2011 BAR REVIEW NOTES

JUNE 25, 2011

Atty. EDWIN REY SANDOVAL

ISABELITA C. VINUYA, et al. v. THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO,

G.R. No. 162230 : April 28, 2010
EN BANC 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.
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.

Xxx

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 remains the starting point for analysis under the political question doctrine. Xxx

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.

To be sure, not all cases implicating foreign relations present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive agreements. 44 However, the question whether the
Philippine government should espouse claims of its nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the
political branches. In this case, the Executive Department has already decided that it is to the best interest of the
country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom
of such decision is not for the courts to question. Neither could petitioners herein assail the said determination by
the Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that "[t]he President is the
sole organ of the nation in its external relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps serious
embarrassment -- is to be avoided and success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has
his agents in the form of diplomatic, consular and other officials. x x x
This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary 46 and Pimentel v.
Executive Secretary;47 its overreaching principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent
in Secretary of Justice v. Lantion.

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 private claims, thereby terminating any recourse under domestic law. Xxx

This practice of settling claims by means of a peace treaty is certainly nothing new. Xxx

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. Xxx

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
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

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

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:
xxx
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 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.

-DISMISSED-

ANG LADLAD LGBT PARTY v. COMELEC

G.R. No. 190582, April 8, 2010
EN BANC DEL CASTILLO, J.:
 ... [F]reedom to differ is not limited to things that do not matter much. That would
be a mere shadow of freedom. The test of its substance is the right to differ as to
things that touch the heart of the existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others may
make different choices – choices we would not make for ourselves, choices we may disapprove of,
even choices that may shock or offend or anger us. However, choices are not to be legally
prohibited merely because they are different, and the right to disagree and debate about important
questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is
built on genuine recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions
and demands of morality. In many cases, where moral convictions are concerned, harmony among
those theoretically opposed is an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This
will allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly.

Xxx

We grant the petition.

Compliance with the Requirements of the

Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT
sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.
 Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals) may be registered under the party-
list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,[20] “the enumeration of marginalized and under-represented sectors is not
exclusive”. The crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that “save for a few
isolated places in the country, petitioner does not exist in almost all provinces in the country.”[21]
This argument that “petitioner made untruthful statements in its petition when it alleged its
national existence” is a new one; previously, the COMELEC claimed that petitioner was “not being
truthful when it said that it or any of its nominees/party-list representatives have not violated or
failed to comply with laws, rules, or regulations relating to the elections.” Nowhere was this
ground for denial of petitioner’s accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute
at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group.[22] Ang Ladlad also represented itself to be “a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks.
Xxx

We grant the petition.

Compliance with the Requirements of the
Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT
sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to
any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said sectors
(labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped,
women, youth, veterans, overseas workers, and professionals) may be registered under the party-
list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on
Elections,[20] “the enumeration of marginalized and under-represented sectors is not
exclusive”. The crucial element is not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it
alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that “save for a few
isolated places in the country, petitioner does not exist in almost all provinces in the country.”[21]
This argument that “petitioner made untruthful statements in its petition when it alleged its
national existence” is a new one; previously, the COMELEC claimed that petitioner was “not being
truthful when it said that it or any of its nominees/party-list representatives have not violated or
failed to comply with laws, rules, or regulations relating to the elections.” Nowhere was this
ground for denial of petitioner’s accreditation mentioned or even alluded to in the Assailed
Resolutions. This, in itself, is quite curious, considering that the reports of petitioner’s alleged non-
existence were already available to the COMELEC prior to the issuance of the First Assailed
Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute
at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group.[22] Ang Ladlad also represented itself to be “a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks. Xxx

We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to imagine
the reasons behind this censure – religious beliefs, convictions about the preservation of marriage,
family, and procreation, even dislike or distrust of homosexuals themselves and their perceived
lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual
conduct. Evidently, therefore, these “generally accepted public morals” have not been convincingly
transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang
Ladlad. Even the OSG agrees that “there should have been a finding by the COMELEC that the
group’s members have committed or are committing immoral acts.”[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a

different gender, or more than one gender, but mere attraction does not translate to
immoral acts. There is a great divide between thought and action. Reduction ad
absurdum. If immoral thoughts could be penalized, COMELEC would have its hands
full of disqualification cases against both the “straights” and the gays.” Certainly this
is not the intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC condescended to justify its
position that petitioner’s admission into the party-list system would be so harmful as to
irreparably damage the moral fabric of society. We, of course, do not suggest that the state is
wholly without authority to regulate matters concerning morality, sexuality, and sexual relations,
and we recognize that the government will and should continue to restrict behavior considered
detrimental to society. Nonetheless, we cannot countenance advocates who, undoubtedly with the
loftiest of intentions, situate morality on one end of an argument or another, without bothering to
go through the rigors of legal reasoning and explanation. In this, the notion of morality is robbed of
all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.
 We also find the COMELEC’s reference to purported violations of our penal and civil laws
flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as “any act,
omission, establishment, condition of property, or anything else which shocks, defies, or disregards
decency or morality,” the remedies for which are a prosecution under the Revised Penal Code or
any local ordinance, a civil action, or abatement without judicial proceedings.[32] A violation of
Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt
to support a criminal conviction. It hardly needs to be emphasized that mere allegation of violation
of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution
of civil or criminal proceedings and a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system. The denial
of Ang Ladlad’s registration on purely moral grounds amounts more to a statement of dislike and
disapproval of homosexuals, rather than a tool to further any substantial public
interest. Respondent’s blanket justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not because of any particular morally
reprehensible act. It is this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution xxx courts have never
interpreted the provision as an absolute prohibition on classification. “Equality,” said Aristotle,
“consists in the same treatment of similar persons.”[33] The equal protection clause guarantees that
no person or class of persons shall be deprived of the same protection of laws which is enjoyed by
other persons or other classes in the same place and in like circumstances.[34]

Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational relationship to
some legitimate government end.[35] In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,[36] we declared that “[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with a deferential attitude to
legislative classifications and a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution.”[37]

The COMELEC posits that the majority of the Philippine population considers homosexual
conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify the
petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such
belief. No law exists to criminalize homosexual behavior or expressions or parties about
homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC
describes it, the asserted state interest here – that is, moral disapproval of an unpopular minority –
is not a legitimate state interest that is sufficient to satisfy rational basis review under the equal
protection clause. The COMELEC’s differentiation, and its unsubstantiated claim that Ang
Ladlad cannot contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other political
parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to participate in the
party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELEC’s act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would
similarly fail. We disagree with the OSG’s position that homosexuals are a class in themselves for
the purposes of the equal protection clause.[38] We are not prepared to single out homosexuals as a
separate class meriting special or differentiated treatment. We have not received sufficient
evidence to this effect, and it is simply unnecessary to make such a ruling today. Petitioner itself has
merely demanded that it be recognized under the same basis as all other groups similarly situated,
and that the COMELEC made “an unwarranted and impermissible classification not justified by the
circumstances of the case.”

Freedom of Expression and Association

 Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means.[39] It is in the
public square that deeply held convictions and differing opinions should be distilled and
deliberated upon. As we held in Estrada v. Escritor:[40]

In a democracy, this common agreement on political and moral ideas is

distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the public
square where people deliberate the order of their life together. Citizens are the
bearers of opinion, including opinion shaped by, or espousing religious belief, and
these citizens have equal access to the public square. In this representative
democracy, the state is prohibited from determining which convictions and moral
judgments may be proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule is a necessary
principle in this democratic governance. Thus, when public deliberation on moral
judgments is finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in
the very act of adopting and accepting a constitution and the limits it specifies –
including protection of religious freedom "not only for a minority, however small –
not only for a majority, however large – but for each of us" – the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise could
do: to ride roughshod over the dissenting minorities.

Freedom of expression constitutes one of the essential foundations of a democratic society,

and this freedom applies not only to those that are favorably received but also to those that offend,
shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to
impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere
with speech for no better reason than promoting an approved message or discouraging a
disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal
in this country. It follows that both expressions concerning one’s homosexuality and the activity of
forming a political association that supports LGBT individuals are protected as well.
 Other jurisdictions have gone so far as to categorically rule that even overwhelming public
perception that homosexual conduct violates public morality does not justify criminalizing same-
sex conduct.[41] European and United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy and equal protection
provisions in foreign and international texts.[42] To the extent that there is much to learn from other
jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly
illuminating. These foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Court’s analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free
speech doctrines protect gay and lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions must show that their actions
were caused by “something more than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint.”

We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the other
hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual relationships. They,
too, are entitled to hold and express that view. However, as far as this Court is concerned, our
democracy precludes using the religious or moral views of one part of the community to exclude
from consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy between the
rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We
do not suggest that public opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of
homosexuality through this Decision.

Xxx
 To the extent, therefore, that the petitioner has been precluded, because of COMELEC’s
action, from publicly expressing its views as a political party and participating on an equal basis in
the political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to bring about a
more just and humane world order. For individuals and groups struggling with inadequate
structural and governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so that such norms may
become actual, rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote
human rights. In particular, we explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and the ICCPR.

We stress, however, that although this Court stands willing to assume the responsibility of
giving effect to the Philippines’ international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioner’s invocation of
the Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of
international law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms
that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find basis in
any of the sources of international law enumerated under Article 38(1) of the Statute of the
International Court of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis
of these alleged principles of international law to ascertain their true status.
 We also hasten to add that not everything that society – or a certain segment of society –
wants or demands is automatically a human right. This is not an arbitrary human intervention that
may be added to or subtracted from at will. It is unfortunate that much of what passes for human
rights today is a much broader context of needs that identifies many social desires as rights in
order to further claims that international law obliges states to sanction these innovations. This has
the effect of diluting real human rights, and is a result of the notion that if “wants” are couched in
“rights” language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are – at best – de lege ferenda – and
do not constitute binding obligations on the Philippines. Indeed, so much of contemporary
international law is characterized by the “soft law” nomenclature, i.e., international law is full of
principles that promote international cooperation, harmony, and respect for human rights, most of
which amount to no more than well-meaning desires, without the support of either State practice
or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this case are
emotionally charged, societal attitudes are in flux, even the psychiatric and religious communities
are divided in opinion. This Court’s role is not to impose its own view of acceptable behavior.
Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to withstand vigorous debate.

WHEREFORE, the Petition is hereby GRANTED