.[33]

20
In resolving bail applications of the accused who is charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, the trial judge is expected to comply with the guidelines outlined in Cortes v. Catral,[34] to
wit:

1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation (Section 18, Rule 114 of the Rules of Court, as amended);

2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of whether or not the
prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling
the court to exercise its sound discretion; (Section 7 and 8, supra)

3. Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution;

4. If the guilt of the accused is not strong, discharge the accused upon the approval of the bailbond (Section 19,
supra) Otherwise petition should be denied.

3.

Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the presence of two mitigating circumstances that should be
appreciated in his favor, namely: that he was already over 70 years at the time of the alleged commission of the offense,
and that he voluntarily surrendered.[35]

Enrile’s averment has been mainly uncontested by the Prosecution, whose Opposition to the Motion to Fix Bail has only
argued that –

8. As regards the assertion that the maximum possible penalty that might be imposed upon Enrile is only reclusion
temporal due to the presence of two mitigating circumstances, suffice it to state that the presence or absence of
mitigating circumstances is also not consideration that the Constitution deemed worthy. The relevant clause in
Section 13 is “charged with an offense punishable by.” It is, therefore, the maximum penalty provided by the
offense that has bearing and not the possibility of mitigating circumstances being appreciated in the
accused’s favor.[36]

Yet, we do not determine now the question of whether or not Enrile’s averment on the presence of the two mitigating
circumstances could entitle him to bail despite the crime alleged against him being punishable with reclusion perpetua,[37]
simply because the determination, being primarily factual in context, is ideally to be made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned principal
purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so required by the court. The
Court is further mindful of the Philippines’ responsibility in the international community arising from the national
commitment under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and dignity of every person. This commitment is
enshrined in Section II, Article II of our Constitution which provides: “The State values the dignity of every human
person and guarantees full respect for human rights.” The Philippines, therefore, has the responsibility of protecting
and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can
participate in the proceedings before a court, to enable it to decide without delay on the legality of the detention

21
and order their release if justified. In other words, the Philippine authorities are under obligation to make
available to every person under detention such remedies which safeguard their fundamental right to liberty. These
remedies include the right to be admitted to bail.[38]

This national commitment to uphold the fundamental human rights as well as value the worth and dignity of every person
has authorized the grant of bail not only to those charged in criminal proceedings but also to extraditees upon a clear and
convincing showing: (1) that the detainee will not be a flight risk or a danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances.[39]

In our view, his social and political standing and his having immediately surrendered to the authorities upon his being
charged in court indicate that the risk of his flight or escape from this jurisdiction is highly unlikely. His personal
disposition from the onset of his indictment for plunder, formal or otherwise, has demonstrated his utter respect for the
legal processes of this country. We also do not ignore that at an earlier time many years ago when he had been charged
with rebellion with murder and multiple frustrated murder, he already evinced a similar personal disposition of respect for
the legal processes, and was granted bail during the pendency of his trial because he was not seen as a flight risk. [40] With
his solid reputation in both his public and his private lives, his long years of public service, and history’s judgment of him
being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another compelling justification for his admission to bail, but which
the Sandiganbayan did not recognize.

In his testimony in the Sandiganbayan,[41] Dr. Jose C. Gonzales, the Director of the Philippine General Hospital (PGH),
classified Enrile as a geriatric patient who was found during the medical examinations conducted at the UP-PGH to be
suffering from the following conditions:

(1) Chronic Hypertension with fluctuating blood pressure levels on multiple drug therapy; (Annexes 1.1, 1.2,
1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of the following:

a. Previous history of cerebrovascular disease with carotid and vertebral artery

disease; (Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by Holter monitoring; (Annexes 1.7.1,
1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome; (Annexes 2.1, 2.2)

22
(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p laser of the Retina, s/p Lucentis
intra-ocular injections; (Annexes 3.0, 3.1, 3.2)

b. S/p Cataract surgery with posterior chamber intraocular lens. (Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

. b High cholesterol levels/dyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate on recent

ultrasound).[42]

Dr. Gonzales attested that the following medical conditions, singly or collectively, could pose significant risks to the life
of Enrile, to wit: (1) uncontrolled hypertension, because it could lead to brain or heart complications, including recurrence
of stroke; (2) arrhythmia, because it could lead to fatal or non-fatal cardiovascular events, especially under stressful
conditions; (3) coronary calcifications associated with coronary artery disease, because they could indicate a future risk
for heart attack under stressful conditions; and (4) exacerbations of ACOS, because they could be triggered by certain
circumstances (like excessive heat, humidity, dust or allergen exposure) which could cause a deterioration in patients with
asthma or COPD.[43]

Based on foregoing, there is no question at all that Enrile’s advanced age and ill health required special medical attention.
His confinement at the PNP General Hospital, albeit at his own instance,[44] was not even recommended by the officer-in-
charge (OIC) and the internist doctor of that medical facility because of the limitations in the medical support at that
hospital. Their testimonies ran as follows:

xxxx

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued confinement of Senator Enrile at the Philippine
National Police Hospital?

DR. SERVILLANO:

No, Your Honor.

23
JUSTICE MARTIRES:

Director, doctor, do you feel comfortable with the continued confinement of Senator Enrile at the PNP
Hospital?

PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:

Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him the best.

xxxx

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused, Senator Enrile, are you happy or have any fear in
your heart of the present condition of the accused vis a vis the facilities of the hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but probably if the condition of the patient
worsen, we have no facilities to do those things, Your Honor.[45]

xxxx

Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed independently of the
merits of the charge, provided his continued incarceration is clearly shown to be injurious to his health or to endanger his
life. Indeed, denying him bail despite imperiling his health and life would not serve the true objective of preventive
incarceration during the trial.

Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has already held in Dela Rama v. The
People’s Court:[46]

x x x This court, in disposing of the first petition for certiorari, held the following:

x x x [U]nless allowance of bail is forbidden by law in the particular case, the illness of the prisoner, independently
of the merits of the case, is a circumstance, and the humanity of the law makes it a consideration which should,
regardless of the charge and the stage of the proceeding, influence the court to exercise its discretion to admit the
prisoner to bail;[47] x x x

24
xxxx

Considering the report of the Medical Director of the Quezon Institute to the effect that the petitioner “is actually suffering
from minimal, early, unstable type of pulmonary tuberculosis, and chronic, granular pharyngitis,” and that in said institute
they “have seen similar cases, later progressing into advance stages when the treatment and medicine are no longer of any
avail;” taking into consideration that the petitioner’s previous petition for bail was denied by the People’s Court on the
ground that the petitioner was suffering from quiescent and not active tuberculosis, and the implied purpose of the
People’s Court in sending the petitioner to the Quezon Institute for clinical examination and diagnosis of the actual
condition of his lungs, was evidently to verify whether the petitioner is suffering from active tuberculosis, in order to act
accordingly in deciding his petition for bail; and considering further that the said People’s Court has adopted and applied
the well-established doctrine cited in our above-quoted resolution, in several cases, among them, the cases against Pio
Duran (case No. 3324) and Benigno Aquino (case No. 3527), in which the said defendants were released on bail on the
ground that they were ill and their continued confinement in New Bilibid Prison would be injurious to their health or
endanger their life; it is evident and we consequently hold that the People’s Court acted with grave abuse of discretion in
refusing to release the petitioner on bail.[48]

It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical condition be
properly addressed and better attended to by competent physicians in the hospitals of his choice. This will not only aid in
his adequate preparation of his defense but, more importantly, will guarantee his appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration of the application
for bail can be had is to defeat the objective of bail, which is to entitle the accused to provisional liberty pending the trial.
There may be circumstances decisive of the issue of bail – whose existence is either admitted by the Prosecution, or is
properly the subject of judicial notice – that the courts can already consider in resolving the application for bail without
awaiting the trial to finish.[49] The Court thus balances the scales of justice by protecting the interest of the People through
ensuring his personal appearance at the trial, and at the same time realizing for him the guarantees of due process as well
as to be presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensure the appearance of the
accused during the trial; and unwarrantedly disregarded the clear showing of the fragile health and advanced age of Enrile.
As such, the Sandiganbayan gravely abused its discretion in denying Enrile’s Motion To Fix Bail. Grave abuse of
discretion, as the ground for the issuance of the writ of certiorari, connotes whimsical and capricious exercise of
judgment as is equivalent to excess, or lack of jurisdiction.[50] The abuse must be so patent and gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law
as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[51]

WHEREFORE, the Court GRANTS the petition for certiorari; ISSUES the writ of certiorari ANNULING and
SETTING ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in Case No. SB-14-CRM-0238 on July
14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce Enrile in Case No.
SB-14-CRM-0238 upon posting of a cash bond of P1,000,000.00 in the Sandiganbayan; and DIRECTS the immediate
release of petitioner Juan Ponce Enrile from custody unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.

25
EN BANC

G.R. No. 70748, October 21, 1985

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B.
ARELLANO, AND MARCOS D. RISONAR, JR., INTEGRATED BAR OF THE PHILIPPINES

[IBP]; FREE LEGAL ASSISTANCE GROUP

[FLAG]

AND MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.,

[MABINI], PETITIONERS, VS. HON. JUAN PONCE ENRILE, MINISTER OF NATIONAL DEFENSE; LT.
GEN. FIDEL V. RAMOS, ACTING CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; BRIG.
GEN. DIONISIO TAN-GATUE, PC-INP REGIONAL COMMANDER FOR REGION XI, CAMP CATITIPAN,
DAVAO CITY, RESPONDENTS.

DECISION

MELENCIO-HERRERA, J.:

This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group
(FLAG); and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys
Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr.

The facts follow:

On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at
Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day,
fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano,
was also arrested and detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the
IBP Davao Chapter that Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify
his arrest papers and was detained on the basis of a Mission Order signed by General Echavarria, Regional Unified
Commander.

This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the
detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be
made on the basis of Mission Orders, and that there appears to be a military campaign to harass lawyers involved in
national security cases.

On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985.

In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the
President on January 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No.
2045-A; and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al.[1], Courts lack the authority to inquire
into the cause and validity of detention of persons held pursuant to the suspension. Respondents further expounded on the
state of rebellion in Davao City on the basis of seized subversive documents, implying that the detained attorneys played
active roles in organizing mass actions of the Communist Party of the Philippines and the National Democratic Front.
26
Respondents then prayed for the denial of the petition.

During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and
detention. Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due
to lack of evidence linking the detained attorneys with the alleged subversive activities, the Court, on the same day,
resolved to order the temporary release of the detained attorneys on the recognizance of the principal counsel of
petitioners, namely, retired Chief Justice Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court
further resolved to give petitioners ten days within which to file a traverse to the Return of the Writ and the respondents
ten days to file a Reply thereto.

The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not
yet been released and praying that they be released to the custody of the principal counsel of petitioners at the Supreme
Court.

On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of Release reiterating that
the suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and
attached thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the
detained attorneys "were arrested not on thee basis of their 'lawyering' but for specific acts of rebellion and economic
sabotage as well as for their leadership in the CPP" x x x" even to the extent of attending CPP and NPA rites and using
their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives;" and that the
detained attorneys were involved in the Welgang Bayan in Davao City, a mass action "with demands for the armed
overthrow of the government." Sworn statements of several persons also implicated the detained attorneys in alleged
subversive activities. Respondents added that, while there is a Court Order directing release, they, too, are under orders,
pursuant to the PDA, to hold in custody the detained attorneys until ordered released by the President or by his duly
authorized representative, and that the PDA, when issued, constitutes authority to preventively detain them for a period
not exceeding one year.

On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed
on May 27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as
Criminal Case No. 12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be
dismissed for having been rendered moot and academic.

On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending that since the
detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to
due process; consequently, the Information for Rebellion filed against them is void. Respondents, on the other hand, filed
on the same day a Comment to petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the
petition on the ground of mootness by virtue of the proceedings before the Regional Trial Court of Davao.

On June 3, 1985, petitioners filed a Consolidated Comment and Traverse contending that the "Welgang Bayans" were in
legitimate exercise of the constitutional right of expression and assembly to petition the government for redress of
grievances; that the detained attorneys' participation was limited to serving in the legal panel and the negotiating panels;
that Proclamation No. 2045 is unconstitutional because there exists no factual or legal basis for the suspension of the Writ
of Habeas Corpus as provided for in the Constitution; that the evidence presented by respondents against the detained
attorneys are of a doubtful and flimsy nature; and that the PDA is unconstitutional because it violates Section 3, Article
IV, of the Constitution prohibiting unreasonable searches and seizures.

On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised

27
as the case affects not only the detained attorneys but the entire legal profession and the administration of justice as well.

Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating
first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against
petitioners as an incident to the suspension of the privilege of the Writ of Habeas Corpus; secondly, the ruling in Garcia-
Padilla vs. Ponce Enrile, et al.[2]; and thirdly, its prayer for the dismissal of the petition on the ground of mootness by
virtue of the filing of an Information for Rebellion against the detained attorneys before the Regional Trial Court of Davao
City.

As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an
Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance
of a Warrant of Arrest against them.[3] The function of the special proceeding of Habeas Corpus is to inquire into the
legality of one's detention. Now that the detained attorneys' incarceration is by virtue of a judicial order in relation to
criminal cases subsequently filed against them before the Regional Trial Court of Davao City, the remedy of Habeas
Corpus no longer lies. The Writ had served its purpose.[4]

"SEC. 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a
court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order,
the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by
reason of any informality or defect in the process, judgment or order. Nor shall anything in this rule be held to authorize
to discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment
under lawful judgment." (Rule 102)

If the detained attorneys question their detention because of improper arrest, or that no preliminary investigation has been
conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the
Warrant of Arrest, and/or the Information on grounds provided by the Rules, or to ask for an investigation/reinvestigation
of the case.[5] Habeas Corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the
Information filed against the accused.[6] So is it explicitly provided for by Section 14, Rule 102 of the Rules of Court,
reading:

"SEC. 14. When person lawfully imprisoned recommitted, and when let to bail. — If it appears that the prisoner was
lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by
death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having
committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of
the court or judge. x x x "

But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed
against the detained attorneys is void and the Court below could not have acquired jurisdiction over them, and
consequently, they are entitled to release.

On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys
were lawfully arrested without a warrant.

Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court
shall be filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule
112.[7] The Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the
exception Thus, the Verification reads:

28
"VERIFICATION

I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985 Rules on
Criminal Procedure, wherein after examining the affidavits of the government witnesses and other documents attached to
the records, I found sufficient ground to hold respondents for trial.

(SGD.) EMMANUEL E. GALICIA

City Fiscal"

Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides:

"SEC. 7. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant for
an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace
officer or fiscal without preliminary investigation having been first conducted, on the basis of the affidavit of the offended
party or arrested officer or person.

"However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation
by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person
of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its inception.

"If the case has been filed in court without a preliminary investigation having been first conducted, the accused may
within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the
same right to adduce evidence in his favor in the manner prescribed in this Rule."

Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful.

"SEC. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a
person:

"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;

"(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person
to be arrested has committed it; and

"(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one
confinement to another.

"In cases falling under paragraphs [a] and [b] hereof, the person arrested without a warrant shall be forthwith delivered to
the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (Rule 113)

Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while
paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances

29
enumerated is a question of fact, which will need the presentation of evidence and is more properly within the province of
the trial Court.

The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so
raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to
dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a
reinvestigation.[8] As stressed in People vs. Casiano, 1 SCRA 478[1961], this is the proper procedure since the "absence of
such investigation did not impair the validity of the Information or otherwise render it defective. Much less did it affect
the jurisdiction of the Court of First Instance".[9] The right to a preliminary investigation, being waivable, does not argue
against the validity of the proceedings, the most that could have been done being to remand the case in order that such
investigation could be conducted.[10]

"x x x the proper forum before which absence of preliminary investigation should be ventilated is the court of First
Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation does not go to the
jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently
waived. These are matters to be inquired into by the trial court, not an appellate Court."[11]

The Nolasco case, which petitioners invoke[12], wherein this Court ordered the release of two of the accused, is not on all
fours with the case at bar as, in the case, the accused were charged only with Illegal Possession of Subversive documents
under Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court
had granted bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has
not allowed bail.

WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners
are now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the
criminal case for Rebellion filed against them before said Court.

SO ORDERED.

Makasiar, C.J., Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente, Cuevas, and Alampay, JJ., concur.
Teehankee, Concepcion, Jr., and Abad Santos, JJ., see dissenting opinion.
Patajo, J., joins J. Concepcion, Jr. in his dissenting opinion.
Aquino, J., in the result.

30
EN BANC

G.R. Nos. 69863-65, December 10, 1990

LINO BROCKA, BENJAMIN CERVANTES, COSME GARCIA, RODOLFO SANTOS, VALENTINO

SALIPSIP, RICARDO VEGA, ERIC MARIANO, JOSE EMMANUEL OYALES, RONNIE MATTA, ALFREDO
VIAJE, RUBEN EUGENIO, REYNALDO ORTIZ, ORLANDO ORTIZ, NOEL REYES, EDUARDO IMPERIAL,
NESTOR SARMIENTO, FRANCO PALISOC, VIRGILIO DE GUZMAN, ALBERTO REYES, JESSIE PINILI,
ROMULO AUGUIS, DOMINADOR RESURRECION III, RONNIE LAYGO, ROSAURO ROQUE, CLARENCE
SORIANO, OCTAVO DEPAWA, CARLITO LA TORRE, SEVERNO ILANO, JR., DOMINGO CAJIPE, ALAN
ALEGRE, RAMON MARTINEZ, MA. GILDA HERNANDEZ, EDNA P. VILLANUEVA, DOLLY S. CANU,
MELQUIADES C. ATIENZA, ELIGIO P. VERA CRUZ, ROGER C. BAGAN, ABUNDIO M. CALISTE,
PETITIONERS, VS. JUAN PONCE ENRILE, MAJ. GENERAL FIDEL V. RAMOS, BRIG. GENERAL PEDRO
BALBANERO, COL. ABAD, COL. DAWIS, SERGIO APOSTOL, P/LT. RODOLFO M. GARCIA AND JUDGE
RICARDO TENSUAN, RESPONDENTS.

DECISION

MEDIALDEA, J.:

This petition was originally filed on February 13, 1985 to secure the release of petitioners on habeas corpus and to
permanently enjoin the City Fiscal of Quezon City from investigating charges of "Inciting to Sedition" against petitioners
Lino Brocka, Benjamin Cervantes, Cosme Garcia and Rodolfo Santos, (hereafter Brocka, et al.). On learning that the
corresponding informations for this offense had been filed by the City Fiscal against them on February 11, 1985, a
supplemental petition was filed on February 19, 1985 (p. 51, Rollo) to implead the Presiding Judge,[1] and to enjoin the
prosecution of Criminal Cases Nos. Q-38023, Q-38024 and Q-38025 (p. 349, Rollo) and the issuance of warrants for their
arrests, including their arraignment. Since then President Ferdinand E. Marcos had ordered the provisional release of
Brocka, et al., the issue on habeas corpus has become moot and academic (p. 396, Rollo). We shall thus focus on the
question of whether or not the prosecution of the criminal cases for Inciting to Sedition may lawfully be enjoined.

Petitioners were arrested on January 28, 1985 by elements of the Northern Police District following the forcible and
violent dispersal of a demonstration held in sympathy with the jeepney strike called by the Alliance of Concerned
Transport Organization (ACTO). Thereafter, they were charged with Illegal Assembly in Criminal Cases Nos. 37783,
37787 and 37788 with Branch 108, Regional Trial Court, NCJR, Quezon City.[2]

Except for Brocka, et al. who were charged as leaders of the offense of Illegal Assembly and for whom no bail was
recommended, the other petitioners were released on bail of P3,000.00 each. Brocka, et al.'s provisional release was
ordered only upon an urgent petition for bail for which daily hearings from February 1-7, 1985 were held.

However, despite service of the order of release on February 9, 1985, Brocka, et al. remained in detention, respondents
having invoked a Preventive Detention Action (PDA) allegedly issued against them on January 28, 1985 (p. 6, Rollo).
Neither the original, duplicate original nor certified true copy of the PDA was ever shown to them (p. 367, Rollo).

Brocka, et al. were subsequently charged on February 11, 1985 with Inciting to Sedition, docketed as Criminal Cases Nos.
Q-38023, Q-38024 and Q-38025 (p. 349, Rollo), without prior notice to their counsel (p. 7, Rollo). The original
informations filed recommended no bail (p. 349, Rollo). The circumstances surrounding the hasty filing of this second
offense are cited by Brocka, et al. (quoting from a separate petition filed on their behalf in G.R. Nos. 69848-50 entitled
"Sedfrey A. Ordonez vs. Col. Julian Arzaga, et al."), as follows:

"x x x.
31
"6. The 'sham' character of the inquest examination concocted by all respondents is starkly bizarre when we consider
that as early as 10:30 A.M. today, February 11, 1985, Benjamin Cervantes was able to contact undersigned petitioner by
phone informing counsel that said Benjamin Cervantes and the 4 other persons who are the subjects of this petition will be
brought before the Quezon City Fiscal at 2:30 for undisclosed reasons: subsequently, another phone call was received by
petitioning counsel informing him that the appearance of Benjamin Cervantes et al was to be at 2:00 P.M. When
petitioning counsel arrived in the office of Assistant City Fiscal Arturo Tugonon, the complainants' affidavits had not yet
been received by any of the panel of three assistant city fiscals, although the five persons under detention were already in
the office of said assistant fiscal as early as 2:00 P.M. It was only at 3:00 when a representative of the military arrived
bringing with him alleged statements of complainants against Lino Broka (sic) et al for alleged inciting to sedition,
whereupon undersigned counsel asked respondent Colonel Agapito Abad 'who ordered the detained persons to be brought
to the office of Assistant Fiscal Arturo Tugonon since there were no charges on file;’ and said Colonel Agapito Abad said
aloud: 'I only received a telephone call from Colonel Arzaga about 11:00 A.M. to bring the detained persons today - I am
only the custodian.' At 3:15, petitioning counsel inquired from the Records Custodian when the charges against Lino
Broka (sic) had been officially received and he was informed that the said charges were never coursed through the
Records Office.

"7. Under the facts narrated above, respondents have conspired to use the strong arm of the law and hatched the
nefarious scheme to deprive Lino Broka (sic) et al the right to bail because the utterances allegedly constituting inciting to
sedition under Article 142 of the Revised Penal Code are, except for varying nuances, almost verbatim the same
utterances which are the subject of Criminal Cases No. 37783, 37787 and 37788 and for which said detained persons are
entitled to be released on bail as a matter of constitutional right. Among the utterances allegedly made by the accused and
which the respondents claimed to be violative of Article 142 of the Revised Penal Code are: 'Makiisa sa mga drivers,'
'Makiisa sa aming layunin,’ 'Digmaang bayan ang sagot sa kahirapan,' Itigil ang pakikialam ng imperyalismo sa Pilipinas,’
'Rollback ng presyo ng langis sa 95 Centavos.' (See Annex B)

"8. That when petitioning counsel and other members of the defense panel requested that they be given 7 days within
which said counsel may confer with their clients - the detained persons named above, the panel of assistant fiscals
demanded that said detained persons should sign a ‘waiver’ of their rights under Article 125 of the Revised Penal Code as
a condition for the grant of said request, which is a harrassing requirement considering that Lino Broka (sic) et al were
already under the detention, albeit illegally, and they could not have waived the right under Rule 125 which they did not
enjoy at the time the ruling was made by the panel of assistant city fiscaIs." (p. 4-6, Rollo in G.R. 69848-50))

They were released provisionally on February 14, 1985, on orders of then President F. E. Marcos. The circumstances of
their release are narrated in Our resolution dated January 26, 1985, as quoted in the Solicitor General's Manifestation as
follows:

"G.R. Nos. 69848-50 (Sedfrey A. Ordonez, Petitioner, vs. Col. Julian Arzaga, et al., Respondents). - Petitioner Sedfrey A.
Ordonez filed this petition for habeas corpus in behalf of Lino Brocka, Benjamin Cervantes, Cosme Garcia, Alexander
Luzano, and Rodolfo Santos, who were all detained under a Preventive Detention Action (PDA) issued by then President
Ferdinand E. Marcos on January 28, 1985. They were charged in three separate informations of the crime of illegal
assembly under Art. 146, paragraph 3 of the Revised Penal Code, as amended by PD 1834. On February 7, 1985, the
Honorable Miriam Defensor Santiago, Regional Trial Judge of Quezon City, issued a resolution in the above criminal
cases, directing the release of the five accused on bail of P6,000.00 for each of them, and from which resolution the
respondent fiscals took no appeal. Immediately thereafter, the accused filed their respective bail bonds. This
notwithstanding, they continued to be held in detention by order of the respondent colonels; and on February 11, 1985,
these same accused were ‘reinvestigated,’ this time on charges of 'inciting to sedition'* under Art. 142 of the Revised
Penal Code, following which corresponding cases were filed. The respondents complied with Our resolution requiring
them, inter alia, to make a RETURN of the writ of habeas corpus. In their RETURN, it appeared that all the accused had
already been released, four of them on February 15, 1985 and one February 8, 1985. The petitioner, nevertheless, argued
32
that the petition has not become moot and academic because the accused continue to be in the custody of the law under an
invalid charge of inciting to sedition." (p. 395, Rollo)

Hence, this petition.

Brocka, et al. contend that respondents' manifest bad faith and/or harassment are sufficient bases for enjoining their
criminal prosecution, aside from the fact that the second offense of inciting to sedition is illegal, since it is premised on
one and the same act of attending and participating in the ACTO jeepney strike. They maintain that while there may be a
complex crime from a single act (Art. 48, RTC), the law does not allow the splitting of a single act into two offenses and
filing two informations therefor, further, that they will be placed in double jeopardy.

The primary issue here is the legality of enjoining the criminal prosecution of a case, since the two other issues raised by
Brocka, et al. are matters of defense against the sedition charge.

We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of inciting to sedition.

Indeed, the general rule is that criminal prosecution may not be restrained or stayed by injunction, preliminary or final.
There are however so exceptions, among which are:

"a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs. Albano, et al., L-19272,
January 25, 1967, 19 SCRA 95);

"b. When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
(Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano, supra; Fortun vs. Labang, et al., L-38383, May 27,
1981, 104 SCRA 607);

"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil. 202);

"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);

"e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty, 33 Phil. 556; Yu Cong
Eng vs. Trinidad, 47 Phil. 385, 389);

"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil. 1140);

"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October 29, 1966, 18 SCRA
616);

"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No. 4760, March 25, 1960);

"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs. Castelo, 18 L.J. [1953],
cited in Rãnoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf. Guingona, et al, vs. City Fiscal, L-60033, April
4, 1984, 128 SCRA 577); and

"j. When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied
(Salonga vs. Pano, et al., L-59524, February 18, 1985, 134 SCRA 438).

"7. Preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners
(Rodriguez vs. Castelo, L-6374, August 1, 1953)." (cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)

In the petition before Us, Brocka, et al. have cited the circumstances to show that the criminal proceedings had become a
case of persecution, having been undertaken by state officials in bad faith.

33
Respondents, on the other hand, had invoked a PDA in refusing Brocka, et al.'s release from detention (before their release
on orders of then Pres. Marcos). This PDA was, however, issued on January 28, 1985, but was invoked only on February
9, 1985 (upon receipt of the trial court's order of release). Under the guidelines issued, PDAs shall be invoked within 24
hours (in Metro Manila) or 48 hours (outside Metro Manila) (Ilagan v. Enrile, G.R. No. 70748, October 28, 1985, 139
SCRA 349). Noteworthy also is Brocka, et al.'s claim that, despite subpoenas for its production, the prosecution merely
presented a purported xerox copy of the invoked PDA (par. 4, Counter-Rejoinder, p. 367, Rollo).

The foregoing circumstances were not disputed by the Solicitor General's office. In fact they found petitioner's plight
"deplorable" (par. 51, Manifestation, p. 396, Rollo).

The hasty filing of the second offense, premised on a spurious and inoperational PDA, certainly betrays respondent's bad
faith and malicious intent to pursue criminal charges against Brocka, et al.

We have expressed Our view in the Ilagan case that "individuals against whom PDAs have been issued should be
furnished with the original, and the duplicate original, and a certified true copy issued by the official having official
custody of the PDA, at the time of the apprehension" (supra, p. 369).

We do not begrudge the zeal that may characterize a public official's prosecution of criminal offenders. We, however,
believe that this should not be a license to run roughshod over a citizen's basic constitutional rights, such as due process,
or manipulate the law to suit dictatorial tendencies.

We are impelled to point out a citizen's helplessness against the awesome powers of a dictatorship. Thus, while We agree
with the Solicitor General's observation and/or manifestation that Brocka, et al. should have filed a motion to quash the
information, We however, believe that such a course of action would have been a futile move, considering the
circumstances then prevailing. Thus, the tenacious invocation of a spurious and inoperational PDA and the sham and
hasty preliminary investigation were clear signals that the prosecutors intended to keep Brocka, et al. in detention until the
second offense of "Inciting to Sedition'' could be facilitated and justified without need of issuing a warrant of arrest anew.
As a matter of fact the corresponding informations for this second offense were hastily filed on February 11, 1985, or two
days after Brocka, et al.’s release from detention was ordered by the trial judge on February 9, 1985.

Constitutional rights must be upheld at all costs, for this gesture is the true sign of democracy. These may not be set aside
to satisfy perceived illusory visions of national grandeur.

In the case of J. Salonga v. Cruz Paño, We pointed out:

"Infinitely more important than conventional adherence to general rules of criminal procedure is respect for the citizen's
right to be free not only from arbitrary arrest and punishment but also from unwarranted and vexatious prosecution. x x
x." (G.R. No. L-59524, February 18, 1985, 134 SCRA 438-at p. 448)

We, therefore, rule that where there is manifest bad faith that accompanies the filing of criminal charges, as in the instant
case where Brocka, et al. were barred from enjoying provisional release until such time that charges were filed, and where
a sham preliminary investigation was hastily conducted, charges that are filed as a result should lawfully be enjoined.

ACCORDINGLY, the petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding
in any manner with the cases subject of the petition. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Griño-
Aquino, and Regalado, JJ., concur.
Feliciano, J., on leave.
34
EN BANC

G.R. No. 225973, November 08, 2016

SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO LUMBERA, BONIFACIO P. ILAGAN,

NERI JAVIER COLMENARES, MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG EXDETAINEES
LABAN SA DETENSYON AT ARESTO (SELDA), REPRESENTED BY DIONITO CABILLAS, CARMENCITA
M. FLORENTINO, RODOLFO DEL ROSARIO, FELIX C. DALISAY, AND DANILO M. DELAFUENTE,*
PETITIONERS, VS. REAR ADMIRAL ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY
CHIEF OF STAFF FOR RESERVIST AND RETIREE AFFAIRS, ARMED FORCES OF THE PHILIPPINES),
THE GRAVE SERVICES UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA (IN HIS
CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES), DEFENSE SECRETARY
DELFIN LORENZANA, AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS SURVIVING
SPOUSE IMELDA ROMUALDEZ MARCOS, RESPONDENTS.

RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C. SAGUISAG III, INTERVENORS.

[G.R. No. 225984]

REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL CAPACITIES AND AS A MEMBER OF
CONGRESS AND AS THE HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS OF INVOLUNTARY
DISAPPEARANCE (FIND), REPRESENTED BY ITS COCHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY
BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP. EDGAR R. ERICE; AND REP.
EMMANUEL A. BILLONES, PETITIONERS, VS. EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA;
DEFENSE SECRETARY DELFIN N. LORENZANA; AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA;
AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND HEIRS OF FERDINAND
E. MARCOS, REPRESENTED BY HIS SURVIVING SPOUSE IMELDA ROMUALDEZ MARCOS,
RESPONDENTS.

[G.R. No. 226097]

LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F. SANTOSMARANAN, JO-ANN Q.

MAGLIPON, ZENAIDA S. MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D. AGUILAR,
MINERVA G. GONZALES, MA. CRISTINA V. RODRIGUEZ, LOUIE G. CRISMO, FRANCISCO E.
RODRIGO, JR., LIWAYWAY D. ARCE, AND ABDULMARI DE LEON IMAO, JR., PETITIONERS, VS.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA,
AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AFP CHIEF OF STAFF LT.
GEN. RICARDO R. VISAYA, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR
LT. GEN. ERNESTO G. CAROLINA (RET.), RESPONDENTS.

[G.R. No. 226116]

HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X. MANGLAPUS, EDILBERTO C. DE JESUS,

BELINDA O. CUNANAN, CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR., ARNOLD MARIE
NOEL, CARLOS MANUEL, EDMUND S. TAYAO, DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS
DELA FUENTE, REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO S. VERZOLA,
AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA P. LEGASTO, PETITIONERS, VS. EXECUTIVE
35
SECRETARY SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP CHIEF
OF STAFF LT. GEN. RICARDO R. VISAYA, AFP DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO
C. ENRIQUEZ, AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) OF THE DND, RESPONDENTS.

[G.R. No. 226117]

ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA, JOANNE ROSE SACE LIM, JUAN ANTONIO
RAROGAL MAGALANG, PETITIONERS, VS. SECRETARY OF NATIONAL DEFENSE DELFIN N.
LORENZANA, AFP CHIEF OF STAFF RICARDO R. VISAYA, ADMINISTRATOR OF THE PHILIPPINE
VETERANS AFFAIRS OFFICE ERNESTO G. CAROLINA, RESPONDENTS.

[G.R. No. 226120]

ALGAMAR A. LATIPH, PETITIONER, VS. SECRETARY DELFIN N. LORENZANA, SUED IN HIS

CAPACITY AS SECRETARY OF NATIONAL DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS
CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES AND LT. GEN.
ERNESTO G. CAROLINA (RET.), IN HIS CAPACITY AS ADMINISTRATOR, PHILIPPINE VETERANS
AFFAIRS OFFICE (PVAO), RESPONDENTS.

[G.R. No. 226294]

LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE REPUBLIC AND AS TAXPAYER,

PETITIONER, VS. HON. SALVADOR C. MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA,
AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, UNDERSECRETARY ERNESTO G. CAROLINA, IN
HIS CAPACITY AS PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) ADMINISTRATOR AND B/GEN.
RESTITUTO L. AGUILAR, IN HIS CAPACITY AS SHRINE CURATOR AND CHIEF VETERANS
MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF FERDINAND EDRALIN MARCOS,
RESPONDENTS.

DECISION

PERALTA, J.:

In law, as much as in life, there is need to find closure. Issues that have lingered and festered for so long and which
unnecessarily divide the people and slow the path to the future have to be interred. To move on is not to forget the
past. It is to focus on the present and the future, leaving behind what is better left for history to ultimately decide.
The Court finds guidance from the Constitution and the applicable laws, and in the absence of clear prohibition
against the exercise of discretion entrusted to the political branches of the Government, the Court must not
overextend its readings of what may only be seen as providing tenuous connection to the issue before it.

Facts

During the campaign period for the 2016 Presidential Election, then candidate Rodrigo R. Duterte (Duterte) publicly
announced that he would allow the burial of former President Ferdinand E. Marcos (Marcos) at the Libingan Ng Mga
Bayani (LNMB). He won the May 9, 2016 election, garnering 16,601,997 votes. At noon of June 30, 2016, he formally
assumed his office at the Rizal Hall in the Malacañan Palace.

On August 7, 2016, public respondent Secretary of National Defense Delfin N. Lorenzana issued a Memorandum to the
36
public respondent Chief of Staff of the Armed Forces of the Philippines (AFP), General Ricardo R. Visaya, regarding the
interment of Marcos at the LNMB, to wit:

Subject: Interment of the late Former President Ferdinand Marcos at LNMB

Reference: Verbal Order of President Rodrigo Duterte on July 11, 2016.

In compliance to (sic) the verbal order of the President to implement his election campaign promise to have the remains of
the late former President Ferdinand E. Marcos be interred at the Libingan ng mga Bayani, kindly undertake all the
necessary planning and preparations to facilitate the coordination of all agencies concerned specially the provisions for
ceremonial and security requirements. Coordinate closely with the Marcos family regarding the date of interment and the
transport of the late former President's remains from Ilocos Norte to the LNMB.

The overall OPR for this activity will [be] the PVAO since the LNMB is under its supervision and administration. PVAO
shall designate the focal person for this activity who shall be the overall overseer of the event.

Submit your Implementing Plan to my office as soon as possible.[1]

On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez issued the following directives to the Philippine
Army (PA) Commanding General:

SUBJECT: Funeral Honors and Service

TO: Commanding General, Philippine Army

Headquarters, Philippine Army
Fort Bonifacio, Taguig City
Attn: Assistant Chief of Staff for RRA, G9

1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP dated 14 July 1992, provide services, honors and other
courtesies for the late Former President Ferdinand E. Marcos as indicated:

[x] Vigil - Provide vigil

[x] Bugler/Drummer
[x] Firing Party
[x] Military Host/Pallbearers
[x] Escort and Transportation
[x] Arrival/Departure Honors

2. His remains lie in state at Ilocos Norte

3. Interment will take place at the Libingan ng mga Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.

4. Provide all necessary military honors accorded for a President

5. POC: Administrator, PVAO BY COMMAND OF GENERAL VISAYA[2]

Dissatisfied with the foregoing issuance, the following were filed by petitioners:

1. Petition for Certiorari and Prohibition[3] filed by Saturnino Ocampo and several others,[4] in their capacities as human
rights advocates or human rights violations victims as defined under Section 3 (c) of Republic Act (R.A.) No. 10368
37
(Human Rights Victims Reparation and Recognition Act of 2013).

2. Petition for Certiorari-in-Intervention[5] filed by Rene A.V. Saguisag, Sr. and his son,[6] as members of the Bar and
human rights lawyers, and his grandchild.[7]

3. Petition for Prohibition[8] filed by Representative Edcel C. Lagman, in his personal capacity, as member of the House of
Representatives and as Honorary Chairperson of Families of Victims of Involuntary Disappearance (FIND), a duly-
registered corporation and organization of victims and families of enforced disappearance, mostly during the martial law
regime of the former President Marcos, and several others,[9] in their official capacities as duly-elected Congressmen of
the House of Representatives of the Philippines.

4. Petition for Prohibition[10] filed by Loretta Ann Pargas-Rosales, former Chairperson of the Commission on Human
Rights, and several others,[11] suing as victims of State-sanctioned human rights violations during the martial law regime
of Marcos.

5. Petition for Mandamus and Prohibition[12] filed by Heherson T. Alvarez, former Senator of the Republic of the
Philippines, who fought to oust the dictatorship of Marcos, and several others,[13] as concerned Filipino citizens and
taxpayers.

6. Petition for Certiorari and Prohibition[14] filed by Zaira Patricia B. Baniaga and several others,[15] as concerned Filipino
citizens and taxpayers.

7. Petition for Certiorari and Prohibition[16] filed by Algamar A. Latiph, former Chairperson of the Regional Human
Rights Commission, Autonomous Region in Muslim Mindanao, by himself and on behalf of the Moro[17] who are victims
of human rights during the martial law regime of Marcos.

8. Petition for Certiorari and Prohibition[18] filed by Leila M. De Lima as member of the Senate of the Republic of the
Philippines, public official and concerned citizen.

Issues

Procedural

1. Whether President Duterte's determination to have the remains of Marcos interred at the LNMB poses a justiciable
controversy.

2. Whether petitioners have locus standi to file the instant petitions.

3. Whether petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts.

Substantive

1. Whether the respondents Secretary of National Defense and AFP Rear Admiral committed grave abuse of discretion,
amounting to lack or excess of jurisdiction, when they issued the assailed memorandum and directive in compliance with
the verbal order of President Duterte to implement his election campaign promise to have the remains of Marcos interred

38
at the LNMB.

2. Whether the Issuance and implementation of the assailed memorandum and directive violate the Constitution, domestic
and international laws, particularly:

(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of Article III, Section 17 of Article VII, Section 1 of
Article XI, Section 3(2) of Article XIV, and Section 26 of Article XVIII of the 1987 Constitution;

(b) R.A. No. 289;

(c) R.A. No. 10368;

(d) AFP Regulation G 161-375 dated September 11, 2000;

(e) The International Covenant on Civil and Political Rights;

(f) The "Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of
International Human Rights Law and Serious Violations of International Humanitarian Law" of the United Nations (U.N.)
General Assembly; and

(g) The "Updated Set of Principles for Protection and Promotion of Human Rights through Action to Combat Impunity"
of the U.N. Economic and Social Council;

3. Whether historical facts, laws enacted to recover ill-gotten wealth from the Marcoses and their cronies, and the
pronouncements of the Court on the Marcos regime have nullified his entitlement as a soldier and former President to
interment at the LNMB.

4. Whether the Marcos family is deemed to have waived the burial of the remains of former President Marcos at the
LNMB after they entered into an agreement with the Government of the Republic of the Philippines as to the conditions
and procedures by which his remains shall be brought back to and interred in the Philippines.

Opinion

The petitions must be dismissed.

Procedural Grounds

Justiciable controversy

It is well settled that no question involving the constitutionality or validity of a law or governmental act may be heard and
decided by the Court unless the following requisites for judicial inquiry are present: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have the standing to
question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of the case.[19] In this case, the absence of the
first two requisites, which are the most essential, renders the discussion of the last two superfluous.[20]

An "actual case or controversy" is one which involves a conflict of legal rights, an assertion of opposite legal claims,
39
susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.[21] There must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence.[22] Related to
the requisite of an actual case or controversy is the requisite of "ripeness," which means that something had then been
accomplished or performed by either branch before a court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of the challenged action.[23] Moreover, the limitation on
the power of judicial review to actual cases and controversies carries the assurance that the courts will not intrude into
areas committed to the other branches of government.[24] Those areas pertain to questions which, under the Constitution,
are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the government.[25] As they are concerned with questions of policy and
issues dependent upon the wisdom, not legality of a particular measure,[26] political questions used to be beyond the ambit
of judicial review. However, the scope of the political question doctrine has been limited by Section 1 of Article VIII of
the 1987 Constitution when it vested in the judiciary the power to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

The Court agrees with the OSG that President Duterte's decision to have the remains of Marcos interred at the LNMB
involves a political question that is not a justiciable controversy. In the exercise of his powers under the Constitution and
the Executive Order (E.O.) No. 292 (otherwise known as the Administrative Code of 1987) to allow the interment of
Marcos at the LNMB, which is a land of the public domain devoted for national military cemetery and military shrine
purposes, President Duterte decided a question of policy based on his wisdom that it shall promote national healing and
forgiveness. There being no taint of grave abuse in the exercise of such discretion, as discussed below, President Duterte's
decision on that political question is outside the ambit of judicial review.

Locus standi

Defined as a right of appearance in a court of justice on a given question,[27] locus standi requires that a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.[28] Unless a person has sustained
or is in imminent danger of sustaining an injury as a result of an act complained of, such proper party has no standing. [29]
Petitioners, who filed their respective petitions for certiorari, prohibition and mandamus, in their capacities as citizens,
human rights violations victims, legislators, members of the Bar and taxpayers, have no legal standing to file such
petitions because they failed to show that they have suffered or will suffer direct and personal injury as a result of the
interment of Marcos at the LNMB.

Taxpayers have been 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 public funds are wasted through the enforcement of an invalid or
unconstitutional law.[30] In this case, what is essentially being assailed is the wisdom behind the decision of the President
to proceed with the interment of Marcos at the LNMB. As taxpayers, petitioners merely claim illegal disbursement of
public funds, without showing that Marcos is disqualified to be interred at the LNMB by either express or implied
provision of the Constitution, the laws or jurisprudence.

Petitioners Saguisag, et al.,[31] as members of the Bar, are required to allege any direct or potential injury which the
Integrated Bar of the Philippines, as an institution, or its members may suffer as a consequence of the act complained
of.[32] Suffice it to state that the averments in their petition-in-intervention failed to disclose such injury, and that their
interest in this case is too general and shared by other groups, such that their duty to uphold the rule of law, without more,
is inadequate to clothe them with requisite legal standing.[33]

As concerned citizens, petitioners are also required to substantiate that the issues raised are of transcendental importance,

40
of overreaching significance to society, or of paramount public interest.[34] In cases involving such issues, the imminence
and clarity of the threat to fundamental constitutional rights outweigh the necessity for prudence. [35] In Marcos v.
Manglapus,[36] the majority opinion observed that the subject controversy was of grave national importance, and that the
Court's decision would have a profound effect on the political, economic, and other aspects of national life. The ponencia
explained that the case was in a class by itself, unique and could not create precedent because it involved a dictator forced
out of office and into exile after causing twenty years of political, economic and social havoc in the country and who,
within the short space of three years (from 1986), sought to return to the Philippines to die.

At this point in time, the interment of Marcos at a cemetery originally established as a national military cemetery and
declared a national shrine would have no profound effect on the political, economic, and other aspects of our national life
considering that more than twenty-seven (27) years since his death and thirty (30) years after his ouster have already
passed. Significantly, petitioners failed to demonstrate a clear and imminent threat to their fundamental constitutional
rights.

As human rights violations victims during the Martial Law regime, some of petitioners decry re-traumatization, historical
revisionism, and disregard of their state recognition as heroes. Petitioners' argument is founded on the wrong premise that
the LNMB is the National Pantheon intended by law to perpetuate the memory of all Presidents, national heroes and
patriots. The history of the LNMB, as will be discussed further, reveals its nature and purpose as a national military
cemetery and national shrine, under the administration of the AFP.

Apart from being concerned citizens and taxpayers, petitioners Senator De Lima, and Congressman Lagman, et al.[37]
come before the Court as legislators suing to defend the Constitution and to protect appropriated public funds from being
used unlawfully. In the absence of a clear showing of any direct injury to their person or the institution to which they
belong, their standing as members of the Congress cannot be upheld.[38] They do not specifically claim that the official
actions complained of, i.e., the memorandum of the Secretary of National Defense and the directive of the AFP Chief of
Staff regarding the interment of Marcos at the LNMB, encroach on their prerogatives as legislators. [39]

Exhaustion of Administrative Remedies

Petitioners violated the doctrines of exhaustion of administrative remedies and hierarchy of courts. Under the doctrine of
exhaustion of administrative remedies, before a party is allowed to seek the intervention of the court, one should have
availed first of all the means of administrative processes available.[40] If resort to a remedy within the administrative
machinery can still be made by giving the administrative officer concerned every opportunity to decide on a matter that
comes within his jurisdiction, then such remedy should be exhausted first before the court's judicial power can be
sought.[41] For reasons of comity and convenience, courts of justice shy away from a dispute until the system of
administrative redress has been completed and complied with, so as to give the administrative agency concerned every
opportunity to correct its error and dispose of the case.[42] While there are exceptions[43] to the doctrine of exhaustion of
administrative remedies, petitioners failed to prove the presence of any of those exceptions.

Contrary to their claim of lack of plain, speedy, adequate remedy in the ordinary course of law, petitioners should be
faulted for failing to seek reconsideration of the assailed memorandum and directive before the Secretary of National
Defense. The Secretary of National Defense should be given opportunity to correct himself, if warranted, considering that
AFP Regulations G 161-375 was issued upon his order. Questions on the implementation and interpretation thereof
demand the exercise of sound administrative discretion, requiring the special knowledge, experience and services of his
office to determine technical and intricate matters of fact. If petitioners would still be dissatisfied with the decision of the
Secretary, they could elevate the matter before the Office of the President which has control and supervision over the
Department of National Defense (DND).[44]

41
Hierarchy of Courts

In the same vein, while direct resort to the Court through petitions for the extraordinary writs of certiorari, prohibition and
mandamus are allowed under exceptional cases,[45] which are lacking in this case, petitioners cannot simply brush aside
the doctrine of hierarchy of courts that requires such petitions to be filed first with the proper Regional Trial Court (RTC).
The RTC is not just a trier of facts, but can also resolve questions of law in the exercise of its original and concurrent
jurisdiction over petitions for certiorari, prohibition and mandamus, and has the power to issue restraining order and
injunction when proven necessary.

In fine, the petitions at bar should be dismissed on procedural grounds alone. Even if We decide the case based on the
merits, the petitions should still be denied.

Substantive Grounds

There is grave abuse of discretion when an act is (1) done contrary to the Constitution, the law or jurisprudence or (2)
executed whimsically, capriciously or arbitrarily, out of malice, ill will or personal bias.[46] None is present in this case.

I
The President's decision to bury Marcos at the LNMB is in accordance with the Constitution, the law or
jurisprudence

Petitioners argue that the burial of Marcos at the LNMB should not be allowed because it has the effect of not just
rewriting history as to the Filipino people's act of revolting against an authoritarian ruler but also condoning the abuses
committed during the Martial Law, thereby violating the letter and spirit of the 1987 Constitution, which is a "post-
dictatorship charter" and a "human rights constitution." For them, the ratification of the Constitution serves as a clear
condemnation of Marcos' alleged "heroism." To support their case, petitioners invoke Sections 2,[47] 11,[48] 13,[49] 23,[50]
26,[51] 27[52] and 28[53] of Article II, Sec. 17 of Art. VII,[54] Sec. 3(2) of Art. XIV,[55] Sec. 1 of Art. XI,[56] and Sec. 26 of
Art. XVIII[57] of the Constitution.

There is no merit to the contention.

As the Office of the Solicitor General (OSG) logically reasoned out, while the Constitution is a product of our collective
history as a people, its entirety should not be interpreted as providing guiding principles to just about anything remotely
related to the Martial Law period such as the proposed Marcos burial at the LNMB.

Tañada v. Angara[58] already ruled that the provisions in Article II of the Constitution are not self-executing. Thus:

By its very title, Article II of the Constitution is a "declaration of principles and state policies." The counterpart of this
article in the 1935 Constitution is called the "basic political creed of the nation" by Dean Vicente Sinco. These principles
in Article II are not intended to be self executing principles ready for enforcement through the courts. They are used by
the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of
laws. As held in the leading case of Kilosbayan, Incorporated vs. Morato, the principles and state policies enumerated in
Article II x x x are not "self-executing provisions, the disregard of which can give rise to a cause of action in the courts.
They do not embody judicially enforceable constitutional rights but guidelines for legislation."

In the same light, we held in Basco vs. Pagcor that broad constitutional principles need legislative enactments to
42
implement them x x x.

xxx

The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are sourced from
basic considerations of due process and the lack of judicial authority to wade "into the uncharted ocean of social and
economic policy making."[59]

In the same vein, Sec. 1 of Art. XI of the Constitution is not a self-executing provision considering that a law should be
passed by the Congress to clearly define and effectuate the principle embodied therein. As a matter of fact, pursuant
thereto, Congress enacted R.A. No. 6713 ("Code of Conduct and Ethical Standards for Public Officials and Employees"),
R.A. No. 6770 ("The Ombudsman Act of 1989"), R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder),
and Republic Act No. 9485 ("Anti-Red Tape Act of 2007"). To complement these statutes, the Executive Branch has
issued various orders, memoranda, and instructions relative to the norms of behavior/code of conduct/ethical standards of
officials and employees; workflow charts/public transactions; rules and policies on gifts and benefits; whistle blowing and
reporting; and client feedback program.

Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII of the Constitution is also misplaced. Sec. 3(2) of
Art. XIV refers to the constitutional duty of educational institutions in teaching the values of patriotism and nationalism
and respect for human rights, while Sec. 26 of Art. XVIII is a transitory provision on sequestration or freeze orders in
relation to the recovery of Marcos' ill-gotten wealth. Clearly, with respect to these provisions, there is no direct or indirect
prohibition to Marcos' interment at the LNMB.

The second sentence of Sec. 17 of Art. VII pertaining to the duty of the President to "ensure that the laws be faithfully
executed," which is identical to Sec. 1, Title I, Book III of the Administrative Code of 1987,[60] is likewise not violated by
public respondents. Being the Chief Executive, the President represents the government as a whole and sees to it that all
laws are enforced by the officials and employees of his or her department.[61] Under the Faithful Execution Clause, the
President has the power to take "necessary and proper steps" to carry into execution the law.[62] The mandate is self-
executory by virtue of its being inherently executive in nature and is intimately related to the other executive functions.[63]
It is best construed as an imposed obligation, not a separate grant of power.[64] The provision simply underscores the rule
of law and, corollarily, the cardinal principle that the President is not above the laws but is obliged to obey and execute
them.[65]

Consistent with President Duterte's mandate under Sec. 17, Art. VII of the Constitution, the burial of Marcos at the LNMB
does not contravene R.A. No. 289, R.A. No. 10368, and the international human rights laws cited by petitioners.

A. On R.A. No. 289[66]

For the perpetuation of their memory and for the inspiration and emulation of this generation and of generations still
unborn, R.A. No. 289 authorized the construction of a National Pantheon as the burial place of the mortal remains of all
the Presidents of the Philippines, national heroes and patriots.[67] It also provided for the creation of a Board on National
Pantheon to implement the law.[68]

On May 12, 1953, President Elpidio R. Quirino approved the site of the National Pantheon at East Avenue, Quezon
City.[69] On December 23, 1953, he issued Proclamation No. 431 to formally "withdraw from sale or settlement and
reserve as a site for the construction of the National Pantheon a certain parcel of land located in Quezon City." However,
on July 5, 1954, President Magsaysay issued Proclamation No. 42 revoking Proclamation Nos. 422 and 431, both series of
1953, and reserving the parcels of land embraced therein for national park purposes to be known as Quezon Memorial
43
Park.

It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard by which a person's mortal remains may be
interred at the LNMB, and that AFP Regulations G 161-375 merely implements the law and should not violate its spirit
and intent. Petitioners claim that it is known, both here and abroad, that Marcos' acts and deed - the gross human rights
violations, the massive corruption and plunder of government coffers, and his military record that is fraught with myths,
factual inconsistencies, and lies - are neither worthy of perpetuation in our memory nor serve as a source of inspiration
and emulation of the present and future generations. They maintain that public respondents are not members of the Board
on National Pantheon, which is authorized by the law to cause the burial at the LNMB of the deceased Presidents of the
Philippines, national heroes, and patriots.

Petitioners are mistaken. Both in their pleadings and during the oral arguments, they miserably failed to provide legal and
historical bases as to their supposition that the LNMB and the National Pantheon are one and the same. This is not at all
unexpected because the LNMB is distinct and separate from the burial place envisioned in R.A. No 289. The parcel of
land subject matter of President Quirino's Proclamation No. 431, which was later on revoked by President Magsaysay's
Proclamation No. 42, is different from that covered by Marcos' Proclamation No. 208. The National Pantheon does not
exist at present. To date, the Congress has deemed it wise not to appropriate any funds for its construction or the creation
of the Board on National Pantheon. This is indicative of the legislative will not to pursue, at the moment, the
establishment of a singular interment place for the mortal remains of all Presidents of the Philippines, national heroes, and
patriots. Perhaps, the Manila North Cemetery, the Manila South Cemetery, and other equally distinguished private
cemeteries already serve the noble purpose but without cost to the limited funds of the government.

Even if the Court treats R.A. No. 289 as relevant to the issue, still, petitioners' allegations must fail. To apply the standard
that the LNMB is reserved only for the "decent and the brave" or "hero" would be violative of public policy as it will put
into question the validity of the burial of each and every mortal remains resting therein, and infringe upon the principle of
separation of powers since the allocation of plots at the LNMB is based on the grant of authority to the President under
existing laws and regulations. Also, the Court shares the view of the OSG that the proposed interment is not equivalent to
the consecration of Marcos' mortal remains. The act in itself does not confer upon him the status of a "hero." Despite its
name, which is actually a misnomer, the purpose of the LNMB, both from legal and historical perspectives, has neither
been to confer to the people buried there the title of "hero" nor to require that only those interred therein should be treated
as a "hero." Lastly, petitioners' repeated reference to a "hero's burial" and "state honors," without showing proof as to what
kind of burial or honors that will be accorded to the remains of Marcos, is speculative until the specifics of the interment
have been finalized by public respondents.

B. On R.A. No. 10368[70]

For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375 by implicitly disqualifying Marcos' burial at the
LNMB because the legislature, which is a co-equal branch of the government, has statutorily declared his tyranny as a
deposed dictator and has recognized the heroism and sacrifices of the Human Rights Violations Victims (HRVVs)[71] under
his regime. They insist that the intended act of public respondents damages and makes mockery of the mandatory teaching
of Martial Law atrocities and of the lives and sacrifices of its victims. They contend that "reparation" under R.A. No.
10368 is non-judicial in nature but a political action of the State through the Legislative and Executive branches by
providing administrative relief for the compensation, recognition, and memorialization of human rights victims.

We beg to disagree.

Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all Filipinos who were victims of summary execution,

44
torture, enforced or involuntary disappearance, and other gross human rights violations committed from September 21,
1972 to February 25, 1986. To restore their honor and dignity, the State acknowledges its moral and legal obligation[72] to
provide reparation to said victims and/or their families for the deaths, injuries, sufferings, deprivations and damages they
experienced.

In restoring the rights and upholding the dignity of HRVVs, which is part of the right to an effective remedy, R.A. No.
10368 entitles them to monetary and non-monetary reparation. Any HRVV qualified under the law[73] shall receive a
monetary reparation, which is tax-free and without prejudice to the receipt of any other sum from any other person or
entity in any case involving human rights violations.[74] Anent the non-monetary reparation, the Department of Health
(DOH), the Department of Social Welfare and Development (DSWD), the Department of Education (DepEd), the
Commission on Higher Education (CHED), the Technical Education and Skills Development Authority (TESDA), and
such other government agencies are required to render the necessary services for the HRVVs and/or their families, as may
be determined by the Human Rights Victims' Claims Board (Board) pursuant to the provisions of the law.[75]

Additionally, R.A. No. 10368 requires the recognition of the violations committed against the HRVVs, regardless of
whether they opt to seek reparation or not. This is manifested by enshrining their names in the Roll of Human Rights
Violations Victims (Roll) prepared by the Board.[76] The Roll may be displayed in government agencies designated by the
HRVV Memorial Commission (Commission).[77] Also, a Memorial/Museum/Library shall be established and a
compendium of their sacrifices shall be prepared and may be readily viewed and accessed in the internet.[78] The
Commission is created primarily for the establishment, restoration, preservation and conservation of the
Memorial/Museum/ Library/Compendium.[79]

To memorialize[80] the HRVVs, the Implementing Rules and Regulations of R.A. No. 10368 further mandates that: (1) the
database prepared by the Board derived from the processing of claims shall be turned over to the Commission for archival
purposes, and made accessible for the promotion of human rights to all government agencies and instrumentalities in
order to prevent recurrence of similar abuses, encourage continuing reforms and contribute to ending impunity; [81] (2) the
lessons learned from Martial Law atrocities and the lives and sacrifices of HRVVs shall be included in the basic and
higher education curricula, as well as in continuing adult learning, prioritizing those most prone to commit human rights
violations;[82] and (3) the Commission shall publish only those stories of HRVVs who have given prior informed
consent.[83]

This Court cannot subscribe to petitioners' logic that the beneficial provisions of R.A. No. 10368 are not exclusive as it
includes the prohibition on Marcos' burial at the LNMB. It would be undue to extend the law beyond what it actually
contemplates. With its victim-oriented perspective, our legislators could have easily inserted a provision specifically
proscribing Marcos' interment at the LNMB as a "reparation" for the HRVVs, but they did not. As it is, the law is silent
and should remain to be so. This Court cannot read into the law what is simply not there. It is irregular, if not
unconstitutional, for Us to presume the legislative will by supplying material details into the law. That would be
tantamount to judicial legislation.

Considering the foregoing, the enforcement of the HRVVs' rights under R.A. No 10368 will surely not be impaired by the
interment of Marcos at the LNMB. As opined by the OSG, the assailed act has no causal connection and legal relation to
the law. The subject memorandum and directive of public respondents do not and cannot interfere with the statutory
powers and functions of the Board and the Commission. More importantly, the HRVVs' entitlements to the benefits
provided for by R.A. No 10368 and other domestic laws are not curtailed. It must be emphasized that R.A. No. 10368
does not amend or repeal, whether express or implied, the provisions of the Administrative Code or AFP Regulations G
161-375:

45
It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to effect a repeal by
implication, the later statute must be so irreconcilably inconsistent and repugnant with the existing law that they cannot be
made to reconcile and stand together. The clearest case possible must be made before the inference of implied repeal may
be drawn, for inconsistency is never presumed. There must be a showing of repugnance clear and convincing in character.
The language used in the later statute must be such as to render it irreconcilable with what had been formerly enacted. An
inconsistency that falls short of that standard does not suffice. x x x[84]

C. On International Human Rights Laws

Petitioners argue that the burial of Marcos at the LNMB will violate the rights of the HRVVs to "full" and "effective"
reparation, which is provided under the International Covenant on Civil and Political Rights (ICCPR),[85] the Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law[86] adopted by the U.N. General Assembly
on December 16, 2005, and the Updated Set of Principles for the Protection and Promotion of Human Rights Through
Action to Combat Impunity[87] dated February 8, 2005 by the U.N. Economic and Social Council.

We do not think so. The ICCPR,[88] as well as the U.N. principles on reparation and to combat impunity, call for the
enactment of legislative measures, establishment of national programmes, and provision for administrative and judicial
recourse, in accordance with the country's constitutional processes, that are necessary to give effect to human rights
embodied in treaties, covenants and other international laws. The U.N. principles on reparation expressly states:

Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal
obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal
obligations under international human rights law and international humanitarian law which are complementary though
different as to their norms[.][Emphasis supplied]

The Philippines is more than compliant with its international obligations. When the Filipinos regained their democratic
institutions after the successful People Power Revolution that culminated on February 25, 1986, the three branches of the
government have done their fair share to respect, protect and fulfill the country's human rights obligations, to wit:

The 1987 Constitution contains provisions that promote and protect human rights and social justice.

As to judicial remedies, aside from the writs of habeas corpus, amparo,[89] and habeas data,[90] the Supreme Court
promulgated on March 1, 2007 Administrative Order No. 25-2007,[91] which provides rules on cases involving extra-
judicial killings of political ideologists and members of the media. The provision of the Basic Principles and Guidelines
on the prevention of the victim's re-traumatization applies in the course of legal and administrative procedures designed to
provide justice and reparation.[92]

On the part of the Executive Branch, it issued a number of administrative and executive orders. Notable of which are the
following:

1. A.O. No. 370 dated December 10, 1997 (Creating the Inter-Agency Coordinating Committee on Human Rights)

2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of a National Committee on the Culture of Peace)

3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 and Every 12th Day of August Thereafter as
International Humanitarian Law Day)

46
 4. E.O. No. 404 dated January 24, 2005 (Creating the Government of the Republic of the Philippines Monitoring
Committee [GRPMC] on Human Rights and International Humanitarian Law)

5. A.O. No. 157 dated August 21, 2006 (Creating an Independent Commission to Address Media and Activist
Killings)

6. A.O. No. 163 dated December 8, 2006 (Strengthening and Increasing the Membership of the Presidential Human
Rights Committee, and Expanding Further the Functions of Said Committee)[93]

7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation and Coordination Between the National Prosecution
Service and Other Concerned Agencies of Government for the Successful Investigation and Prosecution of
Political and Media Killings)

8. A.O. No. 197 dated September 25, 2007 (DND and AFP Coordination with PHRC Sub-committee on Killings and
Disappearances)

9. A.O. No. 211 dated November 26, 2007 (Creating a Task Force Against Political Violence)

10. A.O. No. 249 dated December 10, 2008 (Further Strengthening Government Policies, Plans, and Programs for
the Effective Promotion and Protection of Human Rights on the Occasion of the 60th Anniversary of the
Universal Declaration of Human Rights)

11. E.O. No. 847 dated November 23, 2009 (Creating the Church-Police-Military-Liaison Committee to Formulate
and Implement a Comprehensive Program to Establish Strong Partnership Between the State and the Church on
Matters Concerning Peace and Order and Human Rights)

12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-Agency Committee on Extra-Legal Killings, Enforced
Disappearances, Torture and Other Grave Violations of the Right to Life, Liberty and Security of Persons)

13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential Task Force on Violations of the Right to Life,
Liberty and Security of the Members of the Media)

Finally, the Congress passed the following laws affecting human rights:

1. Republic Act No. 7438 (An Act Defining Certain Rights of Person Arrested, Detained or Under
Custodia/Investigation as well as the Duties of the Arresting, Detaining and Investigating Officers and Providing
Penalties for Violations Thereof)

2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of 1997)

3. Republic Act No. 9201 (National Human Rights Consciousness Week Act of 2002)

4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of 2003)

5. Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)

6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006)

7. Republic Act No. 9372 (Human Security Act of 2007)

8. Republic Act No. 9710 (The Magna Carta of Women)

9. Republic Act No. 9745 (Anti-Torture Act of 2009)

47
 10. Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other
Crimes Against Humanity)

11. Republic Act No. 10121 (Philippine Disaster Risk Reduction and Management Act of 2010)

12. Republic Act No. 10168 (The Terrorism Financing Prevention and Suppression Act of 2012)

13. Republic Act No. 10353 (Anti-Enforced or Involuntary Disappearance Act of 2012)

14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons Act of 2012)

15. Republic Act No. 10368 (Human Rights Victims Reparation And Recognition Act of 2013)

16. Republic Act No. 10530 (The Red Cross and Other Emblems Act of 2013)

Contrary to petitioners' postulation, our nation's history will not be instantly revised by a single resolve of President
Duterte, acting through the public respondents, to bury Marcos at the LNMB. Whether petitioners admit it or not, the
lessons of Martial Law are already engraved, albeit in varying degrees, in the hearts and minds of the present generation
of Filipinos. As to the unborn, it must be said that the preservation and popularization of our history is not the sole
responsibility of the Chief Executive; it is a joint and collective endeavor of every freedom-loving citizen of this country.

Notably, complementing the statutory powers and functions of the Human Rights Victims' Claims Board and the HRVV
Memorial Commission in the memorialization of HRVVs, the National Historical Commission of the Philippines
(NHCP), formerly known as the National Historical Institute (NHI),[94] is mandated to act as the primary government
agency responsible for history and is authorized to determine all factual matters relating to official Philippine history. [95]
Among others, it is tasked to: (a) conduct and support all kinds of research relating to Philippine national and local
history; (b) develop educational materials in various media, implement historical educational activities for the
popularization of Philippine history, and disseminate, information regarding Philippine historical events, dates, places and
personages; and (c) actively engage in the settlement or resolution of controversies or issues relative to historical
personages, places, dates and events.[96] Under R.A. Nos. 10066 (National Cultural Heritage Act of 2009)[97] and 10086
(Strengthening Peoples' Nationalism Through Philippine History Act),[98] the declared State policy is to conserve, develop,
promote, and popularize the nation's historical and cultural heritage and resources.[99] Towards this end, means shall be
provided to strengthen people's nationalism, love of country, respect for its heroes and pride for the people's
accomplishments by reinforcing the importance of Philippine national and local history in daily life with the end in view
of raising social consciousness.[100] Utmost priority shall be given not only with the research on history but also its
popularization.[101]

II.
The President's decision to bury Marcos at the LNMB is not done whimsically, capriciously or arbitrarily, out of
malice, ill will or personal bias

Petitioners contend that the interment of Marcos at the LNMB will desecrate it as a sacred and hallowed place and a
revered national shrine where the mortal remains of our country's great men and women are interred for the inspiration
and emulation of the present generation and generations to come. They erred.

A. National Shrines

As one of the cultural properties of the Philippines, national historical shrines (or historical shrines) refer to sites or
structures hallowed and revered for their history or association as declared by the NHCP.[102] The national shrines created
48
by law and presidential issuance include, among others: Fort Santiago (Dambana ng Kalayaan) in Manila;[103] all
battlefield areas in Corregidor and Bataan;[104] the site of First Mass in the Philippines in Magallanes, Limasawa,
Leyte;[105] Aguinaldo Shrine or Freedom Shrine in Kawit, Cavite;[106] Fort San Antonio Abad National Shrine in Malate,
Manila;[107] Tirad Pass National Shrine in Ilocos Sur;[108] Ricarte Shrine[109] and Aglipay Shrine[110] in Batac, Ilocos Norte;
Liberty Shrine in Lapu-Lapu, Cebu;[111] "Red Beach" or the landing point of General Douglas MacArthur and the
liberating forces in Baras, Palo, Leyte;[112] Dapitan City as a National Shrine City in Zamboanga Del Norte;[113] General
Leandro Locsin Fullon National Shrine in Hamtic, Antique;[114] and Mabini Shrine in Polytechnic University of the
Philippines - Mabini Campus, Sta. Mesa, Manila.[115] As sites of the birth, exile, imprisonment, detention or death of great
and eminent leaders of the nation, it is the policy of the Government to hold and keep the national shrines as sacred and
hallowed place.[116] P.O. No. 105[117] strictly prohibits and punishes by imprisonment and/or fine the desecration of
national shrines by disturbing their peace and serenity through digging, excavating, defacing, causing unnecessary noise,
and committing unbecoming acts within their premises. R.A. No. 10066 also makes it punishable to intentionally modify,
alter, or destroy the original features of, or undertake construction or real estate development in any national shrine,
monument, landmark and other historic edifices and structures, declared, classified, and marked by the NHCP as such,
without the prior written permission from the National Commission for Culture and the Arts (NCAA).[118]

As one of the cultural agencies attached to the NCAA,[119] the NHCP manages, maintains and administers national shrines,
monuments, historical sites, edifices and landmarks of significant historico-cultural value.[120] In particular, the NHCP
Board has the power to approve the declaration of historic structures and sites, such as national shrines, monuments,
landmarks and heritage houses and to determine the manner of their identification, maintenance, restoration, conservation,
preservation and protection.[121]

Excluded, however, from the jurisdiction of the NHCP are the military memorials and battle monuments declared as
national shrines, which have been under the administration, maintenance and development of the Philippine Veterans
Affairs Office (PVAO) of the DND. Among the military shrines are: Mt. Samat National Shrine in Pilar, Bataan; [122]
Kiangan War Memorial Shrine in Linda, Kiangan, Ifugao;[123] Capas National Shrine in Capas, Tarlac;[124] Ricarte
National Shrine in Malasin, Batac, Ilocos Norte;[125] Balantang Memorial Cemetery National Shrine in Jaro, Iloilo;[126]
Balete Pass National Shrine in Sta. Fe, Nueva Vizcaya;[127] USAFIP, NL Military Shrine and Park in Bessang Pass,
Cervantes, Ilocos Sur;[128] and the LNMB in Taguig City, Metro Manila.[129]

B. The Libingan Ng Mga Bayani

At the end of World War II, the entire nation was left mourning for the death of thousands of Filipinos. Several places
served as grounds for the war dead, such as the Republic Memorial Cemetery, the Bataan Memorial Cemetery, and other
places throughout the country. The Republic Memorial Cemetery, in particular, was established in May 1947 as a fitting
tribute and final resting place of Filipino military personnel who died in World War II.

On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O. No. 77, which ordered "the remains of the war
dead interred at the Bataan Memorial Cemetery, Bataan Province, and at other places in the Philippines, be transferred
to, and reinterred at, the Republic Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to minimize the
expenses for the maintenance and upkeep, and to make the remains accessible to the widows, parents, children, relatives,
and friends.

On October 27, 1954, President Magsaysay issued Proclamation No. 86, which changed the name of Republic Memorial
Cemetery to Libingan Ng Mga Bayani to symbolize "the cause for which our soldiers have died" and to "truly express the
nations esteem and reverence for her war dead."[130]

49
On July 12, 1957, President Carlos P. Garcia issued Proclamation No. 423, which reserved for military purposes, under
the administration of the AFP Chief of Staff, the land where LNMB is located. The LNMB was part of a military
reservation site then known as Fort Wm McKinley (now known as Fort Andres Bonifacio).

On May 28, 1967, Marcos issued Proclamation No. 208, which excluded the LNMB from the Fort Bonifacio military
reservation and reserved the LNMB for national shrine purposes under the administration of the National Shrines
Commission (NSC) under the DND.

On September 24, 1972, Marcos, in the exercise of his powers as the AFP Commander-in-Chief, and pursuant to
Proclamation No. 1081 dated September 21, 1972, and General Order No. 1 dated September 22, 1972, as amended,
issued Presidential Decree (P.D.) No. 1 which reorganized the Executive Branch of the National Government through the
adoption of the Integrated Reorganization Plan (IRP). Section 7, Article XV, Chapter I, Part XII thereof abolished the
NSC and its functions together with applicable appropriations, records, equipment, property and such personnel as may be
necessary were transferred to the NHI under the Department of Education (DEC). The NHI was responsible for promoting
and preserving the Philippine cultural heritage by undertaking, inter alia, studies on Philippine history and national heroes
and maintaining national shrines and monuments.[131]

Pending the organization of the DEC, the functions relative to the administration, maintenance and development of
national shrines tentatively integrated into the PVAO in July 1973.

On January 26, 1977, President Marcos issued P.D. No. 1076. Section 7, Article XV, Chapter I, Part XII of the IRP was
repealed on the grounds that "the administration, maintenance and development of national shrines consisting of military
memorials or battle monuments can be more effectively accomplished if they are removed from the [DEC] and transferred
to the [DND] by reason of the latter s greater capabilities and resources" and that "the functions of the [DND] are more
closely related and relevant to the charter or significance of said national shrines." Henceforth, the PVAO through the
Military Shrines Service (MSS), which was created to perform the functions of the abolished NSC - would administer,
maintain and develop military memorials and battle monuments proclaimed as national shrines.

On July 25, 1987, President Corazon C. Aquino issued the Administrative Code. The Code retains PVAO under the
supervision and control of the Secretary of National Defense.[132] Among others, PVAO shall administer, develop and
maintain military shrines.[133] With the approval of PVAO Rationalization Plan on June 29, 2010, pursuant to E.O. No.
366 dated October 4, 2004, MSS was renamed to Veterans Memorial and Historical Division, under the supervision and
control of PVAO, which is presently tasked with the management and development of military shrines and the
perpetuation of the heroic deeds of our nation's veterans.

As a national military shrine, the main features, structures, and facilities of the LNMB are as follows:

1. Tomb of the Unknown Soldiers - The main structure constructed at the center of the cemetery where wreath
laying ceremonies are held when Philippine government officials and foreign dignitaries visit the LNMB. The
following inscription is found on the tomb: "Here lies a Filipino soldier whose name is known only to God."
Behind the tomb are three marble pillars representing the three main island groups of the Philippines - Luzon,
Visayas and Mindanao. Buried here were the remains of 39,000 Filipino soldiers who were originally buried in
Camp O'Donnell Concentration Camp and Fort Santiago, Intramuros, Manila.

2. Heroes Memorial Gate - A structure shaped in the form of a large concrete tripod with a stairway leading to an
upper view deck and a metal sculpture at the center. This is the first imposing structure one sees upon entering the
grounds of the cemetery complex.

50
 3. Black Stone Walls - Erected on opposite sides of the main entrance road leading to the Tomb of the Unknown
Soldiers and just near the Heroes Memorial are two 12-foot high black stone walls which bear the words, "I do not
know the dignity of his birth, but I do know the glory of his death." that General Douglas MacArthur made during
his sentimental journey to the Philippines in 1961.

4. Defenders of Bataan and Corregidor Memorial Pylon - Inaugurated on April 5, 1977 by Secretary Renato S.
De Villa in memory of the defenders of Bataan and Corregidor during World War II. This monument is dedicated
as an eternal acknowledgment of their valor and sacrifice in defense of the Philippines.

5. Korean Memorial Pylon - A towering monument honoring the 112 Filipino officers and men who, as members
of the Philippine Expeditionary Forces to Korea (PEFTOK), perished during the Korean War.

6. Vietnam Veterans Memorial Pylon - Dedicated to the members of the Philippine contingents and Philippine
civic action groups to Vietnam (PHILCON-V and PHILCAG-V) who served as medical, dental, engineering
construction, community and psychological workers, and security complement. They offered tremendous
sacrifices as they alleviated human suffering in war-ravaged Vietnam from 1964-1971. Inscribed on the memorial
pylon are the words: "To build and not to destroy, to bring the Vietnamese people happiness and not sorrow, to
develop goodwill and not hatred."

7. Philippine World War II Guerillas Pylon - Erected by the Veterans Federation of the Philippines as a testimony
to the indomitable spirit and bravery of the Filipino guerillas of World War II who refused to be cowed into
submission and carried on the fight for freedom against an enemy with vastly superior arms and under almost
insurmountable odds. Their hardship and sufferings, as well as their defeats and victories, are enshrined in this
memorial.[134]

Contrary to the dissent, P.D. No. 105[135] does not apply to the LNMB. Despite the fact that P.D. No. 208 predated P.D.
No. 105,[136] the LNMB was not expressly included in the national shrines enumerated in the latter.[137] The proposition
that the LNMB is implicitly covered in the catchall phrase "and others which may be proclaimed in the future as National
Shrines" is erroneous because:

(1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.

(2) Following the canon of statutory construction known as ejusdem generis,[138] the LNMB is not a site "of the birth,
exile, imprisonment, detention or death of great and eminent leaders of the nation." What P.D. No. 105 contemplates are
the following national shrines: Fort Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor and Bataan,
the site of First Mass in the Philippines, Aguinaldo Shrine or Freedom Shrine, Fort San Antonio Abad National Shrine,
Tirad Pass National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red Beach" or the landing point of General
Douglas MacArthur and the liberating forces, Dapitan City, General Leandro Locsin Fullon National Shrine, and Mabini
Shrine. Excluded are the military memorials and battle monuments declared as national shrines under the PVAO, such as:
Mt. Samat National Shrine, Kiangan War Memorial Shrine, Capas National Shrine, Ricarte National Shrine, Balantang
Memorial Cemetery National Shrine, Balete Pass National Shrine; USAFIP, NL Military Shrine and Park, and the LNMB.

(3) Since its establishment, the LNMB has been a military shrine under the jurisdiction of the PVAO. While P.D. No. 1
dated September 24, 1972 transferred the administration, maintenance and development of national shrines to the NHI
under the DEC, it never actually materialized. Pending the organization of the DEC, its functions relative to national
shrines were tentatively integrated into the PVAO in July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No.
1076. The PVAO, through the MSS, was tasked to administer, maintain, and develop military memorials and battle
monuments proclaimed as national shrines. The reasons being that "the administration, maintenance and development of
national shrines consisting of military memorials or battle monuments can be more effectively accomplished if they are
51
removed from the [DEC] and transferred to the [DND] by reason of the latter's greater capabilities and resources" and
that "the functions of the [DND] are more closely related and relevant to the charter or significance of said national
shrines."

The foregoing interpretation is neither narrow and myopic nor downright error. Instead, it is consistent with the letter and
intent of P.D. No. 105.

Assuming that P.D. No. 105 is applicable, the descriptive words "sacred and hallowed" refer to the LNMB as a place and
not to each and every mortal remains interred therein. Hence, the burial of Marcos at the LNMB does not diminish said
cemetery as a revered and respected ground. Neither does it negate the presumed individual or collective "heroism" of the
men and women buried or will be buried therein. The "nations esteem and reverence for her war dead," as originally
contemplated by President Magsaysay in issuing Proclamation No. 86, still stands unaffected. That being said, the
interment of Marcos, therefore, does not constitute a violation of the physical, historical, and cultural integrity of the
LNMB as a national military shrine.

At this juncture, reference should be made to Arlington National Cemetery (Arlington), which is identical to the LNMB in
terms of its prominence in the U.S. It is not amiss to point that our armed forces have been patterned after the U.S. and
that its military code produced a salutary effect in the Philippines' military justice system.[139] Hence, relevant military
rules, regulations, and practices of the U.S. have persuasive, if not the same, effect in this jurisdiction.

As one of the U.S. Army national military cemeteries,[140] the Arlington is under the jurisdiction of the Department of the
Army.[141] The Secretary of the U.S. Army has the responsibility to develop, operate, manage, administer, oversee, and
fund the Army national military cemeteries in a manner and to standards that fully honor the service and sacrifices of the
deceased members of the armed forces buried or inurned therein, and shall prescribe such regulations and policies as may
be necessary to administer the cemeteries.[142] In addition, the Secretary of the U.S. Army is empowered to appoint an
advisory committee, which shall make periodic reports and recommendations as well as advise the Secretary with respect
to the administration of the cemetery, the erection of memorials at the cemetery, and master planning for the cemetery. [143]

Similar to the Philippines, the U.S. national cemeteries are established as national shrines in tribute to the gallant dead
who have served in the U.S. Armed Forces.[144] The areas are protected, managed and administered as suitable and
dignified burial grounds and as significant cultural resources.[145] As such, the authorization of activities that take place
therein is limited to those that are consistent with applicable legislation and that are compatible with maintaining their
solemn commemorative and historic character.[146]

The LNMB is considered as a national shrine for military memorials. The PVAO, which is empowered to administer,
develop, and maintain military shrines, is under the supervision and control of the DND. The DND, in turn, is under the
Office of the President.

The presidential power of control over the Executive Branch of Government is a self-executing provision of the
Constitution and does not require statutory implementation, nor may its exercise be limited, much less withdrawn, by the
legislature.[147] This is why President Duterte is not bound by the alleged 1992 Agreement[148] between former President
Ramos and the Marcos family to have the remains of Marcos interred in Batac, Ilocos Norte. As the incumbent President,
he is free to amend, revoke or rescind political agreements entered into by his predecessors, and to determine policies
which he considers, based on informed judgment and presumed wisdom, will be most effective in carrying out his
mandate.

Moreover, under the Administrative Code, the President has the power to reserve for public use and for specific public

52
purposes any of the lands of the public domain and that the reserved land shall remain subject to the specific public
purpose indicated until otherwise provided by law or proclamation.[149] At present, there is no law or executive issuance
specifically excluding the land in which the LNMB is located from the use it was originally intended by the past
Presidents. The allotment of a cemetery plot at the LNMB for Marcos as a former President and Commander-in-Chief,[150]
a legislator,[151] a Secretary of National Defense,[152] a military personnel,[153] a veteran,[154] and a Medal of Valor
awardee,[155] whether recognizing his contributions or simply his status as such, satisfies the public use requirement. The
disbursement of public funds to cover the expenses incidental to the burial is granted to compensate him for valuable
public services rendered.[156] Likewise, President Duterte's determination to have Marcos' remains interred at the LNMB
was inspired by his desire for national healing and reconciliation. Presumption of regularity in the performance of official
duty prevails over petitioners' highly disputed factual allegation that, in the guise of exercising a presidential prerogative,
the Chief Executive is actually motivated by utang na loob (debt of gratitude) and bayad utang (payback) to the
Marcoses. As the purpose is not self-evident, petitioners have the burden of proof to establish the factual basis of their
claim. They failed. Even so, this Court cannot take cognizance of factual issues since We are not a trier of facts.

C. AFP Regulations on the LNMB

A review of the regulations issued by the AFP Chief of Staff as to who may and may not be interred at the LNMB
underscores the nature and purpose of the LNMB as an active military cemetery/grave site.

On May 13, 1947, the Chief of Staff of the Philippine Army, by the direction of the President and by order of the
Secretary of National Defense, issued General Orders No. 111, which constituted and activated, as of said date, the Graves
Registration Platoon as a unit of the Philippine Army.

On February 2, 1960, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G
161-371 (Administrative and Special Staff Services, Grave Registration Service), which provided that the following may
be interred in the LNMB: (a) World War II dead of the AFP and recognized guerillas; (b) Current dead of the AFP; (c)
Retired military personnel of the AFP; (d) Remains of former members of the AFP who died while in the active service
and in the Retired List of the AFP now interred at different cemeteries and other places throughout the Philippines or the
Secretary of National Defense; and (e) Others upon approval of the Congress of the Philippines, the President of the
Philippines or the Secretary of National Defense. The regulation also stated that the AFP Quartermaster General will be
responsible for, among other matters, the efficient operation of the Graves Registration Service; the interment,
disinterment and reinterment of the dead mentioned above; and preservation of military cemeteries, national cemeteries,
and memorials.

On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G 161-
372 (Administration and Operation of AFP Graves Registration Installations), which superseded AFP Regulations G 161-
371. It provided that the following may be interred in the LNMB: (a) Deceased Veterans of the Philippine Revolution of
1896/World War I; (b) Deceased World War II members of the AFP and recognized guerillas; (c) Deceased military
personnel of the AFP who died while in the active duty; (d) Deceased retired military personnel of the AFP; (e) Deceased
military personnel of the AFP interred at different cemeteries and other places outside the LNMB; and (f) Such remains of
persons as the Commander-in-Chief of the AFP may direct. The remains of the following were not allowed to be interred
in the LNMB: (a) The spouse of an active, or retired, deceased military personnel, recognized guerillas who
himself/herself is not a military personnel; and (b) AFP personnel who were retireable but separated/reverted/discharged
for cause, or joined and aided the enemy of the Republic of the Philippines, or were convicted of capital or other criminal
offenses, involving moral turpitude. The regulation also stated that the Quartermaster General shall be responsible for,
among other matters, the efficient operation of the AFP graves registration installations; the interment, disinterment and
reinterment of deceased military personnel mentioned above; and the preservation of military cemeteries, proper marking

53
and official recording of graves therein.

On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of National Defense Minister, issued AFP Regulations G
161-373 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-372.
It enumerated a list of deceased person who may be interred at the LNMB, namely: (a) Medal of Valor Awardees; (b)
Presidents or Commanders-in-Chief, AFP; (c) Ministers of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag
Officers of the AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1896,
WWI, WWII and recognized guerillas; and (h) Government Dignitaries, Statesmen, National Artist and other deceased
persons whose interment or reinterment has been approved by the Commander-in-Chief, Batasang Pambansa or the
Minister of National Defense. The regulation also stated that the Quartermaster General shall be responsible for the
allocation of specific section/areas for the said deceased persons, while the Commanding Officer of the Quartermaster
Graves Registration Company shall be charged with the preparation of grave sites, supervision of burials at LNMB and
the registration of graves.

On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of National Defense, issued AFP Regulations G
161-374 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP Regulations G 161-373.
It provided that the following may be interred in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-inChief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e) General/Flag Officers of the
AFP; (f) Active and retired military personnel of the AFP; (g) Veterans of Philippine Revolution of 1890, WWI, WWII
and recognized guerillas; (h) Government Dignitaries, Statesmen, National Artists and other deceased persons whose
interment or reinterment has been approved by the Commander-in-Chief, Congress or Secretary of National Defense; and
(i) Former Presidents, Secretaries of Defense, CSAFP, Generals/Flag Officers, Dignitaries, Statesmen, National Artists,
widows of former Presidents, Secretaries of National Defense and Chief of Staff. The remains of the following were not
allowed to be interred in the LNMB: (a) Personnel who were dishonorably separated/reverted/discharged from the service;
and (b) Authorized personnel who were convicted by final judgment of an offense involving moral turpitude. Like AFP
Regulations G 161-373, it stated that the Quartermaster General shall be responsible for the allocation of specific
section/areas for the deceased persons, whereas the Commanding Officer of the Quartermaster Graves Registration Unit
shall be charged with the preparation of grave sites, supervision of burials, and the registration of graves.

Finally, on September 11, 2000, the AFP Chief of Staff, by the order of the Secretary of National Defense, issued AFP
Regulations G 161-375 (Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP
Regulations G 161-374. The regulation stated that the Chief of Staff shall be responsible for the issuance of interment
directive for all active military personnel for interment, authorized personnel (such as those former members of the AFP
who laterally entered or joined the Philippine Coast Guard [PCG] and the Philippine National Police [PNP]), and retirees,
veterans and reservists enumerated therein. The Quartermaster General is tasked to exercise over-all supervision in the
implementation of the regulation and the Commander ASCOM, PA through the Commanding Officer of Grave Services
Unit is charged with the registration of the deceased/graves, the allocation of specific section/area at the LNMB for
interment of deceased, the preparation of grave sites, and the supervision of burials.

Under AFP Regulations G 161-375, the following are eligible for interment at the LNMB: (a) Medal of Valor Awardees;
(b) Presidents or Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military personnel of the AFP to include active draftees and
trainees who died in line of duty, active reservists and CAFGU Active Auxiliary (CAA) who died in combat operations or
combat related activities; (g) Former members of the AFP who laterally entered or joined the PCG and the PNP; (h)
Veterans of Philippine Revolution of 1890, WWI, WWII and recognized guerillas; (i) Government Dignitaries,
Statesmen, National Artists and other deceased persons whose interment or reinterment has been approved by the
Commander-in-Chief, Congress or the Secretary of National Defense; and G) Former Presidents, Secretaries of Defense,

54
Dignitaries, Statesmen, National Artists, widows of Former Presidents, Secretaries of National Defense and Chief of Staff.
Similar to AFP Regulations G 161-374, the following are not qualified to be interred in the LNMB: (a) Personnel who
were dishonorably separated/reverted/discharged from the service; and (b) Authorized personnel who were convicted by
final judgment of an offense involving moral turpitude.

In the absence of any executive issuance or law to the contrary, the AFP Regulations G 161-375 remains to be the sole
authority in determining who are entitled and disqualified to be interred at the LNMB. Interestingly, even if they were
empowered to do so, former Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who were themselves
aggrieved at the Martial Law, did not revise the rules by expressly prohibiting the burial of Marcos at the LNMB. The
validity of AFP Regulations G 161-375 must, therefor, be sustained for having been issued by the AFP Chief of Staff
acting under the direction of the Secretary of National Defense, who is the alter ego of the President.

x x x In Joson v. Torres, we explained the concept of the alter ego principle or the doctrine of qualified political agency
and its limit in this wise:

Under this doctrine, which recognizes the establishment of a single executive, all executive and administrative
organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law
to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved
or reprobated by the Chief Executive presumptively the acts of the Chief Executive. (Emphasis ours, citation omitted.) [157]

It has been held that an administrative regulation adopted pursuant to law has the force and effect of law and, until set
aside, is binding upon executive and administrative agencies, including the President as the chief executor of laws. [158]

1. Qualification under the AFP Regulations

AFP Regulations G 161-375 should not be stricken down in the absence of clear and unmistakable showing that it has
been issued with grave abuse of discretion amounting to lack or excess of jurisdiction. Neither could it be considered ultra
vires for purportedly providing incomplete, whimsical, and capricious standards for qualification for burial at the LNMB.

To compare, We again refer to the U.S. Army regulations on Arlington. In the U.S., the Secretary of the Army, with the
approval of the Secretary of Defense, determines eligibility for interment or inurnment in the Army national military
cemeteries.[159] Effective October 26, 2016, the rule[160] is as follows:

Only those who qualify as a primarily eligible person or a derivatively eligible person are eligible for interment in
Arlington National Cemetery, unless otherwise prohibited as provided for in §§ 553.19[161]-553.20,[162] provided that the
last period of active duty of the service member or veteran ended with an honorable discharge.

(a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment:

(1) Any service member who dies on active duty in the U.S. Armed Forces (except those service members serving on
active duty for training only), if the General Courts Martial Convening Authority grants a certificate of honorable service.

(2) Any veteran retired from a Reserve component who served a period of active duty (other than for training), is carried
on the official retired list, and is entitled to receive military retired pay.

55
(3) Any veteran retired from active military service and entitled to receive military retired pay.

(4) Any veteran who received an honorable discharge from the Armed Forces prior to October 1, 1949, who was
discharged for a permanent physical disability, who served on active duty (other than for training), and who would have
been eligible for retirement under the provisions of 10 U.S.C. 1201 had the statute been in effect on the date of separation.

(5) Any veteran awarded one of the following decorations:

(i) Medal of Honor;[163]

(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;

(iii) Distinguished Service Medal;

(iv) Silver Star; or

(v) Purple Heart.

(6) Any veteran who served on active duty (other than active duty for training) and who held any of the following
positions:

(i) President or Vice President of the United States;

(ii) Elected member of the U.S. Congress;

(iii) Chief Justice of the Supreme Court of the United States or Associate Justice of the Supreme Court of the United
States;

(iv) A position listed, at the time the person held the position, in 5 U.S.C. 5312[164] or 5313[165] (Levels I and II of the
Executive Schedule); or

(v) Chief of Mission of a Category 4, 5, or post if the Department of State classified that post as a Category 4, 5, or 5+
post during the person's tenure as Chief of Mission.

(7) Any former prisoner of war who, while a prisoner of war, served honorably in the active military service, and who
died on or after November 30, 1993.

(b) Derivatively eligible persons. The following individuals are derivatively eligible persons for purposes of interment
who may be interred if space is available in the gravesite of the primarily eligible person:

(1) The spouse of a primarily eligible person who is or will be interred in Arlington National Cemetery. A former spouse
of a primarily eligible person is not eligible for interment in Arlington National Cemetery under this paragraph.

(2) The spouse of an active duty service member or an eligible veteran, who was:

(i) Lost or buried at sea, temporarily interred overseas due to action by the Government, or officially determined to be
missing in action;

56
(ii) Buried in a U.S. military cemetery maintained by the American Battle Monuments Commission; or

(iii) Interred in Arlington National Cemetery as part of a group burial (the derivatively eligible spouse may not be buried
in the group burial gravesite).

(3) The parents of a minor child or a permanently dependent adult child, whose remains were interred in Arlington
National Cemetery based on the eligibility of a parent at the time of the child's death, unless eligibility of the non-service
connected parent is lost through divorce from the primarily eligible parent.

(4) An honorably discharged veteran who does not qualify as a primarily eligible person, if the veteran will be buried in
the same gravesite as an already interred primarily eligible person who is a close relative, where the interment meets the
following conditions:

(i) The veteran is without minor or unmarried adult dependent children;

(ii) The veteran will not occupy space reserved for the spouse, a minor child, or a permanently dependent adult child;

(iii) All other close relatives of the primarily eligible person concur with the interment of the veteran with the primarily
eligible person by signing a notarized statement;

(iv) The veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement
might be based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the
spouse's waiver, provided space is available in the same gravesite, and all close relatives of the primarily eligible person
concur;

(v) Any cost of moving, recasketing, or revaulting the remains will be paid from private funds.

There is a separate list of eligible with respect to the inurnment of cremated remains in the Columbarium, [166] interment of
cremated remains in the Unmarked Area,[167] and group burial.[168] As a national military cemetery, eligibility standards for
interment, inurnment, or memorialization in Arlington are based on honorable military service.[169] Exceptions to the
eligibility standards for new graves, which are rarely granted, are for those persons who have made significant
contributions that directly and substantially benefited the U.S. military.[170]

Judging from the foregoing, it is glaring that the U.S. Army regulations on Arlington and the AFP Regulations G 161-375
on the LNMB, as a general rule, recognize and reward the military services or military related activities of the deceased.
Compared with the latter, however, the former is actually less generous in granting the privilege of interment since only
the spouse or parent, under certain conditions, may be allowed "if space is available in the gravesite of the primarily
eligible person."

It is not contrary to the "well-established custom," as the dissent described it, to argue that the word "bayani" in the
LNMB has become a misnomer since while a symbolism of heroism may attach to the LNMB as a national shrine for
military memorial, the same does not automatically attach to its feature as a military cemetery and to those who were
already laid or will be laid therein. As stated, the purpose of the LNMB, both from the legal and historical perspectives,
has neither been to confer to the people buried there the title of "hero" nor to require that only those interred therein
should be treated as a "hero." In fact, the privilege of internment at the LNMB has been loosen up through the years. Since
1986, the list of eligible includes not only those who rendered active military service or military-related activities but also
non-military personnel who were recognized for their significant contributions to the Philippine society (such as
57
government dignitaries, statesmen, national artists, and other deceased persons whose interment or reinterment has been
approved by the Commander-in-Chief, Congress or Secretary of National Defense). In 1998, the widows of former
Presidents, Secretaries of National Defense and Chief of Staff were added to the list. Whether or not the extension of
burial privilege to civilians is unwarranted and should be restricted in order to be consistent with the original purpose of
the LNMB is immaterial and irrelevant to the issue at bar since it is indubitable that Marcos had rendered significant
active military service and military-related activities.

Petitioners did not dispute that Marcos was a former President and Commander-in-Chief, a legislator, a Secretary of
National Defense, a military personnel, a veteran, and a Medal of Valor awardee. For his alleged human rights abuses and
corrupt practices, we may disregard Marcos as a President and Commander-in-Chief, but we cannot deny him the right to
be acknowledged based on the other positions he held or the awards he received. In this sense, We agree with the
proposition that Marcos should be viewed and judged in his totality as a person. While he was not all good, he was not
pure evil either. Certainly, just a human who erred like us.

Our laws give high regard to Marcos as a Medal of Valor awardee and a veteran. R.A. No. 9049[171] declares the policy of
the State "to consistently honor its military heroes in order to strengthen the patriotic spirit and nationalist consciousness
of the military."[172] For the "supreme self-sacrifice and distinctive acts of heroism and gallantry,"[173] a Medal of Valor
awardee or his/her dependents/heirs/beneficiaries are entitled to the following social services and financial rewards:

1. Tax-exempt lifetime monthly gratuity of Twenty Thousand Pesos (P20,000.00), which is separate and distinct
from any salary or pension that the awardee currently receives or will receive from the government of the
Philippines;[174]

2. Precedence in employment in government agencies or government-owned or controlled corporation, if the job

qualifications or requirements are met;

3. Priority in the approval of the awardee's housing application under existing housing programs of the government;

4. Priority in the acquisition of public lands under the Public Land Act and preferential right in the lease of pasture
lands and exploitation of natural resources;

5. Privilege of obtaining loans in an aggregate amount not exceeding Five Hundred Thousand Pesos (P500,000.00)
from governmentowned or controlled financial institutions without having to put up any collateral or constitute
any pledge or mortgage to secure the payment of the loan;

6. Twenty (20%) percent discount from all establishments relative to utilization of transportation services, hotels and
similar lodging establishments, restaurants, recreation and sport centers and purchase of medicine anywhere in the
country;

7. Twenty (20%) percent discount on admission fees charged by theaters, cinema houses and concert halls, circuses,
carnivals and other similar places of culture, leisure and amusement;

8. Free medical and dental services and consultation in hospital and clinics anywhere in the country;

9. Exemption from the payment of tuition and matriculation fees in public or private schools, universities, colleges
and other educational institutions in any pre-school, baccalaureate or post graduate courses such as or including
course leading to the degree of Doctor of Medicine (MD), Bachelor of Laws (LLB), and Bachelor of Science in
Nursing (BSN) or allied and similar courses; and

58
 10. If interested and qualified, a quota is given to join the cadet corps of the Philippine Military Academy or
otherwise priority for direct commission, call to active duty (CAD) and/or enlistment in regular force of the AFP.

On the other hand, in recognizing their patriotic services in times of war and peace for the cause of freedom and
democracy; for the attainment of national unity, independence, and socioeconomic advancement; and for the maintenance
of peace and order,[175] R.A. No. 6948, as amended,[176] grants our veterans[177] and their dependents or survivors with
pension (old age, disability, total administrative disability, and death) and non-pension (burial, education, hospitalization,
and medical care and treatment) benefits as well as provisions from the local governments. Under the law, the benefits
may be withheld if the Commission on Human Rights certifies to the AFP General Headquarters that the veteran has been
found guilty by final judgment of a gross human rights violation while in the service, but this factor shall not be
considered taken against his next of kin.[178]

2. Disqualification under the AFP Regulations

Aside from being eligible for burial at the LNMB, Marcos possessed none of the disqualifications stated in AFP
Regulations G 161-375. He was neither convicted by final judgment of the offense involving moral turpitude nor
dishonorably separated/reverted/discharged from active military service.

Petitioners, however, protest that a narrow interpretation of the AFP regulations disregards historical context and the rule
on statutory construction. They urge the Court to construe statutes not literally but according to their spirit and reason.

It is argued that Marcos committed offenses involving moral turpitude for his gross human rights violations, massive graft
and corruption, and dubious military records, as found by foreign and local courts as well as administrative agencies. By
going into exile, he deliberately evaded liability for his actions. And by allowing death to overtake him, he inevitably
escaped the prospect of facing accountability for his crimes. They also contend that his removal in the 1986 popular
uprising is a clear sign of his discharge from the AFP. The People Power Revolution was the direct exercise of the
Filipinos' power to overthrow an illegitimate and oppressive regime. As a sovereign act, it necessarily includes the power
to adjudge him as dishonorably discharged from the AFP.

Furthermore, according to petitioners, to limit the application of the disqualifying provisions of AFP Regulations G 161-
375 only to soldiers would be unfair (since, unlike Presidents, soldiers have an additional cause for disqualification) and
lead to absurd results (because soldiers who were dishonorably discharged would be disqualified for acts that are less
atrocious than that committed by Marcos). Also, the AFP regulations would place Marcos in the same class as the other
Philippine Presidents when in fact he is a class of his own, sui generis. The other Presidents were never removed by
People Power Revolution and were never subject of laws declaring them to have committed human rights violations.
Thus, the intended burial would be an act of similarly treating persons who are differently situated.

Despite all these ostensibly persuasive arguments, the fact remains that Marcos was not convicted by final judgment of
any offense involving moral turpitude. No less than the 1987 Constitution mandates that a person shall not be held to
answer for a criminal offense without due process of law and that, "[i]n all criminal prosecutions, the accused shall be
presum innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed
of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses
face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his
behalf."[179] Even the U.N. principles on reparation and to combat impunity cited by petitioners unequivocally guarantee
the rights of the accused, providing that:

XIII. Rights of others

59
27. Nothing in this document is to be construed as derogating from internationally or nationally protected rights of others,
in particular the right of an accused person to benefit from applicable standards of due process.

xxx

PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED

Before a commission identifies perpetrators in its report, the individuals concerned shall be entitled to the following
guarantees:

(a) The commission must try to corroborate information implicating individuals before they are named publicly;

(b) The individuals implicated shall be afforded an opportunity to provide a statement setting forth their version of the
facts either at a hearing convened by the commission while conducting its investigation or through submission of a
document equivalent to a right of reply for inclusion in the commission's file.

To note, in the U.S., a person found to have committed a Federal or State capital crime (i.e., a crime which a sentence of
imprisonment for life or death penalty may be imposed) but who has not been convicted by reason of not being available
for trial due to death or flight to avoid prosecution, may be ineligible for interment, inurnment, or memorialization in an
Army national military cemetery. Nevertheless, such ineligibility must still observe the procedures specified in §
553.21.[180]

The various cases cited by petitiOners, which were decided with finality by courts here and abroad, have no bearing in
this case since they are merely civil in nature; hence, cannot and do not establish moral turpitude.

Also, the equal protection clause is not violated. Generally, there is no property right to safeguard because even if one is
eligible to be buried at the LNMB, such fact would only give him or her the privilege to be interred therein. Unless there
is a favorable recommendation from the Commander-in-Chief, the Congress or the Secretary of National Defense, no
right can be said to have ripen. Until then, such inchoate right is not legally demandable and enforceable.

Assuming that there is a property right to protect, the requisites of equal protection clause are not met.[181] In this case,
there is a real and substantial distinction between a military personnel and a former President. The conditions of
dishonorable discharge under the Articles of War[182] attach only to the members of the military. There is also no
substantial distinction between Marcos and the three Philippine Presidents buried at the LNMB (Presidents Quirino,
Garcia, and Macapagal). All of them were not convicted of a crime involving moral turpitude. In addition, the
classification between a military personnel and a former President is germane to the purposes of Proclamation No. 208
and P.D. No. 1076. While the LNMB is a national shrine for military memorials, it is also an active military cemetery
that recognizes the status or position held by the persons interred therein.

Likewise, Marcos was honorably discharged from military service. PVAO expressly recognized him as a retired veteran
pursuant to R.A. No. 6948, as amended. Petitioners have not shown that he was dishonorably discharged from military
service under AFP Circular 17, Series of 1987 (Administrative Discharge Prior to Expiration of Term of Enlistment) for
violating Articles 94, 95 and 97 of the Articles of War.[183] The NHCP study[184] is incomplete with respect to his entire
military career as it failed to cite and include the official records of the AFP.

With respect to the phrase "[p]ersonnel who were dishonorably separated/reverted/discharged from the service," the
60
same should be viewed in light of the definition provided by AFP Regulations G 161-375 to the term "active service"
which is "[s]ervice rendered by a military person as a Commissioned Officer, enlisted man/woman, probationary officer,
trainee or draftee in the Armed Forces of the Philippines and service rendered by him/her as a civilian official or
employee in the Philippine Government prior to the date of his/her separation or retirement from the Armed Forces of the
Philippines, for which military and/or civilian service he/she shall have received pay from the Philippine Government,
and/or such others as may be hereafter be prescribed by law as active service (PD 1638, as amended)."[185] To my mind,
the word "service" should be construed as that rendered by a military person in the AFP, including civil service, from the
time of his/her commission, enlistment, probation, training or drafting, up to the date of his/her separation or retirement
from the AFP. Civil service after honorable separation and retirement from the AFP is outside the context of "service"
under AFP Regulations G 161-375.

Hence, it cannot be conveniently claimed that Marcos' ouster from the presidency during the EDSA Revolution is
tantamount to his dishonorable separation, reversion or discharge from the military service. The fact that the President is
the Commander-in-Chief of the AFP under the 1987 Constitution only enshrines the principle of supremacy of civilian
authority over the military. Not being a military person who may be prosecuted before the court martial, the President can
hardly be deemed "dishonorably separated/reverted/discharged from the service" as contemplated by AFP Regulations G
161-375. Dishonorable discharge through a successful revolution is an extra-constitutional and direct sovereign act of the
people which is beyond the ambit of judicial review, let alone a mere administrative regulation.

It is undeniable that former President Marcos was forced out of office by the people through the so-called EDSA
Revolution. Said political act of the people should not be automatically given a particular legal meaning other than its
obvious consequence- that of ousting him as president. To do otherwise would lead the Court to the treacherous and
perilous path of having to make choices from multifarious inferences or theories arising from the various acts of the
people. It is not the function of the Court, for instance, to divine the exact implications or significance of the number of
votes obtained in elections, or the message from the number of participants in public assemblies. If the Court is not to fall
into the pitfalls of getting embroiled in political and oftentimes emotional, if not acrimonious, debates, it must remain
steadfast in abiding by its recognized guiding stars - clear constitutional and legal rules - not by the uncertain, ambiguous
and confusing messages from the actions of the people.

Conclusion

In sum, there is no clear constitutional or legal basis to hold that there was a grave abuse of discretion amounting to lack
or excess of jurisdiction which would justify the Court to interpose its authority to check and override an act entrusted to
the judgment of another branch. Truly, the President's discretion is not totally unfettered. "Discretion is not a freespirited
stallion that runs and roams wherever it pleases but is reined in to keep it from straying. In its classic formulation,
'discretion is not unconfined and vagrant' but 'canalized within banks that keep it from overflowing.'" [186] At bar, President
Duterte, through the public respondents, acted within the bounds of the law and jurisprudence. Notwithstanding the call of
human rights advocates, the Court must uphold what is legal and just. And that is not to deny Marcos of his rightful place
at the LNMB. For even the Framers of our Constitution intend that full respect for human rights is available at any stage
of a person's development, from the time he or she becomes a person to the time he or she leaves this earth. [187]

There are certain things that are better left for history - not this Court - to adjudge. The Court could only do so much in
accordance with the clearly established rules and principles. Beyond that, it is ultimately for the people themselves, as the
sovereign, to decide, a task that may require the better perspective that the passage of time provides. In the meantime,
the country must mov'e on and let this issue rest.

WHEREFORE, PREMISES CONSIDERED, the petitions are DISMISSED. Necessarily, the Status Quo Ante Order is
61
G.R. No. 229781

SENATOR LEILA M. DE LIMA, Petitioner

vs.
HON. JUANITA GUERRERO, in her capacity as Presiding Judge, Regional Trial Court of Muntinlupa City,
Branch 204, PEOPLE OF THE PHILIPPINES, P/DIR. GEN. RONALD M. DELA ROSA, in his capacity as Chief
of the Philippine National Police, PSUPT. PHILIP GIL M. PHILIPPS, in his capacity as Director, Headquarters
Support Service, SUPT. ARNEL JAMANDRON APUD, in his capacity as Chief, PNP Custodial Service Unit, and
ALL PERSONS ACTING UNDER THEIR CONTROL, SUPERVISION, INSTRUCTION OR DIRECTION IN
RELATION TO THE ORDERS THAT MAY BE ISSUED BY THE COURT, Respondents

DECISION

VELASCO, JR., J.:

For consideration is the Petition for Certiorari and Prohibition with Application for a Writ of Preliminary Injunction, and
Urgent Prayer for Temporary Restraining Order and Status Quo Ante Order1 under Rule 65 of the Rules of Court filed by
petitioner Senator Leila De Lima. In it, petitioner assails the following orders and warrant issued by respondent judge
Hon. Juanita Guerrero of the Regional Trial Court (RTC) of Muntinlupa City, Branch 204, in Criminal Case No. 17-165,
entitled "People vs. Leila De Lima, et al.:" (1) the Order dated February 23, 2017 finding probable cause for the issuance
of warrant of arrest against petitioner De Lima; (2) the Warrant of Arrest against De Lima also dated February 23, 2017;
(3) the Order dated February 24, 2017 committing the petitioner to the custody of the PNP Custodial Center; and finally,
(4) the supposed omission of the respondent judge to act on petitioner's Motion to Quash, through which she questioned
the jurisdiction of the RTC.2

Antecedents

The facts are undisputed. The Senate and the House of Representatives conducted several inquiries on the proliferation of
dangerous drugs syndicated at the New Bilibid Prison (NBP), inviting inmates who executed affidavits in support of their
testimonies.3 These legislative inquiries led to the filing of the following complaints with the Department of Justice:

a) NPS No. XVI-INV-16J-00313, entitled "Volunteers against Crime and Corruption (VACC), represented by Dante
Jimenez vs. Senator Leila M. De Lima, et al.;"

b) NPS No. XVI-INV-16J-00315, entitled "Reynaldo Esmeralda and Ruel Lasala vs. Senator Leila De Lima, et al.;"

c) NPS No. XVI-INV-16K-00331, entitled "Jaybee Nifio Sebastian, represented by his wife Roxanne Sebastian, vs.
Senator Leila M De Lima, et al.;" and

d) NPS No. XVI-INV-16K-00336, entitled "National Bureau of Investigation (NBI) vs. Senator Leila M. De Lima, et al. "4

Pursuant to DOJ Department Order No. 790, the four cases were consolidated and the DOJ Panel of Prosecutors (DOJ
Panel),5 headed by Senior Assistant State Prosecutor Peter Ong, was directed to conduct the requisite preliminary
investigation.6

The DOJ Panel conducted a preliminary hearing on December 2, 2016,7 wherein the petitioner, through her counsel, filed
an Omnibus Motion to Immediately Endorse the Cases to the Office of the Ombudsman and for the Inhibition of the Panel
of Prosecutors and the Secretary of Justice ("Omnibus Motion").8 In the main, the petitioner argued that the Office of the
Ombudsman has the exclusive authority and jurisdiction to hear the four complaints against her. Further, alleging evident
partiality on the part of the DOJ Panel, the petitioner contended that the DOJ prosecutors should inhibit themselves and
refer the complaints to the Office of the Ombudsman.
62
A hearing on the Omnibus Motion was conducted on December 9, 2016,9 wherein the complainants, YACC, Reynaldo
Esmeralda (Esmeralda) and Ruel Lasala (Lasala), filed a Joint Comment/Opposition to the Omnibus Motion. 10

On December 12, 2016, petitioner, in turn, interposed a Reply to the Joint Comment/Opposition filed by complainants
VACC, Esmeralda and Lasala. In addition, petitioner submitted a Manifestation with Motion to First Resolve Pending
Incident and to Defer Further Proceedings. 11

During the hearing conducted on December 21, 2016, petitioner manifested that she has decided not to submit her
counter-affidavit citing the pendency of her two motions.12 The DOJ Panel, however, ruled that it will not entertain
belatedly filed counter-affidavits, and declared all pending incidents and the cases as submitted for resolution. Petitioner
moved for but was denied reconsideration by the DOJ Panel.13

On January 13, 2017, petitioner filed before the Court of Appeals a Petition for Prohibition and Certiorari14assailing the
jurisdiction of the DOJ Panel over the complaints against her. The petitions, docketed as CA-G.R. No. 149097 and CA-
G.R. No. SP No. 149385, are currently pending with the Special 6th Division of the appellate court.15Meanwhile, in the
absence of a restraining order issued by the Court of Appeals, the DOJ Panel proceeded with the conduct of the
preliminary investigation16 and, in its Joint Resolution dated February 14, 2017,17 recommended the filing of Informations
against petitioner De Lima. Accordingly, on February 17, 2017, three Informations were filed against petitioner De Lima
and several co-accused before the RTC ofMuntinlupa City. One of the Infonnations was docketed as Criminal Case No.
17-16518 and raffled off to Branch 204, presided by respondent judge. This Information charging petitioner for violation
of Section 5 in relation to Section (jj), Section 26(b), and Section 28 of Republic Act No. (RA) 9165, contained the
following averments:

That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and within the
jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of the Department of Justice,
and accused Rafael Marcos Z. Rages, being then the Officer-in-Charge of the Bureau of Corrections, by taking advantage
of their public office, conspiring and confederating with accused Ronnie P. Dayan, being then an employee of the
Department of Justice detailed to De Lima, all of them having moral ascendancy or influence over inmates in the New
Bilibid Prison, did then and there commit illegal drug trading, in the following manner: De Lima and Ragos, with the use
of their power, position, and authority, demand, solicit and extort money from the high profile inmates in the New Bilibid
Prison to support the senatorial bid of De Lima in the May 2016 election; by reason of which, the inmates, not being
lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there willfully
and unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima, through Ragos and Dayan,
the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million
(₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱100,000.00) Pesos weekly "tara" each from
the high profile inmates in the New Bilibid Prison.19

On February 20, 2017, petitioner filed a Motion to Quash,20mainly raising the following: the RTC lacks jurisdiction over
the offense charged against petitioner; the DOJ Panel lacks authority to file the Information; the Information charges more
than one offense; the allegations and the recitals of facts do not allege the corpus delicti of the charge; the Information is
based on testimonies of witnesses who are not qualified to be discharged as state witnesses; and the testimonies of these
witnesses are hearsay.21

On February 23, 2017, respondent judge issued the presently assailed Order 22finding probable cause for the issuance of
warrants of arrest against De Lima and her co-accused. The Order stated, viz.:

After a careful evaluation of the herein Information and all the evidence presented during the preliminary investigation
conducted in this case by the Department of Justice, Manila, the Court finds sufficient probable cause for the issuance of

63
Warrants of Arrest against all the accused LEILA M. DE LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P
ALISOC DAYAN.

WHEREFORE, let Warrants of Arrest be issued against the abovementioned accused.

SO ORDERED.23

Accordingly, the questioned Warrant of Arrest dated February 23, 2017 ,24 which contained no recommendation for bail,
was issued against petitioner.

On February 24, 2017, the PNP Investigation and Detection Group served the Warrant of Arrest on petitioner and the
respondent judge issued the assailed February 24, 2017 Order,25 committing petitioner to the custody of the PNP
Custodial Center.

On February 27, 2017, petitioner repaired to this court via the present petition, praying for the following reliefs:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the Warrant of Arrest dated
the same date, and the Order dated 24 February 2017 of the Regional Trial Court - Branch 204, Muntinlupa City, in
Criminal Case No. 17-165 entitled People of the Philippines versus Leila M De Lima, et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further proceedings until
and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a writ of
preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order and Warrant of
Arrest, both dated February 23, 201 7, thereby recalling both processes and restoring petitioner to her liberty and
freedom.26

On March 9, 2017, the Office of the Solicitor General (OSG), on behalf of the respondents, interposed its Comment to the
petition.27 The OSG argued that the petition should be dismissed as De Lima failed to show that she has no other plain,
speedy, and adequate remedy. Further, the OSG posited that the petitioner did not observe the hierarchy of courts and
violated the rule against forum shopping. On substantive grounds, the OSG asserted inter alia that the RTC has
jurisdiction over the offense charged against the petitioner, that the respondent judge observed the constitutional and
procedural rules, and so did not commit grave abuse of discretion, in the issuance of the assailed orders and warrant. 28

On petitioner's motion, the Court directed the holding of oral arguments on the significant issues raised. The Court then
heard the parties in oral arguments on March 14, 21, and 28, 2017.29

In the meantime, the OSG filed a Manifestation dated March 13, 2017,30 claiming that petitioner falsified
the juratsappearing in the: (1) Verification and Certification against Forum Shopping page of her petition; and (2)
Affidavit of Merit in support of her prayer for injunctive relief. The OSG alleged that while the advertedjurats appeared to
be notarized by a certain Atty. Maria Cecille C. Tresvalles-Cabalo on February 24, 2017, the guest logbook31 in the PNP
Custodial Center Unit in Camp Crame for February 24, 2017 does not bear the name of Atty. Tresvalles-Cabalo. Thus, so
the OSG maintained, petitioner De Lima did not actually appear and swear before the notary public on such date in
Quezon City, contrary to the allegations in the jurats. For the OSG, the petition should therefore be dismissed outright for
the falsity committed by petitioner De Lima.

In compliance with an Order of this Court, petitioner filed the Affidavit of Atty. Maria Cecille C. Tresvalles-Cabalo dated
March 20, 201732 to shed light on the allegations of falsity in petitioner'sjurats.

64
The parties simultaneously filed their respective Memoranda on April 17, 2017.33

The Issues

From the pleadings and as delineated in this Court's Advisory dated March 10, 201734 and discussed by the parties during
the oral arguments, the issues for resolution by this Court are:

Procedural Issues:
A Whether or not petitioner is excused from compliance with the doctrine on hierarchy of courts considering that the
petition should first be filed with the Court of Appeals.

B. Whether or not the pendency of the Motion to Quash the Information before the trial court renders the instant petition
premature.

C. Whether or not petitioner, in filing the present petition, violated the rule against forum shopping given the pendency of
the Motion to Quash the Information before the Regional Trial Court of Muntinlupa City in Criminal Case No. 17-165
and the Petition for Certiorari filed before the Court of Appeals in C.A. G.R. SP No. 149097, assailing the preliminary
investigation conducted by the DOJ Panel.

Substantive Issues:
A. Whether the Regional Trial Court or the Sandiganbayan has the jurisdiction over the violation of Republic Act No.
9165 averred in the assailed Information.

B. Whether or not the respondent gravely abused her discretion in finding probable cause to issue the Warrant of Arrest
against petitioner.

C. Whether or not petitioner is entitled to a Temporary Restraining Order and/or Status Quo Ante Order in the interim
until the instant petition is resolved or until the trial court rules on the Motion to Quash.

OUR RULING

Before proceeding to a discussion on the outlined issues, We shall first confront the issue of the alleged falsification
committed by petitioner in the jurats of her Verification and Certification against Forum Shopping and Affidavit of Merit
in support of her prayer for injunctive relief.

In her Affidavit, Atty. Tresvalles-Cabalo disproves the OSG's allegation that she did not notarize the petitioner's
Verification and Certification against Forum Shopping and Affidavit of Merit in this wise:

4. On February 24, 2017 at or around nine in the morning (9:00 AM), I went to PNP, CIDG, Camp Crame, Quezon City to
notarize the Petition as discussed the previous night.

5. I met Senator De Lima when she was brought to the CIDG at Camp Crame and I was informed that the Petition was
already signed and ready for notarization.

6. I was then provided the Petition by her staff. I examined the signature of Senator De Lima and confirmed that it was
signed by her. I have known the signature of the senator given our personal relationship. Nonetheless, I still requested
from her staff a photocopy of any of her government-issued valid Identification Cards (ID) bearing her signature. A
photocopy of her passport was presented to me. I compared the signatures on the Petition and the Passport and I was able
to verify that the Petition was in fact signed by her. Afterwards, I attached the photocopy of her Passport to the Petition
which I appended to my Notarial Report/Record.

65
7. Since I already know that Sen. De Lima caused the preparation of the Petition and that it was her who signed the same,
I stamped and signed the same.

8. To confirm with Senator De Lima that I have already notarized the Petition, I sought entry to the detention facility at or
around three in the afternoon (3:00 PM). x x x

xxxx

11. Since I was never cleared after hours of waiting, I was not able to talk again to Senator De Lima to confirm the
notarization of the Petition. I then decided to leave Camp Crame.35

At first glance, it is curious that Atty. Tresvalles-Cabalo who claims to have "stamped and signed the [Verification and
Certification and Affidavit of Merit]" inside Camp Crame, presumably in De Lima's presence, still found it necessary to,
hours later, "confirm with Senator De Lima that [she had] already notarized the Petition." Nonetheless, assuming the
veracity of the allegations narrated in the Affidavit, it is immediately clear that petitioner De Lima did not sign the
Verification and Certification against Forum Shopping and Affidavit of Merit in front of the notary public. This is
contrary to the jurats (i.e., the certifications of the notary public at the end of the instruments) signed by Atty. Tresvalles-
Cabalo that the documents were "SUBSCRIBED AND SWORN to before me."

Such clear breach of notarial protocol is highly censurable36 as Section 6, Rule II of the 2004 Rules on Notarial Practice
requires the affiant, petitioner De Lima in this case, to sign the instrument or document in the presence of the notary, viz.:

SECTION 6. Jurat. - "Jurat" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public and presents an instrument or document;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules;

(c) signs the instrument or document in the presence of the notary; and

(d) takes an oath or affirmation before the notary public as to such instrument or document.(Emphasis and underscoring
supplied.)

While there is jurisprudence to the effect that "an irregular notarization merely reduces the evidentiary value of a
document to that of a private document, which requires /roof of its due execution and authenticity to be admissible as
evidence,"37 the same cannot be considered controlling in determining compliance with the requirements of Sections 1 and
2, Rule 65 of the Rules of Court. Both Sections 1 and 2 of Rule 6538 require that the petitions for certiorari and
prohibition must be verified and accompanied by a "sworn certificate of non-forum shopping."

In this regard, Section 4, Rule 7 of the Rules of Civil Procedure states that "[a] pleading is verified by an affidavit that the
affiant has read the pleading and that the allegations therein are true and correct of his personal knowledge or based on
authentic records." "A pleading required to be verified which x x x lacks a proper verification, shall be treated as an
unsigned pleading." Meanwhile, Section 5, Rule 7 of the Rules of Civil Procedure provides that "[t]he plaintiff or
principal party shall certify under oath in the complaint or other initiatory pleading asserting a claim for relief, or in a
sworn certification annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending therein; (b) if there is such other pending action or claim, a complete
statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has
been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed." "Failure to comply with the foregoing requirements shall not be curable
66
by mere amendment of the complaint or other initiatory pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided x x x."

In this case, when petitioner De Lima failed to sign the Verification and Certification against Forum Shopping in the
presence of the notary, she has likewise failed to properly swear under oath the contents thereof, thereby rendering false
and null the jurat and invalidating the Verification and Certification against Forum Shopping. The significance of a
proper jurat and the effect of its invalidity was elucidated in William Go Que Construction v. Court of Appeals,39where
this Court held that:

In .this case, it is undisputed that the Verification/Certification against Forum Shopping attached to the petition
for certiorari in CA-G.R. SP No. 109427 was not accompanied with a valid affidavit/properly certified under oath. This
was because the jurat thereof was defective in that it did not indicate the pertinent details regarding the
affiants' (i.e., private respondents) competent evidence of identities.

Under Section 6, Rule II of AM. No. 02-8-13-SC 63 dated July 6, 2004, entitled the "2004 Rules on Notarial Practice"
(2004 Rules on Notarial Practice), ajurat refers to an act in which an individual on a single occasion:

xxxx

In Fernandez v. Villegas (Fernandez), the Court pronounced that noncompliance with the verification requirement or a
defect therein "does not necessarily render the pleading fatally defective. The court may order its submission or correction
or act on the pleading if the attending circumstances are such that strict compliance with the Rule may be dispensed with
in order that the ends of justice may be served thereby." "Verification is deemed substantially complied with when one
who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and
when matters alleged in the petition have been made in good faith or are true and correct." Here, there was no substantial
compliance with the verification requirement as it cannot be ascertained that any of the private respondents actually swore
to the truth of the allegations in the petition for certiorari in CA-G.R. SP No. 109427 given the lack of competent
evidence of any of their identities. Because of this, the fact that even one of the private respondents swore that the
allegations in the pleading are true and correct of his knowledge and belief is shrouded in doubt.

For the same reason, neither was there substantial compliance with the certification against forum shopping requirement.
In Fernandez, the Court explained that "non-compliance therewith or a defect therein, unlike in verification, is generally
not curable by its subsequent submission or correction thereof, unless there is a need to relax the Rule on the ground of
'substantial compliance' or presence of 'special circumstances or compelling reasons."' Here, the CA did not mention - nor
does there exist - any perceivable special circumstance or compelling reason which justifies the rules' relaxation. At all
events, it is uncertain if any of the private respondents certified under oath that no similar action has been filed or is
pending in another forum.

xxxx

Case law states that "[v]erification is required to secure an assurance that the allegations in the petition have been made in
good faith or are true and correct, and not merely speculative." On the other hand, "[t]he certification against forum
shopping is required based on the principle that a party-litigant should not be allowed to pursue simultaneous remedies in
different fora." The important purposes behind these requirements cannot be simply brushed aside absent any sustainable
explanation justifying their relaxation. In this case, proper justification is especially called for in light of the serious
allegations of forgery as to the signatures of the remaining private respondents, i.e., Lominiqui and Andales. Thus, by
simply treating the insufficient submissions before it as compliance with its Resolution dated August 13, 2009 requiring
anew the submission of a proper verification/certification against forum shopping, the CA patently and grossly ignored
settled procedural rules and, hence, gravely abused its discretion. All things considered, the proper course of action was
for it to dismiss the petition.40 (Emphasis and underscoring supplied.)
67
Without the presence of the notary upon the signing of the Verification and Certification against Forum Shopping, there is
no assurance that the petitioner swore under oath that the allegations in the petition have been made in good faith or are
true and correct, and not merely speculative. It must be noted that verification is not an empty ritual or a meaningless
formality. Its import must never be sacrificed in the name of mere expedience or sheer caprice, 41as what apparently
happened in the present case. Similarly, the absence of the notary public when petitioner allegedly affixed her signature
also negates a proper attestation that forum shopping has not been committed by the filing of the petition. Thus, the
petition is, for all intents and purposes, an unsigned pleading that does not deserve the cognizance of this
Court.42 In Salum bides, Jr. v. Office of the Ombudsman,43the Court held thus:

The Court has distinguished the effects of non-compliance with the requirement of verification and that of certification
against forum shopping. A defective verification shall be treated as an unsigned pleading and thus produces no legal
effect, subject to the discretion of the court to allow the deficiency to be remedied, while the failure to certifv against
forum shopping shall be cause for dismissal without prejudice, unless otherwise provided, and is not curable by
amendment of the initiatory pleading. (Emphasis and italicization from the original.)

Notably, petitioner has not proffered any reason to justify her failure to sign the Verification and Certification Against
Forum Shopping in the presence of the notary. There is, therefore, no justification to relax the rules and excuse the
petitioner's non-compliance therewith. This Court had reminded parties seeking the ultimate relief of certiorari to observe
the rules, since nonobservance thereof cannot be brushed aside as a "mere technicality."44 Procedural rules are not to be
belittled or simply disregarded, for these prescribed procedures ensure an orderly and speedy administration of
justice.45 Thus, as in William Go Que Construction, the proper course of action is to dismiss outright the present petition.

Even if We set aside this procedural infirmity, the petition just the same merits denial on several other grounds.

PETITIONER DISREGARDED THE HIERARCHY OF COURTS

Trifling with the rule on hierarchy of courts is looked upon with disfavor by this Court.46 It will not entertain direct resort
to it when relief can be obtained in the lower courts.47 The Court has repeatedly emphasized that the rule on hierarchy of
courts is an important component of the orderly administration of justice and not imposed merely for whimsical and
arbitrary reasons.48 In The Diocese of Bacolod v. Commission on Elections,49the Court explained the reason for the
doctrine thusly:

The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms that the policy is not to be
ignored without serious consequences. The strictness of the policy is designed to shield the Court from having to deal with
causes that are also well within the competence of the lower courts, and thus leave time for the Court to deal with the
more fundamental and more essential tasks that the Constitution has assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.

xxxx

The doctrine that requires respect for the hierarchy of courts was created by this court to ensure that every level of the
judiciary performs its designated roles in an effective and efficient manner. Trial courts do not only determine the facts
from the evaluation of the evidence presented before them. They are likewise competent to determine issues of law which
may include the validity of an ordinance, statute, or even an executive issuance in relation to the Constitution. To
effectively perform these functions, they are territorially organized into regions and then into branches. Their writs
generally reach within those territorial boundaries. Necessarily, they mostly perform the all-important task of inferring the
facts from the evidence as these are physically presented before them. In many instances, the facts occur within their
territorial jurisdiction, which properly present the "actual case" that makes ripe a determination of the constitutionality of
such action. The consequences, of course, would be national in scope. There are, however, some cases where resort to
68
courts at their level would not be practical considering their decisions could still be appealed before the higher courts,
such as the Court of Appeals.

The Court of Appeals is primarily designed as an appellate court that reviews the determination of facts and law made by
the trial courts. It is collegiate in nature. This nature ensures more standpoints in the review of the actions of the trial
court. But the Court of Appeals also has original jurisdiction over most special civil actions. Unlike the trial courts, its
writs can have a nationwide scope. It is competent to determine facts and, ideally, should act on constitutional issues that
may not necessarily be novel unless there are factual questions to determine.

This court, on the other hand, leads the judiciary by breaking new ground or further reiterating - in the light of new
circumstances or in the light of some confusion of bench or bar - existing precedents. Rather than a court of first instance
or as a repetition of the actions of the Court of Appeals, this court promulgates these doctrinal devices in order that it truly
performs that role.50 (Emphasis supplied.)

Nonetheless, there are recognized exceptions to this rule and direct resort to this Court were allowed in some instances.
These exceptions were summarized in a case of recent vintage, Aala v. Uy, as follows:

In a fairly recent case, we summarized other well-defined exceptions to the doctrine on hierarchy of courts. Immediate
resort to this Court may be allowed when any of the following grounds are present: (1) when genuine issues of
constitutionality are raised that must be addressed immediately; (2) when the case involves transcendental importance; (3)
when the case is novel; (4) when the constitutional issues raised are better decided by this Court; (5) when time is of the
essence; (6) when the subject of review involves acts of a constitutional organ; (7) when there is no other plain, speedy,
adequate remedy in the ordinary course of law; (8) when the petition includes questions that may affect public welfare,
public policy, or demanded by the broader interest of justice; (9) when the order complained of was a patent nullity; and
(10) when the appeal was considered as an inappropriate remedy.51

Unfortunately, none of these exceptions were sufficiently established in the present petition so as to convince this court to
brush aside the rules on the hierarchy of courts.

Petitioner's allegation that her case has sparked national and international interest is obviously not covered by the
exceptions to the rules on hierarchy of courts. The notoriety of a case, without more, is not and will not be a reason for
this Court's decisions. Neither will this Court be swayed to relax its rules on the bare fact that the petitioner belongs to the
minority party in the present administration. A primary hallmark of an independent judiciary is its political neutrality. This
Court is thus loath to perceive and consider the issues before it through the warped prisms of political partisanships.

That the petitioner is a senator of the republic does not also merit a special treatment of her case. The right to equal
treatment before the law accorded to every Filipino also forbids the elevation of petitioner's cause on account of her
position and status in the government.

Further, contrary to her position, the matter presented before the Court is not of first impression. Petitioner is not the first
public official accused of violating RA 9165 nor is she the first defendant to question the finding of probable cause for her
arrest. In fact, stripped of all political complexions, the controversy involves run-of-the mill matters that could have been
resolved with ease by the lower court had it been given a chance to do so in the first place.

In like manner, petitioner's argument that the rule on the hierarchy of court should be disregarded as her case involves
pure questions of law does not obtain. One of the grounds upon which petitioner anchors her case is that the respondent
judge erred and committed grave abuse of discretion in finding probable cause to issue her arrest. By itself, this ground
removes the case from the ambit of cases involving pure questions of law. It is established that the issue of whether or not
probable cause exists for the issuance of warrants for the arrest of the accused is a question of fact, determinable as it is
from a review of the allegations in the Information, the Resolution of the Investigating Prosecutor, including other
69
documents and/ or evidence appended to the Information.52 This matter, therefore, should have first been brought before
the appellate court, which is in the better position to review and determine factual matters.

Yet, petitioner harps on the supposed judicial efficiency and economy of abandoning the rule on the hierarchy of courts in
the present case. Indeed, the Court has considered the practical aspects of the administration of justice in deciding to apply
the exceptions rather than the rule. However, it is all the more for these practical considerations that the Court must insist
on the application of the rule and not the exceptions in this case. As petitioner herself alleges, with the President having
declared the fight against illegal drugs and corruption as central to his platform of government, there will be a spike of
cases brought before the courts involving drugs and public officers.53 As it now stands, there are 232,557 criminal cases
involving drugs, and around 260,796 criminal cases involving other offenses pending before the R TCs.54 This Court
cannot thus allow a precedent allowing public officers assailing the finding of probable cause for the issuance of arrest
warrants to be brought directly to this Court, bypassing the appellate court, without any compelling reason.

THE PRESENT PETITION IS PREMATURE

The prematurity of the present petition is at once betrayed in the reliefs sought by petitioner's Prayer, which to restate for
added emphasis, provides:

WHEREFORE, premises considered, and in the interest of substantial justice and fair play, Petitioner respectfully prays
the Honorable Court that judgment be rendered:

a. Granting a writ of certiorari annulling and setting aside the Order dated 23 February 2017, the Warrant of Arrest dated
the same date, and the Order dated 24 February 2017 of the Regional Trial CourtBranch 204, Muntinlupa City, in
Criminal Case No. 17-165 entitled People of the Philippines versus Leila M De Lima et al.;

b. Granting a writ of prohibition enjoining and prohibiting respondent judge from conducting further proceedings until
and unless the Motion to Quash is resolved with finality;

c. Issuing an order granting the application for the issuance of temporary restraining order (TRO) and a writ of
preliminary injunction to the proceedings; and

d. Issuing a Status Quo Ante Order restoring the parties to the status prior to the issuance of the Order and Warrant of
Arrest, both dated February 23, 201 7, thereby recalling both processes and restoring petitioner to her liberty and
freedom.55 (Emphasis supplied)

Under paragraph (a), petitioner asks for a writ of certiorari annulling the Order dated February 23, 2017 finding probable
cause, the warrant of arrest and the Order dated February 24, 2017 committing petitioner to the custody of the PNP
Custodial Center. Clearly petitioner seeks the recall of said orders to effectuate her release from detention and restore her
liberty. She did not ask for the dismissal of the subject criminal case.

More importantly, her request for the issuance of a writ of prohibition under paragraph (b) of the prayer "until and unless
the Motion to Quash is resolved with finality," is an unmistakable admission that the RTC has yet to rule on her Motion to
Quash and the existence of the RTC's authority to rule on the said motion. This admission against interest binds the
petitioner; an admission against interest being the best evidence that affords the greatest certainty of the facts in
dispute.56 It is based on the presumption that "no man would declare anything against himself unless such declaration is
true. "57 It can be presumed then that the declaration corresponds with the truth, and it is her fault if it does not.58

Moreover, petitioner under paragraphs (c) and (d) prayed for a TRO and writ of preliminary injunction and a status quo
ante order which easily reveal her real motive in filing the instant petition-to restore to "petitioner her liberty and
freedom."

70
Nowhere in the prayer did petitioner explicitly ask for the dismissal of Criminal Case No. 17-165. What is clear is she
merely asked the respondent judge to rule on her Motion to Quash before issuing the warrant of arrest.

In view of the foregoing, there is no other course of action to take than to dismiss the petition on the ground of
prematurity and allow respondent Judge to rule on the Motion to Quash according to the desire of petitioner.

This Court, in Solid Builders Inc. v. China Banking Corp., explained why a party should not pre-empt the action of a trial
court:

Even Article 1229 of the Civil Code, which SBI and MFII invoke, works against them. Under that provision, the equitable
reduction of the penalty stipulated by the parties in their contract will be based on a finding by the court that such penalty
is iniquitous or unconscionable. Here, the trial court has not yet made a ruling as to whether the penalty agreed upon by
CBC with SBI and MFII is unconscionable. Such finding will be made by the trial court only after it has heard both
parties and weighed their respective evidence in light of all relevant circumstances. Hence, for SBI and MFII to claim any
right or benefit under that provision at this point is premature.59 (Emphasis supplied)

In State of Investment House, Inc. v. Court of Appeals,60the Court likewise held that a petition for certiorari can be
resorted to only after the court a quo has already and actually rendered its decision. It held, viz.:

We note, however, that the appellate court never actually ruled on whether or not petitioner's right had prescribed. It
merely declared that it was in a position to so rule and thereafter required the parties to submit memoranda. In making
such a declaration, did the CA commit grave abuse of discretion amounting to lack of jurisdiction? It did not.

xxxx

All things considered, this petition is premature. The CA has decided nothing and whatever petitioner's vehement
objections may be (to any eventual ruling on the issue of prescription) should be raised only after such ruling shall have
actually been promulgated.

The situation evidently does not yet call for a recourse to a petition for certiorari under Rule 65.61(Italicization from the
original. Emphasis supplied.)

An analogous ruling was made by this Court in Diaz v. Nora, where it ruled in this wise:

x x x In the case of the respondent labor arbiter, he has not denied the motion for execution filed by the petitioner. He
merely did not act on the same. Neither had petitioner urged the immediate resolution of his motion for execution by said
arbiter. In the case of the respondent NLRC, it was not even given the opportunity to pass upon the question raised by
petitioner as to whether or not it has jurisdiction over the appeal, so the records of the case can be remanded to the
respondent labor arbiter for execution of the decision.

Obviously, petitioner had a plain, speedy and adequate remedy to seek relief from public respondents but he failed to avail
himself of the same before coming to this Court. To say the least, the petition is premature and must be struck
down.62 (Emphasis supplied.)

The dissents would deny the applicability of the foregoing on the ground that these were not criminal cases that involved a
pending motion to quash. However, it should be obvious from the afore-quoted excerpts that the nature of the cases had
nothing to do with this Court's finding of prematurity in those cases. Instead, what was stressed therein was that the lower
courts had not yet made, nor was not given the opportunity to make, a ruling before the parties came before this forum.

Indeed, the prematurity of the present petition cannot be over-emphasized considering that petitioner is actually asking the
Court to rule on some of the grounds subject of her Motion to Quash. The Court, if it rules positively in favor of petitioner

71
regarding the grounds of the Motion to Quash, will be preempting the respondent Judge from doing her duty to resolve the
said motion and even prejudge the case. This is clearly outside of the ambit of orderly and expeditious rules of procedure.
This, without a doubt, causes an inevitable delay in the proceedings in the trial court, as the latter abstains from resolving
the incidents until this Court rules with finality on the instant petition.

Without such order, the present petition cannot satisfy the requirements set before this Court can exercise its review
powers. Section 5 (2)(C) of Article VIII of the 1987 Constitution explicitly requires the existence of "final judgments and
orders of lower courts" before the Court can exercise its power to "review, revise, reverse, modify, or affirm on appeal
or certiorari" in "all cases in which the jurisdiction of any lower court is in issue," viz.:

SECTION 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:

(a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation is in question.

(b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto.

(c) All cases in which the jurisdiction of any lower court is in issue.

(d) All criminal cases in which the penalty imposed is reclusion perpetua or higher.

(e) All cases in which only an error or question of law is involved. (Emphasis supplied.)

In the palpable absence of a ruling on the Motion to Quash -- which puts the jurisdiction of the lower court in issue --
there is no controversy for this Court to resolve; there is simply no final judgment or order of the lower court to review,
revise, reverse, modify, or affirm. As per the block letter provision of the Constitution, this Court cannot exercise its
jurisdiction in a vacuum nor issue a definitive ruling on mere suppositions.

Succinctly, the present petition is immediately dismissible for this Court lacks jurisdiction to review a non-existent court
action. It can only act to protect a party from a real and actual ruling by a lower tribunal. Surely, it is not for this Court to
negate "uncertain contingent future event that may not occur as anticipated, or indeed may not occur at all," as the lower
court's feared denial of the subject Motion to Quash.63

The established rule is that courts of justice will take cognizance only of controversies "wherein actual and not merely
hypothetical issues are involved."64 The reason underlying the rule is "to prevent the courts through avoidance of
premature adjudication from entangling themselves in abstract disagreements, and for us to be satisfied that the case does
not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire."65

Even granting arguendo that what is invoked is the original jurisdiction of this Court under Section 5 (1) of Article VIII,
the petition nonetheless falls short of the Constitutional requirements and of Rule 65 of the Rules of Court. In the absence
of a final judgment, order, or ruling on the Motion to Quash challenging the jurisdiction of the lower court, there is no
occasion for this Court to issue the extraordinary writ of certiorari. Without a judgment or ruling, there is nothing for this
Court to declare as having been issued without jurisdiction or in grave abuse of discretion.

72
Furthermore, it is a basic requirement under Rule 65 that there be "[no] other plain, speedy and adequate remedy found in
law."66 Thus, the failure to exhaust all other remedies, as will be later discussed, before a premature resort to this Court is
fatal to the petitioner's cause of action.

Petitioner even failed to move for the reconsideration of the February 23 and 24, 2017 Orders she is currently assailing in
this Petition. As this Court held in Estrada v. Office of the Ombudsman, "[a] motion for reconsideration allows the public
respondent an opportunity to correct its factual and legal errors x x x [it] is mandatory before the filing of a petition
for certiorari."67The reasons proffered by petitioner fail to justify her present premature recourse.

Various policies and rules have been issued to curb the tendencies of litigants to disregard, nay violate, the rule enunciated
in Section 5 of Article VIII of the Constitution to allow the Court to devote its time and attention to matters within its
jurisdiction and prevent the overcrowding of its docket. There is no reason to consider the proceedings at bar as an
exception.

PETITIONER VIOLATED THE RULE AGAINST FORUM SHOPPING

It is settled that forum shopping exists when a party repetitively avails himself of several judicial remedies in different
courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some other
court. It is considered an act of malpractice as it trifles with the courts and abuses their processes.68 Thus, as elucidated
in Luzon Iron Development Group Corporation v. Bridgestone Mining and Development Corporation,69forum shopping
warrants the immediate dismissal of the suits filed:

Forum shopping is the act of litigants who repetitively avail themselves of multiple judicial remedies in different fora,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances; and raising substantially similar issues either pending in or already resolved adversely by some other
court; or for the purpose of increasing their chances of obtaining a favorable decision, if not in one court, then in another.
The rationale against forum-shopping is that a party should not be allowed to pursue simultaneous remedies in two
different courts, for to do so would constitute abuse of court processes which tends to degrade the administration of
justice, wreaks havoc upon orderly judicial procedure, and adds to the congestion of the heavily burdened dockets of the
courts.

xxxx

What is essential in determining the existence of forum-shopping is the vexation caused the courts and litigants by a party
who asks different courts and/or administrative agencies to rule on similar or related causes and/or grant the same or
substantially similar reliefs, in the process creating the possibility of conflicting decisions being rendered upon the same
issues.

xxxx

We emphasize that the grave evil sought to be avoided by the rule against forum-shopping is the rendition by two
competent tribunals of two separate and contradictory decisions. To avoid any confusion, this Court adheres strictly to the
rules against forum shopping, and any violation of these rules results in the dismissal of a case. The acts committed and
described herein can possibly constitute direct contempt.70

This policy echoes the last sentence of Section 5, Rule 7 of the Rules of Court, which states that "[i]f the acts of the party
or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt as well as a cause for administrative sanctions."

73
The test to determine the existence of forum shopping is whether the elements of litis pendentia, or whether a final
judgment in one case amounts to res judicata in the other. Forum shopping therefore exists when the following elements
are present: (a) identity of parties, or at least such parties representing the same interests in both actions; (b) identity of
rights asserted and reliefs prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding
particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res
judicata in the action under consideration.71

Anent the first requisite, there is an identity of parties when the parties in both actions are the same, or there is privity
between them, or they are successors-in-interest by title subsequent to the commencement of the action litigating for the
same thing and under the same title and in the same capacity.72

Meanwhile, the second and third requisites obtain where the same evidence necessary to sustain the second cause of
action is sufficient to authorize a recovery in the first, even if the forms or the nature of the two (2) actions are different
from each other. If the same facts or evidence would sustain both, the two (2) actions are considered the same within the
rule that the judgment in the former is a bar to the subsequent action; otherwise, it is not.73

All these requisites are present in this case.

The presence of the first requisite is at once apparent. The petitioner is an accused in the criminal case below, while the
respondents in this case, all represented by the Solicitor General, have substantial identity with the complainant in the
criminal case still pending before the trial court.

As for the second requisite, even a cursory reading of the petition and the Motion to Quash will reveal that the arguments
and the reliefs prayed for are essentially the same. In both, petitioner advances the RTC's supposed lack of jurisdiction
over the offense, the alleged multiplicity of offenses included in the Information; the purported lack of the corpus
delicti of the charge, and, basically, the non-existence of probable cause to indict her. And, removed of all non-essentials,
she essentially prays for the same thing in both the present petition and the Motion to Quash: the nullification of the
Information and her restoration to liberty and freedom. Thus, our ruling in Jent v. Tullet Prebon (Philippines), Inc. 74 does
not apply in the present case as the petition at bar and the motion to quash pending before the court a quo involve similar
if not the same reliefs. What is more, while Justice Caguioa highlights our pronouncement in Jent excepting an "appeal or
special civil action for certiorari" from the rule against the violation of forum shopping, the good justice overlooks that
the phrase had been used with respect to forum shopping committed through successive actions by a "party, against whom
an adverse judgment or order has [already] been rendered in one forum."75 The exception with respect to an "appeal or
special civil action for certiorari" does not apply where the forum shopping is committed by simultaneous actions where
no judgment or order has yet been rendered by either forum. To restate for emphasis, the RTC has yet to rule on the
Motion to Quash. Thus, the present petition and the motion to quash before the R TC are simultaneous actions that do not
exempt petitions for certiorari from the rule against forum shopping.

With the presence of the first two requisites, the third one necessarily obtains in the present case. Should we grant the
petition and declare the RTC without jurisdiction over the offense, the RTC is bound to grant De Lima's Motion to
Quash in deference to this Court's authority. In the alternative, if the trial court rules on the Motion to Quash in the
interim, the instant petition will be rendered moot and academic.

In situations like the factual milieu of this instant petition, while nobody can restrain a party to a case before the trial court
to institute a petition for certiorari under Rule 65 of the Rules of Court, still such petition must be rejected outright
because petitions that cover simultaneous actions are anathema to the orderly and expeditious processing and adjudication
of cases.

On the ground of forum shopping alone, the petition merits immediate dismissal.

74
THE REGIONAL TRIAL COURT HAS JURISDICTION

Even discounting the petitioner's procedural lapses, this Court is still wont to deny the instant petition on substantive
grounds.

Petitioner argues that, based on the allegations of the Information in Criminal Case No. 17-165, the Sandiganbayan has
the jurisdiction to try and hear the case against her. She posits that the Information charges her not with violation of RA
9165 but with Direct Bribery-a felony within the exclusive jurisdiction of the Sandiganbayan given her rank as the former
Secretary of Justice with Salary Grade 31. For the petitioner, even assuming that the crime described in the Information is
a violation of RA 9165, the Sandiganbayan still has the exclusive jurisdiction to try the case considering that the acts
described in the Information were intimately related to her position as the Secretary of Justice. Some justices of this Court
would even adopt the petitioner's view, declaring that the Information charged against the petitioner is Direct Bribery.

The respondents, on the other hand, maintain that the R TC has exclusive jurisdiction to try violations of RA 9165,
including the acts described in the Information against the petitioner. The Sandiganbayan, so the respondents contend, was
specifically created as an anti-graft court. It was never conferred with the power to try drug-related cases even those
committed by public officials. In fact, respondents point out that the history of the laws enabling and governing the
Sandiganbayan will reveal that its jurisdiction was streamlined to address specific cases of graft and corruption, plunder,
and acquisition of ill-gotten wealth.

Before discussing the issue on jurisdiction over the subject matter, it is necessary to clarify the crime with which the
petitioner is being charged. For ease of reference, the Information filed with the R TC is restated below:

PEOPLE OF THE PHILIPPINES,

Plaintiff,

Versus Criminal Case No. 17-165

(NPS No. XVI-INV-16J-00315 and NPS No.

LEILA M. DE LIMA XVl-INV-16K-00336) For: Violation of the
Comprehensive Dangerous Drugs Act of
(66 Laguna de Bay corner Subic Bay Drive,
2002,Section 5, in relation to Section 3(jj),
South Bay Village, Paraiiaque City and/or
Section 26 (b), and Section 28, Republic Act No.
Room 502, GSIS Building, Financial Center,
9165 (lllegal Drug Trading)
Roxas Boulevard, Pasay City), RAFAEL
MARCOS Z. RAGOS (c/o National Bureau of
Investigation, Taft Avenue, Manila) and
RONNIE P ALISOC DAY AN, (Barangay
Galarin, Urbiztondo, Pangasinan), Accused

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

INFORMATION

The undersigned Prosecutors, constituted as a Panel pursuant to Department Orders 706 and 790 dated October 14, 2016
and November 11, 2016, respectively, accuse LEILA M. DE LIMA, RAFAEL MARCOS Z. RAGOS and RONNIE P
ALISOC DAY AN, for violation of Section 5, in relation to Section 3 (jj), Section 26 (b) and Section 28, Republic Act
No. 9165, otherwise known as the Comprehensive Dangerous Act of 2002, committed as follows:

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That within the period from November 2012 to March 2013, in the City of Muntinlupa, Philippines, and within the
jurisdiction of this Honorable Court, accused Leila M. De Lima, being then the Secretary of the Department of Justice,
and accused Rafael Marcos Z. Ragos, being then the Officer-in-Charge of the Bureau of Corrections, by taking advantage
of their public office, conspiring and confederating with accused Ronnie P. Dayan, being then the employee of the
Department of Justice detailed to De Lima, all of them having moral ascendancy or influence over inmates in the New
Bilibid Prison, did then and there commit illegal drug trading, in the following manner: De Lima and Ragos, with the use
of their power, position, and authority demand, solicit and extort money from the high profile inmates in the New Bilibid
Prison to support the Senatorial bid of De Lima in the May 2016 election; by reason of which, the inmates, not being
lawfully authorized by law and through the use of mobile phones and other electronic devices, did then and there willfully
and unlawfully trade and traffic dangerous drugs, and thereafter give and deliver to De Lima, through Ragos and Dayan,
the proceeds of illegal drug trading amounting to Five Million (₱5,000,000.00) Pesos on 24 November 2012, Five Million
(₱5,000,000.00) Pesos on 15 December 2012, and One Hundred Thousand (₱l00,000.00) Pesos weekly "tara" each from
the high profile inmates in the New Bilibid Prison.

CONTRARY TO LAW.76

Notably, the designation, the prefatory statements and the accusatory portions of the Information repeatedly provide that
the petitioner is charged with "Violation of the Comprehensive Dangerous Drugs Act of 2002, Section 5, in relation to
Section 3(jj), Section 26(b), and Section 28, Republic Act No. 9165." From the very designation of the crime in the
Information itself, it should be plain that the crime with which the petitioner is charged is a violation of RA 9165. As this
Court clarified in Quimvel v. People, 77 the designation of the offense in the Information is a critical element required
under Section 6, Rule 110 of the Rules of Court in apprising the accused of the offense being charged, viz.:

The offense charged can also be elucidated by consulting the designation of the offense as appearing in the Information.
The designation of the offense is a critical element required under Sec. 6, Rule 110 of the Rules of Court for it assists in
apprising the accused of the offense being charged. Its inclusion in the Information is imperative to avoid surprise on the
accused and to afford him of the opportunity to prepare his defense accordingly. Its import is underscored in this case
where the preamble states that the crime charged is of "Acts of Lasciviousness in relation to Section 5(b) of
R.A. No.7610."78(Emphasis supplied.)

Further, a reading of the provisions of RA 9165 under which the petitioner is prosecuted would convey that De Lima is
being charged as a conspirator in the crime of Illegal Drug Trading. The pertinent provisions of RA 9165 read:

SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential
chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios,
internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any
other consideration in violation of this Act.

xxxx

SECTION 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs
and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging
from Five hundred thousand pesos (₱500,000.00) to Ten million pesos (₱10,000,000.00) shall be imposed upon any
person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute,
dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the
quantity and purity involved, or shall act as a broker in any of such transactions.
76
xxxx

SECTION 26. Attempt or Conspiracy. - Any attempt or conspiracy to commit the following unlawful acts shall be
penalized by the same penalty prescribed for the commission of the same as provided under this Act:

xxxx

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or
controlled precursor and essential chemical;

xxxx

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the unlawful acts
provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those
found guilty of such unlawful acts are government officials and employees.

While it may be argued that some facts may be taken as constitutive of some elements of Direct Bribery under the Revised
Penal Code (RPC), these facts taken together with the other allegations in the Information portray a much bigger picture,
Illegal Drug Trading. The latter crime, described by the United Nations Office on Drugs and Crime (UNODC) as "a
global illicit trade involving the cultivation, manufacture, distribution and sale of substances," 79necessarily involves
various component crimes, not the least of which is the bribery and corruption of government officials. An example would
be reports of recent vintage regarding billions of pesos' worth of illegal drugs allowed to enter Philippine ports without the
scrutiny of Customs officials. Any money and bribery that may have changed hands to allow the importation of the
confiscated drugs are certainly but trivial contributions in the furtherance of the transnational illegal drug trading - the
offense for which the persons involved should be penalized.

Read as a whole, and not picked apart with each word or phrase construed separately, the Information against De Lima
goes beyond an indictment for Direct Bribery under Article 210 of the RPC.80 As Justice Martires articulately explained,
the averments on solicitation of money in the Information, which may be taken as constitutive of bribery, form "part of the
description on how illegal drug trading took place at the NBP." The averments on how petitioner asked for and received
money from the NBP inmates simply complete the links of conspiracy between her, Ragos, Dayan and the NBP inmates
in willfully and unlawfully trading dangerous drugs through the use of mobile phones and other electronic devices under
Section 5, in relation to Section 3(jj), Section 26(b), and Section 28, of RA 9165.

On this score, that it has not been alleged that petitioner actually participated in the actual trafficking of dangerous drugs
and had simply allowed the NBP inmates to do so is non sequitur given that the allegation of conspiracymakes her liable
for the acts of her co-conspirators. As this Court elucidated, it is not indispensable for a co-conspirator to take a direct part
in every act of the crime. A conspirator need not even know of all the parts which the others have to perform,81 as
conspiracy is the common design to commit a felony; it is not participation in all the details of the execution of the
crime. 82 As long as the accused, in one way or another, helped and cooperated in the consummation of a felony, she is
liable as a co-principal.83 As the Information provides, De Lima's participation and cooperation was instrumental in the
trading of dangerous drugs by the NBP inmates. The minute details of this participation and cooperation are matters of
evidence that need not be specified in the Information but presented and threshed out during trial.

Yet, some justices remain adamant in their position that the Information fails to allege the necessary elements of Illegal
Drug Trading. Justice Carpio, in particular, would cite cases supposedly enumerating the elements necessary for a valid
Information for Illegal Drug Trading. However, it should be noted that the subject of these cases was "Illegal Sale" of
dangerous drugs -- a crime separate and distinct from "Illegal Trading" averred in the Information against De Lima. The
elements of "Illegal Sale" will necessary differ from the elements of Illegal Trading under Section 5, in relation to Section
3(jj), of RA 9165. The definitions of these two separate acts are reproduced below for easy reference:
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SECTION 3. Definitions. - As used in this Act, the following terms shall mean:

xxxx

(ii) Sell. - Any act of giving away any dangerous drug and/or controlled precursor and essential chemical whether for
money or any other consideration.

(jj) Trading. - Transactions involving the illegal trafficking of dangerous drugs and/or controlled precursors and essential
chemicals using electronic devices such as, but not limited to, text messages, e-mail, mobile or landlines, two-way radios,
internet, instant messengers and chat rooms or acting as a broker in any of such transactions whether for money or any
other consideration in violation of this Act.

It is obvious from the foregoing that the crime of illegal trading has been written in strokes much broader than that
for illegal sale. In fact, an illegal sale of drugs may be considered as only one of the possible component acts of illegal
trading which may be committed through two modes: (1) illegal trafficking using electronic devices; or (2) acting as a
broker in any transactions involved in the illegal trafficking of dangerous drugs.

On this score, the crime of "illegal trafficking" embraces various other offenses punishable by RA 9165. Section 3(r) of
RA 9165 provides:

(r) Illegal Trafficking. - The illegal cultivation, culture, delivery, administration, dispensation, manufacture, sale, trading,
transportation, distribution, importation, exportation and possession of any dangerous drug and/or controlled precursor
and essential chemical.

In turn, the crimes included in the definition of Illegal Trafficking of drugs are defined as follows:

(a) Administer. - Any act of introducing any dangerous drug into the body of any person, with or without his/her
knowledge, by injection, inhalation, ingestion or other means, or of committing any act of indispensable assistance to a
person in administering a dangerous drug to himself/herself unless administered by a duly licensed practitioner for
purposes of medication.

xxxx

(d) Chemical Diversion. - The sale, distribution, supply or transport of legitimately imported, in-transit, manufactured or
procured controlled precursors and essential chemicals, in diluted, mixtures or in concentrated form, to any person or
entity engaged in the manufacture of any dangerous drug, and shall include packaging, repackaging, labeling, relabeling
or concealment of such transaction through fraud, destruction of documents, fraudulent use of permits, misdeclaration, use
of front companies or mail fraud.

xxxx

(i) Cultivate or Culture. - Any act of knowingly planting, growing, raising, or permitting the planting, growing or raising
of any plant which is the source of a dangerous drug.

xxxx

(k) Deliver. - Any act of knowingly passing a dangerous drug to another, personally or otherwise, and by any means, with
or without consideration.

xxxx

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(m) Dispense. - Any act of giving away, selling or distributing medicine or any dangerous drug with or without the use of
prescription.

xxxx

(u) Manufacture. - The production, preparation, compounding or processing of any dangerous drug and/or controlled
precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or
independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include
any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its
container; except that such terms do not include the preparation, compounding, packaging or labeling of a drug or other
substances by a duly authorized practitioner as an incident to his/her administration or dispensation of such drug or
substance in the course of his/her professional practice including research, teaching and chemical analysis of dangerous
drugs or such substances that are not intended for sale or for any other purpose.

xxxx

(kk) Use. - Any act of injecting, intravenously or intramuscularly, of consuming, either by chewing, smoking, sniffing,
eating, swallowing, drinking or otherwise introducing into the physiological system of the body, any of the dangerous
drugs.

With the complexity of the operations involved in Illegal Trading of drugs, as recognized and defined in RA 9165, it will
be quite myopic and restrictive to require the elements of Illegal Sale-a mere component act-in the prosecution for Illegal
Trading.

More so, that which qualifies the crime of Illegal Trafficking to Illegal Trading may make it impossible to provide the
details of the elements of Illegal Sale. By "using electronic devices such as, but not limited to, text messages, email,
mobile or landlines, two-way radios, internet, instant messengers and chat rooms," the Illegal Trading can be remotely
perpetrated away from where the drugs are actually being sold; away from the subject of the illegal sale. With the
proliferation of digital technology coupled with ride sharing and delivery services, Illegal Trading under RA 9165 can be
committed without getting one's hand on the substances or knowing and meeting the seller or buyer. To require the
elements of Illegal Sale (the identities of the buyer, seller, the object and consideration, in Illegal Trade) would be
impractical.

The same may be said of the second mode for committing Illegal Trading, or trading by "acting as a broker" in
transactions involved in Illegal Trafficking. In this instance, the accused may neither have physical possession of the
drugs nor meet the buyer and seller and yet violate RA 9165. As pointed out by Justice Perlas-Bernabe, as early as 1916,
jurisprudence has defined a broker as one who is simply a middleman, negotiating contracts relative to property with
which he has no custody, viz.:

A broker is generally defined as one who is engaged, for others, on a commission, negotiating contracts relative to
property with the custody of which he has no concern; the negotiator between other parties, never acting in his own name,
but in the name of those who employed him; he is strictly a middleman and for some purposes the agent of both
parties.84 (Emphasis and underscoring supplied.)

In some cases, this Court even acknowledged persons as brokers even "where they actually took no part in the
negotiations, never saw the customer."85 For the Court, the primary occupation of a broker is simply bringing "the buyer
and the seller together, even if no sale is eventually made. "86 Hence, in indictments for Illegal Trading, it is illogical to
require the elements of Illegal Sale of drugs, such as the identities of the buyer and the seller, the object and
consideration.87 For the prosecution of Illegal Trading of drugs to prosper, proof that the accused "act[ed] as a broker" or

79
brought together the buyer and seller of illegal drugs "using electronic devices such as, but not limited to, text messages,
e-mail, mobile or landlines, two-way radios, internet, instant messengers and chat rooms" is sufficient.

The DOJ' s designation of the charge as one for Illegal Drug Trading thus holds sway. After all, the prosecution is vested
with a wide range of discretion-including the discretion of whether, what, and whom to charge.88 The exercise of this
discretion depends on a smorgasboard of factors, which are best appreciated by the prosecutors.89

As such, with the designation of the offense, the recital of facts in the Information, there can be no other conclusion than
that petitioner is being charged not with Direct Bribery but with violation of RA 9165.

Granting without conceding that the information contains averments which constitute the elements of Direct Bribery or
that more than one offence is charged or as ill this case, possibly bribery and violation of RA 9165, still the prosecution
has the authority to amend the information at any time before arraignment. Since petitioner has not yet been arraigned,
then the information subject of Criminal Case No. 17-165 can still be amended pursuant to Section 14, Rule 110 of the
Rules of Court which reads:

SECTION 14. Amendment or Substitution. - A complaint or information may be amended, in form or in substance,
without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal
amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the
accused.

Now the question that irresistibly demands an answer is whether it is the Sandiganbayan or the RTC that has jurisdiction
over the subject matter of Criminal Case No. 17-165, i.e., violation of RA 9165.

It is basic that jurisdiction over the subject matter in a criminal case is given only by law in the manner and form
prescribed by law.90 It is determined by the statute in force at the time of the commencement of the action.91 Indeed,
Congress has the plenary power to define, prescribe and apportion the jurisdiction of various courts. It follows then that
Congress may also, by law, provide that a certain class of cases should be exclusively heard and determined by one court.
Such would be a special law that is construed as an exception to the general law on jurisdiction of courts. 92

The pertinent special law governing drug-related cases is RA 9165, which updated the rules provided in RA 6425,
otherwise known as the Dangerous Drugs Act of 1972. A plain reading of RA 9165, as of RA 6425, will reveal that
jurisdiction over drug-related cases is exclusively vested with the Regional Trial Court and no other. The designation of
the RTC as the court with the exclusive jurisdiction over drug-related cases is apparent in the following provisions where
it was expressly mentioned and recognized as the only court with the authority to hear drug-related cases:

Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or
Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals. - x x x x

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a
hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused
either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of
proportion to his/her lawful income:

xxxx

During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be
confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond
shall be admitted for the release of the same.

xxxx
80
Section 61. Compulsory Confinement of a Drug Dependent Who Refuses to Apply Under the Voluntary Submission
Program. - x x x

A petition for the confinement of a person alleged to be dependent on dangerous drugs to a Center may be filed by any
person authorized by the Board with the Regional Trial Court of the province or city where such person is found.

xxxx

Section 62. Compulsory Submission of a Drug Dependent Charged with an Offense to Treatment and Rehabilitation. - If a
person charged with an offense where the imposable penalty is imprisonment of less than six (6) years and one (1) day,
and is found by the prosecutor or by the court, at any stage of the proceedings, to be a drug dependent, the prosecutor or
the court as the case may be, shall suspend all further proceedings and transmit copies of the record of the case to the
Board.

In the event the Board determines, after medical examination, that public interest requires that such drug dependent be
committed to a center for treatment and rehabilitation, it shall file a petition for his/her commitment with the regional trial
court of the province or city where he/she is being investigated or tried: x x x

xxxx

Section 90. Jurisdiction. - The Supreme Court shall designate special courts from among the existing Regional Trial
Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts
designated in each judicial region shall be based on the population and the number of cases pending in their respective
jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.

Notably, no other trial court was mentioned in RA 9165 as having the authority to take cognizance of drug-related cases.
Thus, in Morales v. Court of Appeals,93this Court categorically named the RTC as the court with jurisdiction over drug
related-cases, as follows:

Applying by analogy the ruling in People v. Simon, People v. De Lara, People v. Santos, and Ordonez v. Vinarao, the
imposable penalty in this case which involves 0.4587 grams of shabu should not exceed prision correccional. We say by
analogy because these cases involved marijuana, not methamphetamine hydrochloride (shabu). In Section 20 of RA. No.
6425, as amended by Section 17 of RA No. 7659, the maximum quantities of marijuana and methamphetamine
hydrochloride for purposes of imposing the maximum penalties are not the same. For the latter, if the quantity involved is
200 grams or more, the penalty of reclusion perpetua to death and a fine ranging from ₱500,000 to PIO million shall be
imposed. Accordingly, if the quantity involved is below 200 grams, the imposable penalties should be as follows:

xxxx

Clearly, the penalty which may be imposed for the offense charged in Criminal Case No. 96-8443 would at most be
only prision correccional duration is from six (6) months and one (1) day to six (6) years. Does it follow then that, as the
petitioner insists, the RTC has no jurisdiction thereon in view of the amendment of Section 32 of B.P. Big. 129 by R.A.
No. 7691, which vested upon Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts
exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of
the amount of fine and regardless of other imposable accessory or other penalties? This Section 32 as thus amended now
reads:

xxxx

81
The exception in the opening sentence is of special significance which we cannot disregard. x xx The aforementioned
exception refers not only to Section 20 of B.P. Blg. 129 providing for the jurisdiction of Regional Trial Courts in criminal
cases, but also to other laws which specifically lodge in Regional Trial Courts exclusive jurisdiction over specific criminal
cases, e. g., (a) Article 360 of the Revised Penal Code, as amended by R.A. Nos. 1289 and 4363 on written defamation or
libel; (b) Decree on Intellectual Property (P. D. No. 49, as amended), which vests upon Courts of First Instance exclusive
jurisdiction over the cases therein mentioned regardless of the imposable penalty; and (c) more appropriately for the case
at bar, Section 39 of RA No. 6425, as amended by P.D. No. 44, which vests on Courts of First Instance, Circuit Criminal
Courts, and the Juvenile and Domestic Relations Courts concurrent exclusive original jurisdiction over all cases involving
violations of said Act.

xxxx

That Congress indeed did not intend to repeal these special laws vesting exclusive jurisdiction in the Regional Trial
Courts over certain cases is clearly evident from the exception provided for in the opening sentence of Section 32 of B.P.
Blg. 129, as amended by RA No. 7691. These special laws are not, therefore, covered by the repealing clause (Section 6)
of RA No. 7691.

Neither can it be successfully argued that Section 39 of RA. No. 6425, as amended by P.D. No. 44, is no longer operative
because Section 44 of B.P. Big. 129 abolished the Courts of First Instance, Circuit Criminal Courts, and Juvenile and
Domestic Relations Courts. While, indeed, Section 44 provides that these courts were to be "deemed automatically
abolished" upon the declaration by the President that the reorganization provided in B.P. Blg. 129 had been completed,
this Court should not lose sight of the fact that the Regional Trial Courts merely replaced the Courts of First Instance as
clearly borne out by the last two sentences of Section 44, to wit:

xxxx

Consequently, it is not accurate to state that the "abolition" of the Courts of First Instance carried with it the abolition of
their exclusive original jurisdiction in drug cases vested by Section 39 of R.A. No. 6425, as amended by P. D. No. 44. If
that were so, then so must it be with respect to Article 360 of the Revised Penal Code and Section 57 of the Decree on
Intellectual Property. On the contrary, in the resolution of 19 June 1996 in Caro v. Court of Appeals and in the resolution
of 26 February 1997 in Villalon v. Ba/dado, this Court expressly ruled that Regional Trial Courts have the exclusive
original jurisdiction over libel cases pursuant to Article 360 of the Revised Penal Code. In Administrative Order No. 104-
96 this Court mandates that:

xxxx

The same Administrative Order recognizes that violations of RA. No. 6425, as amended, regardless of the quantity
involved, are to be tried and decided by the Regional Trial Courts therein designated as special courts.94 (Emphasis and
underscoring supplied)

Yet, much has been made of the terminology used in Section 90 of RA 9165. The dissents would highlight the provision's
departure from Section 39 of RA 6425 - the erstwhile drugs law, which provides:

SECTION 39. Jurisdiction of the Circuit Criminal Court. - The Circuit Criminal Court shall have exclusive original
jurisdiction over all cases involving offenses punishable under this Act.

For those in the dissent, the failure to reproduce the phrase "exclusive original jurisdiction" is a clear indication that no
court, least of all the RTC, has been vested with such "exclusive original jurisdiction" so that even the Sandiganbayan can
take cognizance and resolve a criminal prosecution for violation of RA 9165.

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As thoroughly discussed by Justice Peralta in his Concurring Opinion, such deduction is unwarranted given the clear
intent of the legislature not only to retain the "exclusive original jurisdiction" of the RTCs over violations of the drugs law
but to segregate from among the several RTCs of each judicial region some RTCs that will "exclusively try and hear cases
involving violations of [RA 9165)." If at all, the change introduced by the new phraseology of Section 90, RA 9165 is not
the deprivation of the RTCs' "exclusive original jurisdiction" but the further restriction of this "exclusive original
jurisdiction" to select RTCs of each judicial region. This intent can be clearly gleaned from the interpellation on House
Bill No. 4433, entitled "An Act Instituting the Dangerous Drugs Act of 2002, repealing Republic Act No. 6425, as
amended:"

Initially, Rep. Dilangalen referred to the fact sheet attached to the Bill which states that the measure will undertake a
comprehensive amendment to the existing law on dangerous drugs -- RA No. 6425, as amended. Adverting to Section 64
of the Bill on the repealing clause, he then asked whether the Committee is in effect amending or repealing the aforecited
law. Rep. Cuenco replied that any provision of law which is in conflict with the provisions of the Bill is repealed and/or
modified accordingly.

In this regard, Rep. Dilangalen suggested that if the Committee's intention was only to amend RA No. 6425, then the
wording used should be "to amend" and not "to repeal" with regard to the provisions that are contrary to the provisions of
the Bill.

Adverting to Article VIII, Section 60, on Jurisdiction Over Dangerous Drugs Case, which provides that "the Supreme
Court shall designate regional trial courts to have original jurisdiction over all offenses punishable by this Act," Rep.
Dilangalen inquired whether it is the Committee's intention that certain RTC salas will be designated by the Supreme
Court to try drug-related offenses, although all RTCs have original jurisdiction over those offenses.

Rep. Cuenco replied in the affirmative. He pointed that at present, the Supreme Court's assignment of drug cases to certain
judges is not exclusive because the latter can still handle cases other than drug-related cases. He added that the
Committee's intention is to assign drug-related cases to judges who will handle exclusively these cases assigned to them.

In this regard, Rep. Dilangalen stated that, at the appropriate time, he would like to propose the following amendment;
"The Supreme Court shall designate specific salas of the RTC to try exclusively offenses related to drugs."

Rep. Cuenca agreed therewith, adding that the Body is proposing the creation of exclusive drug courts because at present,
almost all of the judges are besieged by a lot of drug cases some of which have been pending for almost 20
years.95 (Emphasis and underscoring supplied.)

Per the "Records of the Bilateral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1858 and House
Bill No. 4433," the term "designation" of R TCs that will exclusively handle drug-related offenses was used to skirt the
budgetary requirements that might accrue by the "creation" of exclusive drugs courts. It was never intended to divest the R
TCs of their exclusive original jurisdiction over drug-related cases. The Records are clear:

THE CHAIRMAN (REP. CUENCO). x x x [W]e would like to propose the creation of drug courts to handle exclusively
drug cases; the imposition of a 60-day deadline on courts within which to decide drug cases; and No. 3, provide penalties
on officers of the law and government prosecutors for mishandling and delaying drugs cases.

We will address these concerns one by one.

1. The possible creation of drugs courts to handle exclusively drug cases. Any comments?

xxxx

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THE CHAIRMAN (SEN. BARBERS). We have no objection to this proposal, Mr. Chairman. As a matter of fact, this is
one of the areas where we come into an agreement when we were in Japan. However, I just would like to add a paragraph
after the word "Act" in Section 86 of the Senate versions, Mr. Chairman. And this is in connection with the designation of
special courts by "The Supreme Court shall designate special courts from among the existing Regional Trial Courts in
each judicial region to exclusively try and hear cases involving violations of this Act. The number of court designated in
each judicial region shall be based on the population and the number of pending cases in their respective jurisdiction."
That is my proposal, Mr. Chairman.

THE CHAIRMAN (REP. CUENCO). We adopt the same proposal.

xxxx

THE CHAIRMAN (SEN. BARBERS). I have no problem with that, Mr. Chairman, but I'd like to call your attention to the
fact that my proposal is only for designation because if it is for a creation that would entail another budget, Mr. Chairman.
And almost always, the Department of Budget would tell us at the budget hearing that we lack funds, we do not have
money. So that might delay the very purpose why we want the RTC or the municipal courts to handle exclusively the drug
cases. That's why my proposal is designation not creation.

THE CHAIRMAN (REP. CUENCO). Areglado. No problem, designation. Approved.96

The exclusive original jurisdiction over violations of RA 9165 is not transferred to the Sandiganbayan whenever the
accused occupies a position classified as Grade 27 or higher, regardless of whether the violation is alleged as committed
in relation to office. The power of the Sandiganbayan to sit in judgment of high-ranking government officials is not
omnipotent. The Sandiganbayan's jurisdiction is circumscribed by law and its limits are currently defined and prescribed
by RA 10660,97 which amended Presidential Decree No. (PD) 1606.98 As it now stands, the Sandiganbayan has
jurisdiction over the following:

SEC. 4. Jurisdiction. - The Sandiganbayan shall exercise exclusive original jurisdiction in all cases involving:

a. Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal Code, where one or more of the
accused are officials occupying the following positions in the government, whether in a permanent, acting or interim
capacity, at the time of the commission of the offense:

(1) Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade
'27' and higher, of the Compensation and Position Classification Act of 1989 (Republic Act No. 6758), specifically
including:

xxxx

(2) Members of Congress and officials thereof classified as Grade '27' and higher under the Compensation and Position
Classification Act of 1989;

(3) Members of the judiciary without prejudice to the provisions of the Constitution;

(4) Chairmen and members of the Constitutional Commissions, without prejudice to the provisions of the Constitution;
and

(5) All other national and local officials classified as Grade '27' and higher under the Compensation and Position
Classification Act of 1989.

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b. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and
employees mentioned in subsection a. of this section in relation to their office.

c. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and 14-A, issued in
1986. Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does
not allege any damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from
the same or closely related transactions or acts in an amount not exceeding One Million pesos (₱l,000,000.00).

The foregoing immediately betrays that the Sandiganbayan primarily sits as a special anti-graft court pursuant to a
specific injunction in the 1973 Constitution.99 Its characterization and continuation as such was expressly given a
constitutional fiat under Section 4, Article XI of the 1987 Constitution, which states:

SECTION 4. The present anti-graft court known as the Sandiganbayan shall continue to function and exercise its
jurisdiction as now or hereafter may be provided by law.

It should occasion no surprise, therefore, that the Sandiganbayan is without jurisdiction to hear drug-related cases. Even
Section 4(b) of PD 1606, as amended by RA 10660, touted by the petitioner and the dissents as a catchall provision, does
not operate to strip the R TCs of its exclusive original jurisdiction over violations of RA 9165. As pointed out by Justices
Tijam and Martires, a perusal of the drugs law will reveal that public officials were never considered excluded from its
scope. Hence, Section 27 of RA 9165 punishes government officials found to have benefited from the trafficking of
dangerous drugs, while Section 28 of the law imposes the maximum penalty on such government officials and employees.
The adverted sections read:

SECTION 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to
Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laborat01y Equipment Including the
Proceeds or Properties Obtained from the Unlawful Act Committed - The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (Pl0,000,000.00), in addition to absolute
perpetual disqualification from any public office, shall be imposed upon any public officer or employee who
misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of
dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment
including the proceeds or properties obtained from the unlawful acts as provided for in this Act.

Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as
prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical
persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually
disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and
intermediaries, including government-owned or -controlled corporations.

SECTION 28. Criminal Liability of Government Officials and Employees. - The maximum penalties of the unlawful acts
provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those
found guilty of such unlawful acts are government officials and employees. (Emphasis supplied)

Section 4(b) of PD 1606, as amended by RA 10660, provides but the general rule, couched in a "broad and general
phraseology. "100 Exceptions abound. Besides the jurisdiction on written defamations and libel, as illustrated
in Morales 101and People v. Benipayo, 102 the RTC is likewise given "exclusive original jurisdiction to try and decide any
criminal action or proceedings for violation of the Omnibus Election Code,"103 regardless of whether such violation was
committed by public officers occupying positions classified as Grade 27 or higher in relation to their offices. In fact,
offenses committed by members of the Armed Forces in relation to their office, i.e., in the words of RA 7055,104"service-
connected crimes or offenses," are not cognizable by the Sandiganbayan but by court-martial.
85
Certainly, jurisdiction over offenses and felonies committed by public officers is not determined solely by the pay scale or
by the fact that they were committed "in relation to their office." In determining the forum vested with the jurisdiction to
try and decide criminal actions, the laws governing the subject matter of the criminal prosecution must likewise be
considered.

In this case, RA 9165 specifies the RTC as the court with the jurisdiction to "exclusively try and hear cases involving
violations of [RA 9165)." This is an exception, couched in the special law on dangerous drugs, to the general rule
under Section 4(b) of PD 1606, as amended by RA 10660. It is a canon of statutory construction that a special law
prevails over a general law and the latter is to be considered as an exception to the general.105

Parenthetically, it has been advanced that RA 10660 has repealed Section 90 of RA 9165. However, a closer look at the
repealing clause of RA 10660 will show that there is no express repeal of Section 90 of RA 9165 and well-entrenched is
the rule that an implied repeal is disfavored. It is only accepted upon the clearest proof of inconsistency so repugnant that
the two laws cannot be enforced.106 The presumption against implied repeal is stronger when of two laws involved one is
special and the other general.107 The mentioned rule in statutory construction that a special law prevails over a general law
applies regardless of the laws' respective dates of passage. Thus, this Court ruled:

x x x [I]t is a canon of statutory construction that a special law prevails over a general law - regardless of their dates of
passage - and the special is to be considered as remaining an exception to the general.

So also, every effort must be exerted to avoid a conflict between statutes. If reasonable construction is possible, the laws
must be reconciled in that manner.

Repeals of laws by implication moreover are not favored, and the mere repugnancy between two statutes should be very
clear to warrant the court in holding that the later in time repeals the other.108

To reiterate for emphasis, Section 4(b) of PD 1606, as amended by RA 10660, is the general law on jurisdiction of the
Sandiganbayan over crimes and offenses committed by high-ranking public officers in relation to their office; Section 90,
RA 9165 is the special law excluding from the Sandiganbayan's jurisdiction violations of RA 9165 committed by such
public officers. In the latter case, jurisdiction is vested upon the RTCs designated by the Supreme Court as drugs court,
regardless of whether the violation of RA 9165 was committed in relation to the public officials' office.

The exceptional rule provided under Section 90, RA 9165 relegating original exclusive jurisdiction to RTCs specially
designated by the Supreme Court logically follows given the technical aspect of drug-related cases. With the proliferation
of cases involving violation of RA 9165, it is easy to dismiss them as common and untechnical. However, narcotic
substances possess unique characteristics that render them not readily identifiable.109 In fact, they must first be subjected
to scientific analysis by forensic chemists to determine their composition and nature.110Thus, judges presiding over
designated drugs courts are specially trained by the Philippine Judicial Academy (PhilJa) and given scientific instructions
to equip them with the proper tools to appreciate pharmacological evidence and give analytical insight upon this esoteric
subject. After all, the primary consideration of RA 9165 is the fact that the substances involved are, in fact, dangerous
drugs, their plant sources, or their controlled precursors and essential chemicals. Without a doubt, not one of the
Sandiganbayan justices were provided with knowledge and technical expertise on matters relating to prohibited
substances.

Hard figures likewise support the original and exclusive jurisdiction of the RTCs over violations of RA 9165. As
previously stated, as of June 30, 2017, there are 232,557 drugs cases pending before the RTCs. On the other hand, not
even a single case filed before the Sandiganbayan from February 1979 to June 30, 2017 dealt with violations of the drugs
law. Instead, true to its designation as an anti-graft court, the bulk of the cases filed before the Sandiganbayan involve
violations of RA 3019, entitled the "Anti-Graft and Corrupt Practices Act" and malversation.111 With these, it would not

86
only be unwise but reckless to allow the tribunal uninstructed and inexperienced with the intricacies of drugs cases to hear
and decide violations of RA 9165 solely on account of the pay scale of the accused.

Likewise of special significance is the proviso introduced by RA 10660 which, to reiterate for emphasis, states:

Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the information: (a) does not
allege any damage to the government or any bribery; or (b) alleges damage to the government or bribery arising from the
same or closely related transactions or acts in an amount not exceeding One million pesos (₱l,000,000.00).

The clear import of the new paragraph introduced by RA 10660 is to streamline the cases handled by the Sandiganbayan
by delegating to the RTCs some cases involving high-ranking public officials. With the dissents' proposition, opening the
Sandiganbayan to the influx of drug-related cases, RA 10660 which was intended to unclog the dockets of the
Sandiganbayan would all be for naught. Hence, sustaining the RTC's jurisdiction over drug-related cases despite the
accused's high-ranking position, as in this case, is all the more proper.

Even granting arguendo that the Court declares the Sandiganbayan has jurisdiction over the information subject of
Criminal Case No. 17-165, still it will not automatically result in the release from detention and restore the liberty and
freedom of petitioner. The R TC has several options if it dismisses the criminal case based on the grounds raised by
petitioner in her Motion to Quash.

Under Rule 117 of the Rules of Court, the trial court has three (3) possible alternative actions when confronted with a
Motion to Quash:

1. Order the amendment of the Infonnation;

2. Sustain the Motion to Quash; or

3. Deny the Motion to Quash.

The first two options are available to the trial court where the motion to quash is meritorious. Specifically, as to the first
option, this court had held that should the Information be deficient or lacking in any material allegation, the trial court can
order the amendment of the Information under Section 4, Rule 117 of the Rules of Court, which states:

SECTION 4. Amendment of Complaint or Information. - If the motion to quash is based on an alleged defect of the
complaint or information which can be cured by amendment, the court shall order that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court
an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the
amendment, or the complaint or information still suffers from the same defect despite the amendment.

The failure of the trial court to order the correction of a defect in the Information curable by an amendment amounts to an
arbitrary exercise of power. So, this Court held in Dio v. People:

This Court has held that failure to provide the prosecution with the opportunity to amend is an arbitrary exercise of power.
In People v. Sandiganbayan (Fourth Division): When a motion to quash is filed challenging the validity and sufficiency
of an Information, and the defect may be cured by amendment, courts must deny the motion to quash and order the
prosecution to file an amended Information. Generally, a defect pertaining to the failure of an Information to charge facts
constituting an offense is one that may be corrected by an amendment. In such instances, courts are mandated not to
automatically quash the Information; rather, it should grant the prosecution the opportunity to cure the defect through an
amendment. This rule allows a case to proceed without undue delay. By allowing the defect to be cured by simple

87
amendment, unnecessary appeals based on technical grounds, which only result to prolonging the proceedings, are
avoided.

More than this practical consideration, however, is the due process underpinnings of this rule. As explained by this Court
in People v. Andrade, the State, just like any other litigant, is entitled to its day in court. Thus, a court's refusal to grant the
prosecution the opportunity to amend an Information, where such right is expressly granted under the Rules of Court and
affirmed time and again in a string of Supreme Court decisions, effectively curtails the State's right to due process. 112

Notably, the defect involved in Dio was the Information's failure to establish the venue - a matter of jurisdiction in
criminal cases. Thus, in the case at bar where petitioner has not yet been arraigned, the court a quo has the power to order
the amendment of the February 17, 2017 Information filed against the petitioner. This power to order the amendment is
not reposed with this Court in the exercise of its certiorari powers.

Nevertheless, should the trial court sustain the motion by actually ordering the quashal of the Infonnation, the prosecution
is not precluded from filing another information. An order sustaining the motion to quash the information would neither
bar another prosecution113 or require the release of the accused from custody. Instead, under Section 5, Rule 117 of the
Rules of Court, the trial court can simply order that another complaint or information be filed without discharging the
accused from custody. Section 5, Rule 117 states, thus:

Section 5. Effect of sustaining the motion to quash. - If the motion to quash is sustained, the court may order that another
complaint or information be filed except as provided in Section 6 of this rule. If the order is made, the accused, if in
custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, no new information is
filed within the time specified in the order or within such further time as the court may allow for good cause, the accused,
if in custody, shall be discharged unless he is also in custody for another charge.

Section 6, Rule 117, adverted to in the foregoing provision, prevents the re-filing of an information on only two grounds:
that the criminal action or liability has already been extinguished, and that of double jeopardy. Neither was invoked in
petitioner's Motion to Quash filed before the court a quo.

The third option available to the trial court is the denial of the motion to quash. Even granting, for the nonce, the
petitioner's position that the trial court's issuance of the warrant for her arrest is an implied denial of her Motion to Quash,
the proper remedy against this court action is to proceed to trial, not to file the present petition for certiorari. This Court
in Galzote v. Briones reiterated this established doctrine:

A preliminary consideration in this case relates to the propriety of the chosen legal remedies availed of by the petitioner in
the lower courts to question the denial of his motion to quash. In the usual course of procedure, a denial of a motion to
quash filed by the accused results in the continuation of the trial and the determination of the guilt or innocence of the
accused. If a judgment of conviction is rendered and the lower court's decision of conviction is appealed, the accused can
then raise the denial of his motion to quash not only as an error committed by the trial court but as an added ground to
overturn the latter's ruling.

In this case, the petitioner did not proceed to trial but opted to immediately question the denial of his motion to quash via
a special civil action for certiorari under Rule 65 of the Rules of Court.

As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from an interlocutory
order is not allowed under Section 1 (b), Rule 41 of the Rules of Court. Neither can it be a proper subject of a petition
for certiorari which can be used only in the absence of an appeal or any other adequate, plain and speedy remedy. The
plain and speedy remedy upon denial of an interlocutory order is to proceed to trial as discussed above.114 (Emphasis and
underscoring supplied)

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At this juncture, it must be stressed yet again that the trial court has been denied the opportunity to act and rule on
petitioner's motion when the latter jumped the gun and prematurely repaired posthaste to this Court, thereby immobilizing
the trial court in its tracks. Verily, De Lima should have waited for the decision on her motion to quash instead of
prematurely filing the instant recourse.

In the light of the foregoing, the best course of action for the Court to take is to dismiss the petition and direct the trial
court to rule on the Motion to Quash and undertake all the necessary proceedings to expedite the adjudication of the
subject criminal case.

RESPONDENT JUDGE DID NOT ABUSE HER DISCRETION IN FINDING PROBABLE CAUSE TO ORDER THE
PETITIONER'S ARREST

The basis for petitioner's contention that respondent judge committed grave abuse of discretion in issuing the February 23,
2017 Order115 finding probable cause to arrest the petitioner is two-pronged: respondent judge should have first resolved
the pending Motion to Quash before ordering the petitioner's arrest; and there is no probable cause to justify the
petitioner's arrest.

Grave abuse of discretion is the capricious and whimsical exercise of judgment equivalent to an evasion of positive
duty or a virtual refusal to act at all in contemplation of the law.116

In the present case, the respondent judge had no positive duty to first resolve the Motion to Quash before issuing a warrant
of arrest. There is no rule of procedure, statute, or jurisprudence to support the petitioner's claim. Rather, Sec.5(a), Rule
112 of the Rules of Court117 required the respondent judge to evaluate the prosecutor's resolution and its supporting
evidence within a limited period of only ten (10) days, viz.:

SEC. 5. When warrant of arrest may issue. -

(a) By the Regional Trial Court. - Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if
the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of
arrest, or a commitment order when the complaint or information was filed pursuant to Section 6 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5)
days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or
information.

It is not far-fetched to conclude, therefore, that had the respondent judge waited longer and first attended to the
petitioner's Motion to Quash, she would have exposed herself to a possible administrative liability for failure to observe
Sec. 5(a), Rule 112 of the Rules of Court. Her exercise of discretion was sound and in conformity with the provisions of
the Rules of Court considering that a Motion to Quash may be filed and, thus resolved by a trial court judge, at any time
before the accused petitioner enters her plea.118 What is more, it is in accord with this Court's ruling in Marcos v. Cabrera-
Faller119that "[a]s the presiding judge, it was her task, upon the filing of the Information, to first and foremost determine
the existence or non-existence of probable cause for the arrest of the accused."

This Court's ruling in Miranda v. Tuliao 120does not support the petitioner's position. Miranda does not prevent a trial
court from ordering the arrest of an accused even pending a motion to quash the infonnation. At most, it simply explains
that an accused can seek judicial relief even if he has not yet been taken in the custody of law.

Undoubtedly, contrary to petitioner's postulation, there is no rule or basic principle requiring a trial judge to first resolve a
motion to quash, whether grounded on lack of jurisdiction or not, before issuing a warrant of arrest. As such, respondent
judge committed no grave abuse of discretion in issuing the assailed February 23, 2017 Order even before resolving

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petitioner's Motion to Quash. There is certainly no indication that respondent judge deviated from the usual procedure in
finding probable cause to issue the petitioner's arrest.

And yet, petitioner further contends that the language of the February 23, 2017 Order violated her constitutional rights and
is contrary to the doctrine in Soliven v. Makasiar. 121Petitioner maintains that respondent judge failed to personally
determine the probable cause for the issuance of the warrant of arrest since, as stated in the assailed Order, respondent
judge based her findings on the evidence presented during the preliminary investigation and not on the report and
supporting documents submitted by the prosecutor.122 This hardly deserves serious consideration.

Personal determination of the existence of probable cause by the judge is required before a warrant of arrest may issue.
The Constitution123 and the Revised Rules of Criminal Procedure124 command the judge "to refrain from making a
mindless acquiescence to the prosecutor's findings and to conduct his own examination of the facts and circumstances
presented by both parties. "125 This much is clear from this Court's n1ling in Soliven cited by the petitioner, viz.:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself the
existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest,
the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and
procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of probable cause.126

It must be emphasized, however, that in determining the probable cause to issue the warrant of arrest against the
petitioner, respondent judge evaluated the Information and "all the evidence presented during the preliminary
investigation conducted in this case." The assailed February 23, 2017 Order is here restated for easy reference and
provides, thusly:

After a careful evaluation of the herein Information and all the evidence presented during the preliminary investigation
conducted in this case by the Department of Justice, Manila, the Court finds sufficient probable cause for the issuance of
Warrants of Arrest against all the accused LEILA M. DE LIMA x x x.127 (Emphasis supplied.)

As the prosecutor's report/resolution precisely finds support from the evidence presented during the preliminary
investigation, this Court cannot consider the respondent judge to have evaded her duty or refused to perform her
obligation to satisfy herself that substantial basis exists for the petitioner's arrest. "All the evidence presented during the
preliminary investigation" encompasses a broader category than the "supporting evidence" required to be evaluated
in Soliven. It may perhaps even be stated that respondent judge performed her duty in a manner that far exceeds what is
required of her by the rules when she reviewed all the evidence, not just the supporting documents. At the very least, she
certainly discharged a judge's duty in finding probable cause for the issuance of a warrant, as described in Ho v. People:

The above rulings in Soliven, Inting and Lim, Sr. were iterated in Allado v. Diokno, where we explained again what
probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and
circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by
the person sought to be arrested. Hence, the judge, before issuing a warrant of arrest, 'must satisfy himself that based on
the evidence submitted, there is sufficient proof that a crime has been committed and that the person to be arrested is
probably guilty thereof' At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the
evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in
determining probable cause. In Webb v. De Leon we stressed that the judge merely determines the probability, not the
certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews
the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence."

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xxxx

x x x [T]he judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a
warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion
that there is reason to charge the accused for an offense and hold him for trial. However, the judge must decide
independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally
sustain his own findings on the existence (or non-existence) of probable cause to issue an arrest order. This responsibility
of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less
than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the
litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but
also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial
finding on whether to issue a warrant of arrest.

Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted
to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete
records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is
that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn
statements of witnesses or transcript of stenographic notes, if any) upon which to make his independent judgment or, at
the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he
cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the
prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn
gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine
probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty
if he relies merely on the certification or the report of the investigating officer.128 (Emphasis supplied.)

Notably, for purposes of determining the propriety of the issuance of a warrant of arrest, the judge is tasked to merely
determine the probability, not the certainty, of the guilt of the accused.129 She is given wide latitude of discretion in the
determination of probable cause for the issuance of warrants of arrest.130 A finding of probable cause to order the
accused's arrest does not require an inquiry into whether there is sufficient evidence to procure a conviction.131 It is
enough that it is believed that the act or omission complained of constitutes the offense charged.132

Again, per the February 23, 2017 Order, respondent judge evaluated all the evidence presented during the preliminary
investigation and on the basis thereof found probable cause to issue the warrant of arrest against the petitioner. This is not
surprising given that the only evidence available on record are those provided by the complainants and the petitioner, in
fact, did not present any counter-affidavit or evidence to controvert this. Thus, there is nothing to disprove the following
preliminary findings of the DOJ prosecutors relative to the allegations in the Information filed in Criminal Case No. 17-
165:

Thus, from November 2012 to March 2013, De Lima[,] Ragos and Dayan should be indicted for violation of Section 5, in
relation to Section 3Gj), Section 26(b) and Section 28, of R.A. 9165, owing to the delivery of PS million in two (2)
occasions, on 24 November 2012 and 15 December 2012, to Dayan and De Lima. The monies came inmate Peter Co
[were] proceeds from illicit drug trade, which were given to support the senatorial bid of De Lima.

Also in the same period, Dayan demanded from Ragos money to support the senatorial bid of De Lima. Ragos demanded
and received ₱100,000 tara from each of the high-profile inmates in exchange for privileges, including their illicit drug
trade. Ablen collected the money for Ragos who, in turn, delivered them to Dayan at De Lima's residence.133

The foregoing findings of the DOJ find support in the affidavits and testimonies of several persons. For instance, in his
Affidavit dated September 3, 2016, NBI agent Jovencio P. Ablen, Jr. narrated, viz.:

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21. On the morning of 24 November 2012, I received a call from Dep. Dir. Ragos asking where I was. I told him I was at
home. He replied that he will fetch me to accompany him on a very important task.

22. Approximately an hour later, he arrived at my house. I boarded his vehicle, a Hyundai Tucson, with plate no.
RGU910. He then told me that he will deliver something to the then Secretary of Justice, Sen. Leila De Lima. He
continued and said "Nior confidential 'to. Tayong dalawa lang ang nakakaalam nito. Dadalhin natin yung quota kay Lola.
SM 'yang nasa bag. Tingnan mo."

23. The black bag he was referring to was in front of my feet. It [was a] black handbag. When I opened the bag, I saw
bundles of One Thousand Peso bills.1âwphi1

24. At about 10 o'clock in the morning, we arrived at the house located at Laguna Bay corner Subic Bay Drive, South Bay
Village, Paranaque City.

25. Dep. Dir. Ragos parked his vehicle in front of the house. We both alighted the vehicle but he told me to stay. He then
proceeded to the house.

26. From our parked vehicle, I saw Mr. Ronnie Dayan open the gate. Dep. Dir. Ragos then handed the black handbag
containing bundles of one thousand peso bills to Mr. Dayan.

27. At that time, I also saw the then DOJ Sec. De Lima at the main door of the house. She was wearing plain clothes
which is commonly known referred to as "duster."

28. The house was elevated from the road and the fence was not high that is why I was able to clearly see the person at the
main door, that is, Sen. De Lima.

29. When Dep. Dir. Ragos and Mr. Dayan reached the main door, I saw Mr. Dayan hand the black handbag to Sen. De
Lima, which she received. The three of them then entered the house.

30. After about thirty (30) minutes, Dep. Dir. Ragos went out of the house. He no longer has the black handbag with him.

31. We then drove to the BuCor Director's Quarters in Muntinlupa City. While cruising, Dep. Dir. Ragos told me "Nior
'wag kang maingay kahit kanino at wala kang nakita ha," to which I replied "Sabi mo e. e di wala akong nakita."

32. On the morning of 15 December 2012, Dep. Dir. Ragos again fetched me from my house and we proceeded to the
same house located at Laguna Bay comer Subic Bay Drive, South Bay Village, Paranaque City.

33. That time, I saw a plastic bag in front of my feet. I asked Dep. Dir. Ragos "Quota na naman Sir?"Dep. Dir. Ragos
replied "Ano pa nga ba, 'tang ina sila lang meron. "134

Petitioner's co-accused, Rafael Ragos, recounted in his own Affidavit dated September 26, 2016 a similar scenario:

8. One morning on the latter part of November 2012, I saw a black handbag containing a huge sum of money on my bed
inside the Director's Quarters of the BuCor. I looked inside the black handbag and saw that it contains bundles of one
thousand peso bills.

9. I then received a call asking me to deliver the black handbag to Mr. Ronnie Dayan. The caller said the black handbag
came from Peter Co and it contains "Limang Manoi<' which means Five Million Pesos (Php5,000,000.00) as
a "manoR' refers to One Million Pesos (Php 1,000,000.00) in the vernacular inside the New Bilibid Prison.

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10. As I personally know Mr. Dayan and knows that he stays in the house of the then DOJ Sec. Leila M. De Lima located
at Laguna Bay corner Subic Bay Drive, South Bay Village, Paranaque City, I knew I had to deliver the black handbag to
Sen. De Lima at the said address.

11. Before proceeding to the house of Sen. De Lima at the above[-]mentioned address, I called Mr. Ablen to accompany
me in delivering the money. I told him we were going to do an important task.

12. Mr. Ablen agreed to accompany me so I fetched him from his house and we proceeded to the house of Sen. De Lima
at the above-mentioned address.

13. While we were in the car, I told Mr. Ablen that the important task we will do is deliver Five Million Pesos
(Php5,000,000.00) "Quota" to Sen. De Lima. I also told him that the money was in the black handbag that was on the
floor of the passenger seat (in front of him) and he could check it, to which Mr. Ablen complied.

14. Before noon, we arrived at the house of Sen. De Lima located at Laguna Bay corner Subic Bay Drive, South Bay
Village, Paranaque City.

15. I parked my vehicle in front of the house. Both Mr. Ablen and I alighted from the vehicle but I went to the gate alone
carrying the black handbag containing the Five Million Pesos (Php5,000,000.00).

16. At the gate, Mr. Ronnie Dayan greeted me and opened the gate for me. I then handed the handbag containing the
money to Mr. Dayan.

17. We then proceeded to the main door of the house where Sen. De Lima was waiting for us. At the main door, Mr.
Dayan handed the black handbag to Sen. De Lima, who received the same. We then entered the house.

18. About thirty minutes after, I went out of the house and proceeded to my quarters at the BuCor, Muntinlupa City.

19. One morning in the middle part of December 2012, I received a call to again deliver the plastic bag containing money
from Peter Co to Mr. Ronnie Dayan. This time the money was packed in a plastic bag left on my bed inside my quarters at
the BuCor, Muntinlupa City. From the outside of the bag, I could easily perceive that it contains money because the bag is
translucent.

20. Just like before, I fetched Mr. Ablen from his house before proceeding to the house of Sen. De Lima located at Laguna
Bay corner Subic Bay Drive, South Bay Village, Paranaque City, where I know I could find Mr. Dayan.

21. In the car, Mr. Ablen asked me if we are going to deliver "quota." I answered yes.

22. We arrived at the house of Sen. De Lima at the above[-]mentioned address at noontime. I again parked in front of the
house.

23. I carried the plastic bag containing money to the house. At the gate, I was greeted by Mr. Ronnie Dayan. At that point,
I handed the bag to Mr. Dayan. He received the bag and we proceeded inside the house.135

The source of the monies delivered to petitioner De Lima was expressly bared by several felons incarcerated inside the
NBP. Among them is Peter Co, who testified in the following manner:

6. Noong huling bahagi ng 2012, sinabi sa akin ni Hans Tanna nanghihingi ng kontribusyon sa mgaChinese sa Maximum
Security Compound ng NBP si dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa 2013
Elections. Dalawang beses akong nagbigay ng tig-P5 Million para tugunan ang hiling ni Sen. De Lima, na dating DOJ
Secretary;

93
7. Binigay ko ang mga halagang ito kay Hans Tan para maibigay kay Sen. Leila De Lima na datingDOJ Secretary. Sa
parehong pagkakataon, sinabihan na lang ako ni Hans Tan na naibigay na ang pera kay Ronnie Dayan na siyang
tumatanggap ng pera para kay dating DOJ Sec. De Lima Sinabi rin niHans Tanna ang nagdeliver ng pera ay si
dating OIC ng BuCor na si Rafael Ragos.

8. Sa kabuuan, nakapagbigay ang mga Chinese sa loob ng Maximum ng PIO Million sa mga huling bahagi ng
taong 2012 kay dating DOJ Sec. De Lima para sa kanyang planong pagtakbo sa senado sa2013 Elections. Ang mga
perang ito ay mula sa pinagbentahan ng illegal na droga.136

All these, at least preliminarily, outline a case for illegal drug trading committed in conspiracy by the petitioner and her
co-accused. Thus, the Court cannot sustain the allegation that respondent judge committed grave abuse of discretion in
issuing the assailed Order for petitioner's arrest.

Petitioner would later confine herself to the contention that the prosecution's evidence is inadmissible, provided as they
were by petitioner's co-accused who are convicted felons and whose testimonies are but hearsay evidence.

Nowhere in Ramos v. Sandiganbayan 137 - the case relied upon by petitioner - did this Court rule that testimonies given by
a co-accused are of no value. The Court simply held that said testimonies should be received with great caution, but not
that they would not be considered. The testimony of Ramos' co-accused was, in fact, admitted in the cited case.
Furthermore, this Court explicitly ruled in Estrada v. Office of the Ombudsman138that hearsay evidence is admissible
during preliminary investigation. The Court held thusly:

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the
hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. 139 (Emphasis
supplied.)

Verily, the admissibility of evidence,140 their evidentiary weight, probative value, and the credibility of the witness are
matters that are best left to be resolved in a full-blown trial,141 not during a preliminary investigation where the technical
rules of evidence are not applied142 nor at the stage of the determination of probable cause for the issuance of a warrant of
arrest. Thus, the better alternative is to proceed to the conduct of trial on the merits for the petitioner and the prosecution
to present their respective evidence in support of their allegations.

With the foregoing disquisitions, the provisional reliefs prayed for, as a consequence, have to be rejected.

WHEREFORE, the instant petition for prohibition and certiorari is DISMISSED for lack of merit. The Regional Trial
Court of Muntinlupa City, Branch 204 is ordered to proceed with dispatch with Criminal Case N6.17-165.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

See Dissenting Opinion

MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion See Separate Concurring Opinion

94
 ANTONIO T. CARPIO TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice

I concur
I concur
See Separate Concurring
See Separate Opinion
& Dissenting Opinion
DIOSDADO M. PERALTA
LUCAS P. BERSAMIN
Associate Justice
Associate Justice

I concur
See Separate Opinion ESTELA M. PERLAS-BERNABE
MARIANO C. DEL CASTILLO Associate Justice
Associate Justice

I dissent
See Separate Opinion FRANCIS H. JARDELEZA
MARVIC M.V.F. LEONEN Associate Justice
Associate Justice

This is to certify that J.

Martires left his vote of concurrence.
See Dissent
See his concurring Opinion
ALFREDO BENJAMIN S. CAGUIOA
- (Sgd.) Sereno, CJ.
Associate Justice
SAMUEL R. MARTIRES
Associate Justice

See separate Concurring Opinion:

ANDRES B. REYES
NOEL GIMENEZ TIJAM
Associate Justice
Associate Justice

ALEXANDER G. GESMUNDO
Associate Justice

CERTIFICATION

Pursuant to the Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

95
EN BANC

G.R. No. 162230, April 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H.

SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M.
ALONZO, LOURDES M. NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M.
SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEÑA, EUGENIA M. LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA
ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA PEÑA,
MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M. BRIONES, VERGINIA M.
GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C.
MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA PANGILINAN, MAMERTA
C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G.
GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L.
TURLA, ET AL. IN THEIR CAPACITY AND AS MEMBERS OF THE "MALAYA LOLAS ORGANIZATION",
PETITIONERS, VS. THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE
HONORABLE SECRETARY OF FOREIGN AFFAIRS DELIA DOMINGO- ALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, AND THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, RESPONDENTS.

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace. History has vindicated the wisdom of that bargain. And
while full compensation for plaintiffs' hardships, in the purely economic sense, has been denied these former prisoners and
countless other survivors of the war, the immeasurable bounty of life for themselves and their posterity in a free society
and in a more peaceful world services the debt.[1]

There is a broad range of vitally important areas that must be regularly decided by the Executive Department without
either challenge or interference by the Judiciary. One such area involves the delicate arena of foreign relations. It would
be strange indeed if the courts and the executive spoke with different voices in the realm of foreign policy. Precisely
because of the nature of the questions presented, and the lapse of more than 60 years since the conduct complained of, we
make no attempt to lay down general guidelines covering other situations not involved here, and confine the opinion only
to the very questions necessary to reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ
of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the Department of
96
Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the Securities
and Exchange Commission, established for the purpose of providing aid to the victims of rape by Japanese military forces
in the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and systematically raped the
women as part of the destruction of the village. Their communities were bombed, houses were looted and burned, and
civilians were publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the women and held them in
houses or cells, where they were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of
their Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering.[2]

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of
the "comfort women" stations in the Philippines. However, officials of the Executive Department declined to assist the
petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully
satisfied by Japan's compliance with the Peace Treaty between the Philippines and Japan.

Issues

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

Petitioners' arguments

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

Respondents' Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.[6]

Article 14 of the Treaty of Peace[7] provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering caused by it

97
 during the war. Nevertheless it is also recognized that the resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation for all such damage and suffering and at the present time
meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied
Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of
occupation.

In addition, respondents argue that the apologies made by Japan[8] have been satisfactory, and that Japan had addressed the
individual claims of the women through the atonement money paid by the Asian Women's Fund.

Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese military forces
captured the city of Nanking in China and began a "barbaric campaign of terror" known as the Rape of Nanking, which
included the rapes and murders of an estimated 20,000 to 80,000 Chinese women, including young girls, pregnant
mothers, and elderly women.[9]

In reaction to international outcry over the incident, the Japanese government sought ways to end international
condemnation[10] by establishing the "comfort women" system. Under this system, the military could simultaneously
appease soldiers' sexual appetites and contain soldiers' activities within a regulated environment.[11] Comfort stations
would also prevent the spread of venereal disease among soldiers and discourage soldiers from raping inhabitants of
occupied territories.[12]

Daily life as a comfort woman was "unmitigated misery."[13] The military forced victims into barracks-style stations
divided into tiny cubicles where they were forced to live, sleep, and have sex with as many 30 soldiers per day.[14] The 30
minutes allotted for sexual relations with each soldier were 30-minute increments of unimaginable horror for the
women.[15] Disease was rampant.[16] Military doctors regularly examined the women, but these checks were carried out to
prevent the spread of venereal diseases; little notice was taken of the frequent cigarette burns, bruises, bayonet stabs and
even broken bones inflicted on the women by soldiers.

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

Efforts to Secure Reparation

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

Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former comfort women
against the Japanese government. The Tokyo District Court however dismissed their case.[20] Other suits followed,[21] but
98
the Japanese government has, thus far, successfully caused the dismissal of every case.[22]

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women system brought
their claims before the United States (US). On September 18, 2000, 15 comfort women filed a class action lawsuit in the
US District Court for the District of Columbia[23] "seeking money damages for [allegedly] having been subjected to sexual
slavery and torture before and during World War II," in violation of "both positive and customary international law." The
case was filed pursuant to the Alien Tort Claims Act ("ATCA"),[24] which allowed the plaintiffs to sue the Japanese
government in a US federal district court.[25] On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that "[t]here is no question that this court is not the appropriate forum in which plaintiffs
may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did not enjoy sovereign immunity,
plaintiffs' claims are non-justiciable and must be dismissed."

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

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted a petition
to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes committed by Japan
against Korean women and seeking reparations for former comfort women.[29] The UNHRC placed the issue on its agenda
and appointed Radhika Coomaraswamy as the issue's special investigator. In 1996, Coomaraswamy issued a Report
reaffirming Japan's responsibility in forcing Korean women to act as sex slaves for the imperial army, and made the
following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the Second World
War was a violation of its obligations under international law and accept legal responsibility for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles outlined by the
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the
right to restitution, compensation and rehabilitation for victims of grave violations of human rights and fundamental
freedoms. A special administrative tribunal for this purpose should be set up with a limited time-frame since many
of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come forward and can be substantiated as women
victims of Japanese military sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization of comfort

99
 stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination and Protection of
Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the Government of Japan for 'Comfort Women Stations' established during
the Second World War,[30] which contained the following findings:

68. The present report concludes that the Japanese Government remains liable for grave violations of human rights and
humanitarian law, violations that amount in their totality to crimes against humanity. The Japanese Government's
arguments to the contrary, including arguments that seek to attack the underlying humanitarian law prohibition of
enslavement and rape, remain as unpersuasive today as they were when they were first raised before the Nuremberg war
crimes tribunal more than 50 years ago. In addition, the Japanese Government's argument that Japan has already settled all
claims from the Second World War through peace treaties and reparations agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until very recently of the Japanese Government to admit the extent of
the Japanese military's direct involvement in the establishment and maintenance of these rape centres. The Japanese
Government's silence on this point during the period in which peace and reparations agreements between Japan and other
Asian Governments were being negotiated following the end of the war must, as a matter of law and justice, preclude
Japan from relying today on these peace treaties to extinguish liability in these cases.

69. The failure to settle these claims more than half a century after the cessation of hostilities is a testament to the degree
to which the lives of women continue to be undervalued. Sadly, this failure to address crimes of a sexual nature
committed on a massive scale during the Second World War has added to the level of impunity with which similar crimes
are committed today. The Government of Japan has taken some steps to apologize and atone for the rape and enslavement
of over 200,000 women and girls who were brutalized in "comfort stations" during the Second World War. However,
anything less than full and unqualified acceptance by the Government of Japan of legal liability and the consequences that
flow from such liability is wholly inadequate. It must now fall to the Government of Japan to take the necessary final
steps to provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the reparations sought.

Women's International War Crimes

Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a number of Asian
women and human rights organizations, supported by an international coalition of non-governmental organizations.[31]
First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual violence,
in particular the enslavement of comfort women, to bring those responsible for it to justice, and to end the ongoing cycle
of impunity for wartime sexual violence against women."

After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001, finding the
former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape and sexual slavery of
women.[32] It bears stressing, however, that although the tribunal included prosecutors, witnesses, and judges, its judgment
was not legally binding since the tribunal itself was organized by private citizens.

100
Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on July 30, 2007,[33] and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and unequivocal manner for its Imperial Armed Forces' coercion
of young women into sexual slavery, known to the world as "comfort women", during its colonial and wartime occupation
of Asia and the Pacific Islands from the 1930s through the duration of World War II; (2) would help to resolve recurring
questions about the sincerity and status of prior statements if the Prime Minister of Japan were to make such an apology as
a public statement in his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement
and trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should educate current
and future generations about this horrible crime while following the recommendations of the international community
with respect to the "comfort women."[34]

In December 2007, the European Parliament, the governing body of the European Union, drafted a resolution similar to
House Resolution 121.[35] Entitled, "Justice for Comfort Women," the resolution demanded: (1) a formal acknowledgment
of responsibility by the Japanese government; (2) a removal of the legal obstacles preventing compensation; and (3)
unabridged education of the past. The resolution also stressed the urgency with which Japan should act on these issues,
stating: "the right of individuals to claim reparations against the government should be expressly recognized in national
law, and cases for reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized,
taking into account the age of the survivors."

The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan. Canada's resolution
demands the Japanese government to issue a formal apology, to admit that its Imperial Military coerced or forced
hundreds of thousands of women into sexual slavery, and to restore references in Japanese textbooks to its war crimes.[36]
The Dutch parliament's resolution calls for the Japanese government to uphold the 1993 declaration of remorse made by
Chief Cabinet Secretary Yohei Kono.

The Foreign Affairs Committee of the United Kingdom's Parliament also produced a report in November, 2008 entitled,
"Global Security: Japan and Korea" which concluded that Japan should acknowledge the pain caused by the issue of
comfort women in order to ensure cooperation between Japan and Korea.

Statements of Remorse made by representatives of the Japanese government

Various officials of the Government of Japan have issued the following public statements concerning the comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime "comfort women" since December 1991. I
wish to announce the findings as a result of that study.

As a result of the study which indicates that comfort stations were operated in extensive areas for long periods, it is
apparent that there existed a great number of comfort women. Comfort stations were operated in response to the request of
the military authorities of the day. The then Japanese military was, directly or indirectly, involved in the establishment and
management of the comfort stations and the transfer of comfort women. The recruitment of the comfort women was

101
conducted mainly by private recruiters who acted in response to the request of the military. The Government study has
revealed that in many cases they were recruited against their own will, through coaxing coercion, etc., and that, at times,
administrative/military personnel directly took part in the recruitments. They lived in misery at comfort stations under a
coercive atmosphere.

As to the origin of those comfort women who were transferred to the war areas, excluding those from Japan, those from
the Korean Peninsula accounted for a large part. The Korean Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally against their will, through coaxing, coercion, etc.

Undeniably, this was an act, with the involvement of the military authorities of the day, that severely injured the honor
and dignity of many women. The Government of Japan would like to take this opportunity once again to extend its sincere
apologies and remorse to all those, irrespective of place of origin, who suffered immeasurable pain and incurable physical
and psychological wounds as comfort women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the views of
learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above instead of evading them, and take them to heart as lessons of
history. We hereby reiterated our firm determination never to repeat the same mistake by forever engraving such issues in
our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this issue outside Japan, the Government
of Japan shall continue to pay full attention to this matter, including private researched related thereto.

b) Prime Minister Tomiichi Murayama's Statement in 1994

On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women, I would like to
take this opportunity once again to express my profound and sincere remorse and apologies"

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at that time, was a grave affront to
the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women who endured
immeasurable and painful experiences and suffered incurable physical and psychological wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and remorse, should face
up squarely to its past history and accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in modern world
history, and recognizing that Japan carried out such acts in the past and inflicted suffering on the people of other
countries, especially in Asia, the Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)

102
e) Various Public Statements by Japanese Prime Minister Shinzo Abe

I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have been consistent.
I will stand by the Kono Statement. This is our consistent position. Further, we have been apologizing sincerely to those
who suffered immeasurable pain and incurable psychological wounds as comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto, have issued letters to the comfort women. I would like to be clear that
I carry the same feeling. This has not changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an
Interview by NHK, March 11, 2007).

I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement by the Chief
Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my apologies for the
extremely agonizing circumstances into which they were placed. (Excerpt from Telephone Conference by Prime Minister
Abe to President George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were taken as wartime comfort women. As a
human being, I would like to express my sympathies, and also as prime minister of Japan I need to apologize to them. My
administration has been saying all along that we continue to stand by the Kono Statement. We feel responsible for having
forced these women to go through that hardship and pain as comfort women under the circumstances at the time. (Excerpt
from an interview article "A Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who suffered extreme
hardships as comfort women; and I expressed my apologies for the fact that they were forced to endure such extreme and
harsh conditions. Human rights are violated in many parts of the world during the 20th Century; therefore we must work
to make the 21st Century a wonderful century in which no human rights are violated. And the Government of Japan and I
wish to make significant contributions to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press
Availability after the summit meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the government's concrete attempt to address its
moral responsibility by offering monetary compensation to victims of the comfort women system. [37] The purpose of the
AWF was to show atonement of the Japanese people through expressions of apology and remorse to the former wartime
comfort women, to restore their honor, and to demonstrate Japan's strong respect for women.[38]

The AWF announced three programs for former comfort women who applied for assistance: (1) an atonement fund paying
¥2 million (approximately $20,000) to each woman; (2) medical and welfare support programs, paying ¥2.5-3 million
($25,000-$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to each woman. Funding
for the program came from the Japanese government and private donations from the Japanese people. As of March 2006,
the AWF provided ¥700 million (approximately $7 million) for these programs in South Korea, Taiwan, and the
Philippines; ¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million (approximately $2.4 million) in the
Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding for medical and
103
welfare support programs for former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.

Our Ruling

Stripped down to its essentials, the issue in this case is whether the Executive Department committed grave abuse of
discretion in not espousing petitioners' claims for official apology and other forms of reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the

Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners' claims against Japan.

Baker v. Carr[39] remains the starting point for analysis under the political question doctrine. There the US Supreme Court
explained that:

x x x Prominent on the surface of any case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on
question.

In Tañada v. Cuenco,[40] we held that political questions refer "to those questions which, under the Constitution, are to be
decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to
the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality
of a particular measure."

Certain types of cases often have been found to present political questions.[41] One such category involves questions of
foreign relations. It is well-established that "[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative--'the political'--departments of the government, and the propriety of what may
be done in the exercise of this political power is not subject to judicial inquiry or decision."[42] The US Supreme Court has
further cautioned that decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility.[43]

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the authority
to construe or invalidate treaties and executive agreements.[44] However, the question whether the Philippine government
should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the country to waive all claims of its nationals for

104
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.
Neither could petitioners herein assail the said determination by the Executive Department via the instant petition for
certiorari.

In the seminal case of US v. Curtiss-Wright Export Corp.,[45] the US Supreme Court held that "[t]he President is the sole
organ of the nation in its external relations, and its sole representative with foreign relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be admissible where domestic affairs alone involved.
Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v.

Executive Secretary[46] and Pimentel v. Executive Secretary;[47] its overreaching principle was, perhaps, best articulated in
(now Chief) Justice Puno's dissent in Secretary of Justice v. Lantion:[48]

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and death
significance to the nation especially in times of war. It can only be entrusted to that department of government which can
act on the basis of the best available information and can decide with decisiveness. x x x It is also the President who
possesses the most comprehensive and the most confidential information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all over the world. He has also unlimited access to ultra-
sensitive military intelligence data. In fine, the presidential role in foreign affairs is dominant and the President is
traditionally accorded a wider degree of discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other problems
with equally undesirable consequences.

The Executive Department has determined that taking up petitioners' cause would be inimical to our country's foreign
policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this
region. For us to overturn the Executive Department's determination would mean an assessment of the foreign policy
judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was without authority to negotiate the
Treaty of Peace with Japan. And it is equally true that, since time immemorial, when negotiating peace accords and
settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and as counters,
`chips', in international bargaining. Settlement agreements have lumped, or linked, claims deriving from private debts with
others that were intergovernmental in origin, and concessions in regard to one category of claims might be set off against
concessions in the other, or against larger political considerations unrelated to debts.[49]

Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying

105
private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton,[50] a case brought by a British
subject to recover a debt confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter in
dispute, nor the conduct of either party, during the war, can ever be revived, or brought into contest again. All violences,
injuries, or damages sustained by the government, or people of either, during the war, are buried in oblivion; and all those
things are implied by the very treaty of peace; and therefore not necessary to be expressed. Hence it follows, that the
restitution of, or compensation for, British property confiscated, or extinguished, during the war, by any of the United
States, could only be provided for by the treaty of peace; and if there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the British government, much less by her subjects in courts of
justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames & Moore v.
Regan,[51] the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one country against the government of
another country are "sources of friction" between the two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct.
552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have often entered into agreements settling the claims
of their respective nationals. As one treatise writer puts it, international agreements settling claims by nationals of one
state against the government of another "are established international practice reflecting traditional international theory."
L. Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has
repeatedly exercised its sovereign authority to settle the claims of its nationals against foreign countries. x x x Under such
agreements, the President has agreed to renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants themselves, since a claimant's only hope of obtaining any
payment at all might lie in having his Government negotiate a diplomatic settlement on his behalf. But it is also
undisputed that the "United States has sometimes disposed of the claims of its citizens without their consent, or even
without consultation with them, usually without exclusive regard for their interests, as distinguished from those of the
nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of the United
States § 213 (1965) (President "may waive or settle a claim against a foreign state x x x [even] without the consent of the
[injured] national"). It is clear that the practice of settling claims continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for the complete
atonement of the suffering caused by Japanese aggression during the war, not for the payment of adequate reparations, but
for security purposes. The treaty sought to prevent the spread of communism in Japan, which occupied a strategic position
in the Far East. Thus, the Peace Treaty compromised individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave labor during the war.[52] In a
consolidated case in the Northern District of California,[53] the court dismissed the lawsuits filed, relying on the 1951
peace treaty with Japan,[54] because of the following policy considerations:

The official record of treaty negotiations establishes that a fundamental goal of the agreement was to settle the reparations
issue once and for all. As the statement of the chief United States negotiator, John Foster Dulles, makes clear, it was well
understood that leaving open the possibility of future claims would be an unacceptable impediment to a lasting
peace:

106
Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses and suffering.

On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands which are unable to
produce the food its people need to live, or the raw materials they need to work. x x x

The policy of the United States that Japanese liability for reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas MacArthur, confiscated Japanese assets in conjunction with the
task of managing the economic affairs of the vanquished nation and with a view to reparations payments. It soon became
clear that Japan's financial condition would render any aggressive reparations plan an exercise in futility.
Meanwhile, the importance of a stable, democratic Japan as a bulwark to communism in the region increased. At
the end of 1948, MacArthur expressed the view that "[t]he use of reparations as a weapon to retard the reconstruction of a
viable economy in Japan should be combated with all possible means" and "recommended that the reparations issue be
settled finally and without delay."

That this policy was embodied in the treaty is clear not only from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval of the treaty by the Senate. The committee noted, for
example:

Obviously insistence upon the payment of reparations in any proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan's economy, dissipate any credit that it may possess at present, destroy the
initiative of its people, and create misery and chaos in which the seeds of discontent and communism would flourish. In
short, [it] would be contrary to the basic purposes and policy of x x x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle - and particularly
here, where such an extraordinary length of time has lapsed between the treaty's conclusion and our consideration - the
Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan,
from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies
are sufficient, and whether further steps are appropriate or necessary.

The Philippines is not under any

international obligation to espouse
petitioners' claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international
legal system has been when the individual is able to persuade a government to bring a claim on the individual's behalf.[55]
Even then, it is not the individual's rights that are being asserted, but rather, the state's own rights. Nowhere is this position
more clearly reflected than in the dictum of the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis
Palestine Concessions Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in
point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case
on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant. [56]
107
Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the absolute discretion of
states, and the decision whether to exercise the discretion may invariably be influenced by political considerations other
than the legal merits of the particular claim.[57] As clearly stated by the ICJ in

Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic
protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting.
Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately
protected, they have no remedy in international law. All they can do is resort to national law, if means are available,
with a view to furthering their cause or obtaining redress. The municipal legislator may lay upon the State an obligation to
protect its citizens abroad, and may also confer upon the national a right to demand the performance of that obligation,
and clothe the right with corresponding sanctions. However, all these questions remain within the province of municipal
law and do not affect the position internationally.[58] (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the particular case.

The International Law Commission's (ILC's) Draft Articles on Diplomatic Protection fully support this traditional view.
They (i) state that "the right of diplomatic protection belongs to or vests in the State,"[59] (ii) affirm its discretionary nature
by clarifying that diplomatic protection is a "sovereign prerogative" of the State;[60] and (iii) stress that the state "has the
right to exercise diplomatic protection

on behalf of a national. It is under no duty or obligation to do so."[61]

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her behalf
when rights are injured.[62] However, at present, there is no sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of their own nationals abroad.[63] Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such a direction. If it is a duty internationally, it is only a moral and not a
legal duty, and there is no means of enforcing its fulfillment.[64]

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well as legally
prohibited under contemporary international law.[65] However, petitioners take quite a theoretical leap in claiming that
these proscriptions automatically imply that that the Philippines is under a non-derogable obligation to prosecute
international crimes, particularly since petitioners do not demand the imputation of individual criminal liability, but seek
to recover monetary reparations from the state of Japan. Absent the consent of states, an applicable treaty regime, or a
directive by the Security Council, there is no non-derogable duty to institute proceedings against Japan. Indeed, precisely
because of states' reluctance to directly prosecute claims against another state, recent developments support the modern
trend to empower individuals to directly participate in suits against perpetrators of international crimes. [66] Nonetheless,
notwithstanding an array of General Assembly resolutions calling for the prosecution of crimes against humanity and the
strong policy arguments warranting such a rule, the practice of states does not yet support the present existence of an
obligation to prosecute international crimes.[67] Of course a customary duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in
the practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who commit crimes
against humanity."[68]
108
Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we sidestep the
question of whether jus cogens norms existed in 1951, petitioners have not deigned to show that the crimes committed by
the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. The concept was recognized by the ICJ in
Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards the international community as a
whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are
the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in
their protection; they are obligations erga omnes.

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of
genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection have entered into the body of general
international law ... others are conferred by international instruments of a universal or quasi-universal character.

The Latin phrase, `erga omnes,' has since become one of the rallying cries of those sharing a belief in the emergence of a
value-based international public order. However, as is so often the case, the reality is neither so clear nor so bright.
Whatever the relevance of obligations erga omnes as a legal concept, its full potential remains to be realized in practice.[69]

The term is closely connected with the international law concept of jus cogens. In international law, the term "jus cogens"
(literally, "compelling law") refers to norms that command peremptory authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and
can be modified only by general international norms of equivalent authority.[70]

Early strains of the jus cogens doctrine have existed since the 1700s,[71] but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties in
International Law.[72] The recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC's
preparation of the Vienna Convention on the Law of Treaties (VCLT).[73] Though there was a consensus that certain
international norms had attained the status of jus cogens,[74] the ILC was unable to reach a consensus on the proper criteria
for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963 that "there is not
as yet any generally accepted criterion by which to identify a general rule of international law as having the character of
jus cogens."[75] In a commentary accompanying the draft convention, the ILC indicated that "the prudent course seems to
be to x x x leave the full content of this rule to be worked out in State practice and in the jurisprudence of international
tribunals."[76] Thus, while the existence of jus cogens in international law is undisputed, no consensus exists on its
substance,[77] beyond a tiny core of principles and rules.[78]

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the unimaginable
horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned that, in apparent contravention
of fundamental principles of law, the petitioners appear to be without a remedy to challenge those that have offended them
before appropriate fora. Needless to say, our government should take the lead in protecting its citizens against violation of
109
their fundamental human rights. Regrettably, it is not within our power to order the Executive Department to take up the
petitioners' cause. Ours is only the power to urge and exhort the Executive Department to take up petitioners' cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

Corona, Velasco, Jr., Leonardo-De Castro, Brion, Bersamin, Abad, Villarama, Jr., Perez, and Mendoza, JJ., concur.
Puno, C.J., in the result.
Carpio, J., concur on the ground that petitioners' claim are barred by the Peace Treaty bet. RP and Japan.
Carpio Morales and Peralta, JJ., join J. Nachura's separate opinion.
Nachura, J., pls. see concurrence in the result.

110
EN BANC

G.R. No. 221697, March 08, 2016

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, PETITIONER, VS. COMMISSION ON ELECTIONS

AND ESTRELLA C. ELAMPARO, RESPONDENTS,

[G.R. NOS. 221698-700]

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, PETITIONER, VS. COMMISSION ON ELECTIONS,

FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ, RESPONDENTS,

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules cf Court with extremely
urgent application for an ex parte issuance of temporary restraining order/status quo ante order and/or writ of preliminary
injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on Elections (COMELEC) Second
Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015
Resolution of the COMELEC First Division; and (4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA
No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having been issued without jurisdiction or with
grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of
Jaro, Iloilo by a certain Edgardo Militar (Edgardo) on 3 September 1968. Parental care and custody over petitioner was
passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three days after, 6 September 1968,
Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-
Iloilo). In her Foundling Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar."[1]

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa
Sonora Poe (a.k.a. Susan Roces) filed a petition for her adoption with the Municipal Trial Court (MTC) of San Juan City.
On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be changed from "Mary Grace
Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-
Iloilo on petitioner's foundling certificate reflecting the court decreed adoption,[2] the petitioner's adoptive mother
discovered only sometime in the second half of 2005 that the lawyer who handled petitioner's adoption failed to secure
from the OCR-

Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her adoptive parents.[3] Without
delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo.
On 4 May 2006, OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.[4]

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in

111
San Juan City. On 13 December 1986, she received her COMELEC Voter's Identification Card for Precinct No. 196 in
Greenhills, San Juan, Metro Manila.[5]

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287[6] by the Department of Foreign
Affairs (DFA). Subsequently, on 5 April 1993 and 19 May 1998, she renewed her Philippine passport and respectively
secured Philippine Passport Nos. L881511 and DD156616.[7]

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines8 but she
opted to continue her studies abroad and left for the United States of America (U.S.) in 1988. Petitioner graduated in 1991
from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts degree in Political Studies. [9]

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the
Philippines and the U.S., at Sanctuario de San Jose Parish in San Juan City.[10] Desirous of being with her husband who
was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or on 29 July 1991.[11]

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992.[12] Her two daughters
Hanna MacKenzie (Hanna) and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004,
respectively.[13]

On 18 October 2001, petitioner became a naturalized American citizen.[14] She obtained U.S. Passport No. 017037793 on
19 December 2001.[15]

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for
President in the May 2004 elections. It was during this time that she gave birth to her youngest daughter Anika. She
returned to the U.S. with her two daughters on 8 July 2004.[16]

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her
father's deteriorating medical condition.[17] Her father slipped into a coma and eventually expired. The petitioner stayed in
the country until 3 February 2005 to take care of her father's funeral arrangements as well as to assist in the settlement of
his estate.[18]

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire
to be with her grieving mother, the petitioner and her husband decided to move and reside permanently in the Philippines
sometime in the first quarter of 2005.[19] The couple began preparing for their resettlement including notification of their
children's schools that they will be transferring to Philippine schools for the next semester;[20] coordination with property
movers for the relocation of their household goods, furniture and cars from the U.S. to the Philippines; [21] and inquiry with
Philippine authorities as to the proper procedure to be followed in bringing their pet dog into the country.[22] As early as
2004, the petitioner already quit her job in the U.S.[23]

Finally, petitioner came home to the Philippines on 24 May 2005[24] and without delay, secured a Tax Identification
Number from the Bureau of Internal Revenue. Her three (3) children immediately followed[25] while her husband was
forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home there. [26]

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium
unit with a parking slot at One Wilson Place Condominium in San Juan City in the second half of 2005.[27] The
corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the Register of Deeds
of San Juan City to petitioner and her husband on 20 February 2006.[28] Meanwhile, her children of school age began

112
attending Philippine private schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's
remaining household belongings.[29] She travelled back to the Philippines on 11 March 2006.[30]

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and
abandonment of their address in the U.S.[31] The family home was eventually sold on 27 April 2006.[32]

Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started
working for a major Philippine company in July 2006.[33]

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they
built their family home[34] and to this day, is where the couple and their children have been residing.[35] A Transfer
Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of Quezon City on 1
June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.)
No. 9225 or the Citizenship Retention and Re-acquisition Act of 2003.[36] Under the same Act, she filed with the Bureau
of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for derivative citizenship
on behalf of her three minor children on 10 July 2006.[37] As can be gathered from its 18 July 2006 Order, the BI acted
favorably on petitioner's petitions and declared that she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.[38]

Consequently, the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three (3)
children.[39]

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.[40] She also secured
from the DFA a new Philippine Passport bearing the No. XX4731999.[41] This passport was renewed on 18 March 2014
and she was issued Philippine Passport No. EC0588861 by the DFA.[42]

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television
Review and Classification Board (MTRCB).[43] Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a notary
public in Pasig City on 20 October 2010,[44] in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.[45]
The following day, 21 October 2010 petitioner submitted the said affidavit to the BI[46] and took her oath of office as
Chairperson of the MTRCB.[47] From then on, petitioner stopped using her American passport.

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of
Renunciation of Nationality of the United States."[49] On that day, she accomplished a sworn questionnaire before the U.S.
Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on 21 October 2010 with the intent,
among others, of relinquishing her American citizenship.[50] In the same questionnaire, the petitioner stated that she had
resided outside of the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.[51]

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States"
effective 21 October 2010.[52]

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On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013
Elections wherein she answered "6 years and 6 months" to the question "Period of residence in the Philippines before May
13, 2013."[53] Petitioner obtained the highest number of votes and was proclaimed Senator on 16 May 2013.[54]

On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.[55]

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections.[56] In her COC, the
petitioner declared that she is a natural-born citizen and that her residence in the Philippines up to the day before 9 May
2016 would be ten (10) years and eleven (11) months counted from 24 May 2005.[57] The petitioner attached to her COC
an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon
City on 14 October 2015.[58]

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases
against her which were the subject of these consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or
cancel said COC which was docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second Division.[59] She is
convinced that the COMELEC has jurisdiction over her petition.[60] Essentially, Elamparo's contention is that petitioner
committed material misrepresentation when she stated in her COC that she is a naturalborn Filipino citizen and that she is
a resident of the Philippines for at least ten (10) years and eleven (11) months up to the day before the 9 May 2016
Elections.[61]

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of
the fact that she was a foundling.[62] Elamparo claimed that international law does not confer natural born status and
Filipino citizenship on foundlings.[63] Following this line of reasoning, petitioner is not qualified to apply for reacquisition
of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with.[64] Even assuming
arguendo that petitioner was a natural-born Filipino, she is deemed to have lost that status when she became a naturalized
American citizen.[65] According to Elamparo, natural-born citizenship must be continuous from birth.[66]

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made
in her 2012 COC for Senator wherein she indicated that she had resided in the country for only six (6) years and six (6)
months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that petitioner is qualified to regain
her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution
as her residence could only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under
the said Act. Also on the assumption that petitioner is qualified to reacquire lost Philippine Citizenship, Elamparo is of the
belief that she failed to reestablish her domicile in the Philippines.[67]

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto
which could only be filed if Grace Poe wins in the Presidential elections, and that the Department of Justice (DOJ)
has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted,
would make false the statement in her COC that she is a natural-born Filipino citizen nor was there any allegation

114
 that there was a willful or deliberate intent to misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications
for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in the
May 9, 2016 Elections and that the same is in full force and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May 24,
2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not binding and
should give way to evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely
political question, that is, should she serve as the country's next leader.[68]

After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for
the purpose of running for the President of the Republic of the Philippines in the 9 May 2016 National and Local
Elections, contained material representations which are false. The fallo of the aforesaid Resolution reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel
Certificate of Candidacy is hereby GRANTED. Accordingly, the Certificate of Candidacy for President of the Republic
of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad Sonora Poe
Llarnanzares is hereby CANCELLED.[69]

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc
resolved in its 23 December 2015 Resolution by denying the same.[70]

Origin of Petition for Certiorari in GR. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras)
and Amado D. Valdez (Valdez) against petitioner before the COMELEC which were consolidated and raffled to its First
Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure,[71] docketed as SPA No. 15-
002 (DC), Tatad alleged that petitioner lacks the requisite residency and citizenship to qualify her for the Presidency.[72]

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Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage,
particularly foundlings, cannot be considered natural-born Filipino citizens since blood relationship is determinative of
natural-born status.[73] Tatad invoked the rule of statutory construction that what is not included is excluded. He averred
that the fact that foundlings were not expressly included in the categories of citizens in the 1935 Constitution is indicative
of the framers' intent to exclude them.[74]

Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.[75]

Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a
nationality.[76] According to Tatad, international conventions and treaties are not self-executory and that local legislations
are necessary in order to give effect to treaty obligations assumed by the Philippines.[77] He also stressed that there is no
standard state practice that automatically confers natural-born status to foundlings.[78]

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine
citizenship under R.A. No. 9225 because it only applies to former natural-born citizens and petitioner was not as she was a
foundling.[79]

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency
requirement.[80] Tatad opined that petitioner acquired her domicile in Quezon City only from the time she renounced her
American citizenship which was sometime in 201 0 or 2011.[81]

Additionally, Tatad questioned petitioner's lack of intention to abandon her U.S. domicile as evinced by the fact that her
husband stayed thereat and her frequent trips to the U.S.[82]

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez
alleged that her repatriation under R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.[83] He
advanced the view that former natural-born citizens who are repatriated under the said Act reacquires only their Philippine
citizenship and will not revert to their original status as natural born citizens.[84]

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the
Philippines for at least six (6) years and six (6) months prior to the 13 May 2013 Elections operates against her. Valdez
rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to her
reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year residency
requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition,[85] docketed as SPA No. 15-007 (DC),
limited the attack to the residency issue. He claimed that petitioner's 2015 COC for President should be cancelled on the
ground that she did not possess the ten-year period of residency required for said candidacy and that she made false entry

in her COC when she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9
May 2016.[86] Contreras contended that the reckoning period for computing petitioner's residency in the Philippines should
be from 18 July 2006, the date when her petition to reacquire Philippine citizenship was approved by the BI.[87] He
asserted that petitioner's physical presence in the country before 18 July 2006 could not

be valid evidence of reacquisition of her Philippine domicile since she was then living here as an American citizen and as
such, she was governed by the Philippine immigration laws.[88]

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In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke
grounds proper for a disqualification case as enumerated under Sections 12 and 68 of the Omnibus Election Code.[89]
Instead, Tatad completely relied on the alleged lack of residency and natural-born status of petitioner which are not among
the recognized grounds for the disqualification of a candidate to an elective office.[90]

Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her
ineligibility for the Presidency.[91] A petition for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.[92]

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents.[93] Otherwise stated, she has
a presumption in her favor that she is a natural-born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of
the country where they are found.[94] Consequently, the petitioner is considered as a natural-born citizen of the
Philippines.[95]

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to
reacquire her natural-born status.[96] Moreover, the official acts of the Philippine Government enjoy the presumption of
regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen, her appointment
as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC.[97] She believed that all these acts
reinforced her position that she is a natural-born citizen of the Philippines.[98]

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the
Philippines as demonstrated by her children's resettlement and schooling in the country, purchase of a condominium unit
in San Juan City and the construction of their family home in Corinthian Hills.[99]

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced
her American citizenship as long as the three determinants for a change of domicile are complied with.[100] She reasoned
out that there was no requirement that renunciation of foreign citizenship is a prerequisite for the acquisition of a new
domicilee of choice.[101]

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in
good faith.[102]

In a Resolution[103] promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a natural-
born citizen, that she failed to complete the ten (10) year residency requirement, and that she committed material
misrepresentation in her COC when she declared therein that she has been a resident of the Philippines for a period of ten
(10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded
that she is not qualified for the elective position of President of the Republic of the Philippines. The dispositive portion of
said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions
and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the
elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.
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Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23
December 2015, the COMELEC En Banc issued a Resolution denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent
prayer for the issuance of an ex parte temporary restraining order/status quo ante order and/or writ of preliminary
injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the COMELEC and
its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court. The Court
also ordered the consolidation of the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral
arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe Llamanzares and to ANNUL and SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC), entitled
Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-
002 (DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace
Natividad Sonora Poe Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the I December 2015 Resolution of
the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of
the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of
discretion amounting to lack of jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the 9 May
2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the
exclusive ground" that she made in the certificate a false material representation. The exclusivity of the ground should
hedge in the discretion of the COMELEC and restrain it from going into the issue of the qualifications of the candidate for
the position, if, as in this case, such issue is yet undecided or undetermined by the proper authority. The COMELEC
cannot itself, in the same cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum,
and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all
elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by trial courts of

118
limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.

(3)Decide, except those involving the right to vote, all questions affecting elections, including determination of the
number and location of polling places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government,
including the Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest,

peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other
requirements, must present their platform or program of government; and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to this Constitution, or which are supported by any foreign
government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in national affairs, and, when accepted, shall be an additional ground
for the cancellation of their registration with the Commission, in addition to other penalties that may be prescribed by law.

(6)File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of violations of election laws, including acts or omissions constituting
election frauds, offenses, and malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative,
referendum, or recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same
basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the Supreme Court to be designated by the Chief Justice,
and the remaining six shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or organizations registered
under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

119
or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and
qualifications of the President or Vice-President, and may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators
and the Members of the House of Representatives was made clear by the Constitution. There is no such provision for
candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,[104] which was
affirmatively cited in the En Banc decision in Fermin v. COMELEC[105] is our guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC
amended its rules on February 15, 1993 so as to provide in Rule 25 §1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by
the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act
is equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its
rule-making power under Art. IX, A, §6 of the Constitution, cannot do it. It is noteworthy that the Constitution withholds
from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into
qualifications based on age, residence and citizenship of voters. [Art. IX, C, §2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is
contrary to the evident intention of the law. For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already
stated, are based on grounds specified in §12 and §68 of the Omnibus Election Code and in §40 of the Local Government
Code and are for the purpose of barring an individual from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for
holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from
office.

Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified
from becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy
in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in §2 of the Law does not imply
that he does not suffer from any of [the] disqualifications provided in §4.

Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the
importance of the opinion is in its statement that "the lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

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Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the
qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility
for the office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election
offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question which should be
determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided
that if the grounds for disqualification are established, a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been voted for and he has won, either he will not be
proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile,
may take a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the
companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino s residence was
still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character
proceedings relating to certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers. The law is satisfied if candidates state in their certificates of candidacy
that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases involving charges of false representations made in
certificates of candidacy is the COMELEC given jurisdiction.

Third is the policy underlying the prohibition against pre proclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve the prerogatives
of the House of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of the
election, returns and qualifications of members of Congress of the President and Vice President, as the case may be.[106]

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through
COMELEC Resolution No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25,
which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for by
the Constitution or by existing law or who commits any act declared by law to be grounds for disqualification may be
disqualified from continuing as a candidate.[107]

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent
court, guilty of, or found by the Commission to be suffering from any disqualification provided by law or the
Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or
Petition to Declare a Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such that, as presently required, to disqualify a candidate there
must be a declaration by a final judgment of a competent court that the candidate sought to be disqualified "is guilty of or
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found by the Commission to be suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not
allow, are not authorizations, are not vestment of jurisdiction, for the COMELEC to determine the qualification of a
candidate. The facts of qualification must beforehand be established in a prior proceeding before an authority properly
vested with jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment
of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by
law or the Constitution," neither can the certificate of candidacy be cancelled or denied due course on grounds of false
representations regarding his or her qualifications, without a prior authoritative finding that he or she is not qualified, such
prior authority being the necessary measure by which the falsity of the representation can be found. The only exception
that can be conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case,
alleged false representations regarding the candidate's citizenship and residence, forced the COMELEC to rule essentially
that since foundlings[108] are not mentioned in the enumeration of citizens under the 1935 Constitution,[109] they then
cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said
it all. This borders on bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein
petitioner possesses blood relationship with a Filipino citizen when "it is certain that such relationship is indemonstrable,"
proceeded to say that "she now has the burden to present evidence to prove her natural filiation with a Filipino parent."

The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine
Law. The Family Code of the Philippines has a whole chapter on Paternity and Filiation.[110] That said, there is more than
sufficient evidence that petitioner has Filipino parents and is therefore a natural-born Filipino. Parenthetically, the burden
of proof was on private respondents to show that petitioner is not a Filipino citizen. The private respondents should have
shown that both of petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her
because such status did not exclude the possibility that her parents were Filipinos, especially as in this case where there is
a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are
Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its
existence or no existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable
degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA)[111] that from 1965 to 1975,
the total number of foreigners born in the Philippines was 15,986 while the total number of Filipinos born in the country
was 10,558,278. The statistical probability that any child born in the Philippines in that decade is natural-born Filipino
was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA.
In 1960, there were 962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In
1970, the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also presented were figures for the child
producing ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In the
122
same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino
females versus 1,190 female aliens, or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165
male aliens or 99.53%. COMELEC did not dispute these figures. Notably, Commissioner Arthur Lim admitted, during the
oral arguments, that at the time petitioner was found in 1968, the majority of the population in Iloilo was Filipino.[112]

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a
Roman Catholic Church in Iloilo City. She also has typical Filipino features: height, flat nasal bridge, straight black hair,
almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary
habits of life.[113] All of the foregoing evidence, that a person with typical Filipino features is abandoned in Catholic
Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that there would be
more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability
if not statistical certainty, that petitioner's parents are Filipinos. That probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor
General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and
leave their newborn babies behind. We do not face a situation where the probability is such that every foundling would
have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame our questions properly.
What are the chances that the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the
chances that the parents of anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children
born in the Philippines to Filipino parents, as opposed to 1,301 children in the Philippines of foreign parents. Thus, for
that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357. This means that the
statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos
born in the Philippines is 15,558,278. For this period, the ratio of non-Filipino children is 1:661. This means that the
statistical probability that any child born in the Philippines on that decade would be a natural born Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical
probability that a child born in the Philippines would be a natural born Filipino will not be affected by whether or not the
parents are known. If at all, the likelihood that a foundling would have a Filipino parent might even be higher than 99.9%.
Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their
children here in the Philippines thinking those infants would have better economic opportunities or believing that this
country is a tropical paradise suitable for raising abandoned children. I certainly doubt whether a foreign couple has ever
considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance
that one among the thousands of these foundlings might be the child of not just one, but two, foreigners is downright
discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical certainty 99.9% - that any child
born in the Philippines would be a natural born citizen, a decision denying foundlings such status is effectively a denial of
their birthright. There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the

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fundamental political rights of an entire class of human beings. Your Honor, constitutional interpretation and the use of
common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as
to foundlings, there is no restrictive language which would definitely exclude foundlings either. Because of silence and
ambiguity in the enumeration with respect to foundlings, there is a need to examine the intent of the framers. In Nitafan v.
Commissioner of Internal Revenue,[114] this Court held that:

The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the
intent of the framers of the organic law and of the people adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter assure the realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also be safely assumed that the people in ratifying the Constitution were
guided mainly by the explanation offered by the framers.[115]

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show
that the framers intended foundlings to be covered by the enumeration. The following exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural
children of a foreign father and a Filipino mother not recognized by the father.

xxxx

President: [We] would like to request a clarification from the proponent of the amendment. The gentleman
refers to natural children or to any kind of illegitimate children?

Sr. Rafols: To all kinds of illegitimate children. It also includes natural children of unknown parentage,
natural or illegitimate children of unknown parents.

Sr. Montinola: For clarification. The gentleman said "of unknown parents." Current codes consider them
Filipino, that is, I refer to the Spanish Code wherein all children of unknown parentage born in
Spanish territory are considered Spaniards, because the presumption is that a child of unknown
parentage is the son of a Spaniard. This may be applied in the Philippines in that a child of
unknown parentage born in the Philippines is deemed to be Filipino, and there is no need...

Sr. Rafols: There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola: But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols: The amendment should read thus: "Natural or illegitimate of a foreign father and a Filipino
mother recognized by one, or the children of unknown parentage."

Sr. Briones: The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols: The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not
unknown.

President: Does the gentleman accept the amendment or not?

Sr. Rafols: I do not accept the amendment because the amendment would exclude the children of a Filipina
with a foreigner who does not recognize the child. Their parentage is not unknown and I think
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 those of overseas Filipino mother and father [whom the latter] does not recognize, should also be
considered as Filipinos.

President: The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr.
Briones.

Sr. Busion: Mr. President, don't you think it would be better to leave this matter in the hands of the
Legislature?

Sr. Roxas: Mr. President, my humble opinion is that these cases are few and Jar in between, that the
constitution need [not] refer to them. By international law the principle that children or people
born in a country of unknown parents are citizens in this nation is recognized, and it is not
necessary to include a provision on the subject exhaustively.[116]

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons
of "unknown parentage" are not citizens but only because their number was not enough to merit specific mention. Such
was the account,[117] cited by petitioner, of delegate and constitution law author Jose Aruego who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the
illegitimate children with a foreign father of a mother who was a citizen of the Philippines, and also foundlings; but this
amendment was defeated primarily because the Convention believed that the cases, being too few to warrant the inclusion
of a provision in the Constitution to apply to them, should be governed by statutory legislation. Moreover, it was believed
that the rules of international law were already clear to the effect that illegitimate children followed the citizenship of the
mother, and that foundlings followed the nationality of the place where they were found, thereby making unnecessary the
inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and
explicit recognition of foundlings as Filipinos. And so, the way to explain the constitutional silence is by saying that it
was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare foundlings as
Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can
constitutionalize rules based on assumptions that are imperfect or even wrong. They can even overturn existing rules. This
is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in the convention that there
is no more need to expressly declare foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of
redundancy. The policy is clear: it is to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1(3) of the
1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is appropriate to invoke a
famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently
vocal.[118]

The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they
were reasonable patriots and that it would be unfair to impute upon them a discriminatory intent against foundlings." He
exhorts that, given the grave implications of the argument that foundlings are not natural-born Filipinos, the Court must
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search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of
Filipinos. The burden is on those who wish to use the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions
guarantee the basic right to equal protection of the laws. All exhort the State to render social justice. Of special
consideration are several provisions in the present charter: Article II, Section 11 which provides that the "State values the
dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1 which mandates
Congress to "give highest priority to the enactment of measures that protect and enhance the right of all the people to
human dignity, reduce social, economic, and political inequalities x x x" and Article XV, Section 3 which requires the
State to defend the "right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation, and other conditions prejudicial to their development." Certainly, these
provisions contradict an intent to discriminate against foundlings on account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that
adoption confers citizenship upon the adoptee. Rather, the adoptee must be a Filipino in the first place to be adopted. The
most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family rights, duties, status,
conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad." Adoption deals
with status, and a Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,[119] a child left by an unidentified mother was sought to be adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has
jurisdiction, not only over the subject matter of the case and over the parties, but also over the res, which is the personal
status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory that jurisdiction
over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we have jurisdiction
over the status of Baby Rose, she being a citizen of the Philippines, but not over the status of the petitioners, who are
foreigners.[120] (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country
Adoption of Filipino Children and For Other Purposes" (otherwise known as the "Inter-Country Adoption Act of 1995"),
R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children and For Other
Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule
on Adoption," all expressly refer to "Filipino children" and include foundlings as among Filipino children who may be
adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling
certificate under these laws and the issuance of said certificate are acts to acquire or perfect Philippine citizenship which
make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2 "Natural-born citizens are
those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their
Philippine citizenship." In the first place, "having to perform an act" means that the act must be personally done by the
citizen. In this instance, the determination of foundling status is done not by the child but by the authorities. [121] Secondly,
the object of the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling
Certificate issued in her favor.[122] The Decree of Adoption issued on 13 May 1974, which approved petitioner's adoption
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by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a foundling.[123]

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an 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 locallegislation.[124] On
the other hand, generally 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. Generally accepted principles of
international law include international custom as evidence of a general practice accepted as law, and general principles of
law recognized by civilized nations.[125] International customary rules are accepted as binding as a result from the
combination of two elements: the established, widespread, and consistent practice on the part of States; and a
psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter
element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [126]
"General principles of law recognized by civilized nations" are principles "established by a process of reasoning" or
judicial logic, based on principles which are "basic to legal systems generally," [127] such as "general principles of equity,
i.e., the general principles of fairness and justice," and the "general principle against discrimination" which is embodied in
the "Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning Discrimination in Respect of Employment and
Occupation."[128] These are the same core principles which underlie the Philippine Constitution itself, as embodied in the
due process and equal protection clauses of the Bill of Rights.[129]

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted
principles of international law and binding on the State.[130] Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC
imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to
acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their
obligations under the relevant international instruments in this field, in particular where the child would otherwise
be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24
thereof provide for the right of every child "to acquire a nationality:"

Article 24

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 1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social
origin, property or birth, the right, to such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and
ensure that no child is stateless. This grant of nationality must be at the time of birth, and it cannot be accomplished by the
application of our present naturalization laws, Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of
which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of
international law. The first is Article 14 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of
Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth," to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is
established, its nationality shall be determined by the rules applicable in cases where the parentage is known.

A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was
found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in
Article 2 of the 1961 United Nations Convention on the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to
have been born within the territory of parents possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of
Statelessness does not mean that their principles are not binding. While the Philippines is not a party to the 1930 Hague
Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1) of which[131] effectively affirms
Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of
Statelessness" merely "gives effect" to Article 15(1) of the UDHR.[132] In Razon v. Tagitis,[133] this Court noted that the
Philippines had not signed or ratified the "International Convention for the Protection of All Persons from Enforced
Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said convention was
nonetheless binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise notable for
declaring the ban as a generally accepted principle of international law although the convention had been ratified by only
sixteen states and had not even come into force and which needed the ratification of a minimum of twenty states.

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Additionally, as petitioner points out, the Court was content with the practice of international and regional state organs,
regional state practice in Latin America, and State Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada,[134] where only four
countries had "either ratified or acceded to"[135] the 1966 "Convention on the Recognition and Enforcement of Foreign
Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also pointed out that that
nine member countries of the European Common Market had acceded to the Judgments Convention. The Court also cited
U.S. laws and jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that recognition of foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of
international law" are based not only on international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice, fairness, equity and
the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to
legal systems generally,"[136] support the notion that the right against enforced disappearances and the recognition of
foreign judgments, were correctly considered as "generally accepted principles of international law" under the
incorporation clause.

Petitioner's evidence[137] shows that at least sixty countries in Asia, North and South America, and Europe have passed
legislation recognizing foundlings as its citizen. Forty-two (42) of those countries follow the jus sanguinis regime. Of the
sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries
surveyed (or 87.83%), foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis
countries, show that it is a generally accepted principle of international law to presume foundlings as having been born of
nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In
particular, R.A. No. 8552, R.A. No. 8042 and this Court's Rules on Adoption, expressly refer to "Filipino children." In all
of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been pointed that the DFA
issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive
department, acting through the DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational
and reasonable and consistent with the jus sanguinis regime in our Constitution. The presumption of natural-born
citizenship of foundlings stems from the presumption that their parents are nationals of the Philippines. As the empirical
data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed
to address the plight of a defenseless class which suffers from a misfortune not of their own making. We cannot be
restrictive as to their application if we are a country which calls itself civilized and a member of the community of
nations. The Solicitor General's warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted
because the world community is concerned that the situation of foundlings renders them legally invisible. It would be
tragically ironic if this Honorable Court ended up using the international instruments which seek to protect and uplift
foundlings a tool to deny them political status or to accord them second-class citizenship.[138]

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The COMELEC also ruled[139] that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not
result in the reacquisition of natural-born citizenship. The COMELEC reasoned that since the applicant must perform an
act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and
of R.A. No. 9225 in particular.

In the seminal case of Bengson III v. HRET,[140] repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost
his citizenship will be restored to his prior status as a naturalized Filipino citizen. On the other hand, if he was originally a
natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status as a natural born
Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v.
COMELEC[141] where we described it as an "abbreviated repatriation process that restores one's Filipino citizenship x x x."
Also included is Parreño v. Commission on Audit,[142] which cited Tabasa v. Court of Appeals,[143] where we said that
"[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship. Parreño v. Commission on
Audit[144] is categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his
natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born
citizenship must begin at birth and remain uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed
in line with Congress' sole prerogative to determine how citizenship may be lost or reacquired. Congress saw it fit to
decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to
disagree with the Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III
v. HRET[145] where the phrase "from birth" was clarified to mean at the time of birth: "A person who at the time of his
birth, is a citizen of a particular country, is a natural born citizen thereof." Neither is "repatriation" an act to "acquire or
perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under
the 1987 Constitution: natural-born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of
citizens: (1) those who are natural-born and (2) those who are naturalized in accordance with law. A citizen who is not a
naturalized Filipino, i.e., did not have to undergo the process of naturalization to obtain Philippine citizenship, necessarily
is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after
losing Philippine citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either
be natural-born or naturalized depending on the reasons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through naturalization
proceedings in order to reacquire his citizenship, he is perforce a natural born Filipino. As such, he possessed all the
necessary qualifications to be elected as member of the House of Representatives.[146]

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a
doctrine, a new rule reversing standing doctrine cannot be retroactively applied. In Morales v. Court of Appeals and
Jejomar Erwin S. Binay, Jr.,[147] where we decreed reversed the condonation doctrine, we cautioned that it "should be
130
prospective in application for the reason that judicial decisions applying or interpreting the laws of the Constitution, until
reversed, shall form part of the legal system of the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as good law prior to its abandonment. Consequently,
the people's reliance thereupon should be respected."[148]

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the
spaces for "born to" in her application for repatriation under R.A. No. 9225 the names of her adoptive parents, and this
misled the BI to presume that she was a natural born Filipino. It has been contended that the data required were the names
of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever all
legal ties between the biological parents and the adoptee, except when the biological parent is the spouse of the
adoptee."[149] Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to the fact that
the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended
issue."[150] That law also requires that "[a]ll records, books, and papers relating to the adoption cases in the files of the
court, the Department [of Social Welfare and Development], or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential."[151] The law therefore allows petitioner to state that her adoptive
parents were her birth parents as that was what would be stated in her birth certificate anyway. And given the policy of
strict confidentiality of adoption records, petitioner was not obligated to disclose that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation
of COC, it resorted to opinionatedness which is, moreover, erroneous. The whole process undertaken by COMELEC is
wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material
representation when she stated in her COC that she has before and until 9 May 2016 been a resident of the Philippines for
ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016
elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the
elections. Since the forthcoming elections will be held on 9 May 2016, petitioner must have been a resident of the
Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of Residence in the
Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in
these cases corresponds to a beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three
requisites to acquire a new domicile: 1. Residence or bodily presence in a new locality; 2. an intention to remain there;
and 3. an intention to abandon the old domicile.[152] To successfully effect a change of domicile, one must demonstrate an
actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the purpose. In other words, there must basically be
animus manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new
domicile must be actual.[153]
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Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to
the Philippines for good. These evidence include petitioner's former U.S. passport showing her arrival on 24 May 2005
and her return to the Philippines every time she travelled abroad; e-mail correspondences starting in March 2005 to
September 2006 with a freight company to arrange for the shipment of their household items weighing about 28,000
pounds to the Philippines; e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the
Philippines; school records of her children showing enrollment in Philippine schools starting June 2005 and for
succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and parking slot issued
in February 2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the
Salvation Army in the U.S. acknowledging donation of items from petitioner's family; March 2006 e-mail to the U.S.
Postal Service confirming request for change of address; final statement from the First American Title Insurance
Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S.
Embassy where petitioner indicated that she had been a Philippine resident since May 2005; affidavit from Jesusa Sonora
Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with affiant until the
condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to
relocate to the Philippines in 2005 and that he stayed behind in the U.S. only to finish some work and to sell the family
home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in
the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At
the oral arguments, COMELEC Commissioner Arthur Lim conceded the presence of the first two requisites, namely,
physical presence and animus manendi, but maintained there was no animus non-revertendi.[154] The COMELEC
disregarded the import of all the evidence presented by petitioner on the basis of the position that the earliest date that
petitioner could have started residence in the Philippines was in July 2006 when her application under R.A. No. 9225 was
approved by the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,[155] Japzon v. COMELEC[156] and
Caballero v. COMELEC.[157] During the oral arguments, the private respondents also added Reyes v. COMELEC.[158]
Respondents contend that these cases decree that the stay of an alien former Filipino cannot be counted until he/she
obtains a permanent resident visa or reacquires Philippine citizenship, a visa free entry under a balikbayan stamp being
insufficient. Since petitioner was still an American (without any resident visa) until her reacquisition of citizenship under
R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v.
COMELEC,[159] the only evidence presented was a community tax certificate secured by the candidate and his declaration
that he would be running in the elections. Japzon v. COMELEC[160] did not involve a candidate who wanted to count
residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from
citizenship, the issue there was whether the candidate's acts after reacquisition sufficed to establish residence. In
Caballero v. COMELEC,[161] the candidate admitted that his place of work was abroad and that he only visited during his
frequent vacations. In Reyes v. COMELEC,[162] the candidate was found to be an American citizen who had not even
reacquired Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was disqualified on the
citizenship issue. On residence, the only proof she offered was a seven-month stint as provincial officer. The COMELEC,
quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-year residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no
choice but to hold that residence could be counted only from acquisition of a permanent resident visa or from
reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken together leads to

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no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking the children
from U.S. schools, getting quotes from the freight company, notifying the U.S. Post Office of the abandonment of their
address in the U.S., donating excess items to the Salvation Army, her husband resigning from U.S. employment right after
selling the U.S. house) and permanently relocate to the Philippines and actually re-established her residence here on 24
May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here, constructing a residence
here, returning to the Philippines after all trips abroad, her husband getting employed here). Indeed, coupled with her
eventual application to reacquire Philippine citizenship and her family's actual continuous stay in the Philippines over the
years, it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as a
balikbayan. A closer look at R.A. No. 6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must leave after one
year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the
Philippines."[163] The law institutes a balikbayan program "providing the opportunity to avail of the necessary training to
enable the balikbayan to become economically self-reliant members of society upon their return to the country"[164] in line
with the government's "reintegration program."[165] Obviously, balikbayans are not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an
unduly harsh conclusion to say in absolute terms that the balikbayan must leave after one year. That visa-free period is
obviously granted him to allow him to re-establish his life and reintegrate himself into the community before he attends to
the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life
here by enrolling her children and buying property while awaiting the return of her husband and then applying for
repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming,
has as yet been decided by the Court. Petitioner's evidence of residence is unprecedented. There is no judicial precedent
that comes close to the facts of residence of petitioner. There is no indication in Coquilla v. COMELEC,[166] and the other
cases cited by the respondents that the Court intended to have its rulings there apply to a situation where the facts are
different. Surely, the issue of residence has been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that
petitioner's claim of residence of ten (10) years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six (6) years and six (6) months as "period of residence before May 13, 2013" in her 2012 COC for
Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In doing so,
the COMELEC automatically assumed as true the statement in the 2012 COC and the 2015 COCas false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of
residence as of the day she submitted that COC in 2012. She said that she reckoned residency from April-May 2006 which
was the period when the U.S. house was sold and her husband returned to the Philippines. In that regard, she was advised
by her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring
about residence as of the time she submitted the COC, is bolstered by the change which the COMELEC itself introduced
in the 2015 COC which is now "period of residence in the Philippines up to the day before May 09, 2016." The
COMELEC would not have revised the query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her

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husband is plausible given the evidence that she had returned a year before. Such evidence, to repeat, would include her
passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012

COC as a binding and conclusive admission against petitioner. It could be given in evidence against her, yes, but it was by
no means conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a COC
was overcome by evidence. In Romualdez-Marcos v. COMELEC,[167] the candidate mistakenly put seven (7) months as
her period of residence where the required period was a minimum of one year. We said that "[i]t is the fact of residence,
not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has
satisfied the constitution's residency qualification requirement." The COMELEC ought to have looked at the evidence
presented and see if petitioner was telling the truth that she was in the Philippines from 24 May 2005. Had the COMELEC
done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated the pertinent period of
residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on
24 May 2005 not because it was false, but only because COMELEC took the position that domicile could be established
only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take away the fact that in
reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to
have been a resident for ten (10) years and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo
warranto had been filed against her with the SET as early as August 2015. The event from which the COMELEC pegged
the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an established fact to
repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this
was first brought up in the media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner
appears to have answered the issue immediately, also in the press. Respondents have not disputed petitioner's evidence on
this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the
2012 COC and the circumstances that surrounded the statement were already matters of public record and were not
hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified
Answer, which was filed on 1 September 2015, admitted that she made a mistake in the 2012 COC when she put in six (6)
years and six (6) months as she misunderstood the question and could have truthfully indicated a longer period. Her
answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her COC for President on
15 October 2015, she could not be said to have been attempting to hide her erroneous statement in her 2012 COC for
Senator which was expressly mentioned in her Verified Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have
it covered by the 2015 representation. Petitioner, moreover, has on her side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material
misrepresentation which is the sole ground for denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility and
qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which would

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otherwise render a candidate ineligible. It must be made with an intention to deceive the electorate as to one's
qualifications to run for public office.[168]

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of
which can evince animus manendi to the Philippines and animus non revertedi to the United States of America. The
veracity of the events of coming and staying home was as much as dismissed as inconsequential, the focus having been
fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration
and therefore an admission that her residence in the Philippines only commence sometime in November 2006"; such that
"based on this declaration, [petitioner] fails to meet the residency requirement for President." This conclusion, as already
shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of the person that determines
residence for purposes of compliance with the constitutional requirement of residency for election as President. It ignores
the easily researched matter that cases on questions of residency have been decided favorably for the candidate on the
basis of facts of residence far less in number, weight and substance than that presented by petitioner. [169] It ignores, above
all else, what we consider as a primary reason why petitioner cannot be bound by her declaration in her COC for Senator
which declaration was not even considered by the SET as an issue against her eligibility for Senator. When petitioner
made the declaration in her COC for Senator that she has been a resident for a period of six (6) years and six (6) months
counted up to the 13 May 2013 Elections, she naturally had as reference the residency requirements for election as
Senator which was satisfied by her declared years of residence. It was uncontested during the oral arguments before us
that at the time the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency
in 2016 and that the general public was never made aware by petitioner, by word or action, that she would run for
President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial candidacy. There are
facts of residence other than that which was mentioned in the COC for Senator. Such other facts of residence have never
been proven to be false, and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. [petitioner's] husband however stayed in the USA to finish
pending projects and arrange the sale of their family home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon
School in Taguig City in 2005 and Hanna in Assumption College in Makati City in 2005. Anika was enrolled in Learning
Connection in San Juan in 2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan.
[Petitioner] and her family lived in Unit 7F until the construction of their family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's]
adoption in 1974 failed to secure from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth indicating
[petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's
remaining household belongings. [Petitioner] returned to the Philippines on 11 March 2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their
address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and
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began working for a Philippine company in July 2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their
family home.[170]

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive
ground of false representation, to consider no other date than that mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic,
the questioned Resolutions of the COMELEC in Division and En Banc are, one and all, deadly diseased with grave abuse
of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC), entitled Estrella
C. Elamparo, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local
Elections filed by respondent Mary Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002
(DC) entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No.
15-007 (DC) entitled Antonio P Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares,
respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions
and cancel the Certificate of Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES for the
elective position of President of the Republic of the Philippines in connection with the 9 May 2016 Synchronized Local
and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second
Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified
Motion for Reconsideration of SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES. The
Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.

4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First
Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES is
DECLARED QUALIFIED to be a candidate for President in the National and Local Elections of 9 May 2016.

SO ORDERED.

Bersamin, and Mendoza, JJ., concur.

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THIRD DIVISION

G.R. No. 202666, September 29, 2014

RHONDA AVE S. VIVARES AND SPS. MARGARITA AND DAVID SUZARA, PETITIONERS, VS. ST.
THERESA’S COLLEGE, MYLENE RHEZA T. ESCUDERO, AND JOHN DOES, RESPONDENTS.

DECISION

VELASCO JR., J.:

The individual’s desire for privacy is never absolute, since participation in society is an equally powerful desire. Thus
each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with
the desire for disclosure and communication of himself to others, in light of the environmental conditions and social
norms set by the society in which he lives.

~ Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of A.M. No.
08-1-16-SC,[1] otherwise known as the “Rule on the Writ of Habeas Data.” Petitioners herein assail the July 27, 2012
Decision[2] of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB, which dismissed
their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material,
graduating high school students at St. Theresa’s College (STC), Cebu City. Sometime in January 2012, while changing
into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several others, took digital
pictures of themselves clad only in their undergarments. These pictures were then uploaded by Angela Lindsay Tan
(Angela) on her Facebook[3] profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school department, learned
from her students that some seniors at STC posted pictures online, depicting themselves from the waist up, dressed only in
brassieres. Escudero then asked her students if they knew who the girls in the photos are. In turn, they readily identified
Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and showed her
photos of the identified students, which include: (a) Julia and Julienne drinking hard liquor and smoking cigarettes inside
a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles of clothing that show virtually the entirety of
their black brassieres. What is more, Escudero’s students claimed that there were times when access to or the availability
of the identified students’ photos was not confined to the girls’ Facebook friends,[4] but were, in fact, viewable by any
Facebook user.[5]

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the photos to

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Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an investigation,
STC found the identified students to have deported themselves in a manner proscribed by the school’s Student Handbook,
to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholic beverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages, language
or symbols; and

6. Posing and uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as required, to the
office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and ICM[6] Directress. They claimed
that during the meeting, they were castigated and verbally abused by the STC officials present in the conference,
including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima informed
their parents the following day that, as part of their penalty, they are barred from joining the commencement exercises
scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a Petition for
Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case No. CEB-38594.[7] In it,
Tan prayed that defendants therein be enjoined from implementing the sanction that precluded Angela from joining the
commencement exercises. On March 25, 2012, petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the
fray as an intervenor.

On March 28, 2012, defendants in Civil Case No. CEB-38594 filed their memorandum, containing printed copies of the
photographs in issue as annexes. That same day, the RTC issued a temporary restraining order (TRO) allowing the
students to attend the graduation ceremony, to which STC filed a motion for reconsideration.

Despite the issuance of the TRO, STC, nevertheless, barred the sanctioned students from participating in the graduation
rites, arguing that, on the date of the commencement exercises, its adverted motion for reconsideration on the issuance of
the TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP. Proc.
No. 19251-CEB[8] on the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed into
their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at “Friends Only.” They, thus, have a
reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard the
right to privacy. Corollarily, respondents knew or ought to have known that the girls, whose privacy has been

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 invaded, are the victims in this case, and not the offenders. Worse, after viewing the photos, the minors were
called “immoral” and were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent. Escudero,
however, violated their rights by saving digital copies of the photos and by subsequently showing them to STC’s
officials. Thus, the Facebook accounts of petitioners’ children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images
happened at STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents through their
memorandum submitted to the RTC in connection with Civil Case No. CEB-38594.

To petitioners, the interplay of the foregoing constitutes an invasion of their children’s privacy and, thus, prayed that: (a) a
writ of habeas data be issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed
copies of the subject data before or at the preliminary hearing; and (c) after trial, judgment be rendered declaring all
information, data, and digital images accessed, saved or stored, reproduced, spread and used, to have been illegally
obtained in violation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the writ of
habeas data. Through the same Order, herein respondents were directed to file their verified written return, together with
the supporting affidavits, within five (5) working days from service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written return, laying down the following
grounds for the denial of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b) petitioners are
engaging in forum shopping; (c) the instant case is not one where a writ of habeas data may issue; and (d) there can be no
violation of their right to privacy as there is no reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of the
Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.[9]

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors’ right to
privacy, one of the preconditions for the issuance of the writ of habeas data. Moreover, the court a quo held that the
photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in some way.
Besides, the RTC noted, STC gathered the photographs through legal means and for a legal purpose, that is, the
implementation of the school’s policies and rules on discipline.

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Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on Habeas
Data.[10]

The Issues

The main issue to be threshed out in this case is whether or not a writ of habeas data should be issued given the factual
milieu. Crucial in resolving the controversy, however, is the pivotal point of whether or not there was indeed an actual or
threatened violation of the right to privacy in the life, liberty, or security of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the

availability of the Writ of Habeas Data

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or
threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in
the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the
aggrieved party.[11] It is an independent and summary remedy designed to protect the image, privacy, honor, information,
and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in
instances in which such information is being collected through unlawful means in order to achieve unlawful ends. [12]

In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational privacy, among
others. A comparative law scholar has, in fact, defined habeas data as “a procedure designed to safeguard individual
freedom from abuse in the information age.”[13] The writ, however, will not issue on the basis merely of an alleged
unauthorized access to information about a person. Availment of the writ requires the existence of a nexus between the
right to privacy on the one hand, and the right to life, liberty or security on the other.[14] Thus, the existence of a person’s
right to informational privacy and a showing, at least by substantial evidence, of an actual or threatened violation of the
right to privacy in life, liberty or security of the victim are indispensable before the privilege of the writ may be
extended.[15]

Without an actionable entitlement in the first place to the right to informational privacy, a habeas data petition will not
prosper. Viewed from the perspective of the case at bar, this requisite begs this question: given the nature of an online
social network (OSN)––(1) that it facilitates and promotes real-time interaction among millions, if not billions, of users,
sans the spatial barriers,[16] bridging the gap created by physical space; and (2) that any information uploaded in OSNs
leaves an indelible trace in the provider’s databases, which are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before addressing this point, We must first resolve the procedural
issues in this case.

a. The writ of habeas data is not only confined to

cases of extralegal killings and enforced disappearances

Contrary to respondents’ submission, the Writ of Habeas Data was not enacted solely for the purpose of complementing
the Writ of Amparo in cases of extralegal killings and enforced disappearances.

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Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or enforced
disappearances, the above underscored portion of Section 2, reflecting a variance of habeas data situations, would not
have been made.

Habeas data, to stress, was designed “to safeguard individual freedom from abuse in the information age.”[17] As such, it
is erroneous to limit its applicability to extralegal killings and enforced disappearances only. In fact, the annotations to the
Rule prepared by the Committee on the Revision of the Rules of Court, after explaining that the Writ of Habeas Data
complements the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy,
more specifically the right to informational privacy. The remedies against the violation of such right can include the
updating, rectification, suppression or destruction of the database or information or files in possession or in control of
respondents.[18] (emphasis Ours)

Clearly then, the privilege of the Writ of Habeas Data may also be availed of in cases outside of extralegal killings and
enforced disappearances.

b. Meaning of “engaged” in the gathering,

collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity engaged in the
gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the
aggrieved party, while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against abuses of a
person or entity engaged in the business of gathering, storing, and collecting of data. As provided under Section 1 of the
Rule:

Section 1. Habeas Data. – The writ of habeas data is a remedy available to any person whose right to privacy in life,
liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a protection
against unlawful acts or omissions of public officials and of private individuals or entities engaged in gathering,
collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her family. Such

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individual or entity need not be in the business of collecting or storing data.

To “engage” in something is different from undertaking a business endeavour. To “engage” means “to do or take part in
something.”[19] It does not necessarily mean that the activity must be done in pursuit of a business. What matters is that
the person or entity must be gathering, collecting or storing said data or information about the aggrieved party or his or
her family. Whether such undertaking carries the element of regularity, as when one pursues a business, and is in the
nature of a personal endeavour, for any other reason or even for no reason at all, is immaterial and such will not prevent
the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very small group, i.e.,
private persons and entities whose business is data gathering and storage, and in the process decreasing the effectiveness
of the writ as an instrument designed to protect a right which is easily violated in view of rapid advancements in the
information and communications technology––a right which a great majority of the users of technology themselves are
not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacy has, through time, greatly evolved, with technological advancements having an influential part
therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common Right to
Privacy,[20] where he explained the three strands of the right to privacy, viz: (1) locational or situational privacy; [21] (2)
informational privacy; and (3) decisional privacy.[22] Of the three, what is relevant to the case at bar is the right to
informational privacy––usually defined as the right of individuals to control information about themselves.[23]

With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention each
system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to control said
flow of information should be protected and that each individual should have at least a reasonable expectation of privacy
in cyberspace. Several commentators regarding privacy and social networking sites, however, all agree that given the
millions of OSN users, “[i]n this [Social Networking] environment, privacy is no longer grounded in reasonable
expectations, but rather in some theoretical protocol better known as wishful thinking.”[24]

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a summary
hearing of the unlawful use of data or information and to remedy possible violations of the right to privacy.[25] In the same
vein, the South African High Court, in its Decision in the landmark case, H v. W,[26] promulgated on January 30, 2013,
recognized that “[t]he law has to take into account the changing realities not only technologically but also socially or else
it will lose credibility in the eyes of the people. x x x It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom.” Consistent with this, the Court, by developing what may be viewed as the
Philippine model of the writ of habeas data, in effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in cyberspace activities, including those that
occur in OSNs.

The question now though is up to what extent is the right to privacy protected in OSNs? Bear in mind that informational
privacy involves personal information. At the same time, the very purpose of OSNs is socializing––sharing a myriad of
information,[27] some of which would have otherwise remained personal.
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 b. Facebook’s Privacy Tools: a response to
the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other members of
the same or different social media platform through the sharing of statuses, photos, videos, among others, depending on
the services provided by the site. It is akin to having a room filled with millions of personal bulletin boards or “walls,” the
contents of which are under the control of each and every user. In his or her bulletin board, a user/owner can post
anything––from text, to pictures, to music and videos––access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining popularity, the OSN phenomenon has paved the way to
the creation of various social networking sites, including the one involved in the case at bar, www.facebook.com
(Facebook), which, according to its developers, people use “to stay connected with friends and family, to discover what’s
going on in the world, and to share and express what matters to them.”[28]

Facebook connections are established through the process of “friending” another user. By sending a “friend request,” the
user invites another to connect their accounts so that they can view any and all “Public” and “Friends Only” posts of the
other. Once the request is accepted, the link is established and both users are permitted to view the other user’s “Public” or
“Friends Only” posts, among others. “Friending,” therefore, allows the user to form or maintain one-to-one relationships
with other users, whereby the user gives his or her “Facebook friend” access to his or her profile and shares certain
information to the latter.[29]

To address concerns about privacy,[30] but without defeating its purpose, Facebook was armed with different privacy tools
designed to regulate the accessibility of a user’s profile[31] as well as information uploaded by the user. In H v. W,[32] the
South Gauteng High Court recognized this ability of the users to “customize their privacy settings,” but did so with this
caveat: “Facebook states in its policies that, although it makes every effort to protect a user’s information, these privacy
settings are not fool-proof.”[33]

For instance, a Facebook user can regulate the visibility and accessibility of digital images (photos), posted on his or her
personal bulletin or “wall,” except for the user’s profile picture and ID, by selecting his or her desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;
(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and
(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the visibility
of his or her specific profile content, statuses, and photos, among others, from another user’s point of view. In other
words, Facebook extends its users an avenue to make the availability of their Facebook activities reflect their choice as to
“when and to what extent to disclose facts about [themselves] – and to put others in the position of receiving such
confidences.”[34] Ideally, the selected setting will be based on one’s desire to interact with others, coupled with the
opposing need to withhold certain information as well as to regulate the spreading of his or her personal information.
Needless to say, as the privacy setting becomes more limiting, fewer Facebook users can view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy in Facebook

143
would, in context, be correct. However, such is not the case. It is through the availability of said privacy tools that
many OSN users are said to have a subjective expectation that only those to whom they grant access to their profile
will view the information they post or upload thereto.[35]

This, however, does not mean that any Facebook user automatically has a protected expectation of privacy in all of his or
her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this case
the children of petitioners, manifest the intention to keep certain posts private, through the employment of measures
to prevent access thereto or to limit its visibility.[36] And this intention can materialize in cyberspace through the
utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the manifestation, in
cyber world, of the user’s invocation of his or her right to informational privacy.[37]

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post or profile
detail should not be denied the informational privacy right which necessarily accompanies said choice.[38] Otherwise,
using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a photo or any personal
information to his or her Facebook page and sets its privacy level at “Only Me” or a custom list so that only the user or a
chosen few can view it, said photo would still be deemed public by the courts as if the user never chose to limit the
photo’s visibility and accessibility. Such position, if adopted, will not only strip these privacy tools of their function but it
would also disregard the very intention of the user to keep said photo or information within the confines of his or her
private space.

We must now determine the extent that the images in question were visible to other Facebook users and whether the
disclosure was confidential in nature. In other words, did the minors limit the disclosure of the photos such that the images
were kept within their zones of privacy? This determination is necessary in resolving the issue of whether the minors
carved out a zone of privacy when the photos were uploaded to Facebook so that the images will be protected against
unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that Escudero intruded upon
their children’s Facebook accounts, downloaded copies of the pictures and showed said photos to Tigol. To them, this was
a breach of the minors’ privacy since their Facebook accounts, allegedly, were under “very private” or “Only Friends”
setting safeguarded with a password.[39] Ultimately, they posit that their children’s disclosure was only limited since their
profiles were not open to public viewing. Therefore, according to them, people who are not their Facebook friends,
including respondents, are barred from accessing said post without their knowledge and consent. As petitioner’s children
testified, it was Angela who uploaded the subject photos which were only viewable by the five of them,[40] although who
these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit[41] that “my students showed me some pictures of girls clad in
brassieres. This student [sic] of mine informed me that these are senior high school [students] of STC, who are their
friends in [F]acebook. x x x They then said [that] there are still many other photos posted on the Facebook accounts of
these girls. At the computer lab, these students then logged into their Facebook account [sic], and accessed from there the
various photographs x x x. They even told me that there had been times when these photos were ‘public’ i.e., not confined
to their friends in Facebook.”

In this regard, We cannot give much weight to the minors’ testimonies for one key reason: failure to question the students’
act of showing the photos to Tigol disproves their allegation that the photos were viewable only by the five of them.
Without any evidence to corroborate their statement that the images were visible only to the five of them, and without

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their challenging Escudero’s claim that the other students were able to view the photos, their statements are, at best, self-
serving, thus deserving scant consideration.[42]

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the minors’
Facebook “friends,” showed her the photos using their own Facebook accounts. This only goes to show that no special
means to be able to view the allegedly private posts were ever resorted to by Escudero’s students,[43] and that it is
reasonable to assume, therefore, that the photos were, in reality, viewable either by (1) their Facebook friends, or (2) by
the public at large.

Considering that the default setting for Facebook posts is “Public,” it can be surmised that the photographs in question
were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the disclosure of the
photograph. If such were the case, they cannot invoke the protection attached to the right to informational privacy. The
ensuing pronouncement in US v. Gines-Perez[44] is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to such
imagery, particularly under circumstances such as here, where the Defendant did not employ protective measures or
devices that would have controlled access to the Web page or the photograph itself.[45]

Also, United States v. Maxwell[46] held that “[t]he more open the method of transmission is, the less privacy one can
reasonably expect. Messages sent to the public at large in the chat room or e-mail that is forwarded from correspondent to
correspondent loses any semblance of privacy.”

That the photos are viewable by “friends only” does not necessarily bolster the petitioners’ contention. In this regard, the
cyber community is agreed that the digital images under this setting still remain to be outside the confines of the zones of
privacy in view of the following:

(1) Facebook “allows the world to be more open and connected by giving its users the tools to interact and share in any
conceivable way;”[47]

(2) A good number of Facebook users “befriend” other users who are total strangers;[48]

(3) The sheer number of “Friends” one user has, usually by the hundreds; and

(4) A user’s Facebook friend can “share”[49] the former’s post, or “tag”[50] others who are not Facebook friends with the
former, despite its being visible only to his or her own Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to “Friends” is no assurance that it can
no longer be viewed by another user who is not Facebook friends with the source of the content. The user’s own Facebook
friend can share said content or tag his or her own Facebook friend thereto, regardless of whether the user tagged by the
latter is Facebook friends or not with the former. Also, when the post is shared or when a person is tagged, the respective
Facebook friends of the person who shared the post or who was tagged can view the post, the privacy setting of which was
set at “Friends.”

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, A’s Facebook
friend, tags B in A’s post, which is set at “Friends,” the initial audience of 100 (A’s own Facebook friends) is dramatically
increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon B’s privacy setting). As a result, the
audience who can view the post is effectively expanded––and to a very large extent.

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This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user interaction and
socialization rather than seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has been
said that OSNs have facilitated their users’ self-tribute, thereby resulting into the “democratization of fame.”[51] Thus, it is
suggested, that a profile, or even a post, with visibility set at “Friends Only” cannot easily, more so automatically, be said
to be “very private,” contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends,
respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook friends
who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not resort to any
unlawful means of gathering the information as it was voluntarily given to them by persons who had legitimate access to
the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough, however, neither the minors
nor their parents imputed any violation of privacy against the students who showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the photographs. In
fact, what petitioners attributed to respondents as an act of offensive disclosure was no more than the actuality that
respondents appended said photographs in their memorandum submitted to the trial court in connection with Civil Case
No. CEB-38594.[52] These are not tantamount to a violation of the minor’s informational privacy rights, contrary to
petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students scantily
clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors enrolled in a
conservative institution. However, the records are bereft of any evidence, other than bare assertions that they utilized
Facebook’s privacy settings to make the photos visible only to them or to a select few. Without proof that they placed the
photographs subject of this case within the ambit of their protected zone of privacy, they cannot now insist that they have
an expectation of privacy with respect to the photographs in question.

Had it been proved that the access to the pictures posted were limited to the original uploader, through the “Me Only”
privacy setting, or that the user’s contact list has been screened to limit access to a select few, through the “Custom”
setting, the result may have been different, for in such instances, the intention to limit access to the particular post, instead
of being broadcasted to the public at large or all the user’s friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that “the best filter is the one between your children’s ears.”[53] This means that self-regulation on the
part of OSN users and internet consumers in general is the best means of avoiding privacy rights violations. [54] As a
cyberspace community member, one has to be proactive in protecting his or her own privacy.[55] It is in this regard that
many OSN users, especially minors, fail. Responsible social networking or observance of the “netiquettes” [56] on the part
of teenagers has been the concern of many due to the widespread notion that teenagers can sometimes go too far since
they generally lack the people skills or general wisdom to conduct themselves sensibly in a public forum. [57]

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to educate
its students on proper online conduct may be most timely. Too, it is not only STC but a number of schools and
organizations have already deemed it important to include digital literacy and good cyber citizenship in their respective
programs and curricula in view of the risks that the children are exposed to every time they participate in online
activities.[58] Furthermore, considering the complexity of the cyber world and its pervasiveness, as well as the dangers that
these children are wittingly or unwittingly exposed to in view of their unsupervised activities in cyberspace, the
146
participation of the parents in disciplining and educating their children about being a good digital citizen is encouraged by
these institutions and organizations. In fact, it is believed that “to limit such risks, there’s no substitute for parental
involvement and supervision.”[59]

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to be responsible in their dealings
and activities in cyberspace, particularly in OSNs, when it enforced the disciplinary actions specified in the Student
Handbook, absent a showing that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage in cyberspace activities.
Accordingly, they should be cautious enough to control their privacy and to exercise sound discretion regarding how
much information about themselves they are willing to give up. Internet consumers ought to be aware that, by entering or
uploading any kind of data or information online, they are automatically and inevitably making it permanently available
online, the perpetuation of which is outside the ambit of their control. Furthermore, and more importantly, information,
otherwise private, voluntarily surrendered by them can be opened, read, or copied by third parties who may or may not be
allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must not be
negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here, requires that
claimants themselves take utmost care in safeguarding a right which they allege to have been violated. These are
indispensable. We cannot afford protection to persons if they themselves did nothing to place the matter within the
confines of their private zone. OSN users must be mindful enough to learn the use of privacy tools, to use them if they
desire to keep the information private, and to keep track of changes in the available privacy settings, such as those of
Facebook, especially because Facebook is notorious for changing these settings and the site’s layout often.

In finding that respondent STC and its officials did not violate the minors’ privacy rights, We find no cogent reason to
disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the Regional
Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Peralta, Villarama, Jr., Reyes, and Jardeleza, JJ., concur.

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EN BANC

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC.,

PETITIONER, VS. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS.

CROP LIFE PHILIPPINES, INC., PETITIONER-IN-INTERVENTION.

[G.R. No. 209276]

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND

NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, PETITIONERS, VS. COURT OF APPEALS,
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD
NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H.
HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE PHILIPPINES, INC.,
PETITIONER-IN-INTERVENTION.

[G.R. No. 209301]

UNIVERSITY OF THE PHILIPPINES LOS BAÑOS FOUNDATION, INC., PETITIONER, VS. GREENPEACE
SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY
R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS.

[G.R. No. 209430]

UNIVERSITY OF THE PHILIPPINES, PETITIONER, VS. GREENPEACE SOUTHEAST ASIA

(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASIÑO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO
MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ,
RESPONDENTS.

148
DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision[1] dated May 17, 2013 and Resolution[2] dated
September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which permanently enjoined the conduct of
field trials for genetically modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace Southeast Asia, a regional
office of Greenpeace International registered in Thailand.[3] Greenpeace is a non-governmental environmental
organization which operates in over 40 countries and with an international coordinating body in Amsterdam, Netherlands.
It is well known for independent direct actions in the global campaign to preserve the environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an international non-
profit organization founded in 1990 "to facilitate the acquisition and transfer of agricultural biotechnology applications
from the industrial countries, for the benefit of resource-poor farmers in the developing world" and ultimately "to alleviate
hunger and poverty in the developing countries." Partly funded by the United States Agency for International
Development (USAID), ISAAA promotes the use of agricultural biotechnology, such as genetically modified organisms
(GMOs).[4]

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of local farmers,

scientists and NGOs working towards "the sustainable use and management of biodiversity through farmers' control of
genetic and biological resources, agricultural production, and associated knowledge."

The University of the Philippines Los Baños (UPLB) is an autonomous constituent of the University of the Philippines
(UP), originally established as the UP College of Agriculture. It is the center of biotechnology education and research in
Southeast Asia and home to at least four international research and extension centers. Petitioner UPLB Foundation, Inc.
(UPLBFI) is a private corporation organized "to be an instrument for institutionalizing a rational system of utilizing
UPLB expertise and other assets for generating additional revenues and other resources needed by [UPLB]". Its main
purpose is to assist UPLB in "expanding and optimally utilizing its human, financial, and material resources towards a
focused thrust in agriculture, biotechnology, engineering and environmental sciences and related academic programs and
activities." A memorandum of agreement between UPLBFI and UPLB allows the former to use available facilities for its
activities and the latter to designate from among its staff such personnel needed by projects.[5]

Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908. Under its new charter,
Republic Act 9500,[6] approved on April 29, 2008 by President Gloria Macapagal-Arroyo, UP was declared as the national
university tasked "to perform its unique and distinctive leadership in higher education and development." Among others,
UP was mandated to "serve as a research university in various fields of expertise and specialization by conducting basic
and applied research and development, and promoting research in various colleges and universities, and contributing to
the dissemination and application of knowledge."[7]

The other individual respondents are Filipino scientists, professors, public officials and ordinary citizens invoking their
constitutionally guaranteed right to health and balanced ecology, and suing on their behalf and on behalf of future
generations of Filipinos.

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Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living organisms or
substances from those organisms to make or modify a product, to improve plants or animals, or to develop
microorganisms for specific uses."[8] Its many applications include agricultural production, livestock, industrial chemicals
and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the National Institute for
Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier national research and development (R
& D) institution applying traditional and modern biotechnologies in innovating products, processes, testing and analytical
services for agriculture, health, energy, industry and development.[9]

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National Committee on
Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and evaluate potential hazards
involved in initiating genetic engineering experiments or the introduction of new species and genetically engineered
organisms and recommend measures to minimize risks" and to "formulate and review national policies and guidelines on
biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic materials for the protection of
public health, environment and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the importation or
introduction, movement and field release of potentially hazardous biological materials in the Philippines. The guidelines
also describe the required physical and biological containment and safety procedures in handling biological materials.
This was followed in 1998 by the "Guidelines on Planned Release of Genetically Manipulated Organisms (GMOs) and
Potentially Harmful Exotic Species (PHES)."[10]

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral treaty
recognized that "modern biotechnology has great potential for human well-being if developed and used with adequate
safety measures for the environment and human health." Its main objectives, as spelled out in Article 1, are the
"conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the
benefits arising out of the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol), a supplemental
to the CBD. The Cartagena Protocol aims "to contribute to ensuring an adequate level of the safe transfer, handling and
use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation
and sustainable use of biological diversity, taking into account risks to human health, and specifically focusing on
transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11, 2003. On
August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the "Resolution Concurring in the
Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the government policy of
promoting the safe and responsible use of modern biotechnology and its products as one of several means to achieve and
sustain food security, equitable access to health services, sustainable and safe environment and industry development. [11]

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08 providing rules and
regulations for the importation and release into the environment of plants and plant products derived from the use of
150
modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has been altered or produced
through the use of modem biotechnology if the donor organism, host organism, or vector or vector agent belongs to the
genera or taxa classified by the Bureau of Plant Industry (BPI) as meeting the definition of plant pest or is a medium for
the introduction of noxious weeds; or (2) any plant or plant product altered through the use of modem biotechnology
which may pose significant risks to human health and the environment based on available scientific and technical
information.

The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514 (EO 514) on March
17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing Guidelines for its Implementation, and
Strengthening the NCBP." The NBF shall apply to the development, adoption and implementation of all biosafety
policies, measures and guidelines and in making decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of regulated articles.[12]

EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-2002, the NCBP
Guidelines on the Contained Use of Genetically Modified Organisms, except for provisions on potentially harmful exotic
species which were repealed, and all issuances of the Bureau of Food and Drugs Authority (FDA) on products of modem
biotechnology, shall continue to be in force and effect.[13]

On September 24, 2010, a Memorandum of Undertaking[14] (MOU) was executed between UPLBFI, ISAAA and UP
Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants that are resistant to the fruit and
shoot borer. Other partner agencies involved in the project were UPLB through its Institute of Plant Breeding, Maharastra
Hybrid Seed Company (MAHYCO) of India, Cornell University and the Agricultural Biotechnology Support Project II
(ABSPII) of US AID.

As indicated in the Field Trial Proposal[15] submitted by the implementing institution (UPLB), the pest-resistant crop
subject of the field trial was described as a "bioengineered eggplant." The crystal toxin genes from the soil bacterium
Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong) genome to produce the protein CrylAc which is
toxic to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran larvae such as the fruit and
shoot borer (FSB), the most destructive insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially completed on
March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained Experiment stating that "During the
conduct of the experiment, all the biosafety measures have been complied with and no untoward incident has
occurred."[16]

BPI issued Biosafety Permits[17] to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field testing of Bt talong
commenced on various dates in the following approved trial sites: Kabacan, North Cotabato; Sta. Maria, Pangasinan; Pili,
Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a petition for writ of
kalikasan and writ of continuing mandamus with prayer for the issuance of a Temporary Environmental Protection Order
(TEPO). They alleged that the Bt talong field trials violate their constitutional right to health and a balanced ecology
considering that (1) the required environmental compliance certificate under Presidential Decree (PD) No. 1151 was not

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secured prior to the project implementation; (2) as a regulated article under DAO 08-2002, Bt talong is presumed harmful
to human health and the environment, and there is no independent, peer-reviewed study on the safety of Bt talong for
human consumption and the environment; (3) a study conducted by Professor Gilles-Eric Seralini showed adverse effects
on rats who were fed Bt corn, while local scientists also attested to the harmful effects of GMOs to human and animal
health; (4) Bt crops can be directly toxic to non-target species as highlighted by a research conducted in the US which
demonstrated that pollen from Bt maize was toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize
indicate that beneficial insects have increased mortality when fed on larvae of a maize pest, the corn borer, which had
been fed on Bt, and hence non-target beneficial species that may feed on eggplant could be similarly affected; (6) data
from China show that the use of Bt crops (Bt cotton) can exacerbate populations of other secondary pests; (7) the built-in
pesticides of Bt crops will lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set by BPI is not sufficient to stop
contamination of nearby non-Bt eggplants because pollinators such as honeybees can fly as far as four kilometers and an
eggplant is 48% insect-pollinated. The full acceptance by the project proponents of the findings in the MAHYCO Dossier
was strongly assailed on the ground that these do not precisely and adequately assess the numerous hazards posed by Bt
talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the required public consultation
under Sections 26 & 27 of the Local Government Code, A random survey by Greenpeace on July 21, 2011 revealed that
ten households living in the area immediately around the Bt talong experimental farm in Bay, Laguna expressed lack of
knowledge about the field testing in their locality. The Sangguniang Barangay of Pangasugan in Baybay, Leyte
complained about the lack of information on the nature and uncertainties of the Bt talong field testing in their barangay.
The Davao City Government likewise opposed the project due to lack of transparency and public consultation. It ordered
the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with protocols relayed by the BPI
through Ms. Merle Palacpac. Such action highlighted the city government's policy on "sustainable and safe practices." On
the other hand, the Sangguniang Bayan of Sta. Barbara, Iloilo passed a resolution suspending the field testing due to the
following: lack of public consultation; absence of adequate study to determine the effect of Bt talong field testing on
friendly insects; absence of risk assessment on the potential impacts of genetically modified (GM) crops on human health
and the environment; and the possibility of cross-pollination of Bt eggplants with native species or variety of eggplants,
and serious threat to human health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary principle, the Bt talong field testing
being a classic environmental case where scientific evidence as to the health, environmental and socio-economic safety is
insufficient or uncertain and preliminary scientific evaluation indicates reasonable grounds for concern that there are
potentially dangerous effects on human health and the environment.

The following reliefs are thus prayed for:

a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i) enjoining public
respondents BPI and FPA of the DA from processing for field testing, and registering as herbicidal product, Bt talong in
the Philippines; (ii) stopping all pending field testing of Bt talong anywhere in the Philippines; and (in) ordering the
uprooting of planted Bt talong for field trials as their very presence pose significant and irreparable risks to human health
and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:

(i) Respondents to submit to and undergo the process of environmental impact statement system under the Environmental
Management Bureau;

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(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report, regulatory
compliance reports and supporting documents, and other material particulars of the Bt talong field trial;

(iii) Respondents to submit all its issued certifications on public information, public consultation, public participation, and
consent of the local government units in the barangays, municipalities, and provinces affected by the field testing of Bt
talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with stakeholders, to
submit an acceptable draft of an amendment of the National Bio-Safety Framework of the Philippines, and DA
Administrative Order No. 08, defining or incorporating an independent, transparent, and comprehensive scientific and
socio-economic risk assessment, public information, consultation, and participation, and providing for their effective
implementation, in accord with international safety standards; and

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced nationwide public
information on the nature of Bt talong and Bt talong field trial, and a survey of social acceptability of the same.

c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their respective returns and
explain why they should not be judicially sanctioned for violating or threatening to violate or allowing the violation of the
above-enumerated laws, principles, and international principle and standards, or committing acts, which would result into
an environmental damage of such magnitude as to prejudice the life, health, or property of petitioners in particular and of
the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be violating the
abovementioned laws, principles, and international standards; and recommend to Congress curative legislations to
effectuate such order.[18]

On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management Bureau
(EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,[18-a] ordering them to make a verified return within a non-
extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental Cases.[19]

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that the issuance of
writ of kalikasan is not proper because in the implementation of the Bt talong project, all environmental laws were
complied with, including public consultations in the affected communities, to ensure that the people's right to a balanced
and healthful ecology was protected and respected. They also asserted that the Bt talong project is not covered by the
Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field trials will not significantly affect the
quality of the environment nor pose a hazard to human health. ISAAA contended that the NBF amply safeguards the
environment policies and goals promoted by the PEIS Law. On its part, UPLBFI asserted that there is a "plethora of
scientific works and literature, peer-reviewed, on the safety of Bt talong for human consumption."[20] UPLB, which filed
an Answer[21] to the petition before the CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field trial stage as none of
the eggplants will be consumed by humans or animals, and all materials that will not be used for analyses will be chopped,
boiled and buried following the Biosafety Permit requirements. It cited a 50-year history of safe use and consumption of
agricultural products sprayed with commercial Bt microbial pesticides and a 14-year history of safe consumption of food
and feed derived from Bt crops. Also mentioned is the almost 2 million hectares of land in the Philippines which have
been planted with Bt corn since 2003, and the absence of documented significant and negative impact to the environment
and human health. The statements given by scientists and experts in support of the allegations of Greenpeace, et al. on the
safety of Bt corn was also addressed by citing the contrary findings in other studies which have been peer-reviewed and
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published in scientific journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for non-observance of the rule
on hierarchy of courts and the allegations therein being mere assertions and baseless conclusions of law. EMB, BPI and
FPA questioned the legal standing of Greenpeace, et al. in filing the petition for writ of kalikasan as they do not stand to
suffer any direct injury as a result of the Bt talong field tests. They likewise prayed for the denial of the petition for
continuing mandamus for failure to state a cause of action and for utter lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they have been prejudiced or
damaged, or their constitutional rights to health and a balanced ecology were violated or threatened to be violated by the
conduct of Bt talong field trials. Insofar as the field trials in Davao City, the actual field trials at Bago Oshiro started on
November 25, 2010 but the plants were uprooted by Davao City officials on December 17-18, 2010. There were no
further field trials conducted and hence no violation of constitutional rights of persons or damage to the environment, with
respect to Davao City, occurred which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the
MOU, its responsibility was only to handle the funds for the project in their trial site. It pointed out that in the Field Trial
Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and Terminal Report (Davao City Government)
by respondent Leonardo R. Avila III, nowhere does UPMFI appear either as project proponent, partner or implementing
arm. Since UPMFI, which is separate and distinct from UP, undertook only the fund management of Bt talong field test
project the duration of which expired on July 1, 2011, it had nothing to do with any field trials conducted in other parts of
the country.

Finally, it is argued that the precautionary principle is not applicable considering that the field testing is only a part of a
continuing study being done to ensure that the field trials have no significant and negative impact on the environment.
There is thus no resulting environmental damage of such magnitude as to prejudice the life, health, property of inhabitants
in two or more cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely involve technical matters
which pertain to the special competence of BPI whose determination thereon is entitled to great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the return of the writ and for
hearing, reception of evidence and rendition of judgment.[22]

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the following procedural issues: (1)
whether or not Greenpeace, et al. have legal standing to file the petition for writ of kalikasan; (2) whether or not said
petition had been rendered moot and academic by the alleged termination of the Bt talong field testing; and (3) whether or
not the case presented a justiciable controversy.

Under Resolution[23] dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess the requisite legal
standing to file the petition for writ of kalikasan; (2) assuming arguendo that the field trials have already been terminated,
the case is not yet moot since it is capable of repetition yet evading review; and (3) the alleged non-compliance with
environmental and local government laws present justiciable controversies for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the expert witnesses of both
parties testify at the same time. Greenpeace, et al. presented the following as expert witnesses: Dr. Ben Malayang III (Dr.
Malayang), Dr. Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On the opposing side were
the expert witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida
Cariño (Dr. Cariño), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty.
154
Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent Motion for Leave to
Intervene as Respondent.[24] It claimed to have a legal interest in the subject matter of the case as a broad-based coalition
of advocates for the advancement of modern biotechnology in the Philippines.

In its Resolution[25] dated January 16, 2013, the CA denied BCPI's motion for intervention stating that the latter had no
direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in
this case. The respondents are DIRECTED to:

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing judgment of this Court.

No costs.

SO ORDERED.[26]

The CA found that existing regulations issued by the DA and the Department of Science and Technology (DOST) are
insufficient to guarantee the safety of the environment and health of the people. Concurring with Dr. Malayang's view that
the government must exercise precaution "under the realm of public policy" and beyond scientific debate, the appellate
court noted the possible irreversible effects of the field trials and the introduction of Bt talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary principle set forth in
Section 1, Rule 20 of the Rules of Procedure for Environmental Cases[27] finds relevance in the present controversy.
Stressing the fact that the "over-all safety guarantee of the bt talong" remains unknown, the appellate court cited the
testimony of Dr. Cariño who admitted that the product is not yet safe for consumption because a safety assessment is still
to be done. Again, the Decision quoted from Dr. Malayang who testified that the question of Bt talong's safety demands
maximum precaution and utmost prudence, bearing in mind the country's rich biodiversity. Amid the uncertainties
surrounding the Bt talong, the CA thus upheld the primacy of the people's constitutional right to health and a balanced
ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in its Resolution
dated September 20, 2013 rejected the argument of UPLB that the appellate court's ruling violated UPLB's constitutional
right to academic freedom. The appellate court pointed out that the writ of kalikasan originally issued by this Court did
not stop research on Bt talong but only the particular procedure adopted in doing field trials and only at this time when
there is yet no law in the form of a congressional enactment for ensuring its safety and levels of acceptable risks when
introduced into the open environment. Since the writ stops the field trials of Bt talong as a procedure but does not stop Bt
talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically modified plant into our
ecosystem is an "ecologically imbalancing act." Thus:

155
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic (living) and non-biotic
things interacting as a living community in a particular space and time. In the ecosystem are found specific and particular
biotic and non-biotic entities which depend on each other for the biotic entities to survive and maintain life. A critical
element for biotic entities to maintain life would be that their populations are in a proper and natural proportion to others
so that, in the given limits of available non-biotic entities in the ecosystem, no one population overwhelms another. In the
case of the Philippines, it is considered as one of the richest countries in terms of biodiversity. It has so many plants and
animals. It also has many kinds of other living things than many countries in the world. We do not fully know how all
these living things or creatures interact among themselves. But, for sure, there is a perfect and sound balance of our
biodiversity as created or brought about by God out of His infinite and absolute wisdom. In other words, every
living creature has been in existence or has come into being for a purpose. So, we humans are not supposed to tamper with
any one element in this swirl of interrelationships among living things in our ecosystem. Now, introducing a genetically
modified plant in our intricate world of plants by humans certainly appears to be an ecologically imbalancing act.
The damage that it will cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on November 20, 2012 wherein the
testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant [Physiology]), Dr. Tuskar Chakraborty (Ph.D
in Biochemistry and Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr. Reginaldo Ebora
(Ph.D in Entomology), Dr. Flerida Cariño (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D in Wildland
Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in admitting that bt talong is an altered
plant. x x x

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an otherwise natural state
of affairs. It is designed and intended to alter natural feed-feeder relationships of the eggplant. It is a deliberate genetic
reconstruction of the eggplant to alter its natural order which is meant to eliminate one feeder (the borer) in order to give
undue advantage to another feeder (the humans). The genetic transformation is one designed to make bt talong toxic to its
pests (the targeted organisms). In effect, bt talong kills its targeted organisms. Consequently, the testing or introduction
of bt talong into the Philippines, by its nature and intent, is a grave and present danger to (and an assault on) the
Filipinos' constitutional right to a balanced ecology because, in any book and by any yardstick, it is an ecologically
imbalancing event or phenomenon. It is a willful and deliberate tampering of a naturally ordained feed-feeder relationship
in our environment. It destroys the balance of our biodiversity. Because it violates the conjunct right of our people to a
balanced ecology, the whole constitutional right of our people (as legally and logically construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This is because while,
on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of it actually causing acute or chronic
harm to any or a number of ostensibly identifiable perms, on the other hand, there is correspondingly no factual evidence
either of it not causing harm to anyone. However, in a study published on September 20, 2012 in "Food and Chemical
Toxicology", a team of scientists led by Professor Gilles-Eric Seralini from the University of Caen and backed by the
France-based Committee of Independent Research and Information on Genetic Engineering came up with a finding that
rats fed with Roundup-tolerant genetically modified corn for two years developed cancers, tumors and multiple organ
damage. The seven expert witnesses who testified in this Court in the hearing conducted on November 20, 2012 were duly
confronted with this finding and they were not able to convincingly rebut it. That is why we, in deciding this case, applied
the precautionary principle in granting the petition filed in the case at bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole Constitutional guarantee is
factually and is undoubtedly at risk, and the other still factually uncertain, the entire constitutional right of the Filipino

156
people to a balanced and healthful ecology is at risk. Hence, the issuance of the writ of kalikasan and the continuing writ
of mandamus is justified and warranted.[28] (Additional emphasis supplied.)

Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT
AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL
QUESTIONS.

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT OF

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

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

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO
EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER
THE SAME LIES WITH THE REGULATORY AGENCIES.

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THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE
WHEN IT RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20
SEPTEMBER 2013.

VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG FIELD
TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN ORDER TO
ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ARE
PROTECTED AND RESPECTED.

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

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE IN

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

VII

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

AGAINST PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013
IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.[29]

G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the CA Decision
granting the petition for writ of kalikasan and writ of continuing mandamus despite the failure of Greenpeace, et al.
(respondents) to prove the requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly show signs of toxicity in
genetically engineered eggplant and other crops, these studies are insubstantial as they were not published in peer-
reviewed scientific journals. Respondents thus failed to present evidence to prove their claim that the Bt talong field trials
violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application in this case is misplaced. The
paper by Prof. Seralini which was relied upon by the CA, was not formally offered in evidence. In volunteering the said
article to the parties, petitioners lament that the CA manifested its bias towards respondents' position and did not even

158
consider the testimony of Dr. Davies who stated that "Seralini's work has been refuted by International committees of
scientists"[30] as shown by published articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be ingested by any human being during
the field trial stage. Besides, if the results of said testing are adverse, petitioners will not allow the release of Bt talong to
the environment, in line with the guidelines set by EO 514. The CA thus misappreciated the regulatory process as
approval for field testing does not automatically mean approval for propagation of the same product. And even assuming
that the field trials may indeed cause adverse environmental or health effects, the requirement of unlawful act or omission
on the part of petitioners or any of the proponents, was still absent. Respondents clearly failed to prove there was any
unlawful deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk assessment on the
Bt talong project should thus be accorded respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect, preserve, rehabilitate
and restore the environment, lacking in specifics which only indicates that there was really nothing to preserve,
rehabilitate or restore as there was nothing damaged or adversely affected in the first place. As to the supposed
inadequacy and ineffectiveness of existing regulations, these are all political questions and policy issues best left to the
discretion of the policy-makers, the Legislative and Executive branches of government. Petitioners add that the CA treads
on judicial legislation when it recommended the re-examination of country's existing laws and regulations governing
studies and research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to prove actual or
imminent injury to them or the environment as to render the controversy ripe for judicial determination. It points out that
nowhere in the testimonies during the "hot-tub" presentation of expert witnesses did the witnesses for respondents claim
actual or imminent injury to them or to the environment as a result of the Bt talong field tests, as they spoke only of injury
in the speculative, imagined kind without any factual basis. Further, the petition for writ of kalikasan has been mooted by
the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the nature, character, scale,
duration, design, processes undertaken, risk assessments and strategies employed, results heretofore recorded, scientific
literature, the safeguards and other precautionary measures undertaken and applied, the Bt talong field tests did not or
could not have violated the right of respondents to a balanced and healthful ecology. The appellate court apparently
misapprehended the nature, character, design of the field trials as one for "consumption" rather than for "field testing" as
defined in DAO 08-2002, the sole purpose of which is for the "efficacy" of the eggplant variety's resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by competent evidence on
record" (admitted exhibits)[31]:

118. Since the technology's inception 50 years ago, studies have shown that genetically modified crops, including Bt
talong, significantly reduce the use of pesticides by farmers in growing eggplants, lessening pesticide poisoning to
humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-resistant genetically
modified crops. Moreover, that insect-resistant genetically modified crops significantly reduce the use of pesticides
in growing plants thus lessening pesticide poisoning in humans, reducing pesticide load in the environment and
encouraging more biodiversity in farms.

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120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton industry by largely
controlling Lepidopteran pests. To date, it had no significant impact on the invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory heteropterans and, therefore,
cultivation of Bt cotton may provide an opportunity for conservation of these predators in cotton ecosystems by
reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively affect monarch
butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners because flight distance of the pollinators
is a deterrent to cross pollination. Studies reveal that there can be no cross pollination more than a fifty (50) meter
distance.

xxx
x

135. There is a 50 year history of safe use and consumption of agricultural products sprayed with commercial Bt
microbial pesticides and a 14 year history of safe consumption of food and feed derived from Bt crops.

xxx
x

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards Australia and New
Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by [respondents] was dismissed as "scientifically
flawed", thus providing no plausible basis to the proposition that Bt talong is dangerous to public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM Crops: 2011," the
Philippines was cited to be the first country in the ASEAN region to implement a regulatory system for transgenic
crops (which includes DAO 08-[2]002). Accordingly, the said regulatory system has also served as a model for
other countries in the region and other developing countries outside of Asia.

On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial and documentary
evidence of respondents, taken together, do not amount to "scientifically plausible" evidence of threats of serious and
irreversible damage to the environment. In fact, since BPI started regulating GM crops in 2002, they have monitored 171
field trials all over the Philippines and said agency has not observed any adverse environmental effect caused by said field
trials. Plainly, respondents failed to show proof of "specific facts" of environmental damage of the magnitude
contemplated under the Rules of Procedure for Environmental Cases as to warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of scientists and other
academicians of UP, of which they have been deprived without due process of law. Stressing that a possibility is not a
fact, UPLBFI deplores the CA decision's pronouncement of their guilt despite the preponderance of evidence on the
environmental safety of the field trials, as evident from its declaration that "the over-all safety guarantee of Bt talong
remains to be still unknown." It thus asks if in the meantime, petitioners must bear the judicial stigma of being cast as
violators of the right of the people to a balanced and healthful ecology for an injury or damage unsubstantiated by
evidence of scientific plausibility.

G.R. No. 209430

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Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the exercise of UPLB's
academic freedom, which is a constitutional right. In this case, there is nothing based on evidence on record or
overwhelming public welfare concern, such as the right of the people to a balanced and healthful ecology, which would
warrant restraint on UPLB's exercise of academic freedom. Considering that UPLB complied with all laws, rules and
regulations regarding the application and conduct of field testing of GM eggplant, and was performing such field tests
within the prescribed limits of DAO 08-2002, and there being no harm to the environment or prejudice that will be caused
to the life, health or property of inhabitants in two or more cities or provinces, to restrain it from performing the said field
testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case, in violation of the standards
set by the Rules of Procedure for Environmental Cases. It points out that the Bt eggplants are not yet intended to be
introduced into the Philippine ecosystem nor to the local market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is an entomologist and
expert in integrated pest management and insect taxonomy, and Dr. Davies, a member of the faculty of the Department of
Plant Biology and Horticulture at Cornell University for 43 years and served as a senior science advisor in agricultural
technology to the United States Department of State. Both had testified that based on generally accepted and scientific
methodology, the field trial of Bt crops do not cause damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts that the CA could not
support its Decision and Resolution on the pure conjectures and imagination of one witness. Basic is the rule that a
decision must be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely because of the serious safety
concerns on the impact of Bt talong toxin on human and animal health and the environment through field trial
contamination. They point out that the inherent and potential risks and adverse effects of GM crops are recognized in the
Cartagena Protocol and our biosafety regulations (EO 514 and DAO 08-2002). Contamination may occur through
pollination, ingestion by insects and other animals, water and soil run off, human error, mechanical accident and even by
stealing was inevitable in growing Bt talong in an open environment for field trial. Such contamination may manifest even
after many years and in places very far away from the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission, respondents assert that,
in the face of scientific uncertainties on the safety and effects of Bt talong, petitioners omitted their crucial duties to
conduct environmental impact assessment (EIA); evaluate health impacts; get the free, prior and informed consent of the
people in the host communities; and provide remedial and liability processes in the approval of the biosafety permit and
conduct of the field trials in its five sites located in five provinces. These omissions have put the people and the
environment at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A Compilation of
Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a study on Bt corn in the Philippines,
"Socio-economic Impacts of Genetically Modified Corn in the Philippines" published by MASIPAG in 2013; and the
published report of the investigation conducted by Greenpeace, "White Corn in the Philippines: Contaminated with
Genetically Modified Corn Varieties" which revealed positive results for samples purchased from different stores in
Sultan Kudarat, Mindanao, indicating that they were contaminated with GM corn varieties, specifically the herbicide

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tolerant and Bt insect resistant genes from Monsanto, the world's largest biotech company based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the studies of Drs. L.
Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron, all from the Universidad Nacional
Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles Seralini of the University of Caen, France, who is also the
president of the Scientific Council of the Committee for Independent Research and Information on Genetic Engineering
(CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's data submitted in support of the application to
grow and market Bt eggplant in India; and the medical interpretations of Prof. Seralini's findings by Filipino doctors Dr.
Romeo Quijano of the University of the Philippines-Philippine General Hospital and Dr. Wency Kiat, Jr. of St. Luke's
Medical Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks are strengthened by the findings
of a review of the safety claims in the MAHYCO Dossier authored by Prof. David A. Andow of the University of
Minnesota, an expert in environmental assessment in crop science. The review was made upon the request in 2010 of His
Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests of India, where MAHYCO is based.
MAHYCO is the corporate creator and patent owner of the Bt gene inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized[32] by respondents, as follows:

Studies/interpretation by Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, For Bt modified crops (like Bt talong), there is concern over its potential
R.

Lopez-Revilla, and RI Vazquez-Padron
allergenicity. CrylAcc (the gene inserted in Bt talong) protoxin is a potent
immunogen (triggers immune response); the protoxin is immunogenic by
both the intraperitoneal (injected) and intragastric (ingested) route; the
immune response to the protoxin is both systemic and mucosal; and
CrylAcc protoxin binds to surface proteins in the mouse small intestine.
These suggest that extreme caution is required in the use of CrylAcc in
food crops.

Prof. Eric-Gilles Seralini His key findings showed statistical significant differences between group
of animals fed GM and non-GM eggplant that raise food safety
concerns and warrant further investigation.

Dr. Romeo Quijano & Dr. Wency Kiat, Jr. Interpreting Prof. Seralini's findings, the altered condition of rats
symptomatically indicate hazards for human health.

Prof. David A. Andow The MAHYCO dossier is inadequate to support the needed
environmental risk assessment; MAHYCO's food safety assessment does
not comply with international standards; and that MAHYCO relied on
dubious scientific assumptions and disregarded real environmental
threats.

As to environmental effects, respondents said these include the potential for living modified organisms, such as Bt talong
tested in the field or released into the environment, to contaminate non-GM traditional varieties and other wild eggplant
relatives and turn them into novel pests, outcompete and replace their wild relatives, increase dependence on pesticides, or
spread their introduced genes to weedy relatives, potentially creating superweeds, and kill beneficial insects.
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Respondents then gave the following tabulated summary[33] of field trial contamination cases drawn from various news
reports and some scientific literature submitted to the court:

What happened Impact How did it occur

During 2006 and 2007, traces of three
varieties of unapproved genetically
modified rice owned by Bayer Crop
Science were found in US rice exports in
over 30 countries worldwide.
In July 2011, Bayer eventually agreed to a
$750m US dollar settlement resolving claims
with about 11,000 US farmers for market
losses and clean-up costs.
The total costs to the rice industry are likely
to have been over $1bn worldwide.
Field trials were conducted
between the mid-1990s and
early 2000s. The US
Department of Agriculture
(USDA) reported these field
trials were the likely sources of
the contamination between the
modified rice and conventional
varieties. However, it was
unable to conclude [if it] was
caused by gene flow (cross
pollination) or mechanical
mixing.

In 2009, unauthorised GElinseed (also
known as 'flax') produced by a public
research institution was discovered in
food in several EU countries, having been
imported from Canada.
Canada lost exports to its main European
market worth hundreds of millions of dollars
and non-GElinseed farmers have faced huge
costs and market losses.
In the late 1980s a public
research institution, the Crop
Development Centre in
Saskatoon, Saskat-chewan,
developed a GElinseed variety
FP96—believed to be the origin
of the contamination.

During 2004, the Thai government found
that papaya samples from 85 farms were
genetically modified. The contamination
continued into 2006 and it is likely that
the GE contamination reached the food
chain.
Exports of papaya to Europe have been hit
because of fears that contamination could
have spread. The Thai government said it was
taking action to destroy the contaminated
trees.
GEpapaya is not grown
commercially in Thailand, so it
was clear that the contamination
originated from the government
station experimentally breeding
GE papaya trees. Tests that
showed that one third of papaya
orchards tested in the eastern
province of Rayong and the
north-eastern provinces of
Mahasarakham, Chaiyaphum
and Kalasinhad GE-
contaminated papaya seeds in
July 2005. The owners said that
a research station gave them the
seeds.

In the US in 2002, seeds from a GEmaize Prodigene, the company responsible, was Seeds from the GEmaize crop
pharma-crop containing a pig vaccine fined $3m for tainting half a million bushels sprouted voluntarily in the
grew independently among normal of soya bean with a trial vaccine used to

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soybean crops. prevent stomach upsets in piglets. Prodigene following season.
agreed to pay a fine of $250,000 and to repay
the government for the cost of incinerating
the soya bean that had been contaminated
with genetically altered corn.

In 2005, Greenpeace discovered that GE The European Commission adopted The source of the contamination
rice seeds had been illegally sold in emergency measures (on 15 August 2008) to appears to have been the result
Hubei, China. Then, in 2006, GE rice require compulsory certification for the of illegal planting of GEseeds.
event Bt63 was found in baby food sold in imports of Chinese rice products that could Seed companies in China found
Beijing, Guangzhou and Hong Kong. In contain the unauthorised GE rice Bt63. to have sold GErice hybrid seed
late 2006, GE rice Bt63 was found to be to farmers operated directly
contaminating exports in Austria, France, The Chinese government took several under the university developing
the UK and Germany. In 2007 it was measures to try to stop the contamination, GM rice. It has been reported
again found in EU imports to Cyprus, which included punishing seed companies, that the key scientist sat on the
Germany, Greece, Italy and Sweden. confiscating GEseed, destroying GErice board of one GEseed company.
grown in the field and tightening control over
the food chain.

In 2005, the European Commission The European Commission blocked US grain The contamination arose
announced that illegal Bt10 GEmaize import unless they could be guaranteed free because Syngenta's quality
produced by GEseed company Syngenta of Bt10. The USDA fined Syngenta control procedures did not
had entered the European food chain. The $375,000. There are no figures for the wider differentiate between Bt10 and
GEmaize Bt10 contains a marker gene costs. its sister commercial line, Bt11.
that codes for the widely-used antibiotic As a result, the experimental
ampicillin, while the Bt11 does not. and substantially different Bt10
According to the international Codex line was mistakenly used in
Alimentarius Guideline for Conduct of breeding. The error was detected
Food Safety Assessment of Foods Derived four years later when one of the
from Recombinant-DNA:Plants: seed companies developing
'Antibiotic resistance genes used in food Bt11 varieties adopted more
production that encode resistance to sophisticated analytical
clinically used antibiotics should not be techniques.
present in foods' because it increases the
risk of antibiotic resistance in the
population.

Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field trial is isolated,
restricted and that "each experiment per site per season consists of a maximum net area planted to Bt eggplant of between
480 sq. meters to 1,080 sq. meters,"[34] respondents emphasize that as shown by the above, contamination knows no size
and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the issuance of writ of kalikasan,
respondents assert that while the Bt talong field trials were conducted in only five provinces, the environmental damage
prejudicial to health extends beyond the health of the present generation of inhabitants in those provinces.
164
On petitioners' insistence in demanding that those who allege injury must prove injury, respondents said that biosafety
evidence could not be readily contained in a corpus delicti to be presented in court. Indeed, the inherent and potential risks
and adverse effects brought by GMOs are not like dead bodies or wounds that are immediately and physically identifiable
to an eyewitness and which are resulting from a common crime. Precisely, this is why the Cartagena Protocol's foundation
is on the precautionary principle and development of sound science and its links, to social and human rights law through
its elements of public awareness, public participation and public right to know. This is also why the case was brought
under the Rules of Procedure for Environmental Cases and not under ordinary or other rules, on the grounds of violation
of the rights of the Filipino people to health, to a balanced and healthful ecology, to information on matters of national
concern, and to participation. The said Rules specifically provides that the appreciation of evidence in a case like this must
be guided by the precautionary principle.

As to the non-exhaustion of administrative remedies being raised by petitioners as ground to dismiss the present petition,
respondents said that nowhere in the 22 sections of DAO 08-2002 that one can find a remedy to appeal the decision of the
DA issuing the field testing permit. What is only provided for is a mechanism for applicants of a permit, not stakeholders
like farmers, traders and consumers to appeal a decision by the BPI-DA in case of denial of their application for field
testing. Moreover, DAO 08-2002 is silent on appeal after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514 explicitly states that the
application of biosafety regulations shall be made in accordance with existing laws and the guidelines therein provided.
Hence, aside from risk assessment requirement of the biosafety regulations, pursuant to the PEISS law and Sections 12
and 13 of the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is required and an
environmental compliance certificate (ECC) is necessary before such Bt crop field trials can be conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental Cases do not empower
courts to adjudicate a controversy that is moot and academic. It points out that respondents failed to satisfy all the
requirements of the exception to the rule on actual controversies. The Biosafety Permit is valid for only two years, while
the purported stages in the commercialization, propagation and registration of Bt talong still cannot confer jurisdiction on
the CA to decide a moot and academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do not have "mandatory"
and "ministerial" duty to re-examine and reform the biosafety regulatory system, and to propose curative legislation. The
law (EO 514) cited by respondents does not impose such duty on public petitioners. As for the Cartagena Protocol, it laid
down a procedure for the evaluation of the Protocol itself, not of the Philippine biosafety regulatory system. ISAAA
stresses that the CA is without jurisdiction to review the soundness and wisdom of existing laws, policy and regulations.
Indeed, the questions posed by the respondents are political questions, which must be resolved by the executive and
legislative departments in deference to separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in saying that these are
limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-2002 which grants them the right to
submit their written comments on the BPI regarding the field testing permits, or Section 8 (P) for the revocation and
cancellation of a field testing permit. Respondents' failure to resort to the internal mechanisms provided in DAO 08-2002
violates the rule on exhaustion of administrative remedies, which warrants the dismissal of respondents' petition.
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ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field testing permits,
while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the DA through the BPI, is responsible
for the production of improved planting materials and protection of agricultural crops from pests and diseases. In
bypassing the administrative remedies available, respondents not only failed to exhaust a less costly and speedier remedy,
it also deprived the parties of an opportunity to be heard by the BPI which has primary jurisdiction and knowledgeable on
the issues they sought to raise.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the Consolidated Comment as
irrelevant because it was not formally offered in evidence and are hearsay. Majority of those records contain incomplete
information and none of them pertain to the Bt talong. Respondents likewise presented two misleading scientific studies
which have already been discredited: the 2013 study by B.P. Mezzomo, et al. and the study by Prof. Seralini in 2012.
Petitioner notes that both articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126 usable records out
of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo, F. Veronesi, and D. Rosellini, entitled
"An overview of the last 10 years of genetically engineered crop safety research." The authors evaluated 1,783 scientific
records of GE crop safety research papers, reviews, relevant opinions and scientific reports from 2002-2012. Their
findings concluded that "the scientific research conducted so far has not detected any significant hazards directly
connected with the use of GE crops." In the article "Impacts of GM crops on biodiversity," in which scientific findings
concluded that "[o]verall, x x x currently commercialized GM crops have reduced the impacts of agriculture on
biodiversity, through enhanced adoption of conservation tillage practices, reduction of insecticide use and use of more
environmentally benign herbicides and increasing yields to alleviate pressure to convert additional land into agricultural
use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-A decade of EU-
funded GMO research (2001-2010), concluded from more than 130 research projects, covering a period of 25 years of
research, and involving more than 500 independent research groups, that "biotechnology, and in particular GMOs, are not
per se more risky than e.g. conventional plant breeding technologies." Another article cited is "Assessment of the health
impact of GM plant diets in long-term and multigenerational animal feeding trials: A literature review" which states that
scientific findings show that GM crops do not suggest any health hazard, and are nutritionally equivalent to their non-GM
counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental effects of GM crops, petitioner
cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of Field Research and Commercial
Cultivation" which concluded that "[T]he data available so far provide no scientific evidence that the cultivation of the
presently commercialized GM crops has caused environmental harm." A related article, "A Meta-Analysis of Effects of Bt
Cotton and Maize on Non-target Invertebrates" states that scientific findings show that non-target insects are more
abundant in GM crop fields like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA, which presented the
following comments and criticisms on each of the paper/article cited, thus:

With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering that this was not
formally offered as evidence by respondents. Hence, the same may not be considered by the Honorable Court. (Section
34, Rule 132 of the Rules of Court; Heirs of Pedro Pasag v. Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from engineered E. coli and
166
may have been contaminated by endotoxin. The CrylAcc used in the study was not from Bt talong. Hence, respondents'
attempt to extrapolate the interpretation and conclusion of this study to Bt talong is grossly erroneous and calculated to
mislead and deceive the Honorable Court.

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-Fierros, et al., which
was published in an article entitled A Review of the Food Safety of Bt Crops, the authors reported that Adel-Patient, et al.
tried and failed to reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The reason is because of
endotoxin contamination in the preparation of the CrylAc protein. Further, when purified Cry protein was injected to mice
through intra-gastric administration, there was no impact on the immune response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential health risks from
human consumption of foods derived from Bt crops can be questioned because the doses tested in mice is irrelevant to
human dietary exposure, i.e., the doses given were "far in excess of potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any weight and
consideration because his sworn statement was not admitted in evidence by the Court of Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed by Seralini's
statistical analysis as examples of random biological variation that occurs when many measurements are made on test
animals, and which have no biological significance. Hence, there are no food safety concerns. Further, petitioner ISAAA
presented in evidence the findings of regulatory bodies, particularly the EFSA and the FSANZ, to controvert Seralini's
findings. The EFSA and the FSANZ rejected Seralini's findings because the same were based on questionable statistical
procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier decision
approving the safety of Bt eggplant notwithstanding the findings of Seralini's assessment. In effect, Seralini's findings and
interpretation were rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not entitled to any weight
and consideration because the Court of Appeals did not admit their sworn statement. Further, Drs. Romeo Quijano and
Wency Kiat sought to interpret a seriously flawed study, making their sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A. Andow as the
work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In truth, as Prof. David A.
Andow indicated in the preface, the report was produced upon the request of Aruna Rodriguez, a known anti-GM
campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the environment of Mahyco's Bt brinjal
(Indian name for Bt talong) during the entire period of conduct of field trials all over the country. He concluded, however,
that the dossier is inadequate for ERA. This is perplexing considering this is the same gene that has been used in Bt cotton
since 1996. Scores of environmental and food safety risk assessment studies have been conducted and there is wealth of
information and experience on its safety. Various meta-analyses indicate that delaying the use of this already effective Bt
brinjal for managing this devastating pest only ensures the continued use of frequent insecticide sprays with proven harm
to human and animal health and the environment and loss of potential income of resource-poor small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian regulatory body,
GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on the recommendation of two expert

167
committees which found the Mahyco regulatory dossier compliant to the ERA stipulated by the Indian regulatory body. In
effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian regulatory agency.[35]

Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid requirements under Section
8 of DAO 08-2002 already takes into consideration any and all significant risks not only to the environment but also to
human health. The requirements under Sections 26 and 27 of the Local Government Code are also inapplicable because
the field testing is not among the six environmentally sensitive activities mentioned therein; the public consultations and
prior local government unit (LGU) approval, were nevertheless complied with. Moreover, the field testing is an exercise
of academic freedom protected by the Constitution, the possibility of Bt talong's commercialization in the future is but
incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are inadmissible, hearsay and
unreliable. These were not formally offered in evidence; self-serving as it was conducted by respondents Greenpeace and
MASIPAG themselves; the persons who prepared the same were not presented in court to identify and testify on its
findings; and the methods used in the investigation and research were not scientific. Said studies failed to establish any
correlation between Bt corn and the purported environmental and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the same reasons given
by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit of Dr. Kiat and Dr. Quijano were denied
admission by the CA. Given the failure of the respondents to present scientific evidence to prove the claim of
environmental and health damages, respondents are not entitled to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the latter complied with all
the requirements under DAO 08-2002, including the conduct of risk assessment. The applications for field testing of Bt
talong thus underwent the following procedures:

Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications for issuance of
Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the proponent submitted its
application, petitioner BPI conducted a consultative meeting with the proponent to enlighten the latter about the
requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA AO No. 8 and
found them to be sufficient in form and substance, to wit:

First. The applications were in the proper format and contained all of the relevant information as required in Section 8 (A)
(1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated article has undergone
satisfactory testing under contained conditions in the Philippines, (ii) technical dossier consisting of scientific literature
and other scientific materials relied upon by the applicant showing that Bt talong will not pose any significant risks to
human health and the environment, and (iii) copy of the proposed PIS for Field Testing as prescribed by Section 8 (A) (2)
of DA AO No. 08; and

Third. The applications contained the Endorsement of proposal for field testing, duly approved by the majority of all the
members of the respective Institutional Biosafety Committees (IBC), including at least one community representative, as
required by Section 8 (E) of DA AO No. 08.

168
a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the risk
assessment and risk management strategies of the applicant for field testing using the NCBP guidelines. The IBC shall
determine if the data obtained under contained conditions provide sufficient basis to authorize the field testing of
the regulated article. In making the determination, the IBC shall ensure that field testing does not pose any
significant risks to human health and the environment. The IBC may, in its discretion, require the proponent to
perform additional experiments under contained conditions before acting on the field testing proposal. The IBC shall
either endorse the field testing proposal to the BPI or reject it for failing the scientific risk assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an applicant for field
testing to establish an IBC in preparation for the field testing of a regulated article and whose membership has been
approved by the BPI. Section 1 (L) of DA AO No. 08, requires that the IBC shall be composed of at least five (5)
members, three (3) of whom shall be designated as "scientist-members" who shall possess scientific and technological
knowledge and expertise sufficient to enable them to evaluate and monitor properly any work of the applicant relating to
the field testing of a regulated article, and the other members are designated as "community representatives" who are in a
position to represent the interest of the communities where the field testing is to be conducted.

Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of DA AO No. 08,
forwarded the complete documents to three (3) independent Scientific Technical Review Panel (STRP) members.
Pending receipt of the risk assessment reports of the three STRP members, petitioner BPI conducted its own risk
assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three STRP members
recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment and evaluation of UPLB's
application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each concerned
barangays and city/municipal halls of the localities having jurisdiction over its proposed field trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings and public
seminars in order to provide public information and in order to give an opportunity to the public to raise their questions
and/or concerns regarding the Bt talong field trials.[36]

Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt talong field testing
considering that its subject matter is not mass production for human consumption. The project entails only the planting of
Bt eggplants and cultivation in a controlled environment; indeed, the conduct of a field trial is not a guarantee that the Bt
talong will be commercialized and allowed for cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that during the period of public
consultation under DAO 08-2002, it is BPI which processes written comments on the application for field testing of a
regulated article, and has the authority to approve or disapprove the application. Also, under Section 8 (P), BPI may
revoke a biosafety permit issued on the ground of, among others, receipt of new information that the field testing poses
significant risks to human health and the environment. Petitioners assert they were never remiss in the performance of
their mandated functions, as shown by their immediate action with respect to the defective certification of posting of PIS
in Kabacan, North Cotabato. Upon receiving the letter-complaint on January 24, 2012, BPI readily ordered their re-
posting. The same incident occurred in Davao City, where BPI refused to lift the suspension of biosafety permits until
"rectification of the conditions for public consultation is carried out."

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To underscore respondents' blatant disregard of the administrative process, petitioners refer to documented instances when
respondents took the law in their own hands. Greenpeace barged into one of the Bt talong field trial sites at Bgy. Paciano
Rizal, Bay, Laguna, forcibly entered the entrance gate through the use of a bolt cutter, and then proceeded to uproot the
experimental crops without permission from BPI or the project proponents. Petitioners submit that the non-observance of
the doctrine of exhaustion of administrative remedies results in lack of cause of action, one of the grounds under the Rules
of Court justifying the dismissal of a complaint.

Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well as regional (Crop
Life Asia) networks of member-companies representing the plant science industry. It aims to "help improve the
productivity of Filipino farmers and contribute to Philippine food security in a sustainable way." It supports "innovation,
research and development in agriculture through the use of biology, chemistry, biotechnology, plant breeding, other
techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners' right to due process
because it was prevented from cross-examining the respondents' expert witnesses and conducting re-direct examination of
petitioners' own witnesses, and being an evidently partial and prejudiced court. It said the petition for writ of kalikasan
should have been dismissed outright as it effectively asks the Court to engage in "judicial legislation" to "cure" what
respondents feel is an inadequate regulatory framework for field testing of GMOs in the Philippines. Respondents also
violated the doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and prove the particular
environmental damage resulting from the Bt talong field testing. It cites the scientific evidence on record and the
internationally accepted scientific standards on GMOs and GMO field testing, and considering the experience of various
countries engaged in testing GMOs, telling us that GMO field testing will not damage the environment nor harm human
health and more likely bring about beneficial improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously equated field
testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was no particular environmental
damage identified, much less proven; relied upon the article of Prof. Seralini that was retracted by the scientific journal
which published it; there is no scientific uncertainty on the adverse effects of GMOs to environment and human health;
and did not consider respondents' failure to prove the insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely safe before any field
testing may be allowed, would result in permanently placing the Philippines in the shadows of more developed nations
(whose economies rest on emerging markets importing products from them). It points out that the testing of Bt talong
specifically addresses defined problems such as the need to curb the misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of advocates of modern
biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:

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I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE
ABSENCE OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE

PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.

IV.

THE COURT OF APPEALS ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF

SUSTAINED, WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-
TECHNOLOGY AND, ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE.[37]

BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field trials having been
terminated, the CA entertained a prohibited collateral attack on the sufficiency of DAO 08-2002. Though not invalidating
the issuance, which the CA knew was highly improper, it nonetheless granted the petition for writ of kalikasan on the
theory that "mere biosafety regulations" were insufficient to guarantee the safety of the environment and the health of the
people.

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust administrative
remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to regulated articles prior to any release in
the environment for field testing mandated by AO No. 8 sufficiently complies with the rationale behind the development
of the precautionary principle. By implementing the stringent provisions of DAO 08-2002, in conjunction with the
standards set by EO 514 and the NBF, the government preemptively intervenes and takes precautionary measures prior to
the release of any potentially harmful substance or article into the environment. Thus, any potential damage to the
environment is prevented or negated. Moreover, international instruments ratified and formally adopted by the Philippines
(CBD and the Cartagena Protocol) provide additional support in the proper application of the precautionary principle in
relation to GMOs and the environment.

On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic premise for its application
is the existence of threat of harm or damage to the environment, which must be backed by a reasonable scientific basis
and not based on mere hypothetical allegation, before the burden of proof is shifted to the public respondents in a petition
for writ of kalikasan. Here, the CA relied heavily on its observation that "... field trials of bt talong could not be declared
... as safe to human health and to ecology, with full scientific certainty, being an alteration of an otherwise natural state of
affairs in our ecology" and "introducing a genetically modified plant in our intricate world of plants by humans certainly
appears to be an ecologically imbalancing act," among others. BCP finds that this pronouncement of the CA constitutes an
indictment not only against Bt talong but against all GMOs as well. The appellate court's opinion is thus highly
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speculative, sweeping and laced with obvious bias.

There being no credible showing in the record that the conduct of Bt talong field trials entails real threats and that these
threats pertain to serious and irreversible damage to the environment, BCP maintains that the precautionary principle finds
no application in this case. While Rule 20 of the Rules of Procedure for Environmental Cases states that "[w]hen there is a
lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court
shall apply the precautionary principle in resolving the case before it," the CA failed to note that the element of lack of full
scientific certainty pertains merely to the causal link between human activity and environmental effect, and not the
existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against technological
advancements, especially those in agriculture. Affirming the CA decision thus sets a dangerous precedent where any and
all human activity may be enjoined based on unfounded fears of possible damage to health or the environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;

4. Application of the law on environmental impact statement/assessment on projects involving the introduction and
propagation of GMOs in the country;

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

6. Neglect or unlawful omission committed by the public respondents in connection with the processing and
evaluation of the applications for Bt talong field testing; and

7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question."[38] It refers particularly to "a party's
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the act being
challenged, and "calls for more than just a generalized grievance."[39]

However, the rule on standing is a matter of procedure which can be relaxed for non-traditional plaintiffs like ordinary
citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public interest.[40] The Court thus had invariably
adopted a liberal policy on standing to allow ordinary citizens and civic organizations to prosecute actions before this
Court questioning the constitutionality or validity of laws, acts, rulings or orders of various government agencies or
instrumentalities.[41]
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Oposa v. Factor an, Jr.[42] signaled an even more liberalized policy on locus standi in public suits. In said case, we
recognized the "public right" of citizens to "a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law." We held that such right need not be written in the
Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the
inception of mankind and it is an issue of transcendental importance with intergenerational implications. Such right carries
with it the correlative duty to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of environmental rights,
they can do so in representation of their own and future generations. Thus:

Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in
ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit.
Their personality to sue in behalf of the succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers the "rhythm and harmony of nature." Nature means the created world in its entirety.
Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal
and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilization be equitably accessible to the present as well as
future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony
for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion of their right to a
sound environment constitutes, at the same time, the performance of their obligation to ensure the protection of that right
for the generations to come.[43] (Emphasis supplied.)

The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental Cases which allows the
filing of a citizen suit in environmental cases.[44] The provision on citizen suits in the Rules "collapses the traditional rule
on personal and direct interest, on the principle that humans are stewards of nature," and aims to "further encourage the
protection of the environment."[45]

There is therefore no dispute on the standing of respondents to file before this Court their petition for writ of kalikasan
and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on August 10, 2012. In fact, the validity of
all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because the issues involved have
become academic or dead, or when the matter in dispute has already been resolved and hence, one is not entitled to
judicial intervention unless the issue is likely to be raised again between the parties.[46] Time and again, courts have
refrained from even expressing an opinion in a case where the issues have become moot and academic, there being no
more justiciable controversy to speak of, so that a determination thereof would be of no practical use or value.[47]

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling principles to guide the bench, the bar and the public; and
fourth, the case is capable of repetition yet evading review.[48] We find that the presence of the second and fourth
exceptions justified the CA in not dismissing the case despite the termination of Bt talong field trials.
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While it may be that the project proponents of Bt talong have terminated the subject field trials, it is not certain if they
have actually completed the field trial stage for the purpose of data gathering. At any rate, it is on record that the
proponents expect to proceed to the next phase of the project, the preparation for commercial propagation of the Bt
eggplants. Biosafety permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not only does this case
fall under the "capable of repetition yet evading review" exception to the mootness principle, the human and
environmental health hazards posed by the introduction of a genetically modified plant, a very popular staple vegetable
among Filipinos, is an issue of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,[49] the Court explained the related doctrines of primary jurisdiction and exhaustion of administrative
remedies, as follows:

The general rule is that before a party may seek the intervention of the court, he should first avail of all the means
afforded him by administrative processes. The issues which administrative agencies are authorized to decide should not be
summarily taken from them and submitted to a court without first giving such administrative agency the opportunity to
dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is, courts
cannot or will not determine a controversy involving a question which is within the jurisdiction of the administrative
tribunal prior to the resolution of that question by the administrative tribunal, where the question demands the exercise of
sound administrative discretion requiring the special knowledge, experience and services of the administrative tribunal to
determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction,
which are based on sound public policy and practical considerations, are not inflexible rules. There are many accepted
exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the challenged
administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable delay or official
inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make
the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately have to be decided
by the courts of justice; (f) where judicial intervention is urgent; (g) when its application may cause great and irreparable
damage; (h) where the controverted acts violate due process; (i) when the issue of non-exhaustion of administrative
remedies has been rendered moot; (j) when there is no other plain, speedy and adequate remedy; (k) when strong
public interest is involved; and, (1) in quo warranto proceedings. x x x (Emphasis supplied)

Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public information
sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field testing permit on certain
grounds, to wit:

P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following grounds:

1. Provision of false information in the Application to Field Test;

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

3. Failure to allow the inspection of the field testing site;

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

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

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

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious health and
environmental adverse effects of the Bt talong field trials due to "inherent risks" associated with genetically modified
crops and herbicides. They sought the immediate issuance of a TEPO to enjoin the processing for field testing and
registering Bt talong as herbicidal product in the Philippines, stopping all pending field trials of Bt talong anywhere in the
country, and ordering the uprooting of planted Bt talong in the field trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of continuing mandamus
commanding the respondents to: (1) comply with the requirement of environmental impact statement; (2) submit
comprehensive risk assessments, field test reports, regulatory compliance reports and other material documents on Bt
talong including issued certifications on public consultation with LGUs; (3) work with other agencies to submit a draft
amendment to biosafety regulations; and (4) BPI, in coordination with relevant government agencies, conduct balanced
nationwide public information on the nature of Bt talong field trial, and a survey of its social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the respondents "to determine
the questions of unique national and local importance raised here that pertain to laws and rules for environmental
protection, thus [they were] justified in coming to this Court."[50] We take judicial notice of the fact that genetically
modified food is an intensely debated global issue, and despite the entry of GMO crops (Bt corn) into the Philippines in
the last decade, it is only now that such controversy involving alleged damage or threat to human health and the
environment from GMOs has reached the courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill specific purposes. The
basic strategy employed is to use the sexual mechanism to reorganize the genomes of two individuals in a new genetic
matrix, and select for individuals in the progeny with the desirable combination of the parental characteristics.
Hybridization is the conventional way of creating variation. In animals, mating is effected by introducing the desired
sperm donor to the female at the right time. In plants, pollen grains from the desired source are deposited on the stigma of
a receptive female plant. Pollination or mating is followed by fertilization and subsequently development into an embryo.
The effect of this action is the reorganization of the genomes of two parents into a new genetic matrix to create new
individuals expressing traits from both parents. The ease of crossing of mating varies from one species to another.
However, conventional breeding technologies are limited by their long duration, need for sexual compatibility, low
selection efficiency, and restricted gene pool.[51]

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to transfer genes from
one organism to any other, circumventing the sexual process. For example, a gene from a bacterium can be transferred to
corn. Consequently, DNA technology allowed scientists to treat all living things as belonging to one giant breeding pool.
Unlike other natural genome rearrangements phenomena, rDNA introduces alien DNA sequences into the genome. Even
though crossing of two sexually compatible individuals produces recombinant progeny, the term recombinant DNA is
restricted to the product of the union of DNA segments of different biological origins. The product of recombinant DNA
manipulation is called a transgenic organism. rDNA is the core technology of biotechnology.[52]
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The organism that is created through genetic engineering is called a genetically modified organism (GMO). Since the
production of the first GMOs in the 1970s, genes have been transferred between animal species, between plant species,
and from animal species to plant species. Some genes can make an animal or plant grow faster or larger, or both. A gene
produced by flounder (anti-freeze) was transplanted into salmon so that salmon can be farmed in colder climates. Many
species offish are genetically engineered to speed growth, to alter flesh quality, and to increase cold and disease
resistance. In farm animals such as cattle, genes can be inserted to reduce the amount of fat in meat, to increase milk
production, and to increase superior cheese-making proteins in milk. Biotechnology has also modified plants to produce
its own pesticide, resist common diseases or to tolerate weed-killing herbicide sprays.[53]

Despite these promising innovations, there has been a great deal of controversy over bioengineered foods. Some scientists
believe genetic engineering dangerously tampers with the most fundamental natural components of life; that genetic
engineering is scientifically unsound; and that when scientists transfer genes into a new organism, the results could be
unexpected and dangerous. But no long-term studies have been done to determine what effects GMO foods might have on
human health.[54]

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest molecular biology
techniques. These plants are modified in the laboratory to enhance desired traits such as increased resistance to herbicides
or improved nutritional content.[55] Genetic modification of plants occurs in several stages:

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

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

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

4. The gene of interest together with carrier and promoter is then inserted into bacterium, and is allowed to
reproduce to create many copies of the gene which are then transferred into the plant being modified.

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

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

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major constraints being faced in
farming such as insect pest infestation and diseases which lead to substantial yield losses. Pest-resistant crops could
substantially improve yields in developing countries where pest damage is rampant and reduce the use of chemical
pesticides. Crop plants which have been genetically engineered to withstand the application of powerful herbicides [57]
using genes from soil bacteria eliminates the time-consuming and not cost-effective physical removal of weeds by tilling.
The herbicides to which the GM crops are tolerant are "broad spectrum" weedkillers, which means they can be sprayed
over the entire field, killing all plants apart from the GM crop. Herbicide-tolerant crops include transgenes providing
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tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides kill nearly all kinds of plants except
those that have the tolerance gene. Another important benefit is that this class of herbicides breaks down quickly in the
soil, eliminating residue carryover problems and reducing adverse environmental impacts.[58]

Some plants are genetically engineered to withstand cold climates such as GM strawberries or soybeans, expressing the
anti-freeze gene of arctic flounder, to protect themselves against the damaging effects of the frost; and GM tobacco and
potato with anti-freeze gene from cold water fish. Crops could also be genetically modified to produce micronutrients
vital to the human diet such as the "golden rice" genetically modified to produce beta-carotene, which can solve Vitamin
A deficiency and prevent night blindness in pre-school children. Other efforts to enhance nutritional content of plants
include the genetic modification of canola to enhance Vitamin E content or better balance fatty acids, cereals for specific
starch or protein, rice for increased iron to reduce anemia, and plant oils to adjust cholesterol levels. There are also food
crops engineered to produce edible vaccines against infectious diseases that would make vaccination more readily
available to children around the world. For example, transgenic bananas containing inactivated viruses protecting against
common developing world diseases such as cholera, hepatitis B and diarrhea, have been produced. These vaccines will be
much easier to ship, store and administer than traditional injectable vaccines.[59]

Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the often opposing goals
of meeting the human demand for food, nutrition, fiber, timber, and other natural resources. Biotech crops could put more
food on the table per unit of land and water used in agriculture, thus resulting in decreased land and water diverted to
human uses. Increasing crop yields and reducing the amount of cultivated land necessary would also reduce the area
subject to soil erosion from agricultural practices, which in turn would limit associated environmental effects on water
bodies and aquatic species and would reduce loss of carbon sinks and stores into the atmosphere.[60]

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there emerged controversial issues
concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects. Based on scientific studies, these
foods can unleash new pathogens, contain allergens and toxins, and increase the risk of cancer, herbicide exposure, and
harm to fetuses and infants.[61] Independent studies conducted went as far to conclude that GM food and feed are
"inherently hazardous to health."[62]

A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the methionine content for
animal feed. The protein was subsequently shown to be an allergen and the product was never marketed. Genetically
modified foods can introduce novel proteins into the food supply from organisms that are never consumed as foods, which
may pose a health risk. This may elicit potentially harmful immunological responses, including allergic
hypersensitivity.[63]

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically altered to produce
lectins, natural insecticides, to protect them against aphids, damaged the animals' gut, other organs, and immune system.
Dr. Pusztai found that "the damage originated not from the transgene and its expressed product but from the damage
caused by the insertion of the transgene, probably due to insertional mutagenesis."[64] If confirmed, Pusztai's conclusions
will reinforce concerns that gene insertion itself may create new toxins; it will also implicate the toxin commonly used in
other genetically engineered crops - the Bt toxin which, Pusztai says, is also a lectin.[65]

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps determine if the foreign

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gene has successfully spliced into the host organism, is another cause of grave concern among scientists. These arm genes
might unexpectedly recombine with disease-causing bacteria or microbes in the environment or in the guts of animals or
humans who eat GM food, thus contributing to the growing public health danger of antibiotic-resistance of infections that
cannot be cured with traditional antibiotics (e.g., new strains of salmonella, e-coli, campylobacter and enterococci).[66]
However, recent advances in genetic engineering indicate that use of such selection markers is likely to diminish with the
anticipated development of alternative types of marker genes.[67]

Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone genetically modified to
stimulate milk production in cows was found to elevate levels of IGF-1 (insulin-like Growth Factor-1, identical versions
of which occurs in cows and humans) in cow's milk by 80%. IGF-1 is reported to be a key factor in prostate cancer, breast
cancer and lung cancer.[68] Dr. Samuel Epstein of the University of Illinois warned of the danger of high levels of IGF-1
contained in milk cows injected with synthetic bovine growth hormone (rBGH), which could be a potential risk factor for
breast and gastrointestinal cancers.[69]

Glyphosate, the active ingredient in Monsanto's Roundup® herbicide, has been found to worsen modern diseases. A
report published in the journal Entropy argues that glyphosate residues, found in most commonly consumed foods in the
Western diet courtesy of genetically engineered sugar, corn, soy and wheat, "enhance the damaging effects of other food-
borne chemical residues and toxins in the environment to disrupt normal body functions and induce disease." Another
research demonstrated a connection between increased use of Roundup with rising autism rates in the US. [70]

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-GMO plants, creating super
weeds and super pests, harming non-target species, changing soil microbial and biochemical properties, and threatening
biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide tolerance (HT). Both have
drastic modes of action to kill the target species at high efficiency. Bt crops contain a toxin lethal to certain insects, and Bt
sprays have been used by organic farmers as a last option to deal with certain pests like the corn borer. It is feared that
genetically modified Bt crops will speed up resistance to Bt, thereby rendering the organic spray ineffective.[71] Lab and
field tests also indicate that common plant pests such as cotton bollworms, living under constant pressure from GE crops,
will soon evolve into "superpests" completely immune to Bt sprays and other environmentally sustainable
biopesticides.[72] In the case of HT, the technology involves the combined use of a chemical herbicide and a GM plant.
The herbicide is generally a broad spectrum herbicide (commonly glyphosate or glufosinate) which kills weeds while
leaving the crop plant alive as it is genetically engineered to be resistant to the herbicide. The herbicide acts to inhibit an
essential enzyme that is found in all plants and as a result is able to eliminate all weeds whereas most conventional
herbicides are selective in their action and target a limited number of weeds. Concern has been raised regarding over-
reliance on use of one or two herbicides in increased amounts over time which leads to the emergence of herbicide
resistant weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert it into a superweed. Pests and
weeds will emerge that are pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be
needed to get rid of the pests.[73]

It is a well-accepted fact that genetically engineered plants can move beyond the field sites and cross with wild
relatives.[74] It is by nature a design of plants to cross pollinate to spread genes further afield. Maize, oil seed rape, sugar
beet, barley, among others, are wind and insect pollinated, allowing pollen to travel large distances. In GM crop fields,
pollen drift and insect pollination create obvious problems for nearby non-GM or organic crops.[75] GM maize could
cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at least 500-700 meters and still be

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viable and distances of several kilometers have even been reported.[76] But many experiments showed varying results and
actual cross-pollinations were observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In crop
species that are outcrossers, many environmental factors influence the maximum pollination distance such as the size of
pollen grains, the humidity in the air, and the wind speed.[77] Brinjal is usually self-pollinated, but the extent of cross-
pollination has been reported as high as 48% and hence it is classified as cross-pollinated crop. The cone-like formation of
anthers favors self-pollination; but since the stigma ultimately projects beyond the anthers, there is an ample opportunity
for cross-pollination. The rates of natural cross-pollination may vary depending on genotype, location, and insect activity.
The extent of outcrossing has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian
Vegetable Research Development Centre; however the Indian researchers have reported 2 to 48% outcrossing in brinjal
varieties in India. Outcrossing primarily takes place with the help of insects.[78]

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically modified yellow corn
which contains the pesticide Bt in every cell, was found in white corn tortilla chips in Florida, USA. Starlink had been
approved for animal feed but not for human consumption due to concerns about dangerous allergic reactions. The Starlink
incident is often cited to illustrate how difficult it is to keep genetically modified crops from spreading. [79]

This gene flow to wild species is particularly alarming to environmentalists. The wild species from which our agricultural
plants originate are an important genetic resource for further plant breeding if, for example, there is a requirement for
improved resistance to climate change or plant pests. Future plant breeding could be jeopardized if transgenes spread into
these resources. Similarly, agriculture in the centers of origin could be permanently damaged if transgenes spread into
regional landraces.[80] Invasive species can replace a single species or a whole range of species, and they can also change
the conditions within ecological systems. Crossing can cause losses in the genetic information of the original species, a
reduction in genetic diversity and an ongoing incremental change of genetic identity in the original plants. It is hard to
predict which species will become invasive.[81] Indeed, GM crops could threaten the centers of crop biodiversity or
outgrow a local flora to the detriment of native species.[82]

Bt gene in genetically modified crops might be toxic to non-target organisms that consume it. When Bt corn sheds its
pollen, these are cast into the wind, dusting nearby plants and trees. Concern has been expressed about the potential
toxicity of the Bt toxin in corn pollen to the monarch butterfly because initial laboratory studies showed increased
mortality in larvae. However, in another study it was believed that it is unlikely that a significant risk to those butterflies
exists.[83]

On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their effects on microbial
properties and enzyme activities. Results showed that there was persistence of said proteins in soil under 4-year
consecutive cultivation of transgenic cottons. Soil microbial biomass carbon, microbial activities, and soil enzyme
activities (except urease and phosphodiesterase) significantly decreased in soil under transgenic cottons. [84]

In another review, it was stated that the direct effects of the plant that has been modified is of the most concern since the
introduction of transgenic proteins for pest and disease resistance can involve the production of chemical substances that
are potentially toxic to non-target soil organisms, including mycorrhizal fungi and soil microfauna that are involved in
organic matter decomposition. Experimental studies have shown that the transgenic proteins Bt crystal toxin and T4
lysozyme, though used to prevent insect damage to the above ground plant parts, are not only present in root exudates but
that they maintain biological activity after entering the soil.[85]

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include compaction and
resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion of necessary minerals and nutrients
that plants require. It was found that glyphosate "locks up" manganese and other minerals in the soil so that they can't be

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utilized by the plants that need them, and that it is toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There is
likewise evidence showing that glyphosates can make their way to groundwater supplies.[86] In a study which tested the
effects of the herbicide Roundup on six species of larval amphibians from North America, it was demonstrated that when
we "use realistic exposure times and the frequently occurring stress of predators found in natural ecologic communities,
one of our most widely applied herbicides (Roundup) has the potential to kill many species of amphibians." At the same
time, the study noted that Monsanto Corporation has recently released "an additional formulation of glyphosate (Roundup
Biactive), which contains a different (but unspecified) surfactant that is reported to be less toxic."[87]

Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of scientific studies and articles in
support of their respective positions on the benefits and risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the allegations raised in the petition
concerning damage or threat of damage to human health and the environment resulting from the conduct of Bt talong field
trials in the Philippines. The CA conducted "hot tubbing," the colloquial term for concurrent expert evidence, a method
used for giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge can hear all the experts discussing the
same issue at the same time to explain each of their points in a discussion with a professional colleague. The objective is
to achieve greater efficiency and expedition, by reduced emphasis on cross-examination and increased emphasis on
professional dialogue, and swifter identification of the critical areas of disagreement between the experts. [88]

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the chairman and members of the
CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr. Malayang were presented by the petitioners while
Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cariño appeared for the respondents.

The following are summaries of the expert witnesses' judicial affidavits:

For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as senior science
advisor on agricultural biotechnology in the US Department of State, and editor for plant physiology for McGraw-Hill
Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable report of a field trial
of any GM crop that caused damage to the environment and to human health. This involves more than 25,000 field trials
in 20 years with crops such as Bt eggplant, Bt cotton, Bt corn, and others. The same applies to the commercial cultivation
of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and now comprise the majority
of the world acreage of maize and cotton.

A recent European Union (EU) report which concludes that more than 130 EU research projects covering a period of more
than 25 years of research involving more than 500 independent research groups, show that consuming foods containing
ingredients derived from GM crops is no riskier than consuming the same foods containing ingredients from conventional
crops. The World Health Organization (WHO), American Medical Association, US National Academy of Sciences,
European Food Safety Authority (EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly done studies
purportedly claiming negative effects, should be viewed with great caution and have been highly criticized for their

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veracity by the overwhelming majority of highly respected scientists. Many hundreds of studies show no harmful effects.
To date, not a single rigorous study of GM foods in animals has revealed any adverse effect; not a single case of allergy,
illness, cancer, or death have been shown to be associated with foods derived from GM crops, despite the fact that they
have been consumed by Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those where Bt crops are
grown. Over a period of 13 years, cultivation of Bt cotton in China results in an increase in insect diversity and abundance
and a decrease in crop damaging insects not only in Bt crop fields but also in surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security worldwide,
protect against devastating crop losses and famine, improve nutrition, and some GM crop techniques help combat climate
change.[89]

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy (Plant
Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist, Research Director at
UPLB, UP Diliman, De La Salle University, Forest Research Institute now Ecosystems Research and Development
Bureau of DENR and the Biotechnology Coalition of the Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also in Bt eggplant has
been found safe by many food and environmental safety regulatory agencies such as those in Australia, New Zealand,
USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were for Bt corn, cotton
and eggplant. No adverse effect of any of these Bt crop field trials have been reported. No report of adverse effects of Bt
crop field trial exists. All claims of adverse health and environmental effects of Bt crops has not been scientifically
validated. The yearly expansion of GM crop areas in both the developing and industrialized countries is an attestation of
the preference of farmers and the economic benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have reduced the adverse impacts of
agriculture on biodiversity. The use of Bt crops has significantly reduced the use of pesticides, and also increased farmer
incomes.[90]

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology (Insect
Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology, Osaka University,
Japan, and Intellectual Property Management and Technology Transfer, ISAAA AmeriCenter, Cornell University, USA.
Director, and Research Associate Professor, National Institute of Molecular Biology and Biotechnology (BIOTECH),
UPLB; Philippine Coordinator of the Program for Biosafety Systems; former Executive Director, Philippine Council for
Industry, Energy and Emerging Technology Research and Development, DOST; former Chair, Biosafety Committee,
DOST; and was a Member of the Institutional Biosafety Committees of UPLB and International Rice Research Institute
(IRRI); and was extensively involved in the isolation, bioassay or efficacy testing and development of Bt as microbial
insecticides for the control of Asian corn borer and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on cross-pollination or horizontal
gene transfer, pollination distances, harm to beneficial organisms, and development of insect resistance. To prevent cross-
pollination, an isolation distance of 200 meters from other areas where eggplants are grown or wild relatives are present,
was observed, and with five (5) rows of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance
of honeybees reaching 4 kilometers, what was not mentioned is the viability of pollen after it was shed and travelled at a

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certain distance. Numerous literatures have shown that isolation distances much less than 200 meters is sufficient to
prevent cross-pollination. Two studies are cited: Sekara and Bieniasz (2008) noted that cross-pollination at a distance of
50 meters was nonexistent; and the Asian Vegetable Research and Development Center (AVRDC) indicated that
eggplants produce perfect flowers which may be cross-pollinated but self-pollination is more common, the extent of
natural crossing depends upon insect activity and this can be avoided by isolating each variety by 20 meters or with
another tall flowering plant. The isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance; the
200 meters distance was found sufficient for pure seed production in India (the same recommendation by Chen [2001] of
AVRDC foundation for seed production purity standards); field studies in 2 locations in India have shown that at a
distance beyond 30 meters no more outcrossing could be detected. Taking all these data into account, the 48% outcrossing
being raised by petitioners is most likely for adjacent plants and therefore not a valid argument for the on-going field
trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of insect pests because
it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly and moths). The selective toxicity of Bt
protein in Bt talong is partly due to the fact that the gut physiology of these insects is very different from caterpillars, and
not all caterpillars are affected by it. There is a significant number of literature on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field trials for Bt talong because
of low selection pressure and limited exposure of the insect pest to Bt talong. Insect resistance is not unique to GM crops
as it is a commonly observed biological reaction of insect pests to control measures like insecticides. In the event Bt
talong is approved for commercialization and will be widely used by fanners, this concern could be addressed by insect
resistance management (IRM); an IRM strategy should be required prior to the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed so that scientists
and researchers will be able to generate valuable data and information which will be helpful in making informed decisions
regarding the usefulness of the technology.[91]

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A. Philosophy,
M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB Philosophy, UP Diliman;
former Undersecretary of Environment and Natural Resources; served as Environmental Science representative in the
National Biosafety Committee of the Philippines and participated in the drafting of the Philippines Biosafety Framework;
and student, lecturer and advocate of biodiversity, food security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as against being used for academic
research) in the Philippines on the following grounds: (a) how they might contaminate the indigenous genetic resources of
the country; (b) how they may cause an imbalance of predator-prey relationships in ecosystems, so that certain species
might dominate ecological niches and erode their biodiversity and ecological stability; (c) how they may erode the ability
of farmers to control their genetic resources to sustain their cropping systems; and (d) how much are present biosafety
protocols able to safeguard the long-term ecological and economic interests of the Philippines as a particularly
biodiversity-rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that its biodiversity is
its long-term equity to advances in biotechnology, the most robust measures must be taken so that such resources will not
be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a 3-stage approach:
Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of standards for determining the level of

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robustness of biosafety measures and protocols that would be acceptable in the particular case of the Philippines; include
required scoping and internal and external validity requirements of impact and safety assessments; Stage 2 - Using the
criteria produced in Stage 1, develop biosafety measures and protocols to be adopted in the Philippines; and Stage 3 -
Apply the protocol with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its considerations being
restricted only to specific professionals and sectors in the country; biosafety must be based on an enactment of Congress
and open to challenge and adjudication against international laws; provisions must be made to make it a crime against
humanity to recklessly erode and weaken genetic resources of our people.[92]

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant Ecology) and
B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in more than a hundred trainings
and seminars, both local and abroad; served as member in international agricultural assessment sponsored by Food and
Agriculture Organization (FAO), United Nations Environment Program (UNEP), WHO, and the World Bank; worked on
a project for development of resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served as
researcher and later Associate Professor of Environmental Management of the UP Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the following risks or hazards: (a) While
natural Bt sprays used in organic farming have little effect on non-target organisms because the bacterial 'pro-toxin' is in
an inactive state and only becomes toxic when processed and reduced in the gut of certain (targeted) species of insect
larvae, in contrast, Bt plants contain an artificial, truncated Bt gene and less processing is required to generate the toxin
because the toxin is already in its active form. It is therefore less selective, and may harm non-target insects that do not
have the enzymes to process the pro-toxin, as well as the pests for which it is intended; (b) Bt proteins from natural Bt
sprays degrade relatively quickly in the field as a result of ultraviolet light and lose most toxic activity within several days
to two weeks after application. In Bt crops, however, the Bt toxin is produced by the internal system of the plants thus
non-degradable by mere exposure to sunlight and generated throughout the entire lifespan of the plant; (c) Bt talong can
also affect the environment by harming important or beneficial insects directly or indirectly. Genetically engineered Bt
eggplant, like other Bt crops, could be harmful to non-target organisms if they consume the toxin directly in pollen or
plant debris. This could cause harm to ecosystems by reducing the numbers of important species, or reducing the numbers
of beneficial organisms that would naturally help control the pest species; (c) The evolution of resistance to Bt crops is a
real risk and is treated as such in ecological science throughout the world. If enough individuals become resistant then the
pest control fails; the pest becomes abundant and affects crop yield. Granting the pest control practice is successful, it may
also simply swap one pest for another, a phenomenon known as secondary pest outbreak. Several studies have shown that
other pest insects are filling the void left by the absence of the one (or very few) insect pests that Bt crops target, and this
is now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt talong will
eventually lead to contamination of non-genetically modified eggplant varieties. Insects, particularly honeybees, can fly as
far as 4 kilometers and therefore the 200 meters perimeter pollen trap area in the confined field testing set by BPI is not
sufficient. And once contamination occurs, genetic cleanup of eggplant or any other plant is impossible. Moreover, intra-
specific gene flow from Bt talong to other varieties and populations of eggplants should be examined, as cultivated
eggplant (Solanum melongena) can cross breed with feral populations of S. melongena, and it is possible that cultivated
varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing between Bt talong and wild
relatives. Hybridization with perhaps as many as 29 wild relative species needs to be evaluated carefully and the
consequences of any hybridization that occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision for moratorium of Bt

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Brinjal, listed potential contamination of eggplant varieties as one of the reasons why the release of Bt Brinjal was not
allowed. Dr. Andow of the University of Minnesota also published an 84-pages report on the Environmental Risk
Assessment of Bt Brinjal, and among his conclusions is that several environmental risks were not considered and nearly
all the risk assessment done were inadequate. He concluded that until the risks were understood or managed, there seems
to be little reason to approve Bt Brinjal release.[93]

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University; Molecular
Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the Council of Scientific and
Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive
Committee of the state council of Biotechnology, Government of West Bengal and Chairman of the Biotechnology group
of the state council of Science and Technology, Government of West Bengal; Visiting Professor of the National Institute
of Science, Technology and Development (CSIR-NISTAD); citizen of India and resident of Kolkata, India.

GMO is a classic example of "paradoxes of consequences", where human actions have unintended consequences, which
are in direct opposition to what was intended. The difference in controlled laboratory condition and standards, and real life
open field level micro and macro-environment pushes the advantage towards the target and non-target living system, with
time. The pest resistance to Bt toxin and development of herbicide tolerance (HT) in weeds is just a matter of time. The
decade long experience in Bt and Ht genes amply proves this point. If we ignore this now - we are manufacturing a global
environmental disaster - which will be a crime against humanity. There is no way to recall these GMO from the
environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will help the monopoly
agribusiness and the expenses of monopolistic competition or cooperative organic farming. Hot climate and rich
biodiversity is detrimental towards the effectiveness of Bt constructs, and helpful towards unintended gene flow.
Moreover, the genetic manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided by focused
laboratory based screen of traits - rather than the host or the full natural product. The GM labeling is avoided to cover up
this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness. Before going ahead
with spread of this technology, even in a batter form, the foremost task is to establish rigorous test and assessment
procedures. There are excellent available tools of preteomics, transcriptomics, and metabolomics for detailed
compositional analysis in our hand to do this. Please ask, why they are not being employed? In fact, there is not a single
centre to test GM products on behalf of the corporate GM Agribusiness house. Thus, low level, long term toxicity of GM
foods are yet to be tested. I believe the time has come to establish a standardization facility to carry out such test facility in
any country before giving permission to GM trial or cultivation.[94]

The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:

Dr. Cariño:

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

Chairperson:

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

Dr. Cariño:

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

Chairperson:

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

Dr. Cariño:

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

Chairperson:

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

Dr. Cariño:

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

Chairperson:

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

Dr. Cariño:

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

Dr. Davies:

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

Chairperson:

Proceed.

Dr. Davies:

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

xxxx

Dr. Davies:

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in corn products and
by any other people who in[g]est American maize corn products x x x. There is not a single case of illness or toxicity or
allergenicity that can be or that has been associated with this protein and, therefore, any food containing this protein has
been declared by authorities in all the countries that was mentioned by my colleagues, including the European Union and
the United States x x x to be as safe as any food derived from the same plant species not containing this gene. I hope that
explains a little bit about what it is.

Chairperson:

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

Dr. Davies:

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

xxxx

Dr. Chakraborty:

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

xxxx

Chairperson:

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

Dr. Cariño:

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

Dr. Chakraborty:

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

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There is a moratorium in India from the Supreme Court and from the government side on field trial of BT Brinjal. Now, if
x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass, and who will guarantee that it will
not go to the farmers?

xxxx

Justice Antonio-Valenzuela:

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

Dr. Davies:

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

xxxx

Dr. Davies:

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

Dr. Chakraborty:

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another news article,
"Battlefield". One stream ecologist in United States itself, in a university, she has studied the effect of growing BT Corn in

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the field and what is the effect on the stream ecology, the west water, what is happening to other insects, insects in which
it is getting that BT toxin will not go. Yes, she has found that stream ecology...

xxxx

Dr. Chakraborty:

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

Dr. Davies:

Can I respond to that, your Honors?

Dr. Malayang:

I think Filipinos should be able to talk also here.

Chairperson:

Can we give a chance to Dr. Malayang?

Dr. Malayang:

x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily the intricacies of the
science involved in genetic modification per se which, I think our international friends, would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced from the most
robust sciences, a technology could fail to be as useful as it was intended or its use lead to an [unintended harm to humans
and the environment. This is so because science, by nature, as many scientists will agree, is very probabilistic rather than
absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the Court's notice for, First, the
Nuclear Power Plants in Japan x x x. The best science and the best technology did not necessarily translate to absolute
safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production ton at its time,
yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take advantage of a large pesticide market
in India to help the country's farmers led to a massive and deadly safety failure.
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The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic chemicals for fertilizer
and pesticides that were [at] the time hailed as wonder technologies. Many scientists in the world at that time argued for
their wider use but they later turned out to harm people, soils and water. They prove good then bad, so bad that scientists
today are using their ill effects as justification for adopting alternative technologies to get us out of the synthetic chemical
regime in agriculture.

And finally, the most common example would be the unintended effects of medicine. x x x Medicines are technologies
intended to do good but, with even the best science and the vetting processes using rigid safety and risk assessment
methods, they still could cause side effects entirely undesired and many of which can cause chronic or acute threats to
human life. This includes the use of "DDT" that was used to control lice among soldiers after the II World War which,
after all, proved to be very bad.

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

xxxx

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Dr. Davies:

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

Dr. Malayang:

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

Dr. Saturnina Halos:

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

xxxx

Dr. Saturnina Halos:

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

xxxx

Dr. Halos:

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

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Dr. Malayang:

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

Dr. Halos:

No we have to know what is happening.

Dr. Malayang:

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?

Dr. Halos:

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

xxxx

Dr. Medina:

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

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This can fly as fast as something like 60 kilometers per hours so it just take may be 3 minutes and it can travel 4
kilometers and 4 kilometers is the effective flying distance of a bee in their normal foraging.

xxxx

Dr. Medina:

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

xxxx

Dr. Ebora:

xxxx

x x x I hope that we will be able to look at the experimental design and you will see that all the things are properly
addressed, our risk assessment was done step by step. x x x I beg to disagree with my friend Dr. Medina because it is
becoming ... we are confusing 2 things. We are not referring to contained trial. We are referring to confined field trial and
in the design of this particular experiment, you have your BT eggplant, your non-BT eggplant so that you can compare the
performance with the 2 crops. And, on design, you have 5 rows of plant BT eggplants that will serve as a pollen trap.
When we say pollen trap is that it just open the pollen from the transgenic. It is going to be trapped by those plants, 5
rows, and then, after that, you have a space of 200 meters surrounding the field which is the isolation distance. That means
no eggplant should be present in that particular distance because that is the isolation distance that is found to be safe, x x x
we know that Bt protein is very specific x x x effective only against caterpillar x x x if they are eaten by other organism,
they are not affected because it is very specific. The gut of the larva is very alkaline while the gut of other insects is likely
acidic and, in that case, it does not have any harmful effect. x x x So another thing is we are saying that it seems to be
ridiculous that you are saying that honeybee is going to fly from the fence and the size were even indicated. I would like
to indicate that, that is not the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is
quite, unfortunately, being done by other groups who are against the technology. x x x We should be able to have our own
space, our own time, considering the given regulation. Follow them. But our experimentation not be destroyed because it
is only then that we will be able to get the valuable data that is needed for an informed decision. Without that we will not
be able to proceed and I hope we can discuss this based on the merits of the field trial, not from any other concern because
the writ of kalikasan is about the effect of field trial in the environment.

Dr. Medina:

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the "CrylAcc" is
specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can read by chemical and by
physical research communications this is Volume 271, pages 54-58, authored by Vasquez Pardonnet, published in 2000,
publication under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small intestine. Small intestine
ay mammal po iyan so, meaning, it is a proxy animal for safety [testing] to humans because we are also mammals so, the
mice are usually the mammals 12 years ago, the data has been already there that there is binding site, therefore it is not
only specific to insects but also to mammals, x x x he is saying that, by working on the natural BT is the same as the
transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids. And the transformed GM Crop

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contains a fragment of that BT gene which is only half of that. And the mechanism, by the way, x x x the natural toxin is
broken into smaller pieces inside the intestine of the insects because it is alkaline in terms of its system "ph" and for
humans acidic. So it does not work. But, because the transformed BT is already half, almost half of the normal or
natural[ly] occurring BT protein, it is already activated and, in that case, that is the reason why there is a test and
immediate effect to non-insect, meaning, to mammal, so that is the explanation of scientist doing studies on that aspect.

x x xx

Dr. Chakraborty:

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

xxxx

Justice Antonio-Valenzuela:

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

Dr. Halos:

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

xxxx

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Dr. Malayang:

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

Dr. Halos:

Well, the price is dictated by the market.

Dr.Malayang:

That is precisely the point.

Dr. Halos:

Yes.

Dr. Malayang:

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

xxxx

Dr. Ebora:

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are independent
studies. And, precisely, this is to determine the effect on natural enemies and the different insects x x x and some of those
are already available, x x x you will be able to protect the environment only if you know how to have a proper information
in making the decision. So, again, I am saying that, in field trial, you will be generating a lot of information that you will
be able to use in making a wise decision and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding butterflies and moths.
Because they are not affected by BT because they are adult insects. The only one that is affected are actually the larva, not
even the pupa. So, we would like that to be clear because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime and that is the reason
why we have a continuous breeding program. So, it is a natural mechanism by an organism as mode of ad[a]potation. x x
195
x are you telling us that we are going to stop our breeding work because, anyway, they are going to develop resistance. I
think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you can have the
effect if you have, for example, the insects, you have a receptor. The toxin will bind into the receptor. Toxin has to fall
and then the toxin has re-insert into the membrane. If you eliminate one of those steps you do not have any toxicity. So,
that means binding by itself will not be toxicity. It is a wrong impression that, since you have binding, there will be
toxicity. It is simply wrong because, the actuality that it should bind, it should fall then, it should insert, and it is a very
common x x x. To say that binding is equivalent to toxicity is simply not true.

The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is basically the entire
crystal protein. If it is already inside the gut of the insect it has to be clipped by the purchase coming from the gut and you
have it activated and you have the toxin. So what you have in plant is already the toxin since the anther and the toxin, and
the toxin in microorganisms, the anther which are already clipped by a purchase are the same. So, to say that they are
different is actually wrong. You are comparing protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is why you have to
characterize them and you have to separate the protein that are causing problem and protein that are not causing problem.
That is why you have allergen and, as explained by Dr. Cariño, you have to check the sequence. x x x

xxxx

Dr. Chakraborty:

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

196
scale farming to completely automated for BT technology where no label will be there. But the failed experiments, the
contracts whose patent will be over within 2-3 years, they are testing them in our country. So that is the bottom line.

xxxx

Chairperson:

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

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

Dr. Cariño:

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

Chairperson:

But there is no absolute certainty?

Dr. Cariño:

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

Chairperson:

That is your opinion.[95]

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

Before proceeding to the current state of global GMO research, we briefly address the strong objection of petitioners to
the CA's reliance on the research conducted by Prof. Seralini, the French scientist whose study was published in
September 2012 in Food and Chemical Toxicology, which was criticized as a "controversial feeding study." Seralini
studied rats consuming Monsanto's Roundup Ready treated corn for two years (using the same kind of rats prone to
tumors used by Monsanto in obtaining original approval for its product and the same methodologies, but did it for 2 years
which is longer than the 90-day experiment period done by Monsanto). The rats formed massive cancerous tumors. All
three test groups of rats, with 10 rats in each group, died more frequently, suffered from liver problems, and had a

197
pronounced number of tumors specifically with grotesque mammary and testicular tumors.[96]

Seralini's findings created an uproar and the study was expunged from the publication in November 2013 even though the
Editor-in-Chief found no evidence of fraud or intentional misrepresentation of the data. Seralini stood by his work and
further conducted similar laboratory experiments. Critics faulted the experimental method, saying the number of rats
studied was too small and their diet was skewed when compared with their natural food intake. But over 300 scientists
condemned the retraction, they said that the retraction lacked scientific integrity and requested to reinstate the study. Last
June 2014, Seralini's controversial study was republished and has passed a third peer review arranged by the journal that
is republishing the study, Environmental Sciences Europe. The republished version contains extra material addressing
criticisms of the original publication and the raw data underlying the study's findings, and accompanied by a separate
commentary by Prof. Seralini's team describing the lobbying efforts of GMO crop supporters to force the editor of the
Food and Chemical Toxicology to retract the original publication.[97]

The aforesaid incident serves to underscore the crucial role of scientists in providing relevant information for effective
regulation of GMOs. There can be no argument that "[s]ince scientific advice plays a key role in GMO regulations,
scientists have a responsibility to address and communicate uncertainty to policy makers and the public." [98]

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by extensive use at
present of GM technology in agriculture. The global area of GM crops has reached over 175 million hectares in 2013,
more than a hundredfold increase from 1.7 million hectares in 1996.[99] However, the worldwide debate on safety issues
involving GM foods continues.

It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of the technology itself.
The process of combining inter-species genes, which is called recombinant DNA technology, does not have the checks
and balances that are imposed by nature in traditional breeding. Because of this there is a risk of genetic instability. This
means that no one can make any accurate predictions about the long-term effects of GMOs on human beings and the
environment. Extensive testing in this regard is either very expensive or impractical, and there is still a great deal about
the process that scientists do not understand.[100]

The basic concepts for the safety assessment of foods derived from GMOs have been developed in close collaboration
under the auspices of the Organization for Economic Co-operation and Development (OECD) and the United Nations
World Health Organization (WHO) and Food and Agricultural Organization (FAO). The OECD's group of experts on
biosafety recommended conducting the safety assessment of a GM food on case-by-case basis through comparison to an
existing food with a long history of safe use. Thus, the concept of substantial equivalence was developed that is widely
used by national and international agencies, including the US Food and Drug Administration (FDA), the WHO, OECD
and the FAO.[101]

"Substantial equivalence embodies the concept that if a new food or food component is found to be substantially
equivalent to an existing food or food component, it can be treated in the same manner with respect to safety (i.e., the food
or food component can be concluded to be as safe as the conventional food or food component)." [102] The safety
assessment of a genetically modified food is directed by the results of a comparison between the genetically modified
food and its conventional counterpart. It follows a stepwise process aided by a series of structured questions. Factors taken
into account in the safety assessment include:

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• identity;

• source;

• composition;

• effects of processing/cooking;

• transformation process;

• the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

• protein expression product of the novel DNA:

• effects on function;

• potential toxicity;

• potential allergenicity;

• possible secondary effects from gene expression or the disruption of the host DNA or metabolic pathways, including
composition of critical macro, micro-nutrients, anti-nutrients, endogenous toxicants, allergens, and physiologically active
substances; and,

• potential intake and dietary impact of the introduction of the genetically modified food.[103]

The above factors are particularly pertinent to the assessment of foods derived from genetically modified plants.[104]
However, the concept of substantial equivalence as the starting point of risk assessment was criticized for being
"unscientific and arbitrary" and "intentionally vague and ill-defined to be as flexible, malleable, and open to interpretation
as possible." It is likewise argued that "comparisons are designed to conceal significant changes resulting from genetic
modifications," "the principle is weak and misleading even when it does not apply, effectively giving producers carte
blanche", and that there is insufficiency of background information for assessing substantial equivalence. A paper
presented at a WHO workshop pointed out that the main difficulty associated with the biosafety assessment of transgenic
crops is the unpredictable nature of transformation. This unpredictability raises the concern that transgenic plants will
behave in an inconsistent manner when grown commercially.[105]

The method of testing GM foods was further described as inadequate, as currently the testing procedures consist almost
exclusively of specific chemical and biochemical analytical procedures designed to quantitate a specific nutrient or a
specific toxin or allergen. It was noted that in actual practice, the investigator compares only selected characteristics of the
genetically engineered food to those of its non-genetically engineered counterpart. These testing schemes are viewed as
completely incapable of detecting unsuspected or unanticipated health risks that are generated by the process of genetic
engineering itself. Hence, clinical tests are recommended because only such tests have the broad specificity and relevance
to human physiology needed to detect the wide range of allergens and toxins that might result from unexpected side-
effects of the genetic engineering process.[106]

In another review article, it was pointed out that since a genetic modification is aimed at introducing new traits into
organisms, the result will always be a different composition of genes and proteins. The most reasonable interpretation
therefore is that a food derived from a GMO is considered substantially equivalent to its traditional counterpart if the

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genetic modification has not resulted in intended or unintended alterations in the composition of relevant nutrients and
inherent toxicants of the organism, and that the new genes and proteins have no adverse impact on the dietary value of the
food and do not therefore pose any harm to the consumer or the environment. It was thus concluded that establishing
substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to analyze the safety of a new food, and
hence in the testing of new foods, the latest scientific methods have to be used. All conceivable efforts to protect
consumers from health risks should thus be made, and at the same time, consumers should be adequately informed about
the real extent of risks and hazards.[107]

The GMO global debate has so intensified that each side has accused the other camp of mounting "paid advocacy" and
criticizing studies adverse to their respective positions as flawed or unscientific. Both the agri-business industry, and
groups opposed to GMOs including the organic farming industry, had utilized enormous resources and funds for lobbying
and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked reduction in the use of harmful
chemical pesticides.[108] The resulting increase in crop yields grown on relatively small parcels of land is also regarded as
a solution to the problem of feeding a fast growing world population. Proponents of GM biotechnology insist that GM
foods are safe to humans and the environment based on scientific studies. On the other hand, anti-GM activists
disseminate adverse results of recent studies confirming the health and environmental hazards of genetically engineered
crop farming. Also, some countries have maintained a firm stance against genetically engineered crops or GM foods, such
as France and Austria. Over the years, however, accumulated evidence of the dangers of GMOs, as well as unrealized
socio-economic benefits, has been increasingly recognized by the scientific community.

That GE farming increases crop yield has been debunked by new studies proving the contrary. In the article, "GM Crops
Do Not Increase Yield Potential," the Institute for Responsible Technology cited reports from actual field studies in
different countries revealing downward figures for Bt crops, as summarized below:

• Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM counterparts.

• Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with the disruptive effect
of the GM transformation process accounting for approximately half the drop in yield.

• Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the International
Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM crop yields were "highly
variable" and in some cases, "yields declined".

• The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed studies conducted by
academic scientists using adequate controls, concluded that genetically engineered herbicide tolerant soybeans and
herbicide-tolerant corn has not increased yields while insect-resistant corn has only marginally improved yields.
Traditional breeding outperforms genetic engineering hands down.

• In developing countries, crop failure can have severe consequences as illustrated in India, where a large number of
cotton farmers, unable to pay back high interest loans, have committed suicide. Several investigations have implicated the
unreliable performance of Bt cotton as a major contributor.

• Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems and no increase in
yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of 2004, 85% of the original Bt cotton
farmers had given up while those remaining had to be subsidized by the government. Similarly in the US, Bt cotton yields
are not necessarily consistent or more profitable.[109]
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GM technology is thus seen as a failure in terms of addressing food security; rather, it supports corporate control and
impedes common persons' access to adequate food. The root cause of hunger is not a lack of food, GM critics say, but a
lack of access to food. The poor lack money to buy food and lack of land on which to grow it. It is essential to follow
sustainable traditional farming practices that keeps food production in the hands of small-scale farmers, thereby reducing
corporate control.[110]

As regards the existing uncertainties of potential long-term effects of the release into the environment of GMOs, the
BEETLE (Biological and Ecological Evaluation towards Long-term Effects) study of 2009,[111] made for the European
Commission, analyzed more than 700 scientific publications from all over the world about GMOs and their potential
effects on environment including biodiversity, and received contributions to online surveys from 100 to 167 invited
environmental experts. This study declared the following uncertainties:

• increased fitness of GM plants;

• outbreeding depression after hybridization with wild relatives;

• outcrossing between related species and the fate of a transferred GM trait;

• altered flower phenology;

• altered fecundity, increasing seed (gene) flow;

• increased frequency of horizontal gene flow;

• resistance development of pests;

• effects on non-target organisms;

• effects on non-target organisms due to altered nutritional composition of the GM plant;

• effects on non-target organisms due to accumulation of toxic compounds;

• effects on rhizo sphere microbiota;

• effects on symbiotic non-target organisms;

• changes in soil functions caused by GM traits;

• effects on biological control;

• altered use of agrochemicals;

• indirect changes in susceptibility of crops against pathogens;

• adverse effects on agro-biodiversity;

• indirect effects in fertilizer use;

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• potential changes in landscape structure;

• increased production of greenhouse gases;

• increased mineral nutrient erosion and fertilizer leaching;

• altered chemical attributes of soil fraction;

• emerging of stacked events;

• the necessity of regional differentiation of risk assessments.[112]

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

While existing literature on health effects of GM foods indicates that they are generally safe, and similar conclusions have
been drawn by government agencies and scientific organizations such as FAO/WHO and Society of Toxicology, a
growing number of independent scientists have spoken strongly against such generalizations from limited research mostly
sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82 countries expressed
that they are extremely concerned about the hazards of GMOs to biodiversity, food safety, human and animal health, and
demanded a moratorium on environmental releases in accordance with the precautionary principle. They are opposed to
GM crops that will intensify corporate monopoly, exacerbate inequality and prevent the essential shift to sustainable
agriculture that can provide food security and health around the world, and called a ban on patents of life forms and living
processes which threaten food security, sanction biopiracy of indigenous knowledge and genetic resources and violate
basic human rights and dignity.[115]

On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an Independent Science
Panel on GM at a public conference in London. On June 15, 2003, they released a Final Report[116] as their contribution to
the National GM Debate in UK. In a summary[117] of the final report, these scientists declared the following:

The Case for a GM-Free Sustainable World - A Summary

Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

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o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

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

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in claiming GM
products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the transgenic process or
the transgenic construct, and may hence be general to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects, and some are
potent immunogens and allergens for humans and other mammals

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o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to suppress the
immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects; vaccines and viral sequences
such as the 'spike' protein gene of the pig coronavirus, in the same family as the SARS virus linked to the current
epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system and recombine
with viruses and bacteria to generate new and unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the spread of transgenes,
actually spread both male sterility and herbicide tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account for 75% of all GM
crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological toxicities, and birth
defects in humans and mammals; also toxic to butterflies and a number of beneficial insects, to larvae of clams and
oysters, Daphnia and some freshwater fish, especially the rainbow trout; it inhibits beneficial soil bacteria and fungi,
especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to many body functions
have been reported after exposures at normal use levels; glyphosate exposure nearly doubled the risk of late spontaneous
abortion, and children born to users of glyphosate had elevated neurobehavioral defects; glyphosate retards development
of the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is genotoxic in mammals, fish and frogs;
field dose exposure of earthworms caused at least 50 percent mortality and significant intestinal damage among surviving
worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction that may be linked to human
cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances the scope and
probability of horizontal gene transfer and recombination, the main route to creating viruses and bacteria that cause
disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the laboratory millions of
recombinant viruses that have never existed in billions of years of evolution

o Disease-causing viruses and bacteria and their genetic material are the predominant materials and tools of genetic
engineering, as much as for the intentional creation of bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

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o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human volunteers;
antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria, making infections very difficult
to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian cells, raising the
possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for human beings
consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially unstable and prone to
horizontal gene transfer and recombination, with all the attendant hazards: gene mutations due to random insertion,
cancer, re-activation of dormant viruses and generation of new viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence, especially on horizontal gene
transfer. Key experiments failed to be performed, or were performed badly and then misrepresented. Many experiments
were not followed up, including investigations on whether the CaMV 35S promoter is responsible for the 'growth-factor-
like' effects observed in young rats fed GM potatoes.

GM crops have failed to deliver the promised benefits and are posing escalating problems on the farm. Transgenic
contamination is now widely acknowledged to be unavoidable, and hence there can be no co-existence of GM and
non-GM agriculture. Most important of all, GM crops have not been proven safe. On the contrary, sufficient
evidence has emerged to raise serious safety concerns, that if ignored could result in irreversible damage to health
and the environment. GM crops should therefore be firmly rejected now.

The ISP further concluded that [s]ustainable agricultural practices have proven beneficial in all aspects relevant to health
and the environment. In addition, they bring food security and social and cultural well being to local communities
everywhere. There is an urgent need for a comprehensive global shift to all forms of sustainable agriculture.[118]

In 2008, a Global Report[119] was released by the International Assessment of Agricultural Knowledge, Science and
Technology for Development (IAASTD), a three-year international collaborative effort (2005-2007) developed out of a
consultative process involving 900 participants and 110 countries from all over the world. This global initiative assessed
agricultural knowledge, science and technology (AKST) in relation to meeting development and sustainability goals of (1)
reducing hunger and poverty; (2) improving nutrition, health and rural livelihoods; and (3) facilitating social and
environmental sustainability. The report concluded that a radical transformation of the world's food and farming systems -
especially the policies and institutions that affect them - is necessary if we are to overcome converging economic and
environmental crises and feed the world sustainably. It also warned that technologies such as high-yielding crop varieties,
agrochemicals and mechanization have primarily benefited the better-resourced groups in society and transnational
corporations, rather than the most vulnerable ones. In general, the IAASTD found little evidence to support a conclusion
that modern biotechnologies are well suited to meeting the needs of small-scale and subsistence farmers, particularly
under the increasingly unpredictable environmental and economic conditions tha they face.[120]
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More recently, in 2013, the European Network of Scientists for Social and Environmental Responsibility (ENSSER), an
international group of more than 90 scientists, academics and physicians, released a statement that there is no scientific
consensus on the safety of GM foods and crops.[121] The statement[122] is herein reproduced:

10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social and safety
assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by GM seed developers and
some scientists, commentators, and journalists that there is a "scientific consensus" on GMO safety and that the debate on
this topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO safety does not exist. The claim that it
does exist is misleading and misrepresents the currently available scientific evidence and the broad diversity of opinion
among scientists on this issue. Moreover, the claim encourages a climate of complacency that could lead to a lack of
regulatory and scientific rigour and appropriate caution, potentially endangering the health of humans, animals, and the
environment.

Science and society do not proceed on the basis of a constructed consensus, as current knowledge is always open to well-
founded challenge and disagreement. We endorse the need for further independent scientific inquiry and informed public
discussion on GM product safety and urge GM proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of animal feeding
studies of GM crops found "An equilibrium in the number [of] research groups suggesting, on the basis of their studies,
that a number of varieties of GM products (mainly maize and soybeans) are as safe and nutritious as the respective
conventional non-GM plant, and those raising still serious concerns". The review also found that most studies concluding
that GM foods were as safe and nutritious as those obtained by conventional breeding were "performed by biotechnology
companies or associates, which are also responsible [for] commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are safe included studies that
found significant differences in the GM-fed animals. While the review authors dismissed these findings as not biologically
significant, the interpretation of these differences is the subject of continuing scientific debate and no consensus exists on
the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding studies in which
one group of animals is fed GM food and another group is fed an equivalent non-GM diet. Independent studies of this
type are rare, but when such studies have been performed, some have revealed toxic effects or signs of toxicity in the GM-
fed animals. The concerns raised by these studies have not been followed up by targeted research that could confirm or
refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent research calls of the
European Union and the French government to investigate the long-term health impacts of GM food consumption in the
light of uncertainties raised by animal feeding studies. These official calls imply recognition of the inadequacy of the
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relevant existing scientific research protocols. They call into question the claim that existing research can be deemed
conclusive and the scientific debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM food consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no epidemiological
studies in human populations have been carried out to establish whether there are any health effects associated with GM
food consumption. As GM foods are not labelled in North America, a major producer and consumer of GM crops, it is
scientifically impossible to trace, let alone study, patterns of consumption and their impacts. Therefore, claims that GM
foods are safe for human health based on the experience of North American populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or that they are no
more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of the regulatory
system for GM foods and crops in that country. The report declared that it is "scientifically unjustifiable" to presume that
GM foods are safe without rigorous scientific testing and that the "default prediction" for every GM food should be that
the introduction of a new gene will cause "unanticipated changes" in the expression of other genes, the pattern of proteins
produced, and/or metabolic activities. Possible outcomes of these changes identified in the report included the presence of
new or unexpected allergens.

A report by the British Medical Association concluded that with regard to the long-term effects of GM foods on human
health and the environment, "many unanswered questions remain" and that "safety concerns cannot, as yet, be dismissed
completely on the basis of information currently available". The report called for more research, especially on potential
impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly qualified, acknowledging data gaps and
potential risks, as well as potential benefits, of GM technology. For example, a statement by the American Medical
Association's Council on Science and Public Health acknowledged "a small potential for adverse events ... due mainly to
horizontal gene transfer, allergenicity, and toxicity" and recommended that the current voluntary notification procedure
practised in the US prior to market release of GM crops be made mandatory. It should be noted that even a "small
potential for adverse events" may turn out to be significant, given the widespread exposure of human and animal
populations to GM crops.

A statement by the board of directors of the American Association for the Advancement of Science (AAAS) affirming the
safety of GM crops and opposing labelling cannot be assumed to represent the view of AAAS members as a whole and
was challenged in an open letter by a group of 21 scientists, including many long-standing members of the AAAS. This
episode underlined the lack of consensus among scientists about GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and food safety. However, the
report based on this project, "A Decade of EU-Funded GMO Research", presents no data that could provide such
evidence, from long-term feeding studies in animals.

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Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the development of safety
assessment approaches". Only five published animal feeding studies are referenced in the SAFOTEST section of the
report, which is dedicated to GM food safety. None of these studies tested a commercialised GM food; none tested the
GM food for long-term effects beyond the subchronic period of 90 days; all found differences in the GM-fed animals,
which in some cases were statistically significant; and none concluded on the safety of the GM food tested, let alone on
the safety of GM foods in general. Therefore the EU research project provides no evidence for sweeping claims about the
safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies "document the general safety and
nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the studies listed reveals that many do
not provide evidence of GM food safety and, in fact, some provide evidence of a lack of safety. For example:

• Many of the studies are not toxicological animal feeding studies of the type that can provide useful information about
health effects of GM food consumption. The list includes animal production studies that examine parameters of interest to
the food and agriculture industry, such as milk yield and weight gain; studies on environmental effects of GM crops; and
analytical studies of the composition or genetic makeup of the crop.

• Among the animal feeding studies and reviews of such studies in the list, a substantial number found toxic effects and
signs of toxicity in GM-fed animals compared with controls. Concerns raised by these studies have not been satisfactorily
addressed and the claim that the body of research shows a consensus over the safety of GM crops and foods is false and
irresponsible.

• Many of the studies were conducted over short periods compared with the animal's total lifespan and cannot detect long-
term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they do not "document the
general safety and nutritional wholesomeness of GM foods and feeds". Rather, some of the studies give serious cause for
concern and should be followed up by more detailed investigations over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target organisms and effects of
the herbicides used in tandem with herbicide-tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A review of
environmental risk assessment approaches for GM crops identified shortcomings in the procedures used and found "no
consensus" globally on the methodologies that should be applied, let alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse effects on non-target and beneficial
organisms - effects that are widely neglected in regulatory assessments and by some scientific commentators. Resistance
to Bt toxins has emerged in target pests, and problems with secondary (non-target) pests have been noted, for example, in
Bt cotton in China.

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Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies have associated
them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and adverse health effects in human and
animal populations exposed to Roundup, the herbicide used on the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be correlated with
funding sources. A peer-reviewed survey of the views of 62 life scientists on the environmental risks of GM crops found
that funding and disciplinary training had a significant effect on attitudes. Scientists with industry funding and/or those
trained in molecular biology were very likely to have a positive attitude to GM crops and to hold that they do not
represent any unique risks, while publicly-funded scientists working independently of GM crop developer companies
and/or those trained in ecology were more likely to hold a "moderately negative" attitude to GM crop safety and to
emphasize the uncertainty and ignorance involved. The review authors concluded, "The strong effects of training and
funding might justify certain institutional changes concerning how we organize science and how we make public
decisions when new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by GM foods and crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The Cartagena Protocol
is an international agreement ratified by 166 governments worldwide that seeks to protect biological diversity from the
risks posed by GM technology. It embodies the Precautionary Principle in that it allows signatory states to take
precautionary measures to protect themselves against threats of damage from GM crops and foods, even in case of a lack
of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years to develop
international guidelines for the assessment of GM foods and crops, because of concerns about the risks they pose. These
guidelines were adopted by the Codex Alimentarius Commission, of which over 160 nations are members, including
major GM crop producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they agree that genetic
engineering differs from conventional breeding and that safety assessments should be required before GM organisms are
used in food or released into the environment.

These agreements would never have been negotiated, and the implementation processes elaborating how such safety
assessments should be conducted would not currently be happening, without widespread international recognition of the
risks posed by GM crops and foods and the unresolved state of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and foods that have
shown adverse effects on animal health and non-target organisms, indicated above. Many of these studies have, in fact,
fed into the negotiation and/or implementation processes of the Cartagena Protocol and Codex. We support the application
of the Precautionary Principle with regard to the release and transboundary movement of GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate that the totality of scientific research
outcomes in the field of GM crop safety is nuanced, complex, often contradictory or inconclusive, confounded by
researchers' choices, assumptions, and funding sources, and in general, has raised more questions than it has currently
answered.

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Whether to continue and expand the introduction of GM crops and foods into the human food and animal feed supply, and
whether the identified risks are acceptable or not, are decisions that involve socioeconomic considerations beyond the
scope of a narrow scientific debate and the currently unresolved biosafety research agendas. These decisions must
therefore involve the broader society. They should, however, be supported by strong scientific evidence on the long-term
safety of GM crops and foods for human and animal health and the environment, obtained in a manner that is honest,
ethical, rigorous, independent, transparent, and sufficiently diversified to compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading and misrepresentative claims that a
"scientific consensus" exists on GMO safety.[123]

One of the most serious concerns raised against GM crops is that expressed by one of our political analysts now serving in
Congress, viz:

x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and marginalize small farmers.
As the statement x x x of the 81 members of the World Future Council put it, "While profitable to the few companies
producing them, GMO seeds reinforce a model of farming that undermines sustainability of cash-poor farmers, who make
up most of the world's hungry. GMO seeds continue farmers' dependency on purchased seed and chemical inputs. The
most dramatic impact of such dependency is in India, where 270,000 farmers, many trapped in debt for buying seeds and
chemicals, committed suicide between 1995 and 2012."[124]

In sum, current scientific research indicates that the biotech industry has not sufficiently addressed the uncertainties over
the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important ingredient in Ayurvedic
medicine, and is of special value for the treatment of diabetes and liver problems. The attempted commercial propagation
of Bt brinjal spawned intense debate and suffered obstacles due to sustained opposition from local scientists, academicians
and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of eggplant's diversity, said
that if the new technology is adopted, decrease in the use of insecticides, substantial increase in crop yields and greater
food availability, can be expected. But opponents argued, alongside food safety concerns, that there is a potential for toxic
effects on populations of non-target invertebrates, and potential replacement of traditional landraces as farmers may move
towards cultivation of a restricted number of GE forms. In addition to these issues, there was the additional concern raised
over the transfer of Bt transgenes to non-GE brinjal or its wild relatives, and the consequences for plant biodiversity.[125]

Writ petitions were lodged before the Supreme Court of India to stop the release into the environment of Bt brinjal (Aruna
Rodrigues and Ors, etc. vs. Union of India). The Court formed a Technical Evaluation Committee (TEC) composed of
experts nominated by the parties to undertake a comprehensive evaluation of the feasibility of allowing the open field
trials of Bt brinjal and submit a final report, and in the event the TEC is unable to submit said final report, it was directed
instead to submit an interim report within the period set by the Court on the following issue: "Whether there should or
should not be any ban, partial or otherwise, upon conducting of open field tests of the GMOs? In the event open field
trials are permitted, what protocol should be followed and conditions, if any, that may be imposed by the Court for
implementation of open field trials." The Court also directed that the TEC would be free to review report or studies
authored by national and international scientists if it was necessary.

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In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all field trials should be
stopped until certain conditions have been met. A Final Report[126] was eventually submitted to the Court which noted
weaknesses in the conditions imposed by the regulatory agencies for conduct of field trials, as follows: 1) post-release
monitoring, an important aspect of environmental and health safety (if the GE crop is consumed as food) is not given
adequate attention; 2) the importance of need and socio-economic impact assessment of GM products as one of the
criteria that should be applied in the evaluation at an early stage; and 3) need for additional tests not currently done such
as long-term feeding studies for assessment of chronic and intergeneration toxicity in small animals, genomewide
expression analysis in the toxicity studies to screen for possible unintended effects on host physiology. It was
recommended that a moratorium on field trials of herbicide tolerant crops until the issue had been examined by an
independent committee, and also noted that said technology may not be suitable in the Indian socio-economic context due
to possible impact of extensive use of broad spectrum herbicides on the environmental biodiversity and smaller average
farm size. Examination of the safety dossier of Bt brinjal indicated certain concerns on the data, which had not been
addressed in the course of regulatory testing leading to approval due to lack of full-time qualified personnel for the
purpose. Overall, it was found that the quality of information in several of the applications is far below what would be
expected and required for rigorous evaluation by a regulatory body and is unlikely to meet international regulatory
guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain conditions for
CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally believed that Cry toxins do not
exert an effect on vertebrates as vertebrates lack the receptor for Cry toxins, two studies (one in mice and the other in
cows) have provided evidence that Cry proteins can bind to mammalian intestinal epithelial cells. The report also
discussed the emergence of resistance in insect pests, health and food safety of Bt transgenics, and herbicide tolerant crops
and their effect on biodiversity and the environment. Specific recommendations were made to address the foregoing issues
and the report concluded that:

The release of a GM crop into its area of origin or diversity has far greater ramifications and potential for negative impact
than for other species. To justify this, there needs to be extraordinarily compelling reasons and only when other choices
are not available. GM crops that offer incremental advantages or solutions to specific and limited problems are not
sufficient reasons to justify such release. The TEC did not find any such compelling reasons under the present conditions.
The fact is that unlike the situation in 1960s there is no desperate shortage of food and in fact India is in a reasonably
secure position. The TEC therefore recommends that release of GM crops for which India is a centre of origin or diversity
should not be allowed.[127]

In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment minister Jairam
Ramesh placed an indefinite moratorium on its further field testing. This was done after discussions with scientists, both
pro and anti-GM crops, activists and farmers across the country.

GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed primarily by DAO 08-
2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and FPA all maintain there was no unlawful
deviation from its provisions and that respondents so far failed to present evidence to prove their claim that Bt talong field
trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory body, was tasked to
"evaluate the potential risks of the proposed activity to human health and the environment based on available scientific
and technical information." Under DA Special Order 241 and 384 (2002) the STRP membership was expanded to include
"an independent pool of experts ... tapped by the [BPI] to evaluate the potential risks of the proposed release of GMOs for
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field testing, propagation, food, feed to human health and the environment based on available scientific and technical
information."

DAO 08-2002 supplements the existing guidelines on the importation and release into the environment of products of
modern biotechnology by institutionalizing existing operational arrangements between DA-BPI and the NCBP. Effective
July 2003, applications for field test are received and processed by DA-BPI, but the approval process for projects on
contained use remains under the supervision of NCBP. A mandatory risk assessment of GM plant and plant products is
required prior to importation or release into the environment. Experiments must first be conducted under contained
conditions, then the products are tested in field trials the product is reviewed for commercial release. Risk assessment is
done according to the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment is science-based,
carried out on a case by case manner, targets a specific crop and its transformation event, adopts the concept of substantial
equivalence in identifying risk, allows review, and provides that the absence of scientific information or consensus should
not be interpreted to indicate the absence or presence and level of risk.[128]

Greenpeace, however, claims there is actually only a committee of three to five members which conducts the risk
assessment, and is aided by an informal group, the DA's Biotech Advisory Team (BAT), of representatives from
government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST. It also assails the government
regulatory agencies for their refusal to open to scrutiny the names and qualifications of those incharge of regulation and
risk assessment, and for allowing the entry and use of all GMO applications requested by multinational companies.[129]

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for regulating field trials of GM
plants and plant products. EO 514[130] establishing the National Biosafety Framework (NBF) clearly provides that the NBF
shall apply to the development, adoption and implementation of all biosafety policies, measures and guidelines and in
making biosafety decisions concerning the research, development, handling and use, transboundary movement, release
into the environment and management of regulated articles.[131] The objective of the NBF is to "[e]nhance the decision-
making system on the application of products of modern biotechnology to make it more efficient, predictable, effective,
balanced, culturally appropriate, ethical, transparent and participatory".[132] Thus, "the socio-economic, ethical, and
cultural benefit and risks of modern biotechnology to the Philippines and its citizens, and in particular on small farmers,
indigenous peoples, women, small and medium enterprises and the domestic scientific community, shall be taken into
account in implementing the NBF."[133] The NBF also mandates that decisions shall be arrived at in a transparent and
participatory manner, recognizing that biosafety issues are best handled with the participation of all relevant stakeholders
and organizations who shall have appropriate access to information and the opportunity to participate responsibly and in
an accountable manner in biosafety decision-making process.[134]

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:

2.6 Using Precaution. - In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant provisions of the
Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the precautionary approach shall
guide biosafety decisions. The principles and elements of this approach are hereby implemented through the decision-
making system in the NBF;

The NBF contains general principles and minimum guidelines that the concerned agencies are expected to follow and
which their respective rules and regulations must conform with. In cases of conflict in applying the principles, the
principle of protecting public interest and welfare shall always prevail, and no provision of the NBF shall be construed as
to limit the legal authority and mandate of heads of departments and agencies to consider the national interest and public
welfare in making biosafety decisions.[135]

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As to the conduct of risk assessment to identify and evaluate the risks to human health and the environment, these shall be
guided by the following:

5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a RA to determine
whether a regulated article poses significant risks to human health and the environment:

5.2.1.1The RA shall be carried out in a scientifically sound and transparent manner based on available scientific and
technical information. The expert advice of and guidelines developed by, relevant international organizations,
including intergovernmental bodies, and regulatory authorities of countries with significant experience in
the regulatory supervision of the regulated article shall be taken into account in the conduct of risk
assessment;

5.2.1.2Lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a particular level of
risk, an absence of risk, or an acceptable risk;

5.2.1.3The identified characteristics of a regulated article and its use which have the potential to pose significant risks to
human health and the environment shall be compared to those presented by the non-modified organism from which
it is derived and its use under the same conditions;

5.2.1.4The RA shall be carried out case-by-case and on the basis of transformation event. The required information may
vary in nature and level of detail from case to case depending on the regulated article concerned, its intended use
and the receiving environment; and,

5.2.1.5If new information on the regulated article and its effects on human health and the environment becomes available,
and such information is relevant and significant, the RA shall be readdressed to determine whether the risk has
changed or whether there is a need to amend the risk management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies shall be in accordance
with the policies and standards on RA issued by the NCBP. Annex III of the Cartagena Protocol shall also guide RA. As
appropriate, such department and agencies may issue their own respective administrative issuances establishing the
appropriate RA under their particular jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety decisions shall be
determined by concerned departments and agencies subject to the requirements of law and the standards set by
the NCBP. Where applicable and under the coordination of the NCBP, concerned departments and agencies shall issue
joint guidelines on the matter. (Emphasis supplied)

Considering the above minimum requirements under the most comprehensive national biosafety regulation to date,
compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7 of the NBF mandates a more
transparent, meaningful and participatory public consultation on the conduct of field trials beyond the posting and
publication of notices and information sheets, consultations with some residents and government officials, and submission
of written comments, provided in DAO 08-2002.

SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety policies, guidelines and
measures and in making biosafety decisions, shall promote, facilitate, and conduct public awareness, education,
meaningful, responsible and accountable participation. They shall incorporate into their respective administrative

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issuances and processes best practices and mechanisms on public participation in accordance with the following
guidelines:

7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety decision-making
process from the time the application is received. For applications on biotechnology activities related to research and
development, limited primarily for contained use, notice of the filing of such application with the NCBP shall be
sufficient, unless the NCBP deems that public interest and welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation processes, the following
minimum requirements shall be followed:

7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which they have
access. Such notice must be adequate, timely, and effective and posted prominently in public places in the areas affected,
and in the case of commercial releases, in the national print media; in all cases, such notices must be posted electronically
in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should allow relevant
stakeholders to understand and analyze the benefits and risks, consult with independent experts, and make timely
interventions. Concerned departments and agencies shall include in their appropriate rules and regulations specific time
frames for their respective public participation processes, including setting a minimum time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These could include
formal hearings in certain cases, or solicitation of public comments, particularly where there is public controversy about
the proposed activities. Public consultations shall encourage exchanges of information between applicants and the public
before the application is acted upon. Dialogue and consensus-building among all stakeholders shall be encouraged.
Concerned departments and agencies shall specify in their appropriate rules and regulations the stages when public
consultations are appropriate, the specific time frames for such consultations, and the circumstances when formal hearings
will be required, including guidelines to ensure orderly proceedings. The networks of agricultural and fisheries
councils, indigenous peoples and community-based organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public participation
in writing or through public hearings, as appropriate, and which allow the submission of any positions, comments,
information, analyses or opinions. Concerned departments and agencies shall include in their appropriate rules and
regulations the stages when and the process to be followed for submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission of written
comments. Public concerns as reflected through the procedures for public participation shall be considered in making the
decision. The public shall be informed of the final decision promptly, have access to the decision, and shall be provided
with the reasons and considerations resulting in the decision, upon request.

We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort was made to
operationalize the principles of the NBF in the conduct of field testing of Bt talong. The failure of DAO 08-2002 to

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accommodate the NBF means that the Department of Agriculture lacks mechanisms to mandate applicants to comply with
international biosafety protocols. Greenpeace's claim that BPI had approved nearly all of the applications for GMO field
trials is confirmed by the data posted on their website. For these reasons, the DAO 08-2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the EIS law, EO 514
clearly mandates that concerned departments and agencies, most particularly petitioners DENR-EMB, BPI and FPA,
make a determination whether the EIS system should apply to the release of GMOs into the environment and issue joint
guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect impacts of a project on
the biophysical and human environment and ensuring that these impacts are addressed by appropriate environmental
protection and enhancement measures. It "aids proponents in incorporating environmental considerations in planning their
projects as well as in determining the environment's impact on their project." There are six stages in the regular EIA
process. The proponent initiates the first three stages while the EMB takes the lead in the last three stages. Public
participation is enlisted in most stages.[136]

Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA under existing
regulations of petitioner EMB on new and emerging technologies, to wit:

g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects using new
processes/technologies with uncertain impacts. This is an interim category - unclassified projects will eventually be
classified into their appropriate groups after EMB evaluation.[137] (Emphasis supplied)

All government agencies as well as private corporations, firms and entities who intend to undertake activities or projects
which will affect the quality of the environment are required to prepare a detailed Environmental Impact Statement (EIS)
prior to undertaking such development activity.[138] An environmentally critical project (ECP) is considered by the EMB
as "likely to have significant adverse impact that may be sensitive, irreversible and diverse" and which "include activities
that have significant environmental consequences."[139] In this context, and given the overwhelming scientific attention
worldwide on the potential hazards of GMOs to human health and the environment, their release into the environment
through field testing would definitely fall under the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on whether his office
undertook the necessary evaluation on the possible environmental impact of Bt talong field trials subject of this case and
the release of GMOs into the environment in general. While he initially cited lack of budget and competence as reasons
for their inaction, he later said that an amendment of the law should be made since projects involving GMOs are not
covered by Proclamation No. 2146[140]. Pertinent portions of his testimony before the CA are herein quoted:

xxxx

ATTY. SORIANO:

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law. Granting Mr.
Witness that a certain project or undertaking is not classified as environmentally critical project, how would you know
that the BT talong field testing is not located in an environmentally critical area this time?

ATTY. ACANTILADO:

Objection Your Honor, argumentative.

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HON. J. DICDICAN:

Witness may answer.

ATTY. SEGUI:

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition, petitioners never
alleged that the project, the subject matter rather of this instant petition, is within an environmentally critical project.

ATTY. SORIANO:

Your Honor the Witness did not answer the question.

HON. J. DICDICAN:

Please answer the question.

ATTY. SEGUI:

Personally I have conferred with our personnel from the Environmental Impact Assessment Division and they intimated to
me that the locations of the project, rather of this subject matter of the instant petition, not within any declared
environmentally critical area.

HON. J. BARRIOS:

In other words, you are aware of the area where the BT Talong experiments are being conducted. Is that the premise?

ATTY. SEGUI:

Judging from previous discussions we had ... judging from the Petition, and showing it to the as I said personnel from
Environmental Impact Division at our office, as I said they intimated to me that it's not within declared environmentally
critical area.

HON. J. BARRIOS:

That being the case, you did not act further? [You] did not make any further evaluation, on whether the activity has
an environmental impact? Is that the correct premise?

ATTY. SEGUI:

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects of the Bureau's
affairs. But when it comes to highly technical matters, I have to rely on our technical people especially on
environmentally impact assessment matters.

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ATTY. SORIANO:

I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness coordinate with your
Office with regard the field testing of BT Talong?

ATTY. SEGUI:

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO:

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard the field testing of
BT Talong as required under the law?

ATTY. SORIANO:

Already answered your Honor, objection.

HON. J. DICDICAN:

The witness in effect said he does not know, he's not in a position to answer.

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ATTY. SORIANO:

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO:

Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet received any project
with respect to that Your Honor. So the witness would not be in a position to answer that Your Honors.

HON. J. DICDICAN:

Lay the basis first.

ATTY. SORIANO:

The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up question is
specifically Your Honor the BT talong field testing.

ATTY. SEGUI:
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Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...

HON. J. VALENZUELA:

Unclassified?

ATTY. SEGUI:

As the section will initially provide. But there must be prior ... may I continue to harp on that Your Honors. There must be
prior ... let's say conditions ... there must be prior evaluation and assessment just the same by the EMB.

HON. J. VALENZUELA:

Prior to what Mr. Witness?

ATTY. SEGUI:

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA:

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI:

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:

Yes please.

ATTY. SEGUI:

Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent evaluation or
assessment of the matter to see if we also have the resources and expertise if it can be finally unclassified. I should say
should fall within the fairview of the system, the EIA system. In other words, it's in a sort of how do you say that it's in a
state of limbo. So it's unclassified, that's the most we can do in the meantime.

HON. J. VALENZUELA:

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects such as this one
in particular?

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ATTY. SEGUI:

Yes, Your Honors as of now.

HON. J. VALENZUELA:

So therefore, when you say initially it's unclassified and then you're saying afterwards the EMB needs evaluation
but then you're saying the EMB is without any capability to evaluate then what happens?

ATTY. SEGUI:

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how we interpret
it. But the truth of the matter is with all pragmatism we don't have the resources as of now and expertise to do just
that.

HON. J. BARRIOS:

So in other words you admit that the EMB is without any competence to make a categorical or initial examination
of this uncategorized activity, is that what you mean?

ATTY. SEGUI:

It would appear, yes.

HON. J. BARRIOS:

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI:

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the parties concerned.

HON. J. BARRIOS:

So that means you are waiting for a request? Are you not? Proactive in this activity in performing your obligations and
duties?

ATTY. SEGUI:

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the environment is
hardly ... the ratio is ... if we want to protect indeed the environment as we profess, with all due respect if Congress
speaks otherwise.

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HON. J. BARRIOS:

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial Affidavit, [you] are
saying that the EMB is tasked in advising the DENR on matters related to environmental management, conservation and
pollution control, right?

ATTY. SEGUI:

Yes.

HON. J. BARRIOS:

Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical Areas of Projects
and more specifically focused on Proclamation No. 2146. With respect to this BT Talong, you mentioned that this is at
first is uncategorized, it's not within?

ATTY. SEGUI:

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS:

But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining to the environment,
your Office has the mandate and then you later say that your Office is without competence, do I follow your line of
standing?

ATTY. SEGUI:

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now within Proclamation
2146.

HON. J. BARRIOS:

Yes, but under the implementing rules your Office has the mandate to act on other unclassified activities and you
answered that your Office has no competence.

ATTY. SEGUI:

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the Secretary of DENR.
We need an amendment of 2146.[141] (Emphasis supplied)

The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of serious
attention to their mandate under the law in the implementation of the NBF, as provided in the following sections of EO
514:

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4.9 Mandate of the Department of Environment and Natural Resources. - As the primary government agency
responsible for the conservation, management, development and proper use of the country's environment and natural
resources, the Department of Environment and Natural Resources (DENR) shall ensure that environmental assessments
are done and impacts identified in biosafety decisions. It shall also take the lead in evaluating and monitoring regulated
articles intended for bioremediation, the improvement of forest genetic resources, and wildlife genetic resources.

xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point responsible for liaison
with the Secretariat shall be the Department of Foreign Affairs. The competent national authorities, responsible for
performing the administrative functions required by the Protocol, shall be, depending on the particular genetically
modified organisms in question, the following:

xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by the Protocol that
concern regulated organisms intended for bioremediation, the improvement of forest genetic resources, and wildlife
genetic resources, and applications of modern biotechnology with potential impact on the conservation and
sustainable use of biodiversity. (Emphasis supplied)

On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned agencies to ensure
that there will be funding for the implementation of the NBF as it was intended to be a multi-disciplinary effort involving
the different government departments and agencies.

SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to implement the
NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006 and thereafter, the funding
requirements shall be included in the General Appropriations Bill submitted by each of said departments to Congress.

These concerned departments shall enter into agreement on the sharing of financial and technical resources to support the
NCBP and its Secretariat.

All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that governments are
obligated to "foresee and forestall" harm to the environment. In the following decades, the precautionary principle has
served as the normative guideline for policymaking by many national governments.[142] The Rio Declaration on
Environment and Development, the outcome of the 1992 United Nations Conference on Environment and Development
held in Rio de Janeiro, defines the rights of the people to be involved in the development of their economies, and the
responsibilities of human beings to safeguard the common environment. It states that the long term economic progress is
only ensured if it is linked with the protection of the environment.[143] For the first time, the precautionary approach was
codified under Principle 15, which reads:

221
In order to protect the environment, the precautionary approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.

Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of
scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the environment. It
has been incorporated in various international legal instruments.[144] The Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000, establishes an international
regime primarily aimed at regulating trade in GMOs intended for release into the environment, in accordance with
Principle 15 of the Rio Declaration on Environment and Development. The Protocol thus provides:

Article

10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the
potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in
the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in
order to avoid or minimize such potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the
potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in
the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of that living modified organism intended for direct use as food or feed, or for
processing, in order to avoid or minimize such potential adverse effects.

xxxx

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Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a particular
level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met[145]:

 there exist considerable scientific uncertainties;

 there exist scenarios (or models) of possible harm that are scientifically reasonable (that is based on some
scientifically plausible reasoning);

 uncertainties cannot be reduced in the short term without at the same time increasing ignorance of other relevant
factors by higher levels of abstraction and idealization;

 the potential harm is sufficiently serious or even irreversible for present or future generations or otherwise
morally unacceptable;

 there is a need to act now, since effective counteraction later will be made significantly more difficult or costly at
any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:

PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following factors, among others, may be
considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the
environment without legal consideration of the environmental rights of those affected.

Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the
courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be
achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either judicial action
or inaction, with the goal of preserving and protecting the environment. This may be further evinced from the second
paragraph where bias is created in favor of the constitutional right of the people to a balanced and healthful ecology. In
effect, the precautionary principle shifts the burden of evidence of harm away from those likely to suffer harm and onto
those desiring to change the status quo. An application of the precautionary principle to the rules on evidence will enable
courts to tackle future environmental problems before ironclad scientific consensus emerges.[146]

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For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of
the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff

— (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is
irreplaceable; and (c) settings in which the harm that might result would be serious. When these features

— uncertainty, the possibility of irreversible harm, and the possibility of serious harm — coincide, the case for the
precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a
balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability.[147]

Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds all the three
conditions present in this case - uncertainty, the possibility of irreversible harm and the possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority of whom are poor and
marginalized. While the goal of increasing crop yields to raise farm incomes is laudable, independent scientific studies
revealed uncertainties due to unfulfilled economic benefits from Bt crops and plants, adverse effects on the environment
associated with use of GE technology in agriculture, and serious health hazards from consumption of GM foods. For a
biodiversity-rich country like the Philippines, the natural and unforeseen consequences of contamination and genetic
pollution would be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of risk assessment and
public consultation, including the determination of the applicability of the EIS requirements to GMO field testing, are
compelling reasons for the application of the precautionary principle. There exists a preponderance of evidence that the
release of GMOs into the environment threatens to damage our ecosystems and not just the field trial sites, and eventually
the health of our people once the Bt eggplants are consumed as food. Adopting the precautionary approach, the Court
rules that the principles of the NBF need to be operationalized first by the coordinated actions of the concerned
departments and agencies before allowing the release into the environment of genetically modified eggplant. The more
prudent course is to immediately enjoin the Bt talong field trials and approval for its propagation or commercialization
until the said government offices shall have performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite moratorium was
recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety aspects - as
relevant because majority of Filipino farmers are also small-scale farmers. Further, the precautionary approach entailed
inputs from all stakeholders, including the marginalized farmers, not just the scientific community. This proceeds from the
realization that acceptance of uncertainty is not only a scientific issue, but is related to public policy and involves an
ethical dimension.[148] For scientific research alone will not resolve all the problems, but participation of different
stakeholders from scientists to industry, NGOs, farmers and the public will provide a needed variety of perspective foci,
and knowledge.[149]

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for biosafety arising from
the use of modern biotechnology, which is deemed necessary to provide more permanent rules, institutions, and funding
to adequately deal with this challenge,[150] the matter is within the exclusive prerogative of the legislative branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals in CA-G.R. SP
No. 00013 is hereby MODIFIED, as follows:

224
1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and commercialization, and importation of
genetically modified organisms is TEMPORARILY ENJOINED until a new administrative order is promulgated in
accordance with law.

No pronouncement as to costs.

SO ORDERED.

Sereno, C. J., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Perez, Mendoza, Reyes, and Perlas-Bernabe, JJ.,
concur.
Carpio, J., no part prior inhibition.
Velasco, Jr., J., pls. see Concurring Opinion.
Brion, J., on official leave.
Leonen, J., see separate concurring opinion.
Jardeleza, J., no part.

225
EN BANC

G.R. No. 203335, April 22, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL AND
ERNESTO SONIDO, JR., PETITIONERS, VS. THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE AND THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,
RESPONDENTS.

[G.R. NO. 203299]

LOUIS “BAROK” C. BIRAOGO, PETITIONER, VS. NATIONAL BUREAU OF INVESTIGATION AND

PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. NO. 203306]

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI “TOTO” CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E.
RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., PETITIONERS, VS. OFFICE OF THE
PRESIDENT, REPRESENTED BY PRESIDENT BENIGNO SIMEON AQUINO III, SENATE OF THE
PHILIPPINES, AND HOUSE OF REPRESENTATIVES, RESPONDENTS.

[G.R. NO. 203359]

SENATOR TEOFISTO DL GUINGONA III, PETITIONER, VS. EXECUTIVE SECRETARY, THE

SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, AND DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, RESPONDENTS.

[G.R. NO. 203378]

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L.

ROQUE, JR., ROMEL R. BAGARES, AND GILBERT T. ANDRES, PETITIONERS, VS. THE EXECUTIVE
SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF JUSTICE,
THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY,
RESPONDENTS.

[G.R. NO. 203391]

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF

ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., PETITIONERS, VS.
PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE SECRETARY AND ALTER-EGO OF
PRESIDENT BENIGNO SIMEON AQUINO III, LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF
226
JUSTICE, RESPONDENTS.

[G.R. NO. 203407]

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., NATIONAL

ARTIST BIENVENIDO L. LUMBERA, CHAIRPERSON OF CONCERNED ARTISTS OF THE PHILIPPINES,
ELMER C. LABOG, CHAIRPERSON OF KILUSANG MAYO UNO, CRISTINA E. PALABAY, SECRETARY
GENERAL OF KARAPATAN, FERDINAND R. GAITE, CHAIRPERSON OF COURAGE, JOEL B.
MAGLUNSOD, VICE PRESIDENT OF ANAKPAWIS PARTY-LIST, LANA R. LINABAN, SECRETARY
GENERAL GABRIELA WOMEN’S PARTY, ADOLFO ARES P. GUTIERREZ, AND JULIUS GARCIA
MATIBAG, PETITIONERS, VS. BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, PAQUITO N. OCHOA, JR., EXECUTIVE SECRETARY, SENATE OF THE
PHILIPPINES, REPRESENTED BY SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, REPRESENTED BY SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA,
SECRETARY OF THE DEPARTMENT OF JUSTICE, LOUIS NAPOLEON C. CASAMBRE, EXECUTIVE
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE, NONNATUS
CAESAR R. ROJAS, DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, D/GEN. NICANOR A.
BARTOLOME, CHIEF OF THE PHILIPPINE NATIONAL POLICE, MANUEL A. ROXAS II, SECRETARY
OF THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. NO. 203440]

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, AND RYAN JEREMIAH D. QUAN (ALL OF THE ATENEO HUMAN
RIGHTS CENTER), PETITIONERS, VS. HONORABLE PAQUITO OCHOA IN HIS CAPACITY AS
EXECUTIVE SECRETARY, HONORABLE LEILA DE LIMA IN HER CAPACITY AS SECRETARY OF
JUSTICE, HONORABLE MANUEL ROXAS IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, THE
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION (ALL OF THE EXECUTIVE
DEPARTMENT OF GOVERNMENT), RESPONDENTS.

[G.R. NO. 203453]

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE

(PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN,
MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE E-PETITION HTTP://WWW.NUJP.ORG/NO-TO-RA10175/, PETITIONERS, VS. THE
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER
THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF
REPUBLIC ACT NO. 10175, RESPONDENTS.

[G.R. NO. 203454]

227
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, PETITIONERS, VS. THE HON. SECRETARY OF
JUSTICE, THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, RESPONDENTS.

[G.R. NO. 203469]

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD
ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P.
RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS
IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; AND PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON;
PETITIONERS, VS. HIS EXCELLENCY BENIGNO S. AQUINO III, IN HIS CAPACITY AS PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES; SENATE OF THE PHILIPPINES, REPRESENTED BY HON. JUAN
PONCE ENRILE, IN HIS CAPACITY AS SENATE PRESIDENT; HOUSE OF REPRESENTATIVES,
REPRESENTED BY FELICIANO R. BELMONTE, JR., IN HIS CAPACITY AS SPEAKER OF THE HOUSE
OF REPRESENTATIVES; HON. PAQUITO N. OCHOA, JR., IN HIS CAPACITY AS EXECUTIVE
SECRETARY; HON. LEILA M. DE LIMA, IN HER CAPACITY AS SECRETARY OF JUSTICE; HON. LOUIS
NAPOLEON C. CASAMBRE, IN HIS CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE; HON. NONNATUS CAESAR R. ROJAS, IN HIS CAPACITY
AS DIRECTOR, NATIONAL BUREAU OF INVESTIGATION; AND P/DGEN. NICANOR A. BARTOLOME, IN
HIS CAPACITY AS CHIEF, PHILIPPINE NATIONAL POLICE, RESPONDENTS.

[G.R. NO. 203501]

PHILIPPINE BAR ASSOCIATION, INC., PETITIONER, VS. HIS EXCELLENCY BENIGNO S. AQUINO III,
IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES; HON.
PAQUITO N. OCHOA, JR., IN HIS OFFICIAL CAPACITY AS EXECUTIVE SECRETARY; HON. LEILA M.
DE LIMA, IN HER OFFICIAL CAPACITY AS SECRETARY OF JUSTICE; LOUIS NAPOLEON C.
CASAMBRE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR, INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE; NONNATUS CAESAR R. ROJAS, IN HIS OFFICIAL
CAPACITY AS DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION; AND DIRECTOR
GENERAL NICANOR A. BARTOLOME, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE PHILIPPINE
NATIONAL POLICE, RESPONDENTS.

[G.R. NO. 203509]

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, PETITIONER, VS. THE EXECUTIVE

SECRETARY PAQUITO OCHOA, JR., RESPONDENT.

[G.R. NO. 203515]

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. REPRESENTED BY BENNY D. ANTIPORDA IN HIS
CAPACITY AS PRESIDENT AND IN HIS PERSONAL CAPACITY, PETITIONER, VS. OFFICE OF THE
PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF

228
REPUBLIC ACT 10175, RESPONDENTS.

[G.R. NO. 203518]

PHILIPPINE INTERNET FREEDOM ALLIANCE, COMPOSED OF DAKILA-PHILIPPINE COLLECTIVE

FOR MODERN HEROISM, REPRESENTED BY LENI VELASCO, PARTIDO LAKAS NG MASA,
REPRESENTED BY CESAR S. MELENCIO, FRANCIS EUSTON R. ACERO, MARLON ANTHONY
ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA MORALES,
JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO
M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH
KENG, ANA ALEXANDRA C. CASTRO, PETITIONERS, VS. THE EXECUTIVE SECRETARY, THE
SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE INFORMATION
TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, AND
THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER,
RESPONDENTS.

RESOLUTION

ABAD, J.:

A number of petitioners seek reconsideration of the Court’s February 18, 2014 Decision that declared invalid and
unconstitutional certain provisions of Republic Act 10125 or the Cybercrime Prevention Act of 2012 and upheld the
validity of the others. The respondents, represented by the Office of the Solicitor General, also seek reconsideration of
portions of that decision. After going over their motions, however, the Court sees no substantial arguments from either
side to warrant the reversal of its February 18, 2014 Decision.

The point about the legislative bicameral committee’s insertions of certain provisions that were neither in the House bill
nor in the Senate bill is something that the Court is not inclined to investigate since insertions are within the power of
those committees to make so long as the passage of the law complies with the constitutional requirements.[1] The
Cybercrime Prevention Act went through both houses and they approved it. Any issue concerning alleged non-
compliance with the governing rules of both houses regarding committee insertions have to be internally resolved by each
house.

In any event, the Court will briefly address certain aspects of the decision that drew the most objections.

Section 6 of the cybercrime law imposes penalties that are one degree higher when the crimes defined in the Revised
Penal Code and certain special laws are committed with the use of information and communication technologies (ICT).
Some of the petitioners insist that Section 6 is invalid since it produces an unusual chilling effect on users of cyberspace
that would hinder free expression.

Petitioner Bloggers and Netizens for Democracy insist that Section 6 cannot stand in the absence of a definition of the
term “information and communication technology”.[2] But petitioner seems to forget the basic tenet that statutes should
not be read in isolation from one another. The parameters of that ICT exist in many other laws. Indeed those parameters
have been used as basis for establishing government systems and classifying evidence.[3] These along with common usage
provide the needed boundary within which the law may be applied.
229
The Court had ample opportunity to consider the proposition that Section 6 violates the equal protection clause via the
parties’ pleadings, oral arguments, and memoranda. But, as the Decision stressed, the power to fix the penalties for
violations of penal laws, like the cybercrime law, exclusively belongs to Congress.

In any event, Section 6 of the cybercrime law merely makes the commission of existing crimes through the internet a
qualifying circumstance that raises by one degree the penalties corresponding to such crimes. This is not at all arbitrary
since a substantial distinction exists between crimes committed through the use of ICT and similar crimes committed
using conventional means.

The United Nations Special Rapporteur,[4] Frank La Rue, acknowledged the material distinction. He pointed out that
“[t]he vast potential and benefits of the Internet are rooted in its unique characteristics, such as its speed, worldwide reach
and relative anonymity.” For this reason, while many governments advocate freedom online, they recognize the necessity
to regulate certain aspects of the use of this media to protect the most vulnerable.[5]

Not infrequently, certain users of the technology have found means to evade being identified and for this reason have been
emboldened to reach far more victims or cause greater harm or both. It is, therefore, logical for Congress to consider as
aggravating the deliberate use of available ICT by those who ply their wicked trades.

Compared to traditional crimes, cybercrimes are more perverse. In traditional estafa for example, the offender could reach
his victim only at a particular place and a particular time. It is rare that he could consummate his crime without exposing
himself to detection and prosecution. Fraud online, however, crosses national boundaries, generally depriving its victim
of the means to obtain reparation of the wrong done and seek prosecution and punishment of the absent criminal.
Cybercriminals enjoy the advantage of anonymity, like wearing a mask during a heist.

Petitioners share the Chief Justice’s concern for the overall impact of those penalties, being one degree higher than those
imposed on ordinary crimes, including the fact that the prescriptive periods for the equivalent cybercrimes have become
longer.[6]

Prescription is not a matter of procedure over which the Court has something to say. Rather, it is substantive law since it
assumes the existence of an authority to punish a wrong, which authority the Constitution vests in Congress alone. Thus,
there is no question that Congress may provide a variety of periods for the prescription of offenses as it sees fit. What it
cannot do is pass a law that extends the periods of prescription to impact crimes committed before its passage.[7]

It is pointed out that the legislative discretion to fix the penalty for crimes is not absolute especially when this discretion is
exercised in violation of the freedom of expression. The increase in the penalty for online libel creates, according to this
view, greater and unusual chilling effect that violates the protection afforded to such freedom.

But what the stiffer penalty for online libel truly targets are those who choose to use this most pervasive of media without
qualms, tearing down the reputation of private individuals who value their names and community standing. The law does
not remotely and could not have any chilling effect on the right of the people to disagree, a most protected right, the
exercise of which does not constitute libel.

The majority of the movants believe that the Court’s decision upholding the constitutionality of Section 4(c)(4), which
penalizes online libel, effectively tramples upon the right to free expression. But libel is not a protected speech. There is
no freedom to unjustly destroy the reputation of a decent woman by publicly claiming that she is a paid prostitute.

230
As early as 1912, the Court held that libel is a form of expression not protected by the Constitution.[8] Libel, like
obscenity, belongs to those forms of speeches that have never attained Constitutional protection and are considered
outside the realm of protected freedom. As explained by the US Supreme Court in Champlinsky v. New Hampsire:[9]

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the
right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly
limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words – those
which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. “Resort
to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no question under that instrument.” (Emphasis supplied)

The constitutional guarantee against prior restraint and subsequent punishment, the jurisprudential requirement of “actual
malice,” and the legal protection afforded by “privilege communications” all ensure that protected speech remains to be
protected and guarded. As long as the expression or speech falls within the protected sphere, it is the solemn duty of
courts to ensure that the rights of the people are protected.

At bottom, the deepest concerns of the movants seem to be the fact that the government seeks to regulate activities in the
internet at all. For them, the Internet is a place where a everyone should be free to do and say whatever he or she wants.
But that is anarchical. Any good thing can be converted to evil use if there are no laws to prohibit such use. Indeed, both
the United States and the Philippines have promulgated laws that regulate the use of and access to the Internet.[10]

The movants argue that Section 4(c)(4) is both vague and overbroad. But, again, online libel is not a new crime. It is
essentially the old crime of libel found in the 1930 Revised Penal Code and transposed to operate in the cyberspace.
Consequently, the mass of jurisprudence that secures the freedom of expression from its reach applies to online libel. Any
apprehended vagueness in its provisions has long been settled by precedents.

The parties’ other arguments in their respective motions for reconsideration are mere reiterations that the Court already
considered and ruled upon when it promulgated its earlier Decision.

WHEREFORE, the Court DENIES with finality the various motions for reconsideration that both the petitioners and the
respondents, represented by the Office of the Solicitor General, filed for lack of merit.

SO ORDERED.

Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Villarama, Jr., Perez, and Reyes, JJ., concur.
Sereno, C.J., see concurring & dissenting opinion.
Carpio, J., I vote to declare section 6 constitutional. I reiterate my separate dissenting & concurring opinion.
Velasco, Jr., J., no part, with prior inhibition
Brion, J., see my dissent.
Mendoza, J., I join the position of C.J. on sec. 6 and other positions taken by J. brion.
Perlas-Bernabe, J., no part.
Leonen, J., see dissent.

231
[1]
Tatad v. The Secretary of the Department of Energy, 346 Phil. 321 (1997), citing Tolentino v. Secretary of Finance,
G.R. Nos. 115455, 115525, 115543, 115544, 115754, 115781, 115852, 115873 & 115931, August 25, 1994, 235 SCRA
630.

[2]
Motion for Reconsideration, p. 2357.

[3]
An Act Providing And Use Of Electronic Commercial And Non-Commercial Transactions, Penalties For Unlawful Use
Thereof, And Other Purposes, Republic Act 8792, June 14, 2000.

[4]
Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression.

[5]
La Rue accepts that “legitimate types of information … may be restricted [such as] child pornography (to protect the
rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and
reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of
others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence (to protect the rights of others, such as the right to life).” (Citations omitted) (A/HRC/17/27, p.8); see Maria
Luisa Isabel L. Rosales, Today the Internet, Tomorrow Cable TV?: Situating the Internet as a Human Right, 57 Ateneo
L.J. 463, 484-85 (2012).

[6]
Philippine Bar Association, Motion for Reconsideration, p. 2397; Bloggers and Netizens for Democracy, Motion for
Reconsideration, p. 2362.

[7]
People of the Philippine Islands v. Parel, G.R. No. L-18260, January 27, 1923, citing Fiore, Irretroactividad e
Interpretacion de las Leyes, pp. 426-428.

[8]
Worcester v. Ocampo, 22 Phil. 41 (1912), cited in Bernas, S.J. The 1987 Constitution of the Republic of the
Philippines: A Commentary, 3rd ed., Rex Book Store, Manila, 2003.

[9]
315 U.S. 568 (1942), cited in Gorospe, R. Constitutional Law: Notes and Readings on the Bill of Rights, Citizenship
and Suffrage, Vol. I, Rex Book Store, Manila, 2006, p. 672.

[10]
In the Philippines, the following laws were enacted to regulate the access and use of the Internet: Electronic Commerce
Act of 2000 (Republic Act 8792), Access Devices Regulation Act (Republic Act 8484) and the Anti-Bullying Act of 2013
(Republic Act 10627). The United States, on the other hand, enacted the following laws: (1) to combat Internet fraud: (a)
15 U.S.C. §§ 45, 52 (Unfair or deceptive acts or practices; false advertisements; (b) 18 U.S.C. §§ 1028, 1029, 1030 (fraud
in connection with identification documents and information; fraud in connection with access devices; and fraud in
connection with computers); and (c) 15 U.S.C. § 1644 (credit card fraud). (2) For Child Pornography, Child Luring and
other Related Activities: (a) 18 U.S.C. § 2251 (sexual exploitation and other abuse of children), and (b) 18 U.S.C. § 2421
(transportation for illegal sexual activity). See US Federal Cybercrime Laws, retrieved at
http://digitalenterprise.org/governance/us_code.html (last accessed April 3, 2014).

DISSENTING AND CONCURRING OPINION

232
SERENO, C.J.:

Freedoms such as these are protected not only against heavy-

handed frontal attack, but also from being stifled by more
subtle governmental interference.

Justice Potter Stewart[1]

Nothing can be more plain and unambiguous than the Constitutional command that “No law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.” The Constitution’s mantle of protection is not limited to direct
interference[2] with the right to free speech; it prohibits anything that as much as subtly chills its exercise.

I maintain my dissent insofar as the application of Section 6 to libel is concerned because the one degree higher penalty it
imposes creates a chilling effect on the exercise of free speech. Hence, while a solitary sentence to that effect would have
sufficed, I respectfully but vigorously reassert my dissent, considering the far-reaching effects of Section 6 on the lives
and liberty of the Filipino people. Freedom of speech is the nucleus of other rights. That is why it is the first right that is
curtailed when a free society falls under a repressive regime.[3] That is also why this Court has acknowledged freedom of
speech as occupying a preferred position in the hierarchy of rights.[4]

Unfortunately, the questioned provision was discussed only cursorily in the Court’s Decision, – through a single
paragraph, – and again in the resolution of the motions for reconsideration, despite the gravity of its consequences. The
Decision dismissively disposes of the issue by 1) stating that Section 6 operates only to make commissions of crimes
through the Internet a qualifying circumstance and 2) substantial distinctions justify a higher penalty for crimes through
information communication technology (ICT). I believe that it is the Court’s constitutional duty to explain to the people
its decision exhaustively, especially when the issue has broad implications on the national life. Indeed, if the majority had
only thoroughly examined the implications of Section 6, at least as far as its application to libel is concerned, they might
have seen how the provision subtly but surely endangers the preferred right to free speech.

It is also the Court’s duty to address the confusion that may have resulted from its Decision when the matter of such
confusion is raised in a motion for reconsideration. Especially so when several parties raise the issue, since it would show
how widespread the misconception is. Failure to do so may create and propagate unfounded fears with inevitable adverse
effects. If the Court takes the time to resolve moot and academic cases when doing so will be instructive to the bar and
bench and the public, and when the issues raised are of paramount public interest,[5] all the more should it endeavour to
allay the concrete fears of the population, no matter how absurd, by clarifying and untangling the confusion that caused
them. This I will do in relation to the wild conclusions some parties hold about the nature of ICT in Section 6.

I had fervently hoped that this conscientious reiteration of my reasons for asserting the unconstitutionality of Section 6
insofar as its application to libel is concerned would have the effect of convincing those who take a contrary position –
within and outside of the Court – to reconsider their strongly-held position on Section 6. It would be a glimmer of hope
should this reassertion even as much as nudge them slightly to be open to this different view being offered in the
marketplace of ideas. Incidentally, the marketplace has moved into cyberspace which we must now protect, not for its
own sake, but for the vast possibilities for robust exchange of ideas it has opened, especially those pertaining to politics
and governance. ICT has proven to be an ally of democracy. Hence, nowhere is the protection of free speech more
imperative than in this ubiquitous medium.
233
I also explain my position on the validity of regulating the transmission of unsolicited commercial communications under
Section 4(c)(3). I believe that the regulation prevents harmful conduct that may interfere with an e-mail user’s enjoyment
of his e-mail. Consequently, the interference may possibly affect his online exercise of his right to free speech, free
expression and free association, that e-mail services facilitate.

Urgent need to remove the chilling

effect of Section 6 insofar as its
application to cyberlibel is concerned.

The Court had struck down unconstitutional provisions of the Cybercrime Prevention Act, in the exercise of its duty as the
ultimate guardian of the Constitution. However, it has left Section 6 completely unscathed. In doing so, the Court would
appear not to have completely slain the beast still poised to attack the right to freedom of speech. Perhaps it is the
deceivingly simple and innocuous wording of the provision that has successfully masked its invidious repercussions. Or
perhaps, it is because of the provision’s indirect, rather than frontal attack on free speech that has left the majority
unconcerned. Indeed, it is often the quiet and creeping interference upon fundamental rights that succeeds in absolutely
undermining liberty. It is the Court’s duty to examine and expose to light this hidden peril and rouse the complacent from
her complacency.

I believe that the Court should now closely scrutinize Section 6 anew if it had failed to do so the first time around.

As a general rule, penal statutes cannot be facially invalidated on the ground that they produce a “chilling effect,” since
they are intended to have an in terrorem effect[6] to deter criminality.[7] However, when a law provides for a penalty
that goes beyond the in terrorem effect needed to deter crimes and impedes the exercise of freedom of speech, it
should be quashed at once without hesitation. As I previously demonstrated, the increase in penalty under this
seemingly innocuous provision of Section 6, insofar as it is applied to libel, indirectly but absolutely results in chilling the
right of the people to free speech and expression. Therefore, it is unconstitutional.

Section 6 creates an additional in

terrorem effect on top of that already
created by Article 355 of the
Revised Penal Code.

Our Revised Penal Code is based on the premise that humans are rational beings who refrain from criminal acts if
threatened with punishment sufficient to outweigh any expected gain in committing the crime.[8] This consequence is the
intended in terrorem effect of penal statutes.[9] Hence, in their exercise of freedom of speech, people circumspectly weigh
the severity of the punishment if the speech turns out to be libelous against the possible benefit to be derived from it.

However, additional in terrorem effect may be validly created by law to discourage resort to greater perversity in the
commission of a felony. Hence, under the Revised Penal Code the imposable penalty is increased when there are
aggravating circumstances showing a greater perversity in the commission of a felony.[10]

Section 6 of the Cybercrime Prevention Act introduces the use of ICT as a qualifying aggravating circumstance, thusly:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committed by,
through and with the use of information and communications technologies shall be covered by the relevant provisions
of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for by the
Revised Penal Code, as amended, and special laws, as the case may be. (Emphases supplied)
234
Article 355 of the Revised Penal Code, provides for libel the penalty of prisión correccional in its minimum (from 6
months and 1 day to 2 years and 4 months) and medium (from 2 years, 4 months, and 1 day to 4 years and 2 months)
periods. However, with the increase in penalty by one degree under the Cybercrime Prevention Act, libel qualified by the
use of ICT is now punishable by prisión correccional in its maximum period (from 4 years, 2 months and 1 day to 6
years) to prisión mayor in its minimum period (from 6 years and 1 day to 8 years).[11] Therefore, Section 6 doubles the
maximum penalty for online libel.

Thus, Section 6 effectively creates an additional in terrorem effect by introducing ICT as a qualifying aggravating
circumstance. This burden is imposed on top of the intended in terrorem effect of the original penalties imposed by the
Revised Penal Code. Thus, the public will now have to take this additional burden into account in their calculation of
penalties. As if the need to weigh the costs and benefits of whether to exercise freedom of speech is not burdened enough
by the possibility of a libel suit, the public will now have to additionally mull over their use of ICT in the exercise of this
freedom through ICT.

Every individual, including those of us in the judiciary, who rely heavily on the use of ICT can easily see how
burdensome this state of affairs is. Significantly, the statistical facts show that the Philippines depends greatly on ICT as a
means of communication and of expression. As pointed out by Justice Leonen in his Separate Dissenting and Concurring
Opinion to the main Decision, a global study of internet users showed that 78% of Filipino respondents said that they
access the Internet several times a day, while 79% used e-mail at least once a day.[12] Additionally, 72% used social media
at least once a day. This shows the inextricability of ICT from our national life. Indeed, we do not need statistics to
convince us of this fact. What office or establishment or individual can function without the Internet nowadays? Given
this reality, it is inevitable that the increase in penalty per se will effectively chill the exercise of the preferred
constitutional right to free speech.

Worse, as will be shown below, this increase in penalty has domino effects which combine to create a behemoth that
treacherously tramples over freedom of speech – the imposition of harsher accessory penalties, the neutralization of the
full benefits of the law on probation, the increase in the prescription periods for the crime of cyberlibel and its penalty,
and the fact that the aggravating circumstance cannot be offset by any mitigating circumstance. Additionally, all these
extra burden can be easily imposed since the use of ICT per se, without need to prove criminal intent, automatically calls
for the application of a penalty one degree higher.

The increase in penalty also

results in the imposition of
harsher accessory penalties

As explained earlier, before the Cybercrime Prevention Act, the imposable penalty for libel under Art. 355 of the Revised
Penal Code, even if committed by means of ICT, was prisión correccional in its minimum and medium periods. Now,
under Section 6 of the Cybercrime Prevention Act, the imposable penalty for libel qualified by ICT has been increased to
prisión correccional in its maximum period to prisión mayor in its minimum period.[13] Consequently, it is now possible
for the harsher accessory penalties for prisión mayor to attach. These are: the deprivation of public offices and
employments even if conferred by popular election, the deprivation of the right to vote, disqualification from offices or
public employments and the forfeiture of retirement pay. Undeniably, public office and employment as well as the right to
vote, and retirement pay are not trifling privileges that one can easily risk losing. Hence, the public will now have to
factor in these severe consequences into their calculations. The exercise of freedom of speech through ICT is thereby
further burdened.

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I also note that these accessory penalties hit public officers hardest. This can be troubling because it is often public
servants who know about and may expose corruption within their ranks. Such harsher penalties will certainly discourage
public servants from exercising their freedom of speech to denounce wrongdoing. We are therefore depriving ourselves of
a potent check against official abuse.

The increase in penalty

neutralizes the full benefits of the
law on probation, consequently
threatening the public with the
guaranteed imposition of imprisonment
and the accessory penalties thereof.

Under Presidential Decree No. (P.D.) 968 or the Probation Law,[14] qualified offenders who immediately admit to their
liability and thus renounce the right to appeal are given the chance to avoid the stigma of incarceration by making them
undergo rehabilitation outside prison instead. However, Section 9 of the law excludes those sentenced to serve a
maximum term of imprisonment of more than six years from its coverage. Since the maximum penalty for libel
committed through the use of ICT has been increased two-fold to 8 years, a convicted offender may now be
disqualified from availing of the benefits of probation.

Given the basic postulate animating our penal laws that humans are calculating beings who weigh the perils of their
actions, it is possible that people may risk a conviction for libel, since they may avail themselves of the privilege of
probation. They may find that the exercise of their freedom to speak and to express themselves is worth the threat. But
when this very beneficial[15] technology is made a qualifying aggravating circumstance that guarantees
imprisonment, the in terrrorem effect of libel is further magnified and becomes unduly oppressive to the exercise of
free speech. Furthermore, it should be noted that offenders will now lose the additional benefit of probation – the
suspension of accessory penalties.

Section 6 increases the prescription

periods for the crime of cyberlibel
and its penalty to 15 years.

Before the passage of the Cybercrime Prevention Act, the State waives its right to prosecute libel after only one year. With
the increase in penalty by one degree pursuant to Section 6 of the Cybercrime Prevention Act, however, the penalty for
libel through ICT becomes afflictive under Article 25 of the Revised Penal Code. Accordingly, while a charge for ordinary
libel may be filed within the limited period of only one year from its commission, the charge for online libel can be
instituted within 15 years since under Article 90 that is the prescription period for crimes punishable by afflictive
penalties, other than reclusion perpetua and reclusion temporal.[16] This is not a trivial matter since, in effect, the threat of
prosecution for online libel lingers for 14 years more. Similarly, the prescription period for the penalty of libel through
ICT is increased from 10 to 15 years.

These increases in the prescription periods are additional factors in the rational calculation of whether or not to exercise
freedom of speech through ICT. Obviously, this adverse change further tilts the scales against the exercise of freedom of
speech.

ICT as a qualifying aggravating

circumstance cannot be offset by
any mitigating circumstance.

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A qualifying aggravating circumstance like the use of ICT increases the penalty by degrees, not by period as a generic
aggravating circumstance does.[17] Moreover, while a generic aggravating circumstance may be offset by a generic
mitigating circumstance such as voluntary surrender, a qualifying aggravating circumstance is more onerous in that it
cannot be similarly offset.[18] Hence, since Section 6 now punishes the offender with a higher range of penalty — prisión
correccional in its maximum period (from 4 years, 2 months and 1 day to 6 years) to prisión mayor in its minimum period
(from 6 years and 1 day to 8 years) — the period of imprisonment will remain within this higher and harsher range.

It is not difficult to see how Section 6 subjugates freedom of speech through its combined effects – longer prison
terms, harsher accessory penalties, loss of benefits under the Probation Law, extended prescription periods, and
ineligibility of these penalties to be offset by mitigating circumstances. We cannot turn a blind eye to this and turn our
backs on the Filipino people. I am convinced more than ever of the unconstitutionality of Section 6, as far as libel is
concerned.

For providing that the use per se of

ICT, even without malicious intent,
aggravates the crime of libel, Section
6 is seriously flawed and burdens
free speech.

I now discuss an additional factor by which free speech is burdened.

Petitioners Cruz et al.[19] observe in their motion for reconsideration that Section 6 increases by one degree the penalty for
a crime committed through ICT without regard to how ICT contributed to the gravity of the crime. [20] Hence, even if the
use of ICT is “completely arbitrary” and unintended, it merits a higher penalty that is double that imposed for ordinary
libel.[21]

They also note that provisions of the Cybercrime Prevention Act appear to be malum prohibitum. Hence, they penalize
acts by their mere commission regardless of the intent of the actor.[22] Petitioners then proceed to explain that this is
inconsistent with the idea of criminalizing the act of aiding and abetting the commission of a crime as well as the attempt
to commit a crime that operate within the concept of malum in se, where intent or mens rea is essential to justify
culpability and penalty. Hence, the mere fact of having aided the commission of a crime already becomes criminal even
without criminal intent under Section 5.

While petitioners Cruz et al. raise the criticism of inconsistency with regard to Section 5, I believe that it is more
appropriately raised against Section 6. Their observation is true in the way ICT as a qualifying circumstance is applied:
the use of ICT per se, even without criminal intent, merits an automatic one degree increase in penalty. This application, I
believe, is inconsistent with the philosophy animating the Revised Penal Code. It also burdens free speech since the
provision makes it extremely easy to prove the existence of this qualifying circumstance against an offender. How can a
simple click of the mouse, without more, earn a person a penalty one degree higher than the original penalty for libel, with
all its consequent oppressive effects discussed above?

Under the Revised Penal Code the basic consideration for criminal liability to arise is the mens rea of the accused.[23] He
must be shown to have possessed a guilty mind or criminal intent on top of committing the physical act prohibited by
law.[24] Hence, as a general rule, it is necessary for criminal liability that the act be committed by means of dolo or
“malice”;[25] otherwise, there can be no crime. That is why crimes under the Revised Penal Code, including libel, are
generally characterized as crimes mala in se, for which there must be malicious intent.

237
It follows that to incur greater criminal liability and consequently higher penalty, such as that provided under
Section 6, there must also be a greater perversity of the mind, a greater mens rea, or a greater criminal intent.
Hence, for the existence of a circumstance to be considered in increasing criminal liability, it is essential that such
circumstance clearly reveal the guiltier mind and greater criminal intent of the accused. Thus, there must be a clear intent
and purposeful taking advantage of an aggravating circumstance. This is the fundamental principle behind the application
of an aggravating circumstance.

The heavier punishment resulting from the attendance of so-called aggravating circumstances under Article 14 of the
Revised Penal Code is attributed to various factors, which may be categorized as (1) the motivating power itself (e.g. “in
consideration of a price, reward, or promise”[26]); (2) the place of commission (e.g. “dwelling of the offended party”[27]);
(3) the means and ways employed (e.g. use of vehicle), (4) the time (e.g. nighttime[28]); or (5) the personal circumstances
of the offender or of the offended party (e.g. “insult or disregard of respect due to a party on account of rank, age,
sex”[29]).

Most aggravating circumstances are in the nature of means and ways employed to commit a crime.[30] The use of ICT
logically falls under this category as a means for the commission of libel and other crimes under the Revised Penal Code.
Hence, we proceed to further analyze this category. A closer look below at the circumstances falling under this
category[31] reveals a shared principle behind their appreciation and application: that they must be abused deliberately with
criminal intent. The same principle should then properly apply to the use of ICT, since it belongs to the same category.
Hence, the need for criminal intent in the use of ICT before it can be deemed aggravating.

Taking advantage of a public position.

The circumstance of (the offender’s) public position is not aggravating by itself. It only becomes so if it was taken
advantage of and there is proof that it was.[32] It means that the offenders must have used the influence, prestige or
ascendancy that their office gives them as the means by which they realize their purpose.[33] The offenders must have
abused their office in order to commit the offense.[34] In that way, the malicious intent of the mind is revealed. If the
accused did not avail themselves of their authority, their public position would not be aggravating;[35] not even if they
were sergeants in the Philippine Army and were in fatigue uniform and had army rifles at the time they committed a
crime.[36] Hence, the intent to use a public position for the purpose of committing a crime appears to be essential.

By a band or with the aid of armed men

Similarly, the circumstance of commission of a crime by a band should have been especially sought and taken advantage
of.[37] Jurisprudence is consistent that the aid of armed men is not aggravating unless the accused availed themselves of
that aid or relied upon it.[38] The accused must have knowingly counted upon the assistance of the armed men in the
commission of the crime.[39]

Abuse of Superior strength

The same is required of superior strength – it must have been abused purposely.[40] It is present when the offenders assess
a superiority of strength that they select and take advantage of in the commission of the crime.[41] The mere fact of
superiority in the number of assailants does not suffice; they must have taken advantage of their combined strength.[42]
They must have cooperated in such a way as to secure advantage from their superiority in strength.[43]

Abuse of confidence

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For the aggravating circumstance of abuse of confidence, it is necessary that there exists a relationship of trust and
confidence between the accused and the victim, and that the culprits took advantage of the trust reposed in them by the
offended party.[44] Indeed, it is essential that the confidence between the parties was immediate and personal, such that it
gave the accused some advantage or made it easier for them to commit the criminal act.[45] Again, intent is essential for
this circumstance to aggravate the crime.

Use of vehicle

Among the aggravating circumstances, the one closest to the use of ICT would be the use of vehicles, since both are
tangible tools and are by themselves neutral, if not beneficial. But again, like the other aggravating circumstances, the
mere use of a vehicle will not qualify it as an aggravating circumstance. The use of vehicle has to be purposely sought to
facilitate the commission of the offense or to render the escape of the offender easier and his apprehension more difficult.
Otherwise, the circumstance is not aggravating.[46]

Like other means of committing a

crime which are made aggravating
circumstances, the use of ICT has
to be purposely sought to show
criminal intent justifying a higher
penalty.

It is clear from this sampling that for aggravating circumstances that refer to the means employed to commit the crime, it
is essential that deliberately employing or taking advantage of them either to facilitate the crime or to insure impunity
must be proven. This is as it should be, since it is the knowing and purposive resort to the aggravating circumstances - the
added criminal intent - that aggravates the crime. In other words, the aggravation arises because of a more perverse mind,
not from the mere presence or use of the means. It is this malicious intent in the adoption of the circumstance that reveals
an added perversity that justifies a greater penalty.

The same principle should be applied to ICT. The mere use of ICT by itself should not automatically make it
aggravating. It has to be purposely sought to facilitate the crime, maximize damage or ensure impunity. It must be
established that the otherwise beneficial nature of ICT was selected and intentionally sought, deliberately and consciously
adopted to advance the perpetration of the crime. That is the only way to attribute greater perversity on the part of
the offender in using ICT and to justify the imposition of a penalty one degree higher. If there is no such intent,
there can be no aggravation. If the mind is innocent as to the adoption of a particular means, there can be no
aggravating circumstance. This malicious intent, like the elements of the crimes itself, must be proven beyond
reasonable doubt. If not so proven, the ICT cannot qualify the crime, and the criminal cannot be penalized one degree
higher.

Hence, there is a need to spell out the condition that ICT be specifically taken advantage of and abused to facilitate
the commission of a crime, ensure impunity, or maximize damage. In other words, its use has to be abused to be
aggravating.

That the law failed to specify that ICT must be taken advantage of and abused with intent – in order to facilitate the crime,
ensure impunity or maximize the damage - is lamentable. Again, considering how ICT has become so ubiquitously
indispensable and how it has penetrated almost every facet of life, the need to specifically show intent in the use of ICT
for the commission of a crime like libel becomes all the more crucial, logical and just.

239
Because of this unclear requirement of criminal intent in the application of the qualifying circumstance of use of ICT,
Section 6 of the Cybercrime Prevention Act effectively scares the public from using ICT and exacerbates the chilling
effect on free speech.

Considering all these, it is not difficult to see how the increase of the penalty under Section 6 mutes freedom of speech. It
creates a domino effect that effectively subjugates the exercise of the freedom – longer prison terms, harsher accessory
penalties, loss of benefits under the Probation Law, extended prescription periods, and ineligibility of these penalties to be
offset by mitigating circumstances. Worse, the qualifying circumstance can be applied easily by simply proving the use of
ICT, sans proof of criminal intent to purposely use ICT for libel, thereby further chilling freedom of speech.

The Court must clarify that ICT

should not refer to “stand alone”
devices but should be connected
to the Internet.

The Court must also take the time to clarify that ICT as used in Section 6 should refer only to devices connected to the
Internet and does not include stand alone devices. This should necessarily follow from the avowed reasons of the
government for imposing one degree higher penalty on crimes committed with the use of ICT.

As the Court had said, the use of ICT enables the offender to evade identification and to reach far more victims or cause
greater harm. Indeed, respondents in their Memorandum prepared by the Office of the Solicitor General (OSG) enumerate
three factors which justify the higher penalty for crimes committed with the use of ICT.[47] First, the OSG explains that
cybercrimes are limitless as to their scope because they are not bound by time and geography. On the other hand, non-
cybercrimes are limited by distance, border security, various regulations and time. Secondly, respondents explain that
cybercrimes are easily committed due to the accessibility of ICT.[48] There are approximately 30 million internet users in
the country and a billion more worldwide. Hence, any person can create widespread chaos with anonymity. Thirdly,
criminal purpose is accomplished with greater impact with the use of ICT.[49]

“Stand alone” devices do not have these consequences. Hence, they could not have been contemplated under Section 6.

While this may seem obvious to most, many people are confused as seen from the number of motions for reconsideration
that raised this issue.[50] Many think that the mere use of a “stand alone” computer device will automatically trigger the
application of Section 6. If this is not clarified, it will sow unnecessary fear of using computer technology with adverse
effects on individual and organizational efficiency and productivity. In fact some petitioners[51] have made the absurd
conclusion that even the use of hardware in the commission of the crime, such as physically injuring a person by hitting
him with a mobile phone, will now be penalized under the questioned provision, with all its concomitant penalties.

Validity of regulating unsolicited

commercial communications under
Section 4(c)(3).

I have previously found the petitions questioning Section 4(c)(3) dismissible because of a failure to establish that a pre-
enforcement judicial review thereof was warranted. Hence, without delving into the merits of petitioners’ arguments, I
disagreed with the majority when they declared the questioned provision unconstitutional; first, because the said petitions
are dismissible per se. However, since the majority had proceeded to review Section 4(c)(3), let me now explain my
position on the matter.

240
I fully agree with the opinion of Justice Roberto Abad that commercial speech should be protected even if it does not
enjoy the same level of protection as other categories of free speech and expression. However, may I emphasize that the
questioned provision is not burdensome to commercial speech at all since the law does not prohibit the sending of
unsolicited e-mail per se. Section 4(c)(3)(iii) allows the sending of unsolicited e-mails, provided that the following
conditions are present: (a) the commercial electronic communication contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial electronic messages (opt-out) from the same source; (b) the commercial
electronic communication does not purposely disguise the source of the electronic message; and (c) the commercial
electronic communication does not purposely include misleading information in any part of the message in order to induce
the recipients to read the message.

Additionally, Petitioners Cruz et al., make a valid observation when they point out in their motions for reconsideration
that contrary to the holding of the majority, online transmission of unsolicited commercial communications is not of the
same level as unsolicited advertisements by mail.[52]

Firstly, ordinary mail advertisements are not as voluminous while e-mail ads can be so voluminous that they interfere with
an e-mail user’s enjoyment of his e-mail account. Indeed, the assailed provision seeks to prevent malicious attacks done
through the sending of e-mails, which the victim cannot opt out from. One of those forms of attack includes what is called
“mail bombing.”[53] Here, an attacker intentionally sends large volumes of e-mail to a single address in an effort to
overwhelm the mail server and degrade the communication system by making it unserviceable. [54] This is a form of Denial
of Service (DoS) attack, as it prevents other users who are using the same server from accessing their e-mails.[55] We can
thus imagine a situation in which an e-mail account reaches its storage capacity, thereby preventing the account holder
from receiving legitimate mails, as these e-mails are “bounced” back to the senders.[56] This situation would impede the
robust exchange of ideas as well as the speedy flow of information and communication. It is precisely so that recipients of
unsolicited commercial communications can prevent the congestion of their e-mail accounts that the provision requires
that recipients of unsolicited commercial communications be allowed to opt out under Section 4(c)(3)(iii).

Secondly, as petitioners pointed out, unsolicited e-mail commercial communications, unlike ordinary mail commercial
communications can be used for another form of attack called “phishing.”[57] It is an internet scam done by offering
enticing deals or false statements (such as winning a cash prize), aimed at tricking users into disclosing their personal,
financial, and other confidential information.[58] The message used for phishing may appear to be coming from a
department store, a known company, a bank, the government, or even from a contact whose e-mail account has been
“hacked.”[59] Phishing can attack millions of e-mail addresses around the world, and has emerged as an effective method
of stealing personal and confidential data of users.[60] It is said that phishing is typically executed as follows:[61]

A successful phishing attack deceives and convinces users with fake technical content and social engineering practices.
Most phishing attacks are initiated through e-mails, where the user gets an e-mail that prompts him or her to follow a link
given in the e-mail. This link leads to a phishing Web site, though the e-mail says otherwise. The e-mail may contain a
message stating that a particular transaction has taken place on the user’s account, and a link is provided to check his or
her balance. Or the e-mail may contain a link to perform a security check on the user’s account.

Hence, Section 4(c)(3) is valid because it seeks to regulate a potentially harmful conduct. Such harmful conduct may
interfere with a user’s enjoyment of his e-mail and consequently of his legitimate exercise of his fundamental rights that e-
mail facilitates. Thus, I respectfully disagree with the facial invalidation of Section 4(c)(3) and hold that it is not
unconstitutional.

Call to vigilance
241
The Court has struck down provisions of the Cybercrime Prevention Act that clearly violate constitutional rights such as
Section 12 and Section 19. It also partially struck down as unconstitutional Section 7 insofar as it applies to cyberlibel and
online child pornography and Section 4(c)(4) insofar as it creates criminal liability on the part of persons who receive a
libelous post and merely react to it. However, we left Section 6 completely untouched while wrongly invalidating Section
4(c)(3). The motions for reconsideration of the two provisions had given the Court another opportunity to complete the
job it has started by also striking down as unconstitutional Section 6 insofar as its application to libel clearly chills
freedom of speech and by upholding the constitutionality of Section 4(c)(3). It is an opportunity we should not have
squandered.

We cannot be complacent. The very fabric of our democratic society is in danger of being slowly torn apart. The Court
staunchly defended the right to commercial speech of advertisers by declaring unconstitutional Section 4(c)(3) which
simply regulates the sending of unsolicited commercial communications even as it admits that commercial speech is not
accorded the same level of protection as that given to other constitutionally guaranteed forms of expression. On the other
hand, it does not give the same steadfast protection for freedom of speech which Section 6 clearly chills. Hence, it is
puzzling that the Court is willing to uphold commercial speech than the preferred right to free speech of citizens.

True, the State has a legitimate interest in the preservation of order. For that purpose, it also has the power, exercised
through the legislature, to criminalize acts and provide penalties therefor. Hence, it can validly regulate harmful conduct
under Section 4(c)(3). Section 6, however, is a different matter. The State cannot override a clear Constitutional
command that no law shall be passed abridging the freedom of speech. I believe that the interest in encouraging free
speech in a democratic society outweighs any theoretical but unproven benefit of an unduly harsher penalty for
cyberlibel.[62]

The history of our nation has shown that we do not lack for brave people who dutifully speak against the excesses of
government and at great cost to themselves. In recent times, ICT has been used to generate mass protests against
perceived corruption and excesses in government. But the guaranteed imposition of imprisonment of as much as eight
years and harsher accessory penalties that Section 6 mandates, together with the fact that they may be imposed so easily
since no criminal intent is necessary to make the use of ICT a qualifying circumstance, may force even the bravest and
most conscientious dissenters among us to forego their prized constitutional right to free speech and expression. That
would be the start of the slow, quiet, but sure demise of our democracy. We can be complacent only at our own peril.

I had earlier voted with the majority to uphold Section 4(c)(4) on cyberlibel – save for its application to those who merely
react to a libelous post – on the presumption that Section 6, which imposes a one degree higher penalty on crimes
committed using ICT, would be declared unconstitutional insofar as it is applied to cyberlibel. However, in view of the
ultimate ruling of the majority affirming the constitutionality of Section 6, I consequently conclude that Section 4(c)(4) is
wholly unconstitutional. The invalidation of Section 6 would have removed the heavy burden on free speech exercised
online. Indeed, Section 6 is completely incompatible with free speech. To reiterate, the majority’s insistence that Section
4(c)(4) cannot be implemented without at the same time imposing the higher penalty provided by Section 6 – with its
invidious chilling effects discussed above – constrains me to hold that Section 4(c)(4) is wholly unconstitutional as well.
If free speech is to be truly defended as a right with a preferred position in the hierarchy of rights, its online exercise
should also be vigorously protected.

WHEREFORE, I vote to DECLARE:

1. Section 6 UNCONSTITUTIONAL, insofar as it applies to libel, for unduly curtailing freedom of speech;

2. Section 4(c)(4) UNCONSTITUTIONAL; and

242
 3. Section 4(c)(3) NOT UNCONSTITUTIONAL for being a valid regulation of a harmful conduct.

Nevertheless, I CONCUR with the majority in its other dispositions.

243