Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 159618

February 1, 2011

BAYAN MUNA, as represented by Rep. SATUR OCAMPO, Rep. CRISPIN BELTRAN, and Rep. LIZA L.
MAZA, Petitioner,
vs.
ALBERTO ROMULO, in his capacity as Executive Secretary, and BLAS F. OPLE, in his capacity as
Secretary of Foreign Affairs, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This petition1 for certiorari, mandamus and prohibition under Rule 65 assails and seeks to
nullify the Non-Surrender Agreement concluded by and between the Republic of the Philippines
(RP) and the United States of America (USA).
The Facts
Petitioner Bayan Muna is a duly registered party-list group established to represent the
marginalized sectors of society. Respondent Blas F. Ople, now deceased, was the Secretary of
Foreign Affairs during the period material to this case. Respondent Alberto Romulo was
impleaded in his capacity as then Executive Secretary.2
Rome Statute of the International Criminal Court
Having a key determinative bearing on this case is the Rome Statute3 establishing the
International Criminal Court (ICC) with "the power to exercise its jurisdiction over persons for the
most serious crimes of international concern x x x and shall be complementary to the national
criminal jurisdictions."4 The serious crimes adverted to cover those considered grave under
international law, such as genocide, crimes against humanity, war crimes, and crimes of
aggression.5
On December 28, 2000, the RP, through Charge dAffaires Enrique A. Manalo, signed the Rome
Statute which, by its terms, is "subject to ratification, acceptance or approval" by the signatory
states.6 As of the filing of the instant petition, only 92 out of the 139 signatory countries appear
to have completed the ratification, approval and concurrence process. The Philippines is not
among the 92.
RP-US Non-Surrender Agreement
The Issues
I. WHETHER THE [RP] PRESIDENT AND THE [DFA] SECRETARY x x x GRAVELY ABUSED THEIR
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION FOR CONCLUDING
THE RP-US NON SURRENDER AGREEMENT BY MEANS OF [E/N] BFO-028-03 DATED 13 MAY
1

2003, WHEN THE PHILIPPINE GOVERNMENT HAS ALREADY SIGNED THE ROME STATUTE OF
THE [ICC] ALTHOUGH THIS IS PENDING RATIFICATION BY THE PHILIPPINE SENATE.
A. Whether by entering into the x x x Agreement Respondents gravely abused their
discretion when they capriciously abandoned, waived and relinquished our only
legitimate recourse through theRome Statute of the [ICC] to prosecute and try
"persons" as defined in the x x x Agreement, x x x or literally any conduit of
American interests, who have committed crimes of genocide, crimes against
humanity, war crimes and the crime of aggression, thereby abdicating Philippine
Sovereignty.
B. Whether after the signing and pending ratification of the Rome Statute of the
[ICC] the [RP] President and the [DFA] Secretary x x x are obliged by the principle of
good faith to refrain from doing all acts which would substantially impair the value
of the undertaking as signed.
C. Whether the x x x Agreement constitutes an act which defeats the object and
purpose of theRome Statute of the International Criminal Court and contravenes the
obligation of good faith inherent in the signature of the President affixed on
the Rome Statute of the International Criminal Court, and if so whether the x x
x Agreement is void and unenforceable on this ground.
D. Whether the RP-US Non-Surrender Agreement is void and unenforceable for
grave abuse of discretion amounting to lack or excess of jurisdiction in connection
with its execution.
II. WHETHER THE RP-US NON SURRENDER AGREEMENT IS VOID AB INITIO FOR
CONTRACTING OBLIGATIONS THAT ARE EITHER IMMORAL OR OTHERWISE AT VARIANCE
WITH UNIVERSALLY RECOGNIZED PRINCIPLES OF INTERNATIONAL LAW.
III. WHETHER THE x x x AGREEMENT IS VALID, BINDING AND EFFECTIVE WITHOUT THE
CONCURRENCE BY AT LEAST TWO-THIRDS (2/3) OF ALL THE MEMBERS OF THE SENATE x x
x.11
The foregoing issues may be summarized into two: first, whether or not the Agreement was
contracted validly, which resolves itself into the question of whether or not respondents gravely
abused their discretion in concluding it; and second, whether or not the Agreement, which has
not been submitted to the Senate for concurrence, contravenes and undermines the Rome
Statute and other treaties. But because respondents expectedly raised it, we shall first tackle the
issue of petitioners legal standing.
The Courts Ruling
This petition is bereft of merit.
Procedural Issue: Locus Standi of Petitioner
Petitioner, through its three party-list representatives, contends that the issue of the validity or
invalidity of theAgreement carries with it constitutional significance and is of paramount
importance that justifies its standing. Cited in this regard is what is usually referred to as the
emergency powers cases,12 in which ordinary citizens and taxpayers were accorded the
personality to question the constitutionality of executive issuances.
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Locus standi is "a right of appearance in a court of justice on a given question."13 Specifically,
it is "a partys personal and substantial interest in a case where he has sustained or will sustain
direct injury as a result"14 of the act being challenged, and "calls for more than just a
generalized grievance."15 The term "interest" refers to material interest, as distinguished from
one that is merely incidental.16 The rationale for requiring a party who challenges the validity
of a law or international agreement to allege such a personal stake in the outcome of the
controversy is "to assure the concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult constitutional questions."17
Locus standi, however, is merely a matter of procedure and it has been recognized that, in some
cases, suits are not brought by parties who have been personally injured by the operation of a
law or any other government act, but by concerned citizens, taxpayers, or voters who actually
sue in the public interest.18 Consequently, in a catena of cases,19 this Court has invariably
adopted a liberal stance on locus standi.
Going by the petition, petitioners representatives pursue the instant suit primarily as concerned
citizens raising issues of transcendental importance, both for the Republic and the citizenry as a
whole.
When suing as a citizen to question the validity of a law or other government action, a petitioner
needs to meet certain specific requirements before he can be clothed with standing. Francisco, Jr.
v. Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino, Inc.20 expounded on
this requirement, thus:
In a long line of cases, however, concerned citizens, taxpayers and legislators when specific
requirements have been met have been given standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the constitutionality of a statute
must be direct and personal. He must be able to show, not only that the law or any government
act is invalid, but also that he sustained or is in imminent danger of sustaining some direct injury
as a result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some burdens or
penalties by reason of the statute or act complained of. In fine, when the proceeding involves the
assertion of a public right, the mere fact that he is a citizen satisfies the requirement of personal
interest.21
In the case at bar, petitioners representatives have complied with the qualifying conditions or
specific requirements exacted under the locus standi rule. As citizens, their interest in the subject
matter of the petition is direct and personal. At the very least, their assertions questioning the
Agreement are made of a public right, i.e., to ascertain that the Agreement did not go against
established national policies, practices, and obligations bearing on the States obligation to the
community of nations.
At any event, the primordial importance to Filipino citizens in general of the issue at hand impels
the Court to brush aside the procedural barrier posed by the traditional requirement of locus
standi, as we have done in a long line of earlier cases, notably in the old but oft-cited emergency
powers cases22 and Kilosbayan v. Guingona, Jr.23 In cases of transcendental importance, we
wrote again in Bayan v. Zamora,24 "The Court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of judicial
review."

Moreover, bearing in mind what the Court said in Taada v. Angara, "that it will not shirk, digress
from or abandon its sacred duty and authority to uphold the Constitution in matters that involve
grave abuse of discretion brought before it in appropriate cases, committed by any officer,
agency, instrumentality or department of the government,"25 we cannot but resolve head on
the issues raised before us. Indeed, where an action of any branch of government is seriously
alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes
not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are
precisely raised putting to the fore the propriety of the Agreement pending the ratification of the
Rome Statute.
Validity of the RP-US Non-Surrender Agreement
Petitioners initial challenge against the Agreement relates to form, its threshold posture being
that E/N BFO-028-03 cannot be a valid medium for concluding the Agreement.
Petitioners contentionperhaps taken unaware of certain well-recognized international
doctrines, practices, and jargonsis untenable. One of these is the doctrine of incorporation, as
expressed in Section 2, Article II of the Constitution, wherein the Philippines adopts the generally
accepted principles of international law and international jurisprudence as part of the law of the
land and adheres to the policy of peace, cooperation, and amity with all nations.26 An
exchange of notes falls "into the category of inter-governmental agreements,"27 which is an
internationally accepted form of international agreement. The United Nations Treaty Collections
(Treaty Reference Guide) defines the term as follows:
An "exchange of notes" is a record of a routine agreement, that has many similarities with the
private law contract. The agreement consists of the exchange of two documents, each of the
parties being in the possession of the one signed by the representative of the other. Under the
usual procedure, the accepting State repeats the text of the offering State to record its assent.
The signatories of the letters may be government Ministers, diplomats or departmental heads.
The technique of exchange of notes is frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of legislative approval.28
In another perspective, the terms "exchange of notes" and "executive agreements" have been
used interchangeably, exchange of notes being considered a form of executive agreement that
becomes binding through executive action.29 On the other hand, executive agreements
concluded by the President "sometimes take the form of exchange of notes and at other times
that of more formal documents denominated agreements or protocols."30 As former US High
Commissioner to the Philippines Francis B. Sayre observed in his work, The Constitutionality of
Trade Agreement Acts:
The point where ordinary correspondence between this and other governments ends and
agreements whether denominated executive agreements or exchange of notes or otherwise
begin, may sometimes be difficult of ready ascertainment.31 x x x
It is fairly clear from the foregoing disquisition that E/N BFO-028-03be it viewed as the NonSurrender Agreement itself, or as an integral instrument of acceptance thereof or as consent to
be boundis a recognized mode of concluding a legally binding international written contract
among nations.
Senate Concurrence Not Required
Article 2 of the Vienna Convention on the Law of Treaties defines a treaty as "an international
agreement concluded between states in written form and governed by international law, whether
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embodied in a single instrument or in two or more related instruments and whatever its
particular designation."32 International agreements may be in the form of (1) treaties that
require legislative concurrence after executive ratification; or (2) executive agreements that are
similar to treaties, except that they do not require legislative concurrence and are usually less
formal and deal with a narrower range of subject matters than treaties.33
Under international law, there is no difference between treaties and executive agreements in
terms of their binding effects on the contracting states concerned,34 as long as the negotiating
functionaries have remained within their powers.35 Neither, on the domestic sphere, can one
be held valid if it violates the Constitution.36 Authorities are, however, agreed that one is
distinct from another for accepted reasons apart from the concurrence-requirement
aspect.37 As has been observed by US constitutional scholars, a treaty has greater "dignity"
than an executive agreement, because its constitutional efficacy is beyond doubt, a treaty
having behind it the authority of the President, the Senate, and the people; 38 a ratified treaty,
unlike an executive agreement, takes precedence over any prior statutory enactment.39
Petitioner parlays the notion that the Agreement is of dubious validity, partaking as it does of the
nature of a treaty; hence, it must be duly concurred in by the Senate. Petitioner takes a cue
from Commissioner of Customs v. Eastern Sea Trading, in which the Court reproduced the
following observations made by US legal scholars: "[I]nternational agreements involving political
issues or changes of national policy and those involving international arrangements of a
permanent character usually take the form of treaties [while] those embodying adjustments of
detail carrying out well established national policies and traditions and those involving
arrangements of a more or less temporary nature take the form of executive agreements." 40
Pressing its point, petitioner submits that the subject of the Agreement does not fall under any of
the subject-categories that are enumerated in the Eastern Sea Trading case, and that may be
covered by an executive agreement, such as commercial/consular relations, most-favored nation
rights, patent rights, trademark and copyright protection, postal and navigation arrangements
and settlement of claims.
In addition, petitioner foists the applicability to the instant case of Adolfo v. CFI of Zambales and
Merchant,41 holding that an executive agreement through an exchange of notes cannot be
used to amend a treaty.
We are not persuaded.
The categorization of subject matters that may be covered by international agreements
mentioned in Eastern Sea Trading is not cast in stone. There are no hard and fast rules on the
propriety of entering, on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in the choice of the form of
agreement is the parties intent and desire to craft an international agreement in the form they
so wish to further their respective interests. Verily, the matter of form takes a back seat when it
comes to effectiveness and binding effect of the enforcement of a treaty or an executive
agreement, as the parties in either international agreement each labor under the pacta sunt
servanda42 principle.
As may be noted, almost half a century has elapsed since the Court rendered its decision
in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and
the domain of international law wider, as to include such subjects as human rights, the
environment, and the sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation,
aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear
5

safety, among others.43 Surely, the enumeration in Eastern Sea Trading cannot circumscribe
the option of each state on the matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his work referred to earlier:
x x x It would be useless to undertake to discuss here the large variety of executive agreements
as such concluded from time to time. Hundreds of executive agreements, other than those
entered into under the trade-agreement act, have been negotiated with foreign governments. x x
x They cover such subjects as the inspection of vessels, navigation dues, income tax on shipping
profits, the admission of civil air craft, custom matters and commercial relations generally,
international claims, postal matters, the registration of trademarks and copyrights, etc. x x x
And lest it be overlooked, one type of executive agreement is a treaty-authorized44 or a treatyimplementing executive agreement,45 which necessarily would cover the same matters subject
of the underlying treaty.
But over and above the foregoing considerations is the fact thatsave for the situation and
matters contemplated in Sec. 25, Art. XVIII of the Constitution46 when a treaty is required, the
Constitution does not classify any subject, like that involving political issues, to be in the form of,
and ratified as, a treaty. What the Constitution merely prescribes is that treaties need the
concurrence of the Senate by a vote defined therein to complete the ratification process.
Petitioners reliance on Adolfo47 is misplaced, said case being inapplicable owing to different
factual milieus. There, the Court held that an executive agreement cannot be used to amend a
duly ratified and existing treaty, i.e., the Bases Treaty. Indeed, an executive agreement that does
not require the concurrence of the Senate for its ratification may not be used to amend a treaty
that, under the Constitution, is the product of the ratifying acts of the Executive and the Senate.
The presence of a treaty, purportedly being subject to amendment by an executive agreement,
does not obtain under the premises.
Considering the above discussion, the Court need not belabor at length the third main issue
raised, referring to the validity and effectivity of the Agreement without the concurrence by at
least two-thirds of all the members of the Senate. The Court has, in Eastern Sea Trading,48 as
reiterated in Bayan,49 given recognition to the obligatory effect of executive agreements
without the concurrence of the Senate:
x x x [T]he right of the Executive to enter into binding agreements without the necessity of
subsequent Congressional approval has been confirmed by long usage. From the earliest days of
our history, we have entered executive agreements covering such subjects as commercial and
consular relations, most favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The validity of these has never
been seriously questioned by our courts.
The Agreement Not in Contravention of the Rome Statute
It is the petitioners next contention that the Agreement undermines the establishment of the ICC
and is null and void insofar as it unduly restricts the ICCs jurisdiction and infringes upon the
effectivity of the Rome Statute. Petitioner posits that the Agreement was constituted solely for
the purpose of providing individuals or groups of individuals with immunity from the jurisdiction
of the ICC; and such grant of immunity through non-surrender agreements allegedly does not
legitimately fall within the scope of Art. 98 of the Rome Statute. It concludes that state parties
with non-surrender agreements are prevented from meeting their obligations under the Rome
Statute, thereby constituting a breach of Arts. 27,50 86,51 8952 and 9053 thereof.
6

Petitioner stresses that the overall object and purpose of the Rome Statute is to ensure that
those responsible for the worst possible crimes are brought to justice in all cases, primarily by
states, but as a last resort, by the ICC; thus, any agreementlike the non-surrender agreement
that precludes the ICC from exercising its complementary function of acting when a state is
unable to or unwilling to do so, defeats the object and purpose of the Rome Statute.
Petitioner would add that the President and the DFA Secretary, as representatives of a signatory
of the Rome Statute, are obliged by the imperatives of good faith to refrain from performing acts
that substantially devalue the purpose and object of the Statute, as signed. Adding a nullifying
ingredient to the Agreement, according to petitioner, is the fact that it has an immoral purpose
or is otherwise at variance with a priorly executed treaty.
Contrary to petitioners pretense, the Agreement does not contravene or undermine, nor does it
differ from, the Rome Statute. Far from going against each other, one complements the other. As
a matter of fact, the principle of complementarity underpins the creation of the ICC. As aptly
pointed out by respondents and admitted by petitioners, the jurisdiction of the ICC is to "be
complementary to national criminal jurisdictions [of the signatory states]."54 Art. 1 of the Rome
Statute pertinently provides:
Article 1
The Court
An International Crimininal Court ("the Court") is hereby established. It x x x shall have the power
to exercise its jurisdiction over persons for the most serious crimes of international concern, as
referred to in this Statute, and shall be complementary to national criminal jurisdictions. The
jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
(Emphasis ours.)
Significantly, the sixth preambular paragraph of the Rome Statute declares that "it is the duty of
every State to exercise its criminal jurisdiction over those responsible for international crimes."
This provision indicates that primary jurisdiction over the so-called international crimes rests, at
the first instance, with the state where the crime was committed; secondarily, with the ICC in
appropriate situations contemplated under Art. 17, par. 155 of the Rome Statute.
Of particular note is the application of the principle of ne bis in idem56 under par. 3 of Art. 20,
Rome Statute, which again underscores the primacy of the jurisdiction of a state vis-a-vis that of
the ICC. As far as relevant, the provision states that "no person who has been tried by another
court for conduct x x x [constituting crimes within its jurisdiction] shall be tried by the
[International Criminal] Court with respect to the same conduct x x x."
The foregoing provisions of the Rome Statute, taken collectively, argue against the idea of
jurisdictional conflict between the Philippines, as party to the non-surrender agreement, and the
ICC; or the idea of the Agreement substantially impairing the value of the RPs undertaking under
the Rome Statute. Ignoring for a while the fact that the RP signed the Rome Statute ahead of
the Agreement, it is abundantly clear to us that the Rome Statute expressly recognizes the
primary jurisdiction of states, like the RP, over serious crimes committed within their respective
borders, the complementary jurisdiction of the ICC coming into play only when the signatory
states are unwilling or unable to prosecute.
Given the above consideration, petitioners suggestionthat the RP, by entering into
the Agreement, violated its duty required by the imperatives of good faith and breached its
commitment under the Vienna Convention57 to refrain from performing any act tending to
impair the value of a treaty, e.g., the Rome Statutehas to be rejected outright. For nothing in
7

the provisions of the Agreement, in relation to the Rome Statute, tends to diminish the efficacy of
the Statute, let alone defeats the purpose of the ICC. Lest it be overlooked, the Rome Statute
contains a proviso that enjoins the ICC from seeking the surrender of an erring person, should
the process require the requested state to perform an act that would violate some international
agreement it has entered into. We refer to Art. 98(2) of the Rome Statute, which reads:
Article 98
Cooperation with respect to waiver of immunity
and consent to surrender
xxxx
2. The Court may not proceed with a request for surrender which would require the requested
State to act inconsistently with its obligations under international agreements pursuant to which
the consent of a sending State is required to surrender a person of that State to the Court, unless
the Court can first obtain the cooperation of the sending State for the giving of consent for the
surrender.
Moreover, under international law, there is a considerable difference between a State-Party and a
signatory to a treaty. Under the Vienna Convention on the Law of Treaties, a signatory state is
only obliged to refrain from acts which would defeat the object and purpose of a
treaty;58 whereas a State-Party, on the other hand, is legally obliged to follow all the provisions
of a treaty in good faith.
In the instant case, it bears stressing that the Philippines is only a signatory to the Rome Statute
and not a State-Party for lack of ratification by the Senate. Thus, it is only obliged to refrain from
acts which would defeat the object and purpose of the Rome Statute. Any argument obliging the
Philippines to follow any provision in the treaty would be premature.
As a result, petitioners argument that State-Parties with non-surrender agreements are
prevented from meeting their obligations under the Rome Statute, specifically Arts. 27, 86, 89
and 90, must fail. These articles are only legally binding upon State-Parties, not signatories.
Furthermore, a careful reading of said Art. 90 would show that the Agreement is not incompatible
with the Rome Statute. Specifically, Art. 90(4) provides that "[i]f the requesting State is a State
not Party to this Statute the requested State, if it is not under an international obligation to
extradite the person to the requesting State, shall give priority to the request for surrender from
the Court. x x x" In applying the provision, certain undisputed facts should be pointed out: first,
the US is neither a State-Party nor a signatory to the Rome Statute; and second, there is an
international agreement between the US and the Philippines regarding extradition or surrender of
persons, i.e., the Agreement. Clearly, even assuming that the Philippines is a State-Party, the
Rome Statute still recognizes the primacy of international agreements entered into between
States, even when one of the States is not a State-Party to the Rome Statute.
Sovereignty Limited by International Agreements
Petitioner next argues that the RP has, through the Agreement, abdicated its sovereignty by
bargaining away the jurisdiction of the ICC to prosecute US nationals, government
officials/employees or military personnel who commit serious crimes of international concerns in
the Philippines. Formulating petitioners argument a bit differently, the RP, by entering into
the Agreement, does thereby abdicate its sovereignty, abdication being done by its waiving or
abandoning its right to seek recourse through the Rome Statute of the ICC for erring Americans
committing international crimes in the country.
8

We are not persuaded. As it were, the Agreement is but a form of affirmance and confirmance of
the Philippines national criminal jurisdiction. National criminal jurisdiction being primary, as
explained above, it is always the responsibility and within the prerogative of the RP either to
prosecute criminal offenses equally covered by the Rome Statute or to accede to the jurisdiction
of the ICC. Thus, the Philippines may decide to try "persons" of the US, as the term is understood
in the Agreement, under our national criminal justice system. Or it may opt not to exercise its
criminal jurisdiction over its erring citizens or over US "persons" committing high crimes in the
country and defer to the secondary criminal jurisdiction of the ICC over them. As to "persons" of
the US whom the Philippines refuses to prosecute, the country would, in effect, accord discretion
to the US to exercise either its national criminal jurisdiction over the "person" concerned or to
give its consent to the referral of the matter to the ICC for trial. In the same breath, the US must
extend the same privilege to the Philippines with respect to "persons" of the RP committing high
crimes within US territorial jurisdiction.
In the context of the Constitution, there can be no serious objection to the Philippines agreeing to
undertake the things set forth in the Agreement. Surely, one State can agree to waive jurisdiction
to the extent agreed uponto subjects of another State due to the recognition of the principle
of extraterritorial immunity. What the Court wrote in Nicolas v. Romulo59 a case involving the
implementation of the criminal jurisdiction provisions of the RP-US Visiting Forces Agreementis
apropos:
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. x x x
To be sure, the nullity of the subject non-surrender agreement cannot be predicated on the
postulate that some of its provisions constitute a virtual abdication of its sovereignty. Almost
every time a state enters into an international agreement, it voluntarily sheds off part of its
sovereignty. The Constitution, as drafted, did not envision a reclusive Philippines isolated from
the rest of the world. It even adheres, as earlier stated, to the policy of cooperation and amity
with all nations.60
By their nature, treaties and international agreements actually have a limiting effect on the
otherwise encompassing and absolute nature of sovereignty. By their voluntary act, nations may
decide to surrender or waive some aspects of their state power or agree to limit the exercise of
their otherwise exclusive and absolute jurisdiction. The usual underlying consideration in this
partial surrender may be the greater benefits derived from a pact or a reciprocal undertaking of
one contracting party to grant the same privileges or immunities to the other. On the rationale
that the Philippines has adopted the generally accepted principles of international law as part of
the law of the land, a portion of sovereignty may be waived without violating the
Constitution.61 Such waiver does not amount to an unconstitutional diminution or deprivation
of jurisdiction of Philippine courts.62
Agreement Not Immoral/Not at Variance
with Principles of International Law
Petitioner urges that the Agreement be struck down as void ab initio for imposing immoral
obligations and/or being at variance with allegedly universally recognized principles of
international law. The immoral aspect proceeds from the fact that the Agreement, as petitioner
would put it, "leaves criminals immune from responsibility for unimaginable atrocities that deeply
shock the conscience of humanity; x x x it precludes our country from delivering an American
criminal to the [ICC] x x x."63
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The above argument is a kind of recycling of petitioners earlier position, which, as already
discussed, contends that the RP, by entering into the Agreement, virtually abdicated its
sovereignty and in the process undermined its treaty obligations under the Rome Statute,
contrary to international law principles.64
The Court is not persuaded. Suffice it to state in this regard that the non-surrender agreement,
as aptly described by the Solicitor General, "is an assertion by the Philippines of its desire to try
and punish crimes under its national law. x x x The agreement is a recognition of the primacy
and competence of the countrys judiciary to try offenses under its national criminal laws and
dispense justice fairly and judiciously."
Petitioner, we believe, labors under the erroneous impression that the Agreement would allow
Filipinos and Americans committing high crimes of international concern to escape criminal trial
and punishment. This is manifestly incorrect. Persons who may have committed acts penalized
under the Rome Statute can be prosecuted and punished in the Philippines or in the US; or with
the consent of the RP or the US, before the ICC, assuming, for the nonce, that all the formalities
necessary to bind both countries to the Rome Statute have been met. For perspective, what
the Agreement contextually prohibits is the surrender by either party of individuals to
international tribunals, like the ICC, without the consent of the other party, which may desire to
prosecute the crime under its existing laws. With the view we take of things, there is nothing
immoral or violative of international law concepts in the act of the Philippines of assuming
criminal jurisdiction pursuant to the non-surrender agreement over an offense considered
criminal by both Philippine laws and the Rome Statute.
No Grave Abuse of Discretion
Petitioners final point revolves around the necessity of the Senates concurrence in the
Agreement. And without specifically saying so, petitioner would argue that the non-surrender
agreement was executed by the President, thru the DFA Secretary, in grave abuse of discretion.
The Court need not delve on and belabor the first portion of the above posture of petitioner, the
same having been discussed at length earlier on. As to the second portion, We wish to state that
petitioner virtually faults the President for performing, through respondents, a task conferred the
President by the Constitutionthe power to enter into international agreements.
By constitutional fiat and by the nature of his or her office, the President, as head of state and
government, is the sole organ and authority in the external affairs of the country.65 The
Constitution vests in the President the power to enter into international agreements, subject, in
appropriate cases, to the required concurrence votes of the Senate. But as earlier indicated,
executive agreements may be validly entered into without such concurrence. As the President
wields vast powers and influence, her conduct in the external affairs of the nation is, as Bayan
would put it, "executive altogether." The right of the President to enter into or ratify binding
executive agreements has been confirmed by long practice.66
In thus agreeing to conclude the Agreement thru E/N BFO-028-03, then President Gloria
Macapagal-Arroyo, represented by the Secretary of Foreign Affairs, acted within the scope of the
authority and discretion vested in her by the Constitution. At the end of the day, the President
by ratifying, thru her deputies, the non-surrender agreementdid nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.
While the issue of ratification of the Rome Statute is not determinative of the other issues raised
herein, it may perhaps be pertinent to remind all and sundry that about the time this petition was
interposed, such issue of ratification was laid to rest in Pimentel, Jr. v. Office of the Executive
10

Secretary.67 As the Court emphasized in said case, the power to ratify a treaty, the Statute in
that instance, rests with the President, subject to the concurrence of the Senate, whose role
relative to the ratification of a treaty is limited merely to concurring in or withholding the
ratification. And concomitant with this treaty-making power of the President is his or her
prerogative to refuse to submit a treaty to the Senate; or having secured the latters consent to
the ratification of the treaty, refuse to ratify it.68 This prerogative, the Court hastened to add, is
the Presidents alone and cannot be encroached upon via a writ of mandamus. Barring
intervening events, then, the Philippines remains to be just a signatory to the Rome Statute.
Under Art. 12569 thereof, the final acts required to complete the treaty process and, thus, bring
it into force, insofar as the Philippines is concerned, have yet to be done.
Agreement Need Not Be in the Form of a Treaty
On December 11, 2009, then President Arroyo signed into law Republic Act No. (RA) 9851,
otherwise known as the "Philippine Act on Crimes Against International Humanitarian Law,
Genocide, and Other Crimes Against Humanity." Sec. 17 of RA 9851, particularly the second
paragraph thereof, provides:
Section 17. Jurisdiction. x x x x
In the interest of justice, the relevant Philippine authorities may dispense with the investigation
or prosecution of a crime punishable under this Act if another court or international tribunal is
already conducting the investigation or undertaking the prosecution of such crime. Instead, the
authorities may surrender or extradite suspected or accused persons in the Philippines to the
appropriate international court, if any, or to another State pursuant to the applicable extradition
laws and treaties. (Emphasis supplied.)
A view is advanced that the Agreement amends existing municipal laws on the States obligation
in relation to grave crimes against the law of nations, i.e., genocide, crimes against humanity
and war crimes. Relying on the above-quoted statutory proviso, the view posits that the
Philippine is required to surrender to the proper international tribunal those persons accused of
the grave crimes defined under RA 9851, if it does not exercise its primary jurisdiction to
prosecute them.
The basic premise rests on the interpretation that if it does not decide to prosecute a foreign
national for violations of RA 9851, the Philippines has only two options, to wit: (1) surrender the
accused to the proper international tribunal; or (2) surrender the accused to another State if such
surrender is "pursuant to the applicable extradition laws and treaties." But the Philippines may
exercise these options only in cases where "another court or international tribunal is already
conducting the investigation or undertaking the prosecution of such crime;" otherwise, the
Philippines must prosecute the crime before its own courts pursuant to RA 9851.
Posing the situation of a US national under prosecution by an international tribunal for any crime
under RA 9851, the Philippines has the option to surrender such US national to the international
tribunal if it decides not to prosecute such US national here. The view asserts that this option of
the Philippines under Sec. 17 of RA 9851 is not subject to the consent of the US, and any
derogation of Sec. 17 of RA 9851, such as requiring the consent of the US before the Philippines
can exercise such option, requires an amendatory law. In line with this scenario, the view
strongly argues that the Agreement prevents the Philippineswithout the consent of the US
from surrendering to any international tribunal US nationals accused of crimes covered by RA
9851, and, thus, in effect amends Sec. 17 of RA 9851. Consequently, the view is strongly
impressed that the Agreement cannot be embodied in a simple executive agreement in the form
11

of an exchange of notes but must be implemented through an extradition law or a treaty with the
corresponding formalities.
Moreover, consonant with the foregoing view, citing Sec. 2, Art. II of the Constitution, where the
Philippines adopts, as a national policy, the "generally accepted principles of international law as
part of the law of the land," the Court is further impressed to perceive the Rome Statute as
declaratory of customary international law. In other words, the Statute embodies principles of law
which constitute customary international law or custom and for which reason it assumes the
status of an enforceable domestic law in the context of the aforecited constitutional provision. As
a corollary, it is argued that any derogation from the Rome Statute principles cannot be
undertaken via a mere executive agreement, which, as an exclusive act of the executive branch,
can only implement, but cannot amend or repeal, an existing law. The Agreement, so the
argument goes, seeks to frustrate the objects of the principles of law or alters customary rules
embodied in the Rome Statute.
Prescinding
from
the
foregoing
premises,
the
view
thus
advanced
considers
the Agreement inefficacious, unless it is embodied in a treaty duly ratified with the concurrence
of the Senate, the theory being that a Senate- ratified treaty partakes of the nature of a
municipal law that can amend or supersede another law, in this instance Sec. 17 of RA 9851 and
the status of the Rome Statute as constitutive of enforceable domestic law under Sec. 2, Art. II of
the Constitution.
We are unable to lend cogency to the view thus taken. For one, we find that the Agreement does
not amend or is repugnant to RA 9851. For another, the view does not clearly state what precise
principles of law, if any, theAgreement alters. And for a third, it does not demonstrate in the
concrete how the Agreement seeks to frustrate the objectives of the principles of law subsumed
in the Rome Statute.
Far from it, as earlier explained, the Agreement does not undermine the Rome Statute as the
former merely reinforces the primacy of the national jurisdiction of the US and the Philippines in
prosecuting criminal offenses committed by their respective citizens and military personnel,
among others. The jurisdiction of the ICC pursuant to the Rome Statute over high crimes
indicated thereat is clearly and unmistakably complementary to the national criminal jurisdiction
of the signatory states.
Moreover, RA 9851 clearly: (1) defines and establishes the crimes against international
humanitarian law, genocide and other crimes against humanity;70 (2) provides penal sanctions
and criminal liability for their commission;71 and (3) establishes special courts for the
prosecution of these crimes and for the State to exercise primary criminal
jurisdiction.72 Nowhere in RA 9851 is there a proviso that goes against the tenor of
theAgreement.
The view makes much of the above quoted second par. of Sec. 17, RA 9851 as requiring the
Philippine State to surrender to the proper international tribunal those persons accused of crimes
sanctioned under said law if it does not exercise its primary jurisdiction to prosecute such
persons. This view is not entirely correct, for the above quoted proviso clearly
provides discretion to the Philippine State on whether to surrender or not a person accused of the
crimes under RA 9851. The statutory proviso uses the word "may." It is settled doctrine in
statutory construction that the word "may" denotes discretion, and cannot be construed as
having mandatory effect.73 Thus, the pertinent second pararagraph of Sec. 17, RA 9851 is
simply permissive on the part of the Philippine State.1avvphi1

12

Besides, even granting that the surrender of a person is mandatorily required when the
Philippines does not exercise its primary jurisdiction in cases where "another court or
international tribunal is already conducting the investigation or undertaking the prosecution of
such crime," still, the tenor of the Agreement is not repugnant to Sec. 17 of RA 9851. Said legal
proviso aptly provides that the surrender may be made "to another State pursuant to the
applicable extradition laws and treaties." The Agreement can already be considered a treaty
following this Courts decision in Nicolas v. Romulo74 which cited Weinberger v. Rossi.75 In
Nicolas, We held that "an executive agreement is a treaty within the meaning of that word in
international law and constitutes enforceable domestic law vis--vis the United States."76
Likewise, the Philippines and the US already have an existing extradition treaty, i.e., RP-US
Extradition Treaty, which was executed on November 13, 1994. The pertinent Philippine law, on
the other hand, is Presidential Decree No. 1069, issued on January 13, 1977. Thus,
the Agreement, in conjunction with the RP-US Extradition Treaty, would neither violate nor run
counter to Sec. 17 of RA 9851.
The views reliance on Suplico v. Neda77 is similarly improper. In that case, several petitions
were filed questioning the power of the President to enter into foreign loan agreements.
However, before the petitions could be resolved by the Court, the Office of the Solicitor General
filed a Manifestation and Motion averring that the Philippine Government decided not to continue
with the ZTE National Broadband Network Project, thus rendering the petition moot. In resolving
the case, the Court took judicial notice of the act of the executive department of the Philippines
(the President) and found the petition to be indeed moot. Accordingly, it dismissed the petitions.
In his dissent in the abovementioned case, Justice Carpio discussed the legal implications of an
executive agreement. He stated that "an executive agreement has the force and effect of law x x
x [it] cannot amend or repeal prior laws."78 Hence, this argument finds no application in this
case seeing as RA 9851 is a subsequent law, not a prior one. Notably, this argument cannot be
found in the ratio decidendi of the case, but only in the dissenting opinion.
The view further contends that the RP-US Extradition Treaty is inapplicable to RA 9851 for the
reason that under par. 1, Art. 2 of the RP-US Extradition Treaty, "[a]n offense shall be an
extraditable offense if it is punishable under the laws in both Contracting Parties x x x," 79 and
thereby concluding that while the Philippines has criminalized under RA 9851 the acts defined in
the Rome Statute as war crimes, genocide and other crimes against humanity, there is no similar
legislation in the US. It is further argued that, citing U.S. v. Coolidge, in the US, a person cannot
be tried in the federal courts for an international crime unless Congress adopts a law defining
and punishing the offense.
This view must fail.
On the contrary, the US has already enacted legislation punishing the high crimes mentioned
earlier. In fact, as early as October 2006, the US enacted a law criminalizing war crimes. Section
2441, Chapter 118, Part I, Title 18 of the United States Code Annotated (USCA) provides for the
criminal offense of "war crimes" which is similar to the war crimes found in both the Rome
Statute and RA 9851, thus:
(a) Offense Whoever, whether inside or outside the United States, commits a war crime,
in any of the circumstances described in subsection (b), shall be fined under this title or
imprisoned for life or any term of years, or both, and if death results to the victim, shall
also be subject to the penalty of death.

13

(b) Circumstances The circumstances referred to in subsection (a) are that the person
committing such war crime or the victim of such war crime is a member of the Armed
Forces of the United States or a national of the United States (as defined in Section 101 of
the Immigration and Nationality Act).
(c) Definition As used in this Section the term "war crime" means any conduct
(1) Defined as a grave breach in any of the international conventions signed at
Geneva 12 August 1949, or any protocol to such convention to which the United
States is a party;
(2) Prohibited by Article 23, 25, 27 or 28 of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) Which constitutes a grave breach of common Article 3 (as defined in subsection
[d]) when committed in the context of and in association with an armed conflict not
of an international character; or
(4) Of a person who, in relation to an armed conflict and contrary to the provisions
of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and
Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3
May 1996), when the United States is a party to such Protocol, willfully kills or
causes serious injury to civilians.80 1avvphi1
Similarly, in December 2009, the US adopted a law that criminalized genocide, to wit:
1091. Genocide
(a) Basic Offense Whoever, whether in the time of peace or in time of war and with
specific intent to destroy, in whole or in substantial part, a national, ethnic, racial or
religious group as such
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the
group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical
destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).81
Arguing further, another view has been advanced that the current US laws do not cover every
crime listed within the jurisdiction of the ICC and that there is a gap between the definitions of
the different crimes under the US laws versus the Rome Statute. The view used a report written
by Victoria K. Holt and Elisabeth W. Dallas, entitled "On Trial: The US Military and the
International Criminal Court," as its basis.
14

At the outset, it should be pointed out that the report used may not have any weight or value
under international law. Article 38 of the Statute of the International Court of Justice (ICJ) lists the
sources of international law, as follows: (1) international conventions, whether general or
particular, establishing rules expressly recognized by the contesting states; (2) international
custom, as evidence of a general practice accepted as law; (3) the general principles of law
recognized by civilized nations; and (4) subject to the provisions of Article 59, judicial decisions
and the teachings of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law. The report does not fall under any of the foregoing
enumerated sources. It cannot even be considered as the "teachings of highly qualified
publicists." A highly qualified publicist is a scholar of public international law and the term usually
refers to legal scholars or "academic writers."82 It has not been shown that the authors83 of
this report are highly qualified publicists.
Assuming arguendo that the report has weight, still, the perceived gaps in the definitions of the
crimes are nonexistent. To highlight, the table below shows the definitions of genocide and war
crimes under the Rome Statute vis--vis the definitions under US laws:
Rome Statute

US Law

Article 6
Genocide

1091. Genocide

For the purpose of this Statute,

"genocide" means any of the following
acts committed with intent to destroy,
in whole or in part, a national,
ethnical, racial or religious group, as
such:

(a) Basic Offense Whoever,

whether in the time of peace or
in time of war and with specific
intent to destroy, in whole or in
substantial part, a national,
ethnic, racial or religious group
as such

(a) Killing members of the

group;

(1) kills members of that

group;

(b) Causing serious bodily or

mental harm to members of the
group;

(2) causes serious bodily

injury to members of that
group;

(c) Deliberately inflicting on the

group conditions of life
calculated to bring about its
physical destruction in whole or
in part;

(3) causes the

permanent impairment of
the mental faculties of
members of the group
through drugs, torture, or
similar techniques;

(d) Imposing measures

intended to prevent births
within the group;
(e) Forcibly transferring children
of the group to another group.

(4) subjects the group to

conditions of life that are
intended to cause the
physical destruction of
the group in whole or in
part;
(5) imposes measures
intended to prevent
births within the group;

15

or
(6) transfers by force
children of the group to
another group;
shall be punished as provided in
subsection (b).
(d) Definition As used in this
Section the term "war crime"
means any conduct

2. For the purpose of this

Statute, "war crimes" means:
(a) Grave breaches of the
Geneva Conventions of
12 August 1949, namely,
any of the following acts
against persons or
property protected under
the provisions of the
relevant Geneva
Convention: x x x84
(b) Other serious
violations of the laws and
customs applicable in
international armed
conflict, within the
established framework of
international law,
namely, any of the
following acts:
xxxx

(1) Defined as a grave breach in

any of the international
conventions signed at Geneva
12 August 1949, or any protocol
to such convention to which the
United States is a party;
(2) Prohibited by Article 23, 25,
27 or 28 of the Annex to the
Hague Convention IV,
Respecting the Laws and
Customs of War on Land, signed
18 October 1907;
(3) Which constitutes a grave
breach of common Article 3 (as
defined in subsection [d]85 )
when committed in the context
of and in association with an
armed conflict not of an
international character; or
(4) Of a person who, in relation
to an armed conflict and
contrary to the provisions of the
Protocol on Prohibitions or
Restrictions on the Use of
Mines, Booby-Traps and Other
Devices as amended at Geneva
on 3 May 1996 (Protocol II as
amended on 3 May 1996),
when the United States is a
party to such Protocol, willfully
kills or causes serious injury to
civilians.86

(c) In the case of an

armed conflict not of an
international character,
serious violations of
article 3 common to the
four Geneva Conventions
of 12 August 1949,
namely, any of the
following acts committed
against persons taking
no active part in the
hostilities, including
members of armed
forces who have laid
down their arms and
those placed hors de
combat by sickness,
16

wounds, detention or any

other cause:
xxxx
(d) Paragraph 2 (c)
applies to armed
conflicts not of an
international character
and thus does not apply
to situations of internal
disturbances and
tensions, such as riots,
isolated and sporadic
acts of violence or other
acts of a similar nature.
(e) Other serious
violations of the laws and
customs applicable in
armed conflicts not of an
international character,
within the established
framework of
international law,
namely, any of the
following acts: x x x.
Evidently, the gaps pointed out as to the definition of the crimes are not present. In fact, the
report itself stated as much, to wit:
Few believed there were wide differences between the crimes under the jurisdiction of the Court
and crimes within the Uniform Code of Military Justice that would expose US personnel to the
Court. Since US military lawyers were instrumental in drafting the elements of crimes outlined in
the Rome Statute, they ensured that most of the crimes were consistent with those outlined in
the UCMJ and gave strength to complementarity for the US. Small areas of potential gaps
between the UCMJ and the Rome Statute, military experts argued, could be addressed through
existing military laws.87 x x x
The report went on further to say that "[a]ccording to those involved, the elements of crimes laid
out in the Rome Statute have been part of US military doctrine for decades."88 Thus, the
argument proffered cannot stand.
Nonetheless, despite the lack of actual domestic legislation, the US notably follows the doctrine
of incorporation. As early as 1900, the esteemed Justice Gray in The Paquete Habana89 case
already held international law as part of the law of the US, to wit:
International law is part of our law, and must be ascertained and administered by the courts of
justice of appropriate jurisdiction as often as questions of right depending upon it are duly
presented for their determination. For this purpose, where there is no treaty and no controlling
executive or legislative act or judicial decision, resort must be had to the customs and usages of
civilized nations, and, as evidence of these, to the works of jurists and commentators who by
17

years of labor, research, and experience have made themselves peculiarly well acquainted with
the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for the trustworthy
evidence of what the law really is.90 (Emphasis supplied.)
Thus, a person can be tried in the US for an international crime despite the lack of domestic
legislation. The cited ruling in U.S. v. Coolidge,91 which in turn is based on the holding in U.S. v.
Hudson,92 only applies to common law and not to the law of nations or international
law.93 Indeed, the Court in U.S. v. Hudson only considered the question, "whether the Circuit
Courts of the United States can exercise a common law jurisdiction in criminal cases."94 Stated
otherwise, there is no common law crime in the US but this is considerably different from
international law.
The US doubtless recognizes international law as part of the law of the land, necessarily including
international crimes, even without any local statute.95 In fact, years later, US courts would
apply international law as a source of criminal liability despite the lack of a local statute
criminalizing it as such. So it was that in Ex Parte Quirin96 the US Supreme Court noted that
"[f]rom the very beginning of its history this Court has recognized and applied the law of war as
including that part of the law of nations which prescribes, for the conduct of war, the status,
rights and duties of enemy nations as well as of enemy individuals."97 It went on further to
explain that Congress had not undertaken the task of codifying the specific offenses covered in
the law of war, thus:
It is no objection that Congress in providing for the trial of such offenses has not itself undertaken
to codify that branch of international law or to mark its precise boundaries, or to enumerate or
define by statute all the acts which that law condemns. An Act of Congress punishing the crime
of piracy as defined by the law of nations is an appropriate exercise of its constitutional
authority, Art. I, s 8, cl. 10, to define and punish the offense since it has adopted by reference
the sufficiently precise definition of international law. x x x Similarly by the reference in the 15th
Article of War to offenders or offenses that x x x by the law of war may be triable by such
military commissions. Congress has incorporated by reference, as within the jurisdiction of
military commissions, all offenses which are defined as such by the law of war x x x, and which
may constitutionally be included within that jurisdiction.98 x x x (Emphasis supplied.)
This rule finds an even stronger hold in the case of crimes against humanity. It has been held
that genocide, war crimes and crimes against humanity have attained the status of customary
international law. Some even go so far as to state that these crimes have attained the status of
jus cogens.99
Customary international law or international custom is a source of international law as stated in
the Statute of the ICJ.100 It is defined as the "general and consistent practice of states
recognized and followed by them from a sense of legal obligation."101 In order to establish the
customary status of a particular norm, two elements must concur: State practice, the objective
element; and opinio juris sive necessitates, the subjective element.102
State practice refers to the continuous repetition of the same or similar kind of acts or norms by
States.103 It is demonstrated upon the existence of the following elements: (1) generality; (2)
uniformity and consistency; and (3) duration.104 While, opinio juris, the psychological element,
requires that the state practice or norm "be carried out in such a way, as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it."105
"The term jus cogens means the compelling law."106 Corollary, "a jus cogens norm holds the
highest hierarchical position among all other customary norms and principles."107 As a result,
18

jus cogens norms are deemed "peremptory and non-derogable."108 When applied to
international crimes, "jus cogens crimes have been deemed so fundamental to the existence of a
just international legal order that states cannot derogate from them, even by agreement."109
These jus cogens crimes relate to the principle of universal jurisdiction, i.e., "any state may
exercise jurisdiction over an individual who commits certain heinous and widely condemned
offenses, even when no other recognized basis for jurisdiction exists."110 "The rationale behind
this principle is that the crime committed is so egregious that it is considered to be committed
against all members of the international community"111 and thus granting every State
jurisdiction over the crime.112
Therefore, even with the current lack of domestic legislation on the part of the US, it still has
both the doctrine of incorporation and universal jurisdiction to try these crimes.
Consequently, no matter how hard one insists, the ICC, as an international tribunal, found in the
Rome Statute is not declaratory of customary international law.
The first element of customary international law, i.e., "established, widespread, and consistent
practice on the part of States,"113 does not, under the premises, appear to be obtaining as
reflected in this simple reality: As of October 12, 2010, only 114114 States have ratified the
Rome Statute, subsequent to its coming into force eight (8) years earlier, or on July 1, 2002. The
fact that 114 States out of a total of 194115 countries in the world, or roughly 58.76%, have
ratified the Rome Statute casts doubt on whether or not the perceived principles contained in the
Statute have attained the status of customary law and should be deemed as obligatory
international law. The numbers even tend to argue against the urgency of establishing
international criminal courts envisioned in the Rome Statute. Lest it be overlooked, the
Philippines, judging by the action or inaction of its top officials, does not even feel bound by the
Rome Statute. Res ipsa loquitur. More than eight (8) years have elapsed since the Philippine
representative signed the Statute, but the treaty has not been transmitted to the Senate for the
ratification process.
And this brings us to what Fr. Bernas, S.J. aptly said respecting the application of the concurring
elements, thus:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris] x x x." This statement contains
the two basic elements of custom: the material factor, that is how the states behave, and the
psychological factor or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states. This
includes several elements: duration, consistency, and generality of the practice of states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency and the
generality of the practice.
xxxx
19

Once the existence of state practice has been established, it becomes necessary to determine
why states behave the way they do. Do states behave the way they do because they consider it
obligatory to behave thus or do they do it only as a matter of courtesy? Opinio juris, or the belief
that a certain form of behavior is obligatory, is what makes practice an international rule.
Without it, practice is not law.116 (Emphasis added.)
Evidently, there is, as yet, no overwhelming consensus, let alone prevalent practice, among the
different countries in the world that the prosecution of internationally recognized crimes of
genocide, etc. should be handled by a particular international criminal court.
Absent the widespread/consistent-practice-of-states factor, the second or the psychological
element must be deemed non-existent, for an inquiry on why states behave the way they do
presupposes, in the first place, that they are actually behaving, as a matter of settled and
consistent practice, in a certain manner. This implicitly requires belief that the practice in
question is rendered obligatory by the existence of a rule of law requiring it.117 Like the first
element, the second element has likewise not been shown to be present.
Further, the Rome Statute itself rejects the concept of universal jurisdiction over the crimes
enumerated therein as evidenced by it requiring State consent.118 Even further, the Rome
Statute specifically and unequivocally requires that: "This Statute is subject to ratification,
acceptance or approval by signatory States."119 These clearly negate the argument that such
has already attained customary status.
More importantly, an act of the executive branch with a foreign government must be afforded
great respect. The power to enter into executive agreements has long been recognized to be
lodged with the President. As We held in Neri v. Senate Committee on Accountability of Public
Officers and Investigations, "[t]he power to enter into an executive agreement is in essence an
executive power. This authority of the President to enter into executive agreements without the
concurrence of the Legislature has traditionally been recognized in Philippine
jurisprudence."120 The rationale behind this principle is the inviolable doctrine of separation of
powers among the legislative, executive and judicial branches of the government. Thus, absent
any clear contravention of the law, courts should exercise utmost caution in declaring any
executive agreement invalid.
In light of the above consideration, the position or view that the challenged RP-US Non-Surrender
Agreement ought to be in the form of a treaty, to be effective, has to be rejected.
WHEREFORE, the petition for certiorari, mandamus and prohibition is hereby DISMISSED for lack
of merit. No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice

Republic of the Philippines

SUPREME COURT
EN BANC
20

G.R. No. 158088 July 6, 2005

SENATOR AQUILINO PIMENTEL, JR., REP. ETTA ROSALES, PHILIPPINE COALITION FOR THE
ESTABLISHMENT OF THE INTERNATIONAL CRIMINAL COURT, TASK FORCE DETAINEES OF THE
PHILIPPINES, FAMILIES OF VICTIMS OF INVOLUNTARY DISAPPEARANCES, BIANCA HACINTHA
R. ROQUE, HARRISON JACOB R. ROQUE, AHMED PAGLINAWAN, RON P. SALO,* LEAVIDES G.
DOMINGO, EDGARDO CARLO VISTAN, NOEL VILLAROMAN, CELESTE CEMBRANO, LIZA
ABIERA, JAIME ARROYO, MARWIL LLASOS, CRISTINA ATENDIDO, ISRAFEL FAGELA, and ROMEL
BAGARES, Petitioners,
vs.
OFFICE OF THE EXECUTIVE SECRETARY, HON. ALBERTO ROMULO, and the DEPARTMENT OF
FOREIGN AFFAIRS, represented by HON. BLAS OPLE, Respondents.
DECISION
PUNO J.:
This is a petition for mandamus filed by petitioners to compel the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal
Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987
Constitution.
The Rome Statute established the International Criminal Court which "shall have the power to exercise its
jurisdiction over persons for the most serious crimes of international concern xxx and shall be complementary
to the national criminal jurisdictions."1 Its jurisdiction covers the crime of genocide, crimes against humanity,
war crimes and the crime of aggression as defined in the Statute. 2 The Statute was opened for signature by all
states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the United
Nations Headquarters in New York. The Philippines signed the Statute on December 28, 2000 through Charge
d AffairsEnrique A. Manalo of the Philippine Mission to the United Nations.3 Its provisions, however, require
that it be subject to ratification, acceptance or approval of the signatory states.4
Petitioners filed the instant petition to compel the respondents the Office of the Executive Secretary and the
Department of Foreign Affairs to transmit the signed text of the treaty to the Senate of the Philippines for
ratification.
It is the theory of the petitioners that ratification of a treaty, under both domestic law and international law, is a
function of the Senate. Hence, it is the duty of the executive department to transmit the signed copy of the Rome
Statute to the Senate to allow it to exercise its discretion with respect to ratification of treaties. Moreover,
petitioners submit that the Philippines has a ministerial duty to ratify the Rome Statute under treaty law and
customary international law. Petitioners invoke the Vienna Convention on the Law of Treaties enjoining the
states to refrain from acts which would defeat the object and purpose of a treaty when they have signed the
treaty prior to ratification unless they have made their intention clear not to become parties to the treaty.5
The Office of the Solicitor General, commenting for the respondents, questioned the standing of the petitioners
to file the instant suit. It also contended that the petition at bar violates the rule on hierarchy of courts. On the
substantive issue raised by petitioners, respondents argue that the executive department has no duty to transmit
the Rome Statute to the Senate for concurrence.
A petition for mandamus may be filed when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
21

station.6We have held that to be given due course, a petition for mandamus must have been instituted by a party
aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully excludes said
party from the enjoyment of a legal right. The petitioner in every case must therefore be an aggrieved party in
the sense that he possesses a clear legal right to be enforced and a direct interest in the duty or act to be
performed.7 The Court will exercise its power of judicial review only if the case is brought before it by a party
who has the legal standing to raise the constitutional or legal question. "Legal standing" means a personal and
substantial interest in the case such that the party has sustained or will sustain direct injury as a result of the
government act that is being challenged. The term "interest" is material interest, an interest in issue and to be
affected by the decree, as distinguished from mere interest in the question involved, or a mere incidental
interest.8
The petition at bar was filed by Senator Aquilino Pimentel, Jr. who asserts his legal standing to file the suit as
member of the Senate; Congresswoman Loretta Ann Rosales, a member of the House of Representatives and
Chairperson of its Committee on Human Rights; the Philippine Coalition for the Establishment of the
International Criminal Court which is composed of individuals and corporate entities dedicated to the Philippine
ratification of the Rome Statute; the Task Force Detainees of the Philippines, a juridical entity with the avowed
purpose of promoting the cause of human rights and human rights victims in the country; the Families of
Victims of Involuntary Disappearances, a juridical entity duly organized and existing pursuant to Philippine
Laws with the avowed purpose of promoting the cause of families and victims of human rights violations in the
country; Bianca Hacintha Roque and Harrison Jacob Roque, aged two (2) and one (1), respectively, at the time
of filing of the instant petition, and suing under the doctrine of inter-generational rights enunciated in the case
of Oposa vs. Factoran, Jr.;9 and a group of fifth year working law students from the University of the
Philippines College of Law who are suing as taxpayers.
The question in standing is whether a party has alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.10
We find that among the petitioners, only Senator Pimentel has the legal standing to file the instant suit. The
other petitioners maintain their standing as advocates and defenders of human rights, and as citizens of the
country. They have not shown, however, that they have sustained or will sustain a direct injury from the nontransmittal of the signed text of the Rome Statute to the Senate. Their contention that they will be deprived of
their remedies for the protection and enforcement of their rights does not persuade. The Rome Statute is
intended to complement national criminal laws and courts. Sufficient remedies are available under our national
laws to protect our citizens against human rights violations and petitioners can always seek redress for any
abuse in our domestic courts.
As regards Senator Pimentel, it has been held that "to the extent the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to participate in the exercise of the powers of that
institution."11 Thus, legislators have the standing to maintain inviolate the prerogatives, powers and privileges
vested by the Constitution in their office and are allowed to sue to question the validity of any official action
which they claim infringes their prerogatives as legislators. The petition at bar invokes the power of the Senate
to grant or withhold its concurrence to a treaty entered into by the executive branch, in this case, the Rome
Statute. The petition seeks to order the executive branch to transmit the copy of the treaty to the Senate to allow
it to exercise such authority. Senator Pimentel, as member of the institution, certainly has the legal standing to
assert such authority of the Senate.
We now go to the substantive issue.

22

The core issue in this petition for mandamus is whether the Executive Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to the Senate the copy of the Rome Statute signed by a member of the
Philippine Mission to the United Nations even without the signature of the President.
We rule in the negative.
In our system of government, the President, being the head of state, is regarded as the sole organ and authority
in external relations and is the countrys sole representative with foreign nations. 12 As the chief architect of
foreign policy, the President acts as the countrys mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and governments, extend or withhold
recognition, maintain diplomatic relations, enter into treaties, and otherwise transact the business of foreign
relations.13 In the realm of treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the Constitution
provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the
validity of the treaty entered into by him. Section 21, Article VII of the 1987 Constitution provides that "no
treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Members of the Senate." The 1935 and the 1973 Constitution also required the concurrence by the legislature to
the treaties entered into by the executive. Section 10 (7), Article VII of the 1935 Constitution provided:
Sec. 10. (7) The President shall have the power, with the concurrence of two-thirds of all the Members of the
Senate, to make treaties xxx.
Section 14 (1) Article VIII of the 1973 Constitution stated:
Sec. 14. (1) Except as otherwise provided in this Constitution, no treaty shall be valid and effective unless
concurred in by a majority of all the Members of the Batasang Pambansa.
The participation of the legislative branch in the treaty-making process was deemed essential to provide a check
on the executive in the field of foreign relations.14 By requiring the concurrence of the legislature in the treaties
entered into by the President, the Constitution ensures a healthy system of checks and balance necessary in the
nations pursuit of political maturity and growth.15
In filing this petition, the petitioners interpret Section 21, Article VII of the 1987 Constitution to mean that the
power to ratify treaties belongs to the Senate.
We disagree.
Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise:
The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the
instruments of ratification. The treaty may then be submitted for registration and publication under the U.N.
Charter, although this step is not essential to the validity of the agreement as between the parties.
Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his
authorized representatives. These representatives are provided with credentials known as full powers, which
they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the
parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of
the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and
may even "collapse" in case the parties are unable to come to an agreement on the points under consideration.
23

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step
is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good
faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where ratification
of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the
several negotiators is allowed to sign first on the copy which he will bring home to his own state.
Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a
treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine
the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical
to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a
department of the government other than that which negotiated them.
xxx
The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also
signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where
ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed
effective upon its signature.16 [emphasis supplied]
Petitioners arguments equate the signing of the treaty by the Philippine representative with ratification. It
should be underscored that the signing of the treaty and the ratification are two separate and distinct steps in the
treaty-making process. As earlier discussed, the signature is primarily intended as a means of authenticating the
instrument and as a symbol of the good faith of the parties. It is usually performed by the states authorized
representative in the diplomatic mission. Ratification, on the other hand, is the formal act by which a state
confirms and accepts the provisions of a treaty concluded by its representative. It is generally held to be an
executive act, undertaken by the head of the state or of the government. 17 Thus, Executive Order No. 459 issued
by President Fidel V. Ramos on November 25, 1997 provides the guidelines in the negotiation of international
agreements and its ratification. It mandates that after the treaty has been signed by the Philippine representative,
the same shall be transmitted to the Department of Foreign Affairs. The Department of Foreign Affairs shall
then prepare the ratification papers and forward the signed copy of the treaty to the President for ratification.
After the President has ratified the treaty, the Department of Foreign Affairs shall submit the same to the Senate
for concurrence. Upon receipt of the concurrence of the Senate, the Department of Foreign Affairs shall comply
with the provisions of the treaty to render it effective. Section 7 of Executive Order No. 459 reads:
Sec. 7. Domestic Requirements for the Entry into Force of a Treaty or an Executive Agreement. The
domestic requirements for the entry into force of a treaty or an executive agreement, or any amendment thereto,
shall be as follows:
A. Executive Agreements.
i. All executive agreements shall be transmitted to the Department of Foreign Affairs after their signing for the
preparation of the ratification papers. The transmittal shall include the highlights of the agreements and the
benefits which will accrue to the Philippines arising from them.
ii. The Department of Foreign Affairs, pursuant to the endorsement by the concerned agency, shall transmit the
agreements to the President of the Philippines for his ratification. The original signed instrument of ratification
shall then be returned to the Department of Foreign Affairs for appropriate action.
B. Treaties.
24

i. All treaties, regardless of their designation, shall comply with the requirements provided in sub-paragraph[s] 1
and 2, item A (Executive Agreements) of this Section. In addition, the Department of Foreign Affairs shall
submit the treaties to the Senate of the Philippines for concurrence in the ratification by the President. A
certified true copy of the treaties, in such numbers as may be required by the Senate, together with a certified
true copy of the ratification instrument, shall accompany the submission of the treaties to the Senate.
ii. Upon receipt of the concurrence by the Senate, the Department of Foreign Affairs shall comply with the
provision of the treaties in effecting their entry into force.
Petitioners submission that the Philippines is bound under treaty law and international law to ratify the treaty
which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It
is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the
signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory
states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a
State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of
such treaty. After the treaty is signed by the states representative, the President, being accountable to the
people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure
that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even
after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna
Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of
states. If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held
that a state has no legal or even moral duty to ratify a treaty which has been signed by its
plenipotentiaries.18 There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must
be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would
be justified in taking offense.19
It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the
concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent,
or concurrence, to the ratification. 20 Hence, it is within the authority of the President to refuse to submit a treaty
to the Senate or, having secured its consent for its ratification, refuse to ratify it. 21 Although the refusal of a state
to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, 22 such
decision is within the competence of the President alone, which cannot be encroached by this Court via a writ
ofmandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of
his official duties.23 The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is
beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome
Statute to the Senate.
IN VIEW WHEREOF, the petition is DISMISSED.
SO ORDERED.
REYNATO S. PUNO

25

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 175888

February 11, 2009

SUZETTE NICOLAS y SOMBILON, Petitioner,

vs.
ALBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his
capacity as Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government; SERGIO
APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL SMITH, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176051

February 11, 2009

26

JOVITO R. SALONGA, WIGBERTO E. TAADA, JOSE DE LA RAMA, EMILIO C. CAPULONG, H. HARRY L.

ROQUE, JR., FLORIN HILBAY, and BENJAMIN POZON, Petitioners,
vs.
DANIEL SMITH, SECRETARY RAUL GONZALEZ, PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL,
SECRETARY RONALDO PUNO, SECRETARY ALBERTO ROMULO, The Special 16th Division of the
COURT OF APPEALS, and all persons acting in their capacity, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 176222

February 11, 2009

BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol Araullo; GABRIELA,

represented by Emerenciana de Jesus; BAYAN MUNA, represented by Rep. Satur Ocampo;
GABRIELA WOMEN'S PARTY, represented by Rep. Liza Maza; KILUSANG MAYO UNO (KMU),
represented by Elmer Labog; KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by Willy
Marbella; LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and THE
PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as concurrent Defense Secretary,
EXECUTIVE SECRETARY EDUARDO ERMITA, FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO,
JUSTICE SECRETARY RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, Respondents.
DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of
the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CAG.R. SP No. 97212, dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces.
He was charged with the crime of rape committed against a Filipina, petitioner herein, sometime
on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic Duplantis,
Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A of the Revised
Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed by Suzette S.
Nicolas, which is attached hereto and made an integral part hereof as Annex "A," committed as
follows:
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport Zone,
Olongapo City and within the jurisdiction of this Honorable Court, the above-named accuseds
(sic), being then members of the United States Marine Corps, except Timoteo L. Soriano, Jr.,
conspiring, confederating together and mutually helping one another, with lewd design and by
means of force, threat and intimidation, with abuse of superior strength and taking advantage of
the intoxication of the victim, did then and there willfully, unlawfully and feloniously sexually
abuse and have sexual intercourse with or carnal knowledge of one Suzette S. Nicolas, a 22-year
old unmarried woman inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and
Tours, with Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
27

Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her damage
and prejudice.
CONTRARY TO LAW."1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the
United States, entered into on February 10, 1998, the United States, at its request, was granted
custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC
of Makati for security reasons, the United States Government faithfully complied with its
undertaking to bring defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision,
finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient evidence
against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD AND L/CPL. DOMINIC
DUPLANTIS, all of the US Marine Corps assigned at the USS Essex, are hereby ACQUITTED to the
crime charged.
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J. SMITH,
also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY BEYOND
REASONABLE DOUBT of the crime of RAPE defined under Article 266-A, paragraph 1 (a) of the
Revised Penal Code, as amended by R.A. 8353, and, in accordance with Article 266-B, first
paragraph thereof, hereby sentences him to suffer the penalty of reclusion perpetua together
with the accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by the
Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence in the
facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant SUZETTE S.
NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00 as moral
damages.
SO ORDERED.2
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention under
the control of the United States government, provided for under new agreements between the
Philippines and the United States, referred to as the Romulo-Kenney Agreement of December 19,
2006 which states:
The Government of the Republic of the Philippines and the Government of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between our two
nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military
custody at the U.S. Embassy in Manila.
28

(Sgd.) Kristie A. Kenney

Representative of the United
States
of America

(Sgd.) Alberto G. Romulo

Representative of the
Republic
of the Philippines

DATE: 12-19-06

DATE: December 19, 2006

and the Romulo-Kenney Agreement of December 22, 2006 which states:

The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of the
United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine
Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building,
U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local Government (DILG) will have
access to the place of detention to ensure the United States is in compliance with the terms of
the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as
follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for having
become moot.3
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties
submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because,
first of all, the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the constitutionality of the
VFA. This was in Bayan v. Zamora,4 brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the
reversal of the previous ruling is sought on the ground that the issue is of primordial importance,
involving the sovereignty of the Republic, as well as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops, or facilities shall not
be allowed in the Philippines except under a treaty duly concurred in by the Senate and, when
the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the United
States military bases in the country.

29

It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States agreed to
cede to the Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few
islands later added to its realm, except certain naval ports and/or military bases and facilities,
which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places in the
Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory,
as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by
the United States. Furthermore, the RP-US Military Bases Agreement was never advised for
ratification by the United States Senate, a disparity in treatment, because the Philippines
regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the
expiration of the RP-US Military Bases Agreement in 1991, the territory covered by these bases
were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987
Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be equally binding on the Philippines
and the foreign sovereign State involved. The idea is to prevent a recurrence of the situation in
which the terms and conditions governing the presence of foreign armed forces in our territory
were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or not the
presence of US Armed Forces in Philippine territory pursuant to the VFA is allowed "under a treaty
duly concurred in by the Senate xxx and recognized as a treaty by the other contracting State."
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,5 the VFA was duly concurred in by the Philippine Senate and
has been recognized as a treaty by the United States as attested and certified by the duly
authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does
not detract from its status as a binding international agreement or treaty recognized by the said
State. For this is a matter of internal United States law. Notice can be taken of the internationally
known practice by the United States of submitting to its Senate for advice and consent
agreements that are policymaking in nature, whereas those that carry out or further implement
these policymaking agreements are merely submitted to Congress, under the provisions of the
so-called CaseZablocki Act, within sixty days from ratification.6
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense
Treaty of August 30, 1951. This earlier agreement was signed and duly ratified with the
concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:7

30

MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND THE UNITED
STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen the
fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples together in
a common bond of sympathy and mutual ideals to fight side-by-side against imperialist
aggression during the last war.
Desiring to declare publicly and formally their sense of unity and their common determination to
defend themselves against external armed attack, so that no potential aggressor could be under
the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the preservation of
peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way
or sense altering or diminishing any existing agreements or understandings between the
Republic of the Philippines and the United States of America.
Have agreed as follows:
Article I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered and to refrain in their
international relation from the threat or use of force in any manner inconsistent with the
purposes of the United Nations.
Article II. In order more effectively to achieve the objective of this Treaty, the Parties separately
and jointly by self-help and mutual aid will maintain and develop their individual and collective
capacity to resist armed attack.
Article III. The Parties, through their Foreign Ministers or their deputies, will consult together from
time to time regarding the implementation of this Treaty and whenever in the opinion of either of
them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
Article IV. Each Party recognizes that an armed attack in the Pacific area on either of the parties
would be dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported
to the Security Council of the United Nations. Such measures shall be terminated when the
Security Council has taken the measures necessary to restore and maintain international peace
and security.
Article V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
31

territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in
the Pacific.
Article VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the responsibility
of the United Nations for the maintenance of international peace and security.
Article VII. This Treaty shall be ratified by the Republic of the Philippines and the United Nations
of America in accordance with their respective constitutional processes and will come into force
when instruments of ratification thereof have been exchanged by them at Manila.
Article VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one year
after notice has been given to the other party.
In withness whereof the undersigned Plenipotentiaries have signed this Treaty.
Done in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) Carlos P. Romulo
(Sgd.) Joaquin M. Elizalde
(Sgd.) Vicente J. Francisco
(Sgd.) Diosdado Macapagal
For the United States of America:
(Sgd.) Dean Acheson
(Sgd.) John Foster Dulles
(Sgd.) Tom Connally
(Sgd.) Alexander Wiley8
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to
resist an armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The
VFA, which is the instrument agreed upon to provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Military Defense Treaty. The Preamble of
the VFA states:
The Government of the United States of America and the Government of the Republic of the
Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
32

Noting that from time to time elements of the United States armed forces may visit the Republic
of the Philippines;
Considering that cooperation between the United States and the Republic of the Philippines
promotes their common security interests;
Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;
Have agreed as follows:9
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not
necessary to submit the VFA to the US Senate for advice and consent, but merely to the US
Congress under the CaseZablocki Act within 60 days of its ratification. It is for this reason that
the US has certified that it recognizes the VFA as a binding international agreement, i.e., a treaty,
and this substantially complies with the requirements of Art. XVIII, Sec. 25 of our Constitution.10
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that
the presence of the US Armed Forces through the VFA is a presence "allowed under" the RP-US
Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and
concurred in by both the Philippine Senate and the US Senate, there is no violation of the
Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed Forces in
the Philippines, the following rules apply:

Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United States
military authorities shall, upon formal notification by the Philippine authorities and without delay,
make such personnel available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been charged. In extraordinary
cases, the Philippine Government shall present its position to the United States Government
regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.
33

Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure for all
courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of
an accused to a foreign power is to provide for a different rule of procedure for that accused,
which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a different
treatment of a member of a foreign military armed forces allowed to enter our territory and all
other accused.11
The rule in international law is that a foreign armed forces allowed to enter ones territory is
immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and conditions,
according to the situation of the parties involved, and reflect their bargaining power. But the
principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending
State only to the extent agreed upon by the parties.12
As a result, the situation involved is not one in which the power of this Court to adopt rules of
procedure is curtailed or violated, but rather one in which, as is normally encountered around the
world, the laws (including rules of procedure) of one State do not extend or apply except to the
extent agreed upon to subjects of another State due to the recognition of extraterritorial
immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or
some aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such
immunity like Heads of State, diplomats and members of the armed forces contingents of a
foreign State allowed to enter another States territory. On the contrary, the Constitution states
that the Philippines adopts the generally accepted principles of international law as part of the
law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when
it comes to detention as against custody. The moment the accused has to be detained, e.g., after
conviction, the rule that governs is the following provision of the VFA:

Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall
be carried out in facilities agreed on by appropriate Philippines and United States authorities.
34

United States personnel serving sentences in the Philippines shall have the right to visits and
material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the trial
and detention after conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the detention shall be
carried out in facilities agreed on by authorities of both parties, but also that the detention shall
be "by Philippine authorities." Therefore, the Romulo-Kenney Agreements of December 19 and
22, 2006, which are agreements on the detention of the accused in the United States Embassy,
are not in accord with the VFA itself because such detention is not "by Philippine authorities."
Respondents should therefore comply with the VFA and negotiate with representatives of the
United States towards an agreement on detention facilities under Philippine authorities as
mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v.
Texas ( 552 US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the
United States are not automatically part of their domestic law unless these treaties are selfexecuting or there is an implementing legislation to make them enforceable.1avvphi1
On February 3, 2009, the Court issued a Resolution, thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito
R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang Makabayan
[BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the
effect that treaty stipulations that are not self-executory can only be enforced pursuant to
legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified
on these terms?
2. Whether the VFA is enforceable in the US as domestic law, either because it is selfexecutory or because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by the
US Senate and, if so, is there proof of the US Senate advice and consent resolution?
Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows:
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the
parties intend its provisions to be enforceable, precisely because the Agreement is intended to
carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of
fact, the VFA has been implemented and executed, with the US faithfully complying with its
obligation to produce L/CPL Smith before the court during the trial.

35

Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC
Sec. 112(b), inasmuch as it is the very purpose and intent of the US Congress that executive
agreements registered under this Act within 60 days from their ratification be immediately
implemented. The parties to these present cases do not question the fact that the VFA has been
registered under the Case-Zablocki Act.1avvphi1
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the
Avena decision of the International Court of Justice (ICJ), subject matter of the Medellin decision.
The Convention and the ICJ decision are not self-executing and are not registrable under the
Case-Zablocki Act, and thus lack legislative implementing authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on
March 20, 1952, as reflected in the US Congressional Record, 82nd Congress, Second Session,
Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in domestic
courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL
CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25,
to require the other contracting State to convert their system to achieve alignment and parity
with ours. It was simply required that the treaty be recognized as a treaty by the other
contracting State. With that, it becomes for both parties a binding international obligation and
the enforcement of that obligation is left to the normal recourse and processes under
international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive agreement
is a "treaty" within the meaning of that word in international law and constitutes enforceable
domestic law vis--vis the United States. Thus, the US Supreme Court in Weinberger enforced the
provisions of the executive agreement granting preferential employment to Filipinos in the US
Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution.
2. ExecutiveCongressional Agreements: These are joint agreements of the President and
Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. These are agreements entered into by the President. They
are to be submitted to Congress within sixty (60) days of ratification under the provisions
of the Case-Zablocki Act, after which they are recognized by the Congress and may be
implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has
been given under it and this can only be done through implementing legislation. The VFA itself is
another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R.
SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between
36

the Republic of the Philippines and the United States, entered into on February 10, 1998, is
UPHELD as constitutional, but the Romulo-Kenney Agreements of December 19 and 22, 2006 are
DECLARED not in accordance with the VFA, and respondent Secretary of Foreign Affairs is hereby
ordered to forthwith negotiate with the United States representatives for the appropriate
agreement on detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the
VFA, pending which the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending
therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the
judgment of conviction.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 173034

October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,

vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR. ETHELYN P.
NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F. DEL MUNDO; and
ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND DR. NEMESIO T.
GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled
benefits of breastmilk. But how should this end be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and Regulations
of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant International
Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR). Petitioner posits that
the RIRR is not valid as it contains provisions that are not constitutional and go beyond the law it
is supposed to implement.
Named as respondents are the Health Secretary, Undersecretaries, and Assistant Secretaries of
the Department of Health (DOH). For purposes of herein petition, the DOH is deemed impleaded
as a co-respondent since respondents issued the questioned RIRR in their capacity as officials of
said executive agency.1
37

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986
by virtue of the legislative powers granted to the president under the Freedom Constitution. One
of the preambular clauses of the Milk Code states that the law seeks to give effect to Article
112 of the International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by
the World Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several
Resolutions to the effect that breastfeeding should be supported, promoted and protected,
hence, it should be ensured that nutrition and health claims are not permitted for breastmilk
substitutes.
In 1990, the Philippines ratified the International Convention on the Rights of the Child. Article 24
of said instrument provides that State Parties should take appropriate measures to diminish
infant and child mortality, and ensure that all segments of society, specially parents and
children, are informed of the advantages of breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.
The main issue raised in the petition is whether respondents officers of the DOH acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and in violation of the provisions of the Constitution in promulgating the RIRR.3
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.
After the Comment and Reply had been filed, the Court set the case for oral arguments on June
19, 2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:
The Court hereby sets the following issues:
1. Whether or not petitioner is a real party-in-interest;
2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk
Code);
2.2 Whether pertinent international agreements1 entered into by the Philippines are part
of the law of the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the RIRR is in accord with the international agreements;
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due process
clause and are in restraint of trade; and
2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.
_____________

38

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002
Global Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA) Resolutions.
The parties filed their respective memoranda.
The petition is partly imbued with merit.
On the issue of petitioner's standing
With regard to the issue of whether petitioner may prosecute this case as the real party-ininterest, the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to
wit:
The modern view is that an association has standing to complain of injuries to its
members. This view fuses the legal identity of an association with that of its members. An
association has standing to file suit for its workers despite its lack of direct interest if its
members are affected by the action. An organization has standing to assert the concerns
of its constituents.
xxxx
x x x We note that, under its Articles of Incorporation, the respondent was organized x x x
to act as the representative of any individual, company, entity or association on matters
related to the manpower recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The respondent is, thus, the
appropriate party to assert the rights of its members, because it and its members are in
every practical sense identical. x x x The respondent [association] is but the medium
through which its individual members seek to make more effective the expression of their
voices and the redress of their grievances. 5 (Emphasis supplied)
which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6 where the Court ruled
that an association has the legal personality to represent its members because the results of the
case will affect their vital interests.7
Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government
and any of its agencies, the medical professions and the general public."8 Thus, as an
organization, petitioner definitely has an interest in fulfilling its avowed purpose of representing
members who are part of the pharmaceutical and health care industry. Petitioner is duly
authorized9to take the appropriate course of action to bring to the attention of government
agencies and the courts any grievance suffered by its members which are directly affected by
the RIRR. Petitioner, which is mandated by its Amended Articles of Incorporation to represent the
entire industry, would be remiss in its duties if it fails to act on governmental action that would
affect any of its industry members, no matter how few or numerous they are. Hence, petitioner,
whose legal identity is deemed fused with its members, should be considered as a real party-ininterest which stands to be benefited or injured by any judgment in the present action.
On the constitutionality of the provisions of the RIRR
First, the Court will determine if pertinent international instruments adverted to by respondents
are part of the law of the land.
39

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments10 regarding infant
and young child nutrition. It is respondents' position that said international instruments are
deemed part of the law of the land and therefore the DOH may implement them through the
RIRR.
The Court notes that the following international instruments invoked by respondents, namely: (1)
The United Nations Convention on the Rights of the Child; (2) The International Covenant on
Economic, Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only provide in general terms that steps must be taken by State
Parties to diminish infant and child mortality and inform society of the advantages of
breastfeeding, ensure the health and well-being of families, and ensure that women are provided
with services and nutrition in connection with pregnancy and lactation. Said instruments do not
contain specific provisions regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes
are the ICMBS and various WHA Resolutions.
Under the 1987 Constitution, international law can become part of the sphere of domestic law
either bytransformation or incorporation.11 The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism such as
local legislation. The incorporation method applies when, by mere constitutional declaration,
international law is deemed to have the force of domestic law.12
Treaties become part of the law of the land through transformation pursuant to Article VII,
Section 21 of the Constitution which provides that "[n]o treaty or international agreement shall
be valid and effective unless concurred in by at least two-thirds of all the members of the
Senate." Thus, treaties or conventional international law must go through a process prescribed
by the Constitution for it to be transformed into municipal law that can be applied to domestic
conflicts.13
The ICMBS and WHA Resolutions are not treaties as they have not been concurred in by at least
two-thirds of all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been transformed into
domestic law through local legislation, the Milk Code. Consequently, it is the Milk Code that has
the force and effect of law in this jurisdiction and not the ICMBS per se.
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to emphasize at this
point that the Code did not adopt the provision in the ICMBS absolutely prohibiting advertising or
other forms of promotion to the general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly provides that advertising, promotion, or other marketing
materials may be allowed if such materials are duly authorized and approved by the Inter-Agency
Committee (IAC).
On the other hand, Section 2, Article II of the 1987 Constitution, to wit:
SECTION 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and
adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all
nations. (Emphasis supplied)
40

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:
[G]enerally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and 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.16 (Emphasis supplied)
"Generally accepted principles of international law" refers to norms of general or customary
international law which are binding on all states,17 i.e., renunciation of war as an instrument of
national policy, the principle of sovereign immunity,18 a person's right to life, liberty and due
process,19 and pacta sunt servanda,20 among others. The concept of "generally accepted
principles of law" has also been depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as a primary source
of international law because they have the "character of jus rationale" and are "valid through all
kinds of human societies." (Judge Tanaka in his dissenting opinion in the 1966 South West Africa
Case, 1966 I.C.J. 296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal systems generally" and hence part of the jus gentium. These
principles, he believes, are established by a process of reasoning based on the common identity
of all legal systems. If there should be doubt or disagreement, one must look to state practice
and determine whether the municipal law principle provides a just and acceptable solution. x x
x 21 (Emphasis supplied)
Fr. Joaquin G. Bernas defines customary international law as follows:
Custom or customary international law means "a general and consistent practice of states
followed by them from a sense of legal obligation [opinio juris]." (Restatement) This
statement contains the two basic elements of custom: the material factor, that is, how
states behave, and the psychological orsubjective factor, that is, why they behave the way
they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior of states.
This includes several elements: duration, consistency, and generality of the practice of
states.
The required duration can be either short or long. x x x
xxxx
Duration therefore is not the most important element. More important is the consistency
and the generality of the practice. x x x
xxxx

41

Once the existence of state practice has been established, it becomes necessary to
determine why states behave the way they do. Do states behave the way they do
because they consider it obligatory to behave thus or do they do it only as a matter of
courtesy? Opinio juris, or the belief that a certain form of behavior is obligatory, is what
makes practice an international rule. Without it, practice is not law.22 (Underscoring and
Emphasis supplied)
Clearly, customary international law is deemed incorporated into our domestic system.23
WHA Resolutions have not been embodied in any local legislation. Have they attained the status
of customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with
the United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter.
Under the 1946 WHO Constitution, it is the WHA which determines the policies of the
WHO,26 and has the power to adopt regulations concerning "advertising and labeling of
biological, pharmaceutical and similar products moving in international commerce,"27 and to
"make recommendations to members with respect to any matter within the competence of the
Organization."28 The legal effect of its regulations, as opposed to recommendations, is quite
different.
Regulations, along with conventions and agreements, duly adopted by the WHA bind member
states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or agreements
with respect to any matter within the competence of the Organization. A two-thirds vote of
the Health Assembly shall be required for the adoption of such conventions or agreements,
which shall come into force for each Member when accepted by it in accordance with its
constitutional processes.
Article 20. Each Member undertakes that it will, within eighteen months after the adoption
by the Health Assembly of a convention or agreement, take action relative to the
acceptance of such convention or agreement. Each Member shall notify the DirectorGeneral of the action taken, and if it does not accept such convention or agreement within
the time limit, it will furnish a statement of the reasons for non-acceptance. In case of
acceptance, each Member agrees to make an annual report to the Director-General in
accordance with Chapter XIV.
Article 21. The Health Assembly shall have authority to adopt regulations concerning: (a)
sanitary and quarantine requirements and other procedures designed to prevent the
international spread of disease; (b) nomenclatures with respect to diseases, causes of
death and public health practices; (c) standards with respect to diagnostic procedures for
international use; (d) standards with respect to the safety, purity and potency of biological,
pharmaceutical and similar products moving in international commerce; (e) advertising
and labeling of biological, pharmaceutical and similar products moving in international
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)

42

On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations
under Article 21 come into force. Article 23 of the WHO Constitution reads:
Article 23. The Health Assembly shall have authority to make recommendations to
Members with respect to any matter within the competence of the Organization.
(Emphasis supplied)
The absence of a provision in Article 23 of any mechanism by which the recommendation would
come into force for member states is conspicuous.
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA recommendations are
generally not binding, but they "carry moral and political weight, as they constitute the judgment
on a health issue of the collective membership of the highest international body in the field of
health."29 Even the ICMBS itself was adopted as a mere recommendation, as WHA Resolution
No. 34.22 states:
"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article 23 of the
Constitution, the International Code of Marketing of Breastmilk Substitutes annexed to the
present resolution." (Emphasis supplied)
The Introduction to the ICMBS also reads as follows:
In January 1981, the Executive Board of the World Health Organization at its sixty-seventh
session, considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth World Health Assembly the text of a resolution by
which it would adopt the code in the form of a recommendation rather than a regulation. x
x x (Emphasis supplied)
The legal value of WHA Resolutions as recommendations is summarized in Article 62 of the WHO
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made to it by the Organization, and with respect to conventions,
agreements and regulations.
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA Resolutions urging
member states to implement the ICMBS are merely recommendatory and legally nonbinding. Thus, unlike what has been done with the ICMBS whereby the legislature enacted most
of the provisions into law which is the Milk Code, the subsequent WHA Resolutions,30 specifically
providing for exclusive breastfeeding from 0-6 months, continued breastfeeding up to 24 months,
and absolutely prohibiting advertisements and promotions of breastmilk substitutes, have not
been adopted as a domestic law.
It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles
and practices that influence state behavior.31
"Soft law" does not fall into any of the categories of international law set forth in Article 38,
Chapter III of the 1946 Statute of the International Court of Justice.32 It is, however, an
expression of non-binding norms, principles, and practices that influence state
behavior.33 Certain declarations and resolutions of the UN General Assembly fall under this
category.34 The most notable is the UN Declaration of Human Rights, which this Court has
enforced in various cases, specifically, Government of Hongkong Special Administrative Region v.
43

Olalia,35 Mejoff v. Director of Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel
Management, Ltd. v. Developers Group of Companies, Inc..38
The World Intellectual Property Organization (WIPO), a specialized agency attached to the UN
with the mandate to promote and protect intellectual property worldwide, has resorted to soft
law as a rapid means of norm creation, in order "to reflect and respond to the changing needs
and demands of its constituents."39 Other international organizations which have resorted to soft
law include the International Labor Organization and the Food and Agriculture Organization (in
the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in international
relations. International lawyers typically distinguish binding rules of international
law-"hard law"-from non-binding norms, principles, and practices that influence state
behavior-"soft law." WHO has during its existence generated many soft law norms,
creating a "soft law regime" in international governance for public health.
The "soft law" SARS and IHR Resolutions represent significant steps in laying the political
groundwork for improved international cooperation on infectious diseases. These
resolutions clearly define WHO member states' normative duty to cooperate fully with
other countries and with WHO in connection with infectious disease surveillance and
response to outbreaks.
This duty is neither binding nor enforceable, but, in the wake of the SARS epidemic, the
duty is powerful politically for two reasons. First, the SARS outbreak has taught the lesson
that participating in, and enhancing, international cooperation on infectious disease
controls is in a country's self-interest x x x if this warning is heeded, the "soft law" in the
SARS and IHR Resolution could inform the development of general and consistent state
practice on infectious disease surveillance and outbreak response, perhaps crystallizing
eventually into customary international law on infectious disease prevention and
control.41
In the Philippines, the executive department implemented certain measures recommended by
WHO to address the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201 on
April 26, 2003 and E.O. No. 280 on February 2, 2004, delegating to various departments broad
powers to close down schools/establishments, conduct health surveillance and monitoring, and
ban importation of poultry and agricultural products.
It must be emphasized that even under such an international emergency, the duty of a state to
implement the IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political influence.
As previously discussed, for an international rule to be considered as customary law, it must be
established that such rule is being followed by states because they consider it obligatory to
comply with such rules (opinio juris). Respondents have not presented any evidence to prove
that the WHA Resolutions, although signed by most of the member states, were in fact enforced
or practiced by at least a majority of the member states; neither have respondents proven that
any compliance by member states with said WHA Resolutions was obligatory in nature.

44

Respondents failed to establish that the provisions of pertinent WHA Resolutions are customary
international law that may be deemed part of the law of the land.
Consequently, legislation is necessary to transform the provisions of the WHA Resolutions into
domestic law. The provisions of the WHA Resolutions cannot be considered as part of the law of
the land that can be implemented by executive agencies without the need of a law enacted by
the legislature.
Second, the Court will determine whether the DOH may implement the provisions of the WHA
Resolutions by virtue of its powers and functions under the Revised Administrative Code even in
the absence of a domestic law.
Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987 provides that the DOH
shall define the national health policy and implement a national health plan within the framework
of the government's general policies and plans, and issue orders and regulations concerning the
implementation of established health policies.
It is crucial to ascertain whether the absolute prohibition on advertising and other forms of
promotion of breastmilk substitutes provided in some WHA Resolutions has been adopted as part
of the national health policy.
Respondents submit that the national policy on infant and young child feeding is embodied in
A.O. No. 2005-0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1) ideal breastfeeding practices, such as early initiation of
breastfeeding, exclusive breastfeeding for the first six months, extended breastfeeding up to two
years and beyond; (2) appropriate complementary feeding, which is to start at age six months;
(3) micronutrient supplementation; (4) universal salt iodization; (5) the exercise of other feeding
options; and (6) feeding in exceptionally difficult circumstances. Indeed, the primacy of
breastfeeding for children is emphasized as a national health policy. However, nowhere in A.O.
No. 2005-0014 is it declared that as part of such health policy, the advertisement or promotion of
breastmilk substitutes should be absolutely prohibited.
The national policy of protection, promotion and support of breastfeeding cannot automatically
be equated with a total ban on advertising for breastmilk substitutes.
In view of the enactment of the Milk Code which does not contain a total ban on the advertising
and promotion of breastmilk substitutes, but instead, specifically creates an IAC which will
regulate said advertising and promotion, it follows that a total ban policy could be implemented
only pursuant to a law amending the Milk Code passed by the constitutionally authorized branch
of government, the legislature.
Thus, only the provisions of the Milk Code, but not those of subsequent WHA Resolutions, can be
validly implemented by the DOH through the subject RIRR.
Third, the Court will now determine whether the provisions of the RIRR are in accordance with
those of the Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code, petitioner alleges the
following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR extended its
coverage to "young children" or those from ages two years old and beyond:
45

MILK CODE
RIRR
WHEREAS, in order to ensure that Section 2. Purpose These Revised
safe and adequate nutrition for Rules and Regulations are hereby
infants is provided, there is a need to promulgated to ensure the provision of
protect and promote breastfeeding safe and adequate nutrition for infants
and to inform the public about the and young children by the promotion,
proper use of breastmilk substitutes protection and support of breastfeeding
and
supplements
and
related and by ensuring the proper use of
products
through
adequate, breastmilk
substitutes,
breastmilk
consistent and objective information supplements and related products
and appropriate regulation of the when these are medically indicated and
marketing and distribution of the only when necessary, on the basis of
said substitutes, supplements and adequate information and through
related products;
appropriate marketing and distribution.
SECTION 4(e). "Infant" means a Section 5(ff). "Young Child" means a
person falling within the age bracket person from the age of more than
of 0-12 months.
twelve (12) months up to the age of
three (3) years (36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible substitute
for breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for
infants from 0-6 months" and declares that "there is no substitute nor replacement for
breastmilk":
MILK CODE
RIRR
WHEREAS, in order to ensure that safe Section 4. Declaration of Principles
and adequate nutrition for infants is The following are the underlying
provided, there is a need to protect and principles from which the revised rules
promote breastfeeding and to inform and regulations are premised upon:
the public about the proper use of
breastmilk
substitutes
and a. Exclusive
breastfeeding
is
for
supplements
and
related infants from 0 to six (6) months.
products through adequate, consistent
and
objective
information
and b.
There
is no
substitute
or
appropriate regulation of the marketing replacement for breastmilk.
and distribution of the said substitutes,
supplements and related products;
3. The Milk Code only regulates and does not impose unreasonable requirements for
advertising and promotion; RIRR imposes an absolute ban on such activities for breastmilk
substitutes intended for infants from 0-24 months old or beyond, and forbids the use of
health and nutritional claims. Section 13 of the RIRR, which provides for a "total effect" in
the promotion of products within the scope of the Code, is vague:
MILK CODE
RIRR
SECTION 6. The General Public and Section 4. Declaration of Principles
Mothers.
The following are the underlying
principles from which the revised rules
(a) No advertising, promotion or other and regulations are premised upon:
marketing materials, whether written,
audio or visual, for products within the x x x x
scope of this Code shall be printed,
46

published, distributed, exhibited and

broadcast unless such materials are f. Advertising, promotions, or sponsorduly authorized and approved by an shipsof infant formula, breastmilk
inter-agency committee created herein substitutes
and
other
related
pursuant to the applicable standards products are prohibited.
provided for in this Code.
Section 11. Prohibition No advertising,
promotions, sponsorships, or marketing
materials and activities for breastmilk
substitutes intended for infants and
young children up to twenty-four (24)
months, shall be allowed, because they
tend to convey or give subliminal
messages
or
impressions
that
undermine
breastmilk
and
breastfeeding or otherwise exaggerate
breastmilk
substitutes
and/or
replacements, as well as related
products covered within the scope of
this Code.
Section 13. "Total Effect" - Promotion of
products within the scope of this Code
must be objective and should not
equate or make the product appear to
be as good or equal to breastmilk or
breastfeeding
in
the
advertising
concept. It must not in any case
undermine breastmilk or breastfeeding.
The "total effect" should not directly or
indirectly suggest that buying their
product
would
produce
better
individuals, or resulting in greater love,
intelligence, ability, harmony or in any
manner bring better health to the baby
or other such exaggerated and
unsubstantiated claim.
Section 15. Content of Materials. - The
following shall not be included in
advertising, promotional and marketing
materials:
a. Texts, pictures, illustrations or
information which discourage or tend to
undermine the benefits or superiority of
breastfeeding or which idealize the use
of breastmilk substitutes and milk
supplements. In this connection, no
pictures of babies and children together
with their mothers, fathers, siblings,
grandparents,
other
relatives
or
caregivers (or yayas) shall be used in
47

any advertisements for infant formula

and breastmilk supplements;
b.
The
term
"humanized,"
"maternalized," "close to mother's milk"
or
similar
words
in
describing
breastmilk
substitutes
or
milk
supplements;
c. Pictures or texts that idealize the use
of infant and milk formula.
Section 16. All health and nutrition
claims for products within the scope of
the Code are absolutely prohibited. For
this purpose, any phrase or words that
connotes
to
increase
emotional,
intellectual abilities of the infant and
young child and other like phrases shall
not be allowed.
4. The RIRR imposes additional labeling requirements not found in the Milk Code:
MILK CODE
SECTION 10. Containers/Label.

RIRR
Section
26.
Content
Each
container/label shall contain such
(a) Containers and/or labels shall be message, in both Filipino and English
designed to provide the necessary languages, and which message cannot
information about the appropriate use be readily separated therefrom, relative
of the products, and in such a way as the following points:
not to discourage breastfeeding.
(a) The words or phrase "Important
(b) Each container shall have a clear, Notice" or "Government Warning" or
conspicuous and easily readable and their equivalent;
understandable message in Pilipino or
English printed on it, or on a label, (b) A statement of the superiority of
which message can not readily become breastfeeding;
separated from it, and which shall
include the following points:
(c) A statement that there is no
substitute for breastmilk;
(i) the words "Important Notice" or their
equivalent;
(d) A statement that the product shall
be used only on the advice of a health
(ii) a statement of the superiority of worker as to the need for its use and
breastfeeding;
the proper methods of use;
(iii) a statement that the product shall (e) Instructions for appropriate preparabe used only on the advice of a health tion, and a warning against the health
worker as to the need for its use and hazards of inappropriate preparation;
the proper methods of use; and
and
48

(iv)
instructions
for
appropriate (f) The health hazards of unnecessary
preparation, and a warning against the or improper use of infant formula and
health
hazards
of
inappropriate other
related
products
including
preparation.
information
that powdered infant
formula
may
contain
pathogenic
microorganisms and must be prepared
and used appropriately.
5. The Milk Code allows dissemination of information on infant formula to health
professionals; the RIRR totally prohibits such activity:
MILK CODE
SECTION 7. Health Care System.

RIRR
Section
22. No
manufacturer,
distributor,
or
representatives
of
(b) No facility of the health care system products covered by the Code shall be
shall be used for the purpose of allowed to conduct or be involved
activity
on
breastfeeding
promoting infant formula or other in any
products within the scope of this promotion, education and production of
Education
and
Code. This Code does not, however, Information,
preclude
the
dissemination
of Communication (IEC) materials on
of
or
information to health professionals as breastfeeding, holding
participating as speakers in classes or
provided in Section 8(b).
seminars for women and children
activities and to avoid the use of these
SECTION 8. Health Workers. venues to market their brands or
(b)
Information
provided
by company names.
manufacturers and distributors to
SECTION 16. All health and nutrition
health professionals regarding products
claims for products within the scope of
within the scope of this Code shall be
the Code are absolutely prohibited. For
restricted to scientific and factual
this purpose, any phrase or words that
matters and such information shall not
connotes
to
increase
emotional,
imply or create a belief that bottleintellectual abilities of the infant and
feeding is equivalent or superior to
young child and other like phrases shall
breastfeeding. It shall also include the
not be allowed.
information specified in Section 5(b).

6. The Milk Code permits milk manufacturers and distributors to extend assistance in
research and continuing education of health professionals; RIRR absolutely forbids the
same.
MILK CODE
SECTION 8. Health Workers

RIRR
Section 4. Declaration of Principles

(e) Manufacturers and distributors of The following are the underlying

products within the scope of this principles from which the revised rules
Code may assist in the research, and regulations are premised upon:
scholarships and continuing education,
of health professionals,in accordance i.
Milk
companies,
and
their
49

with
the
rules
and
regulations
promulgated by the Ministry of Health. representatives,should not form part of
any policymaking body or entity in
relation to the advancement of
breasfeeding.
SECTION
22. No
manufacturer,
distributor,
or
representatives
of
products covered by the Code shall be
allowed to conduct or be involved
in any
activity
on
breastfeeding
promotion, education and production of
Information,
Education
and
Communication (IEC) materials on
breastfeeding, holding
of
or
participating as speakers in classes or
seminars for women and children
activitiesand to avoid the use of these
venues to market their brands or
company names.
SECTION 32. Primary Responsibility of
Health Workers - It is the primary
responsibility of the health workers to
promote,
protect
and
support
breastfeeding and appropriate infant
and young child feeding. Part of this
responsibility is to continuously update
their
knowledge
and
skills
on
breastfeeding. No assistance, support,
logistics
or
training
from
milk
companies shall be permitted.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
MILK CODE
RIRR
SECTION 6. The General Public and Section 51. Donations Within the Scope
Mothers.
of This Code - Donations of products,
materials, defined and covered under
(f) Nothing herein contained shall the Milk Code and these implementing
prevent donations from manufacturers rules and regulations, shall be strictly
and distributors of products within the prohibited.
scope of this Code upon request by or
with the approval of the Ministry of Section 52. Other Donations By Milk
Health.
Companies Not Covered by this Code. Donations of products, equipments,
and the like, not otherwise falling
within the scope of this Code or these
Rules, given by milk companies and
their agents, representatives, whether
in kind or in cash, may only be coursed
through the Inter Agency Committee
(IAC), which shall determine whether
50

such
donation
otherwise.

be

accepted

or

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

RIRR
Section 46. Administrative Sanctions.
The following administrative sanctions
shall be imposed upon any person,
a) 1st violation Warning;
b) 2nd violation Administrative fine of
a
minimum
of
Ten
Thousand
(P10,000.00)
to
Fifty
Thousand
(P50,000.00) Pesos, depending on the
gravity and extent of the violation,
including the recall of the offending
product;
c) 3rd violation Administrative Fine of
a
minimum
of
Sixty
Thousand
(P60,000.00) to One Hundred Fifty
Thousand
(P150,000.00)
Pesos,
depending on the gravity and extent of
the violation, and in addition thereto,
the recall of the offending product, and
suspension of the Certificate of Product
Registration (CPR);
d) 4th violation Administrative Fine of
a minimum of Two Hundred Thousand
(P200,000.00)
to
Five
Hundred
(P500,000.00)
Thousand
Pesos,
depending on the gravity and extent of
the violation; and in addition thereto,
the recall of the product, revocation of
the CPR, suspension of the License to
Operate (LTO) for one year;
e)
5th and
succeeding
repeated
violations Administrative Fine of One
Million (P1,000,000.00) Pesos, the recall
of the offending product, cancellation
of the CPR, revocation of the License to
Operate
(LTO)
of
the
company
concerned, including the blacklisting of
51

the company to be furnished the

Department
of
Budget
and
Management
(DBM)
and
the
Department of Trade and Industry
(DTI);
f) An additional penalty of Two Thousand Five Hundred (P2,500.00) Pesos
per day shall be made for every day
the violation continues after having
received the order from the IAC or
other such appropriate body, notifying
and penalizing the company for the
infraction.
For purposes of determining whether or
not there is "repeated" violation, each
product violation belonging or owned
by a company, including those of their
subsidiaries, are deemed to be
violations of the concerned milk
company and shall not be based on the
specific violating product alone.
9. The RIRR provides for repeal of existing laws to the contrary.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited only to children 0-12
months old. Section 3 of the Milk Code states:
SECTION 3. Scope of the Code The Code applies to the marketing, and practices related
thereto, of the following products: breastmilk substitutes, including infant formula; other
milk products, foods and beverages, including bottle-fed complementary foods, when
marketed or otherwise represented to be suitable, with or without modification, for use as
a partial or total replacement of breastmilk; feeding bottles and teats. It also applies to
their quality and availability, and to information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child but on the kind of
product being marketed to the public. The law treats infant formula, bottle-fed complementary
food, and breastmilk substitute as separate and distinct product categories.
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy
the normal nutritional requirements of infants up to between four to six months of age, and
adapted to their physiological characteristics"; while under Section 4(b), bottle-fed
complementary food refers to "any food, whether manufactured or locally prepared, suitable as a
complement to breastmilk or infant formula, when either becomes insufficient to satisfy the
nutritional requirements of the infant." An infant under Section 4(e) is a person falling within the
age bracket 0-12 months. It is the nourishment of this group of infants or children aged 0-12
months that is sought to be promoted and protected by the Milk Code.

52

But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any
food being marketed or otherwise presented as a partial or total replacement for breastmilk,
whether or not suitable for that purpose."This section conspicuously lacks reference to any
particular age-group of children. Hence, the provision of the Milk Code cannot be considered
exclusive for children aged 0-12 months. In other words, breastmilk substitutes may also be
intended for young children more than 12 months of age. Therefore, by regulating breastmilk
substitutes, the Milk Code also intends to protect and promote the nourishment of children more
than 12 months old.
Evidently, as long as what is being marketed falls within the scope of the Milk Code as provided
in Section 3, then it can be subject to regulation pursuant to said law, even if the product is to be
used by children aged over 12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code, does not recognize
that breastmilk substitutes may be a proper and possible substitute for breastmilk.
The entirety of the RIRR, not merely truncated portions thereof, must be considered and
construed together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases
in the Rule should not be studied as detached and isolated expressions, but the whole and every
part thereof must be considered in fixing the meaning of any of its parts and in order to produce
a harmonious whole."
Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use
of breastmilk substitutes is proper if based on complete and updated information." Section 8 of
the RIRR also states that information and educational materials should include information on the
proper use of infant formula when the use thereof is needed.
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases, the use of
breastmilk substitutes may be proper.
3. The Court shall ascertain the merits of allegations 345 and 446 together as they are
interlinked with each other.
To resolve the question of whether the labeling requirements and advertising regulations under
the RIRR are valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as defined in general under the 1987 Administrative Code, 47 and
as delegated in particular under the Milk Code.
Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it..48 However, health information, particularly
advertising materials on apparently non-toxic products like breastmilk substitutes and
supplements, is a relatively new area for regulation by the DOH.49
As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health
information was already within the ambit of the regulatory powers of the predecessor of
DOH.51 Section 938 thereof charged it with the duty to protect the health of the people, and
vested it with such powers as "(g) the dissemination of hygienic information among the people
and especially the inculcation of knowledge as to the proper care of infantsand the methods of
preventing and combating dangerous communicable diseases."
53

Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To
that end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate
health information and educate the populationon important health, medical and environmental
matters which have health implications."53
When it comes to information regarding nutrition of infants and young children, however, the
Milk Code specifically delegated to the Ministry of Health (hereinafter referred to as DOH) the
power to ensure that there is adequate, consistent and objective information on breastfeeding
and use of breastmilk substitutes, supplements and related products; and the power
to control such information. These are expressly provided for in Sections 12 and 5(a), to wit:
SECTION 12. Implementation and Monitoring
xxxx
(b) The Ministry of Health shall be principally responsible for the implementation and
enforcement of the provisions of this Code. For this purpose, the Ministry of Health shall
have the following powers and functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation of this Code and the accomplishment of its purposes and
objectives.
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the attainment of the purposes and objectives of this Code.
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Further, DOH is authorized by the Milk Code to control the content of any information on
breastmilk vis--visbreastmilk substitutes, supplement and related products, in the following
manner:
SECTION 5. x x x
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods or
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
54

infant formula and other breastmilk substitutes. Such materials shall not use any picture
or text which may idealize the use of breastmilk substitutes.
SECTION 8. Health Workers
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters, and such information shall not imply or create a belief that bottlefeeding is
equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used. (Emphasis
supplied)
The DOH is also authorized to control the purpose of the information and to whom such
information may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that
the information that would reach pregnant women, mothers of infants, and health professionals
and workers in the health care system is restricted to scientific and factual matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to control information
regarding breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to control does
not encompass the power to absolutely prohibit the advertising, marketing, and promotion of
breastmilk substitutes.
The following are the provisions of the Milk Code that unequivocally indicate that the control over
information given to the DOH is not absolute and that absolute prohibition is not contemplated
by the Code:
a) Section 2 which requires adequate information and appropriate marketing and
distribution of breastmilk substitutes, to wit:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the provision
of safe and adequate nutrition for infants by the protection and promotion of
breastfeeding and by ensuring the proper use of breastmilk substitutes and
breastmilk supplements when these are necessary, on the basis of adequate
information and through appropriate marketing and distribution.
b) Section 3 which specifically states that the Code applies to the marketing of and
practices related to breastmilk substitutes, including infant formula, and to information
concerning their use;
c) Section 5(a) which provides that the government shall ensure that objective and
consistent information is provided on infant feeding;
55

d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or
improper use of said product;
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials;
f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters
and shall not imply or create a belief that bottlefeeding is equivalent or superior to
breastfeeding; and
g) Section 10 which provides that containers or labels should not contain information that
would discourage breastfeeding and idealize the use of infant formula.
It is in this context that the Court now examines the assailed provisions of the RIRR regarding
labeling and advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling
requirements, specifically: a) that there be a statement that there is no substitute to breastmilk;
and b) that there be a statement that powdered infant formula may contain pathogenic
microorganisms and must be prepared and used appropriately. Section 1657 of the RIRR prohibits
all health and nutrition claims for products within the scope of the Milk Code, such as claims of
increased emotional and intellectual abilities of the infant and young child.
These requirements and limitations are consistent with the provisions of Section 8 of the Milk
Code, to wit:
SECTION 8. Health workers xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters, and such informationshall not imply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.58 (Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms "humanized,"
"maternalized," or similar terms.
These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding.
It may be argued that Section 8 of the Milk Code refers only to information given to health
workers regarding breastmilk substitutes, not to containers and labels thereof. However, such
restrictive application of Section 8(b) will result in the absurd situation in which milk companies
and distributors are forbidden to claim to health workers that their products are substitutes or
equivalents of breastmilk, and yet be allowed to display on the containers and labels of their
products the exact opposite message. That askewed interpretation of the Milk Code is precisely
what Section 5(a) thereof seeks to avoid by mandating that all information regarding
56

breastmilk vis-a-visbreastmilk substitutes be consistent, at the same time giving the government
control over planning, provision, design, and dissemination of information on infant feeding.
Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the
Milk Code and deterring circumvention of the protection and promotion of breastfeeding as
embodied in Section 260 of the Milk Code.
Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It implements
Section 5(b) of the Milk Code which reads:
SECTION 5. x x x
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: x x x (5) where needed, the proper
use of infant formula, whether manufactured industrially or home-prepared. When such
materials contain information about the use of infant formula, they shall include the social
and financial implications of its use; the health hazards of inappropriate foods or feeding
methods; and, in particular, the health hazards of unnecessary or improper use of infant
formula and other breastmilk substitutes. Such materials shall not use any picture or text
which may idealize the use of breastmilk substitutes. (Emphasis supplied)
The label of a product contains information about said product intended for the buyers thereof.
The buyers of breastmilk substitutes are mothers of infants, and Section 26 of the RIRR merely
adds a fair warning about the likelihood of pathogenic microorganisms being present in infant
formula and other related products when these are prepared and used inappropriately.
Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone
to contaminations and there is as yet no technology that allows production of powdered infant
formula that eliminates all forms of contamination.62
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic
microorganisms is in accordance with Section 5(b) of the Milk Code.
The authority of DOH to control information regarding breastmilk vis-a-vis breastmilk substitutes
and supplements and related products cannot be questioned. It is its intervention into the area of
advertising, promotion, and marketing that is being assailed by petitioner.
In furtherance of Section 6(a) of the Milk Code, to wit:
SECTION 6. The General Public and Mothers.
(a) No advertising, promotion or other marketing materials, whether written, audio or
visual, for products within the scope of this Code shall be printed, published, distributed,
exhibited and broadcast unless such materials are duly authorized and approved by an
inter-agency committee created herein pursuant to the applicable standards provided for
in this Code.

57

the Milk Code invested regulatory authority over advertising, promotional and marketing
materials to an IAC, thus:
SECTION 12. Implementation and Monitoring (a) For purposes of Section 6(a) of this Code, an inter-agency committee composed of the
following members is hereby created:
Minister of Health

-------------------

Chairman

Minister of Trade and Industry

-------------------

Member

Minister of Justice

-------------------

Member

and -------------------

Member

Minister
of
Development

Social

Services

The members may designate their duly authorized representative to every meeting of the
Committee.
The Committee shall have the following powers and functions:
(1) To review and examine all advertising. promotion or other marketing materials,
whether written, audio or visual, on products within the scope of this Code;
(2) To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on
products within the scope of this Code;
(3) To prescribe the internal and operational procedure for the exercise of its powers
and functions as well as the performance of its duties and responsibilities; and
(4) To promulgate such rules and regulations as are necessary or proper for the
implementation of Section 6(a) of this Code. x x x (Emphasis supplied)
However, Section 11 of the RIRR, to wit:
SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing
materials and activities for breastmilk substitutes intended for infants and young children
up to twenty-four (24) months, shall be allowed, because they tend to convey or give
subliminal messages or impressions that undermine breastmilk and breastfeeding or
otherwise exaggerate breastmilk substitutes and/or replacements, as well as related
products covered within the scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for
breastmilk substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit:
SECTION 4. Declaration of Principles
xxxx
58

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk substitutes and

other related products are prohibited.
The DOH, through its co-respondents, evidently arrogated to itself not only the regulatory
authority given to the IAC but also imposed absolute prohibition on advertising, promotion, and
marketing.
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the Milk Code in Section
6 thereof for prior approval by IAC of all advertising, marketing and promotional materials prior
to dissemination.
Even respondents, through the OSG, acknowledged the authority of IAC, and repeatedly insisted,
during the oral arguments on June 19, 2007, that the prohibition under Section 11 is not actually
operational, viz:
SOLICITOR GENERAL DEVANADERA:
xxxx
x x x Now, the crux of the matter that is being questioned by Petitioner is whether or not
there is an absolute prohibition on advertising making AO 2006-12 unconstitutional. We
maintained that what AO 2006-12 provides is not an absolute prohibition because Section
11 while it states and it is entitled prohibition it states that no advertising, promotion,
sponsorship or marketing materials and activities for breast milk substitutes intended for
infants and young children up to 24 months shall be allowed because this is the standard
they tend to convey or give subliminal messages or impression undermine that breastmilk
or breastfeeding x x x.
We have to read Section 11 together with the other Sections because the other Section,
Section 12, provides for the inter agency committee that is empowered to process and
evaluate all the advertising and promotion materials.
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture, it simply
regulates the advertisement and the promotions of breastfeeding milk substitutes.
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with the provision
on the Inter-Agency Committee that processes and evaluates because there may be some
information dissemination that are straight forward information dissemination. What the
AO 2006 is trying to prevent is any material that will undermine the practice of
breastfeeding, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
Madam Solicitor General, under the Milk Code, which body has authority or power to
promulgate Rules and Regulations regarding the Advertising, Promotion and Marketing of
Breastmilk Substitutes?
59

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
ASSOCIATE JUSTICE SANTIAGO:
x x x Don't you think that the Department of Health overstepped its rule making authority
when it totally banned advertising and promotion under Section 11 prescribed the total
effect rule as well as the content of materials under Section 13 and 15 of the rules and
regulations?
SOLICITOR GENERAL DEVANADERA:
Your Honor, please, first we would like to stress that there is no total absolute ban. Second,
the Inter-Agency Committee is under the Department of Health, Your Honor.
xxxx
ASSOCIATE JUSTICE NAZARIO:
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on advertising
of breastmilk substitutes in the Revised Rules?
SOLICITOR GENERAL DEVANADERA:
Yes, your Honor.
ASSOCIATE JUSTICE NAZARIO:
But, would you nevertheless agree that there is an absolute ban on advertising of
breastmilk substitutes intended for children two (2) years old and younger?
SOLICITOR GENERAL DEVANADERA:
It's not an absolute ban, Your Honor, because we have the Inter-Agency Committee that
can evaluate some advertising and promotional materials, subject to the standards that
we have stated earlier, which are- they should not undermine breastfeeding, Your Honor.
xxxx
x x x Section 11, while it is titled Prohibition, it must be taken in relation with the other
Sections, particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee has that power to evaluate promotional materials, Your Honor.
ASSOCIATE JUSTICE NAZARIO:
So in short, will you please clarify there's no absolute ban on advertisement regarding milk
substitute regarding infants two (2) years below?
SOLICITOR GENERAL DEVANADERA:
60

We can proudly say that the general rule is that there is a prohibition, however, we take
exceptions and standards have been set. One of which is that, the Inter-Agency Committee
can allow if the advertising and promotions will not undermine breastmilk and
breastfeeding, Your Honor.63
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
However, although it is the IAC which is authorized to promulgate rules and regulations for the
approval or rejection of advertising, promotional, or other marketing materials under Section
12(a) of the Milk Code, said provision must be related to Section 6 thereof which in turn provides
that the rules and regulations must be "pursuant to the applicable standards provided for in this
Code." Said standards are set forth in Sections 5(b), 8(b), and 10 of the Code, which, at the risk
of being repetitious, and for easy reference, are quoted hereunder:
SECTION 5. Information and Education
xxxx
(b) Informational and educational materials, whether written, audio, or visual, dealing with
the feeding of infants and intended to reach pregnant women and mothers of infants, shall
include clear information on all the following points: (1) the benefits and superiority of
breastfeeding; (2) maternal nutrition, and the preparation for and maintenance of
breastfeeding; (3) the negative effect on breastfeeding of introducing partial bottlefeeding;
(4) the difficulty of reversing the decision not to breastfeed; and (5) where needed, the
proper use of infant formula, whether manufactured industrially or home-prepared. When
such materials contain information about the use of infant formula, they shall include the
social and financial implications of its use; the health hazards of inappropriate foods of
feeding methods; and, in particular, the health hazards of unnecessary or improper use of
infant formula and other breastmilk substitutes. Such materials shall not use any picture or
text which may idealize the use of breastmilk substitutes.
xxxx
SECTION 8. Health Workers.
xxxx
(b) Information provided by manufacturers and distributors to health professionals
regarding products within the scope of this Code shall be restricted to scientific and factual
matters and such information shall not imply or create a belief that bottle feeding is
equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5(b).
xxxx
SECTION 10. Containers/Label
(a) Containers and/or labels shall be designed to provide the necessary information about
the appropriate use of the products, and in such a way as not to discourage breastfeeding.
(b) Each container shall have a clear, conspicuous and easily readable and understandable
message in Pilipino or English printed on it, or on a label, which message can not readily
become separated from it, and which shall include the following points:
61

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;
(iii) a statement that the product shall be used only on the advice of a health worker
as to the need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of inappropriate preparation.
Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section
5(a) of the Milk Code states that:
SECTION 5. Information and Education
(a) The government shall ensure that objective and consistent information is provided on
infant feeding, for use by families and those involved in the field of infant nutrition. This
responsibility shall cover the planning, provision, design and dissemination of information,
and the control thereof, on infant nutrition. (Emphasis supplied)
Thus, the DOH has the significant responsibility to translate into operational terms the standards
set forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen advertising,
promotional, or other marketing materials.
It is pursuant to such responsibility that the DOH correctly provided for Section 13 in the RIRR
which reads as follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other
such exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion,
and marketing. Through that single provision, the DOH exercises control over the information
content of advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk
substitutes, supplements and other related products. It also sets a viable standard against which
the IAC may screen such materials before they are made public.
In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:
x x x [T]his Court had, in the past, accepted as sufficient standards the following: "public
interest," "justice and equity," "public convenience and welfare," and "simplicity, economy
and welfare."65
In this case, correct information as to infant feeding and nutrition is infused with public interest
and welfare.
4. With regard to activities for dissemination of information to health professionals, the Court also
finds that there is no inconsistency between the provisions of the Milk Code and the RIRR.
62

Section 7(b)66 of the Milk Code, in relation to Section 8(b)67 of the same Code, allows
dissemination of information to health professionals but suchinformation is restricted to scientific
and factual matters.
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the giving of
information to health professionals on scientific and factual matters. What it prohibits is the
involvement of the manufacturer and distributor of the products covered by the Code in activities
for the promotion, education and production of Information, Education and Communication (IEC)
materials regarding breastfeeding that are intended forwomen and children. Said provision
cannot be construed to encompass even the dissemination of information to health professionals,
as restricted by the Milk Code.
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk manufacturers and
distributors to extend assistance in research and in the continuing education of health
professionals, while Sections 22 and 32 of the RIRR absolutely forbid the same. Petitioner also
assails Section 4(i)69 of the RIRR prohibiting milk manufacturers' and distributors' participation
in any policymaking body in relation to the advancement of breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives should not form
part of any policymaking body or entity in relation to the advancement of breastfeeding. The
Court finds nothing in said provisions which contravenes the Milk Code. Note that under Section
12(b) of the Milk Code, it is the DOH which shall be principally responsible for the implementation
and enforcement of the provisions of said Code. It is entirely up to the DOH to decide which
entities to call upon or allow to be part of policymaking bodies on breastfeeding. Therefore, the
RIRR's prohibition on milk companies participation in any policymaking body in relation to the
advancement of breastfeeding is in accord with the Milk Code.
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 2270 of
the RIRR does not pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's argument against
this particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the
RIRR provide thatresearch assistance for health workers and researchers may be allowed upon
approval of an ethics committee, and with certain disclosure requirements imposed on the milk
company and on the recipient of the research award.
The Milk Code endows the DOH with the power to determine how such research or educational
assistance may be given by milk companies or under what conditions health workers may accept
the assistance. Thus, Sections 9 and 10 of the RIRR imposing limitations on the kind of research
done or extent of assistance given by milk companies are completely in accord with the Milk
Code.
Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving
assistance, support, logistics or training to health workers. This provision is within the
prerogative given to the DOH under Section 8(e)74 of the Milk Code, which provides that
manufacturers and distributors of breastmilk substitutes may assist in researches, scholarships
and the continuing education, of health professionals in accordance with the rules and
regulations promulgated by the Ministry of Health, now DOH.
63

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk
Code. Section 6(f) of the Milk Code provides that donations may be made by manufacturers and
distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law
does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the
DOH whether to request or accept such donations. The DOH then appropriately exercised its
discretion through Section 5175 of the RIRR which sets forth its policy not to request or approve
donations from manufacturers and distributors of breastmilk substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any
donation from milk companies not covered by the Code should be coursed through the IAC which
shall determine whether such donation should be accepted or refused. As reasoned out by
respondents, the DOH is not mandated by the Milk Code to accept donations. For that matter, no
person or entity can be forced to accept a donation. There is, therefore, no real inconsistency
between the RIRR and the law because the Milk Code does not prohibit the DOH from refusing
donations.
7. With regard to Section 46 of the RIRR providing for administrative sanctions that are not found
in the Milk Code, the Court upholds petitioner's objection thereto.
Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76 is misplaced. The
glaring difference in said case and the present case before the Court is that, in the Civil
Aeronautics Board, the Civil Aeronautics Administration (CAA) was expressly granted by the law
(R.A. No. 776) the power to impose fines and civil penalties, while the Civil Aeronautics Board
(CAB) was granted by the same law the power to review on appeal the order or decision of the
CAA and to determine whether to impose, remit, mitigate, increase or compromise such fine and
civil penalties. Thus, the Court upheld the CAB's Resolution imposing administrative fines.
In a more recent case, Perez v. LPG Refillers Association of the Philippines, Inc.,77 the Court
upheld
the
Department
of
Energy
(DOE)
Circular
No.
2000-06-10
implementing Batas Pambansa (B.P.) Blg. 33. The circular provided for fines for the commission
of prohibited acts. The Court found that nothing in the circular contravened the law because the
DOE was expressly authorized by B.P. Blg. 33 and R.A. No. 7638 to impose fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code grants the DOH
the authority to fix or impose administrative fines. Thus, without any express grant of power to
fix or impose such fines, the DOH cannot provide for those fines in the RIRR. In this regard, the
DOH again exceeded its authority by providing for such fines or sanctions in Section 46 of the
RIRR. Said provision is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations. Section 12(b) (3) of
the Milk Code authorizes the DOH to "cause the prosecution of the violators of this Code and
other pertinent laws on products covered by this Code." Section 13 of the Milk Code provides for
the penalties to be imposed on violators of the provision of the Milk Code or the rules and
regulations issued pursuant to it, to wit:
SECTION 13. Sanctions
(a) Any person who violates the provisions of this Code or the rules and regulations issued
pursuant to this Code shall, upon conviction, be punished by a penalty of two (2) months
to one (1) year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty Thousand Pesos (P30,000.00) or both. Should the offense be
committed by a juridical person, the chairman of the Board of Directors, the president,
64

general manager, or the partners and/or the persons directly responsible therefor, shall be
penalized.
(b) Any license, permit or authority issued by any government agency to any health
worker, distributor, manufacturer, or marketing firm or personnel for the practice of their
profession or occupation, or for the pursuit of their business, may, upon recommendation
of the Ministry of Health, be suspended or revoked in the event of repeated violations of
this Code, or of the rules and regulations issued pursuant to this Code. (Emphasis
supplied)
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are contrary to the
RIRR is frivolous.
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations or parts
thereof inconsistent with these revised rules and implementing regulations are hereby
repealed or modified accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and
rules and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.
An administrative agency like respondent possesses quasi-legislative or rule-making power or
the power to make rules and regulations which results in delegated legislation that is within the
confines of the granting statute and the Constitution, and subject to the doctrine of nondelegability and separability of powers.78 Such express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the same.79 This is to allow administrative
agencies flexibility in formulating and adjusting the details and manner by which they are to
implement the provisions of a law,80 in order to make it more responsive to the times. Hence, it
is a standard provision in administrative rules that prior issuances of administrative agencies that
are inconsistent therewith are declared repealed or modified.
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to
promulgate and in contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:
x x x [T]he questioned RIRR sought to be implemented by the Respondents is unnecessary
and oppressive, and is offensive to the due process clause of the Constitution, insofar as
the same is in restraint of trade and because a provision therein is inadequate to provide
the public with a comprehensible basis to determine whether or not they have committed
a violation.81 (Emphasis supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the
provisions that suppress the trade of milk and, thus, violate the due process clause of the
Constitution.
The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held
thus:
65

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v. Philippine

Coconut Authority,despite the fact that "our present Constitution enshrines free enterprise
as a policy, it nonetheless reserves to the government the power to intervene whenever
necessary to promote the general welfare." There can be no question that the unregulated
use or proliferation of pesticides would be hazardous to our environment. Thus, in the
aforecited case, the Court declared that "free enterprise does not call for removal of
protective regulations." x x x It must be clearly explained and proven by competent
evidence just exactly how such protective regulation would result in the restraint of
trade. [Emphasis and underscoring supplied]
In this case, petitioner failed to show that the proscription of milk manufacturers participation in
any policymaking body (Section 4(i)), classes and seminars for women and children (Section 22);
the giving of assistance, support and logistics or training (Section 32); and the giving of
donations (Section 52) would unreasonably hamper the trade of breastmilk substitutes. Petitioner
has not established that the proscribed activities are indispensable to the trade of breastmilk
substitutes. Petitioner failed to demonstrate that the aforementioned provisions of the RIRR are
unreasonable and oppressive for being in restraint of trade.
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term "milk company," to wit:
SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer, distributor of
infant formula, follow-up milk, milk formula, milk supplement, breastmilk substitute or
replacement, or by any other description of such nature, including their representatives
who promote or otherwise advance their commercial interests in marketing those
products;
On the other hand, Section 4 of the Milk Code provides:
(d) "Distributor" means a person, corporation or any other entity in the public or private
sector engaged in the business (whether directly or indirectly) of marketing at the
wholesale or retail level a product within the scope of this Code. A "primary distributor" is
a manufacturer's sales agent, representative, national distributor or broker.
xxxx
(j) "Manufacturer" means a corporation or other entity in the public or private sector
engaged in the business or function (whether directly or indirectly or through an agent or
and entity controlled by or under contract with it) of manufacturing a products within the
scope of this Code.
Notably, the definition in the RIRR merely merged together under the term "milk company" the
entities defined separately under the Milk Code as "distributor" and "manufacturer." The RIRR
also enumerated in Section 5(w) the products manufactured or distributed by an entity that
would qualify it as a "milk company," whereas in the Milk Code, what is used is the phrase
"products within the scope of this Code." Those are the only differences between the definitions
given in the Milk Code and the definition as re-stated in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both manufacturers and
distributors, the Court sees no harm in the RIRR providing for just one term to encompass both
entities. The definition of "milk company" in the RIRR and the definitions of "distributor" and
"manufacturer" provided for under the Milk Code are practically the same.
66

The Court is not convinced that the definition of "milk company" provided in the RIRR would
bring about any change in the treatment or regulation of "distributors" and "manufacturers" of
breastmilk substitutes, as defined under the Milk Code.
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry
which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they violative of the due process clause of the Constitution.
WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative
Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The
Department of Health and respondents are PROHIBITED from implementing said provisions.
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.
SO ORDERED.
Puno, (Chief Justice), Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, CarpioMorales, Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 139465

January 18, 2000

SECRETARY OF JUSTICE, petitioner,

vs.
67

HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the vast and overwhelming
powers of government. His only guarantee against oppression and tyranny are his fundamental
liberties under the Bill of Rights which shield him in times of need. The Court is now called to
decide whether to uphold a citizen's basic due process rights, or the government's ironclad
duties under a treaty. The bugle sounds and this Court must once again act as the faithful
guardian of the fundamental writ.
The petition at our doorstep is cast against the following factual backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued Presidential Decree No. 1069
"Prescribing the Procedure for the Extradition of Persons Who Have Committed Crimes in a
Foreign Country". The Decree is founded on: the doctrine of incorporation under the Constitution;
the mutual concern for the suppression of crime both in the state where it was committed and
the state where the criminal may have escaped; the extradition treaty with the Republic of
Indonesia and the intention of the Philippines to enter into similar treaties with other interested
countries; and the need for rules to guide the executive department and the courts in the proper
implementation of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon, representing the
Government of the Republic of the Philippines, signed in Manila the "Extradition Treaty Between
the Government of the Republic of the Philippines and the Government of the United States of
America" (hereinafter referred to as the RP-US Extradition Treaty). The Senate, by way of
Resolution No. 11, expressed its concurrence in the ratification of said treaty. It also expressed its
concurrence in the Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request upon certification by the
principal diplomatic or consular officer of the requested state resident in the Requesting State).
On June 18, 1999, the Department of Justice received from the Department of Foreign Affairs U.S.
Note Verbale No. 0522 containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the Grand Jury Indictment, the
warrant of arrest issued by the U.S. District Court, Southern District of Florida, and other
supporting documents for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the following provisions of the United
States Code (USC):
A) 18 USC 371 (Conspiracy to commit offense or to defraud the United States; two [2]
counts; Maximum Penalty 5 years on each count);
B) 26 USC 7201 (Attempt to evade or defeat tax; four [4] counts; Maximum Penalty 5
years on each count);
C) 18 USC 1343 (Fraud by wire, radio, or television; two [2] counts; Maximum Penalty 5
years on each count);
D) 18 USC 1001 (False statement or entries; six [6] counts; Maximum Penalty 5 years on
each count);

68

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

Maximum Penalty less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249 designating and authorizing a
panel of attorneys to take charge of and to handle the case pursuant to Section 5(1) of
Presidential Decree No. 1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support thereof. The panel found
that the "official English translation of some documents in Spanish were not attached to the
request and that there are some other matters that needed to be addressed" (p. 15, Rollo).
Pending evaluation of the aforestated extradition documents, private respondent, through
counsel, wrote a letter dated July 1, 1999 addressed to petitioner requesting copies of the official
extradition request from the U.S. Government, as well as all documents and papers submitted
therewith; and that he be given ample time to comment on the request after he shall have
received copies of the requested papers. Private respondent also requested that the proceedings
on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminary, he be given at least a copy of, or access to,
the request of the United States Government, and after receiving a copy of the Diplomatic Note,
a period of time to amplify on his request.
In response to private respondent's July 1, 1999 letter, petitioner, in a reply-letter dated July 13,
1999 (but received by private respondent only on August 4, 1999), denied the foregoing requests
for the following reasons:
1. We find it premature to furnish you with copies of the extradition request and
supporting documents from the United States Government, pending evaluation by this
Department of the sufficiency of the extradition documents submitted in accordance with
the provisions of the extradition treaty and our extradition law. Article 7 of the Extradition
Treaty between the Philippines and the United States enumerates the documentary
requirements and establishes the procedures under which the documents submitted shall
be received and admitted as evidence. Evidentiary requirements under our domestic law
are also set forth in Section 4 of P.D. No. 1069.
Evaluation by this Department of the aforementioned documents is not a preliminary
investigation nor akin to preliminary investigation of criminal cases. We merely determine
whether the procedures and requirements under the relevant law and treaty have been
complied with by the Requesting Government. The constitutionally guaranteed rights of
the accused in all criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition when the person sought to be
extradited will be furnished by the court with copies of the petition, request and
extradition documents and this Department will not pose any objection to a request for
ample time to evaluate said documents.
2. The formal request for extradition of the United States contains grand jury information
and documents obtained through grand jury process covered by strict secrecy rules under
United States law. The United States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain grand jury information to
Philippine government and law enforcement personnel for the purpose of extradition of Mr.
Jimenez. Any further disclosure of the said information is not authorized by the United
69

States District Courts. In this particular extradition request the United States Government
requested the Philippine Government to prevent unauthorized disclosure of the subject
information. This Department's denial of your request is consistent with Article 7 of the RPUS Extradition Treaty which provides that the Philippine Government must represent the
interests of the United States in any proceedings arising out of a request for extradition.
The Department of Justice under P.D. No. 1069 is the counsel of the foreign governments
in all extradition requests.
3. This Department is not in a position to hold in abeyance proceedings in connection with
an extradition request. Article 26 of the Vienna Convention on the Law of Treaties, to which
we are a party provides that "[E]very treaty in force is binding upon the parties to it and
must be performed by them in good faith". Extradition is a tool of criminal law
enforcement and to be effective, requests for extradition or surrender of accused or
convicted persons must be processed expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private respondent filed with the Regional
Trial Court of the National Capital Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau of Investigation,
for mandamus (to compel herein petitioner to furnish private respondent the extradition
documents, to give him access thereto, and to afford him an opportunity to comment on, or
oppose, the extradition request, and thereafter to evaluate the request impartially, fairly and
objectively); certiorari (to set aside herein petitioner's letter dated July 13, 1999); and prohibition
(to restrain petitioner from considering the extradition request and from filing an extradition
petition in court; and to enjoin the Secretary of Foreign Affairs and the Director of the NBI from
performing any act directed to the extradition of private respondent to the United States), with
an application for the issuance of a temporary restraining order and a writ of preliminary
injunction (pp. 104-105, Rollo).
The aforementioned petition was docketed as Civil Case No. 99-94684 and thereafter raffled to
Branch 25 of said regional trial court stationed in Manila which is presided over by the Honorable
Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999. Petitioner, who appeared
in his own behalf, moved that he be given ample time to file a memorandum, but the same was
denied.
On August 10, 1999, respondent judge issued an order dated the previous day, disposing:
WHEREFORE, this Court hereby Orders the respondents, namely: the Secretary of Justice,
the Secretary of Foreign Affairs and the Director of the National Bureau of Investigation,
their agents and/or representatives to maintain the status quo by refraining from
committing the acts complained of; from conducting further proceedings in connection
with the request of the United States Government for the extradition of the petitioner;
from filing the corresponding Petition with a Regional Trial court; and from performing any
act directed to the extradition of the petitioner to the United States, for a period of twenty
(20) days from service on respondents of this Order, pursuant to Section 5, Rule 58 of the
1997 Rules of Court.
The hearing as to whether or not this Court shall issue the preliminary injunction, as
agreed upon by the counsels for the parties herein, is set on August 17, 1999 at 9:00
o'clock in the morning. The respondents are, likewise, ordered to file their written
70

comment and/or opposition to the issuance of a Preliminary Injunction on or before said

date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER BECAUSE:
I.
BY ORDERING HEREIN PETITIONER TO REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF,I.E., TO DESIST FROM REFUSING PRIVATE RESPONDENT ACCESS TO THE
OFFICIAL EXTRADITION REQUEST AND DOCUMENTS AND FROM DENYING PRIVATE
RESPONDENT AN OPPORTUNITY TO FILE A COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OFMANDAMUS IN THE PETITION
FOR MANDAMUS, CERTIORARI AND PROHIBITION WAS, IN EFFECT, GRANTED SO AS TO
CONSTITUTE AN ADJUDICATION ON THE MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY PREVENTED FROM PERFORMING LEGAL DUTIES UNDER
THE EXTRADITION TREATY AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI AND PROHIBITION IS, ON ITS FACE,
FORMALLY AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN ESSE THAT NEEDS
ENFORCEMENT, AND WILL NOT SUFFER ANY IRREPARABLE INJURY.

PROTECTION

AND

(pp. 19-20, Rollo.)

On August 17, 1999, the Court required private respondent to file his comment. Also issued, as
prayed for, was a temporary restraining order (TRO) providing:
NOW, THEREFORE, effective immediately and continuing until further orders from this
Court, You, Respondent Judge Ralph C. Lantion, your agents, representatives or any person
or persons acting in your place or stead are hereby ORDERED to CEASE and DESIST from
enforcing the assailed order dated August 9, 1999 issued by public respondent in Civil
Case No. 99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR., Chief Justice, Supreme Court of the
Philippines, this 17th day of August 1999.
71

(pp. 120-121, Rollo.)

The case was heard on oral argument on August 31, 1999, after which the parties, as directed,
filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and substantive issues are patent.
However, a review of these issues as well as the extensive arguments of both parties, compel us
to delineate the focal point raised by the pleadings: During the evaluation stage of the
extradition proceedings, is private respondent entitled to the two basic due process rights of
notice and hearing? An affirmative answer would necessarily render the proceedings at the trial
court, moot and academic (the issues of which are substantially the same as those before us
now), while a negative resolution would call for the immediate lifting of the TRO issued by this
Court dated August 24, 1999, thus allowing petitioner to fast-track the process leading to the
filing of the extradition petition with the proper regional trial court. Corollarily, in the event that
private respondent is adjudged entitled to basic due process rights at the evaluation stage of the
extradition proceedings, would this entitlement constitute a breach of the legal commitments
and obligations of the Philippine Government under the RP-US Extradition Treaty? And assuming
that the result would indeed be a breach, is there any conflict between private respondent's
basic due process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to go directly into the
substantive merits of the case, brushing aside peripheral procedural matters which concern the
proceedings in Civil Case No. 99-94684, particularly the propriety of the filing of the petition
therein, and of the issuance of the TRO of August 17, 1999 by the trial court.
To be sure, the issues call for a review of the extradition procedure. The RP-US Extradition Treaty
which was executed only on November 13, 1994, ushered into force the implementing provisions
of Presidential Decree No. 1069, also called as the Philippine Extradition Law. Section 2(a) thereof
defines extradition as "the removal of an accused from the Philippines with the object of placing
him at the disposal of foreign authorities to enable the requesting state or government to hold
him in connection with any criminal investigation directed against him or the execution of a
penalty imposed on him under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves a charged and not
convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State, addressed to the Secretary
of Foreign Affairs, and shall be accompanied by:
1. The original or an authentic copy of the criminal charge and the warrant of arrest issued
by the authority of the Requesting State having jurisdiction over the matter, or some other
instruments having equivalent legal force;
2. A recital of the acts for which extradition is requested, with the fullest particulars as to
the name and identity of the accused, his whereabouts in the Philippines, if known, the
acts or omissions complained of, and the time and place of the commission of these acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of the request.
72

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

Sec. 5 of the Presidential Decree, which sets forth the duty of the Secretary of Foreign Affairs,
pertinently provides
. . . (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet
the requirements of this law and the relevant treaty or convention, he shall forward the
request together with the related documents to the Secretary of Justice, who shall
immediately designate and authorize an attorney in his office to take charge of the case.
The above provision shows only too clearly that the executive authority given the task of
evaluating the sufficiency of the request and the supporting documents is the Secretary of
Foreign Affairs. What then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US Extradition Treaty, the executive
authority must ascertain whether or not the request is supported by:
1. Documents, statements, or other types of information which describe the identity and
probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of the case;
3. A statement of the provisions of the law describing the essential elements of the offense
for which extradition is requested;
4. A statement of the provisions of law describing the punishment for the offense;
5. A statement of the provisions of the law describing any time limit on the prosecution or
the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in paragraph 3 or
paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State, would provide probable
cause for his arrest and committal for trial if the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other competent authority;
and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to it that the accompanying
documents received in support of the request had been certified by the principal diplomatic or
consular officer of the Requested State resident in the Requesting State (Embassy Note No. 052
from U. S. Embassy; Embassy Note No. 951309 from the Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that "[e]xtradition shall not be granted if
the executive authority of the Requested State determines that the request is politically
73

motivated, or that the offense is a military offense which is not punishable under non-military
penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the extradition request and its
supporting documents are sufficient and complete in form and substance, he shall deliver the
same to the Secretary of Justice, who shall immediately designate and authorize an attorney in
his office to take charge of the case (Paragraph [1], Section 5, P.D. No. 1069). The lawyer
designated shall then file a written petition with the proper regional trial court of the province or
city, with a prayer that the court take the extradition request under consideration (Paragraph
[2], ibid.).
The presiding judge of the regional trial court, upon receipt of the petition for extradition, shall,
as soon as practicable, issue an order summoning the prospective extraditee to appear and to
answer the petition on the day and hour fixed in the order. The judge may issue a warrant of
arrest if it appears that the immediate arrest and temporary detention of the accused will best
serve the ends of justice (Paragraph [1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the extradition proceeding is criminal,
civil, or a special proceeding. Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of Court, insofar as practicable and
not inconsistent with the summary nature of the proceedings, shall apply. During the hearing,
Section 8 of the Decree provides that the attorney having charge of the case may, upon
application by the Requesting State, represent the latter throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision granting the extradition and
giving the reasons therefor upon a showing of the existence of a prima facie case, or dismiss the
petition (Section 10, ibid.). Said decision is appealable to the Court of Appeals, whose decision
shall be final and immediately executory (Section 12, ibid.). The provisions of the Rules of Court
governing appeal in criminal cases in the Court of Appeals shall apply in the aforementioned
appeal, except for the required 15-day period to file brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the petition is extraditable
based on the application of the dual criminality rule and other conditions mentioned in Article 2
of the RP-US Extradition Treaty. The trial court also determines whether or not the offense for
which extradition is requested is a political one (Paragraph [1], Article 3, RP-US Extradition
Treaty).1wphi1.nt
With the foregoing abstract of the extradition proceedings as backdrop, the following query
presents itself: What is the nature of the role of the Department of Justice at the evaluation stage
of the extradition proceedings?
A strict observance of the Extradition Law indicates that the only duty of the Secretary of Justice
is to file the extradition petition after the request and all the supporting papers are forwarded to
him by the Secretary of Foreign Affairs. It is the latter official who is authorized to evaluate the
extradition papers, to assure their sufficiency, and under Paragraph [3], Article 3 of the Treaty, to
determine whether or not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal legislation.Ipso facto, as expressly
74

provided in Paragraph [1], Section 5 of the Extradition Law, the Secretary of Justice has the
ministerial duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would appear that there was
failure to abide by the provisions of Presidential Decree No. 1069. For while it is true that the
extradition request was delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice received the request,
apparently without the Department of Foreign Affairs discharging its duty of thoroughly
evaluating the same and its accompanying documents. The statement of an assistant secretary
at the Department of Foreign Affairs that his Department, in this regard, is merely acting as a
post office, for which reason he simply forwarded the request to the Department of Justice,
indicates the magnitude of the error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon itself to determine the
completeness of the documents and to evaluate the same to find out whether they comply with
the requirements laid down in the Extradition Law and the RP-US Extradition Treaty. Petitioner
ratiocinates in this connection that although the Department of Justice had no obligation to
evaluate the extradition documents, the Department also had to go over them so as to be able to
prepare an extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was also at this
stage where private respondent insisted on the following; (1) the right to be furnished the
request and the supporting papers; (2) the right to be heard which consists in having a
reasonable period of time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance pending the filing of
private respondent's opposition to the request.
The two Departments seem to have misread the scope of their duties and authority, one
abdicating its powers and the other enlarging its commission. The Department of Foreign Affairs,
moreover, has, through the Solicitor General, filed a manifestation that it is adopting the instant
petition as its own, indirectly conveying the message that if it were to evaluate the extradition
request, it would not allow private respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity that the Department of
Foreign Affairs thoroughly reviewed the extradition request and supporting documents and that it
arrived at a well-founded judgment that the request and its annexed documents satisfy the
requirements of law. The Secretary of Justice, eminent as he is in the field of law, could not
privately review the papers all by himself. He had to officially constitute a panel of attorneys.
How then could the DFA Secretary or his undersecretary, in less than one day, make the more
authoritative determination?
The evaluation process, just like the extradition proceedings proper, belongs to a class by itself. It
is sui generis. It is not a criminal investigation, but it is also erroneous to say that it is purely an
exercise of ministerial functions. At such stage, the executive authority has the power: (a) to
make a technical assessment of the completeness and sufficiency of the extradition papers; (b)
to outrightly deny the request if on its face and on the face of the supporting documents the
crimes indicated are not extraditable; and (c) to make a determination whether or not the
request is politically motivated, or that the offense is a military one which is not punishable
under non-military penal legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be characterized as an
investigative or inquisitorial process in contrast to a proceeding conducted in the exercise of an
administrative body's quasi-judicial power.
In administrative law, a quasi-judicial proceeding involves: (a) taking and evaluation of evidence;
(b) determining facts based upon the evidence presented; and (c) rendering an order or decision
supported by the facts proved (De Leon, Administrative Law: Text and Cases, 1993 ed., p. 198,
citing Morgan vs. United States, 304 U.S. 1). Inquisitorial power, which is also known as
75

examining or investigatory power, is one or the determinative powers of an administrative body

which better enables it to exercise its quasi-judicial authority (Cruz, Phil. Administrative Law,
1996 ed., p. 26). This power allows the administrative body to inspect the records and premises,
and investigate the activities, of persons or entities coming under its jurisdiction ( Ibid., p. 27), or
to require disclosure of information by means or accounts, records, reports, testimony of
witnesses, production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and analyzing evidence, which is a
useful aid or tool in an administrative agency's performance of its rule-making or quasi-judicial
functions. Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court had occasion to rule on the
functions of an investigatory body with the sole power of investigation. It does not exercise
judicial functions and its power is limited to investigating the facts and making findings in
respect thereto. The Court laid down the test of determining whether an administrative body is
exercising judicial functions or merely investigatory functions: Adjudication signifies the exercise
of power and authority to adjudicate upon the rights and obligations of the parties before it.
Hence, if the only purpose for investigation is to evaluate evidence submitted before it based on
the facts and circumstances presented to it, and if the agency is not authorized to make a final
pronouncement affecting the parties, then there is an absence of judicial discretion and
judgment.
The above description in Ruperto applies to an administrative body authorized to evaluate
extradition documents. The body has no power to adjudicate in regard to the rights and
obligations of both the Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law and the treaty and,
therefore, sufficient to be the basis of an extradition petition. Such finding is thus merely initial
and not final. The body has no power to determine whether or not the extradition should be
effected. That is the role of the court. The body's power is limited to an initial finding of whether
or not the extradition petition can be filed in court.
It is to be noted, however, that in contrast to ordinary investigations, the evaluation procedure is
characterized by certain peculiarities. Primarily, it sets into motion the wheels of the extradition
process. Ultimately, it may result in the deprivation of liberty of the prospective extraditee. This
deprivation can be effected at two stages: First, the provisional arrest of the prospective
extraditee pending the submission of the request. This is so because the Treaty provides that in
case of urgency, a contracting party may request the provisional arrest of the person sought
pending presentation of the request (Paragraph [1], Article 9, RP-US Extradition Treaty), but he
shall be automatically discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days after which the arrested
person could be discharged (Section 20[d]). Logically, although the Extradition Law is silent on
this respect, the provisions only mean that once a request is forwarded to the Requested State,
the prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is
submitted. Practically, the purpose of this detention is to prevent his possible flight from the
Requested State. Second, the temporary arrest of the prospective extraditee during the
pendency of the extradition petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditee's liberty as early as during the
evaluation stage. It is not only an imagined threat to his liberty, but a very imminent one.
Because of these possible consequences, we conclude that the evaluation process is akin to an
administrative agency conducting an investigative proceeding, the consequences of which are
76

essentially criminal since such technical assessment sets off or commences the procedure for,
and ultimately, the deprivation of liberty of a prospective extraditee. As described by petitioner
himself, this is a "tool" for criminal law enforcement (p. 78,Rollo). In essence, therefore, the
evaluation process partakes of the nature of a criminal investigation. In a number of cases, we
had occasion to make available to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal prosecutions. Further, as pointed
out by Mr. Justice Mendoza during the oral arguments, there are rights formerly available only at
the trial stage that had been advanced to an earlier stage in the proceedings, such as the right
to counsel and the right against self-incrimination (tsn, August 31, 1999, p. 135; Escobedo vs.
Illinois, 378 U.S. 478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384 U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we held that the right against
self-incrimination under Section 17, Article III of the 1987 Constitution which is ordinarily
available only in criminal prosecutions, extends to administrative proceedings which possess a
criminal or penal aspect, such as an administrative investigation of a licensed physician who is
charged with immorality, which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs. Kapunan (6 SCRA 1059 [1962]),
pointed out that the revocation of one's license as a medical practitioner, is an even greater
deprivation than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of unexplained wealth against a
respondent which was filed under Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of property, the administrative
proceedings are deemed criminal or penal, and such forfeiture partakes the nature of a penalty.
There is also the earlier case of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court,
citing American jurisprudence, laid down the test to determine whether a proceeding is civil or
criminal: If the proceeding is under a statute such that if an indictment is presented the forfeiture
can be included in the criminal case, such proceeding is criminal in nature, although it may be
civil in form; and where it must be gathered from the statute that the action is meant to be
criminal in its nature, it cannot be considered as civil. If, however, the proceeding does not
involve the conviction of the wrongdoer for the offense charged, the proceeding is civil in nature.
The cases mentioned above refer to an impending threat of deprivation of one's property or
property right. No less is this true, but even more so in the case before us, involving as it does
the possible deprivation of liberty, which, based on the hierarchy of constitutionally protected
rights, is placed second only to life itself and enjoys precedence over property, for while forfeited
property can be returned or replaced, the time spent in incarceration is irretrievable and beyond
recompense.
By comparison, a favorable action in an extradition request exposes a person to eventual
extradition to a foreign country, thus saliently exhibiting the criminal or penal aspect of the
process. In this sense, the evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result the arrest and imprisonment of the respondent or the
person charged. Similar to the evaluation stage of extradition proceedings, a preliminary
investigation, which may result in the filing of an information against the respondent, can
possibly lead to his arrest, and to the deprivation of his liberty.
Petitioner's reliance on Wright vs. Court of Appeals (235 SCRA 241 [1992]) (p. 8, petitioner's
Memorandum) that the extradition treaty is neither a piece of criminal legislation nor a criminal
procedural statute is not well-taken.Wright is not authority for petitioner's conclusion that his
preliminary processing is not akin to a preliminary investigation. The characterization of a treaty
in Wright was in reference to the applicability of the prohibition against an ex post facto law. It
had nothing to do with the denial of the right to notice, information, and hearing.
77

As early as 1884, the United States Supreme Court ruled that "any legal proceeding enforced by
public authority, whether sanctioned by age or custom, or newly devised in the discretion of the
legislative power, in furtherance of the general public good, which regards and preserved these
principles of liberty and justice, must be held to be due process of law" (Hurtado vs. California,
110 U.S. 516). Compliance with due process requirements cannot be deemed non-compliance
with treaty commitments.
The United States and the Philippines share a mutual concern about the suppression and
punishment of crime in their respective jurisdictions. At the same time, both States accord
common due process protection to their respective citizens.
The due process clauses in the American and Philippine Constitutions are not only worded in
exactly identical language and terminology, but more importantly, they are alike in what their
respective Supreme Courts have expounded as the spirit with which the provisions are informed
and impressed, the elasticity in their interpretation, their dynamic and resilient character which
make them capable of meeting every modern problem, and their having been designed from
earliest time to the present to meet the exigencies of an undefined and expanding future. The
requirements of due process are interpreted in both the United States and the Philippines as not
denying to the law the capacity for progress and improvement. Toward this effect and in order to
avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the
due process clause "gradually ascertained by the process of inclusion and exclusion in the course
of the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S. 78). Capsulized, it refers
to "the embodiment of the sporting idea of fair play" (Ermita-Malate Hotel and Motel Owner's
Association vs. City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain immutable
principles of justice which inhere in the very idea of free government (Holden vs. Hardy, 169 U.S.
366).
Due process is comprised of two components substantive due process which requires the
intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or
property, and procedural due process which consists of the two basic rights of notice and
hearing, as well as the guarantee of being heard by an impartial and competent tribunal (Cruz,
Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of notice and hearing pervade
not only in criminal and civil proceedings, but in administrative proceedings as well. Nonobservance of these rights will invalidate the proceedings. Individuals are entitled to be notified
of any pending case affecting their interests, and upon notice, they may claim the right to
appear therein and present their side and to refute the position of the opposing parties (Cruz,
Phil. Administrative Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory proceeding, Section 3, Rule
112 of the Rules of Court guarantees the respondent's basic due process rights, granting him the
right to be furnished a copy of the complaint, the affidavits, and other supporting documents,
and the right to submit counter-affidavits and other supporting documents within ten days from
receipt thereof. Moreover, the respondent shall have the right to examine all other evidence
submitted by the complainant.
These twin rights may, however, be considered dispensable in certain instances, such as:
1. In proceeding where there is an urgent need for immediate action, like the summary
abatement of a nuisance per se (Article 704, Civil Code), the preventive suspension of a
public servant facing administrative charges (Section 63, Local Government Code, B.P. Blg.
337), the padlocking of filthy restaurants or theaters showing obscene movies or like
78

establishments which are immediate threats to public health and decency, and the
cancellation of a passport of a person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where the respondent is
not precluded from enjoying the right to notice and hearing at a later time without
prejudice to the person affected, such as the summary distraint and levy of the property of
a delinquent taxpayer, and the replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to exercise them had
not been claimed.
Applying the above principles to the case at bar, the query may be asked: Does the evaluation
stage of the extradition proceedings fall under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition proceedings which are quite
noteworthy considering that the subject treaty involves the U.S. Government.
American jurisprudence distinguishes between interstate rendition or extradition which is based
on the Extradition Clause in the U.S. Constitution (Art. IV, 2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the asylum state has the duty
to deliver the fugitive to the demanding state. The Extradition Clause and the implementing
statute are given a liberal construction to carry out their manifest purpose, which is to effect the
return as swiftly as possible of persons for trial to the state in which they have been charged with
crime (31A Am Jur 2d 754-755). In order to achieve extradition of an alleged fugitive, the
requisition papers or the demand must be in proper form, and all the elements or jurisdictional
facts essential to the extradition must appear on the face of the papers, such as the allegation
that the person demanded was in the demanding state at the time the offense charged was
committed, and that the person demanded is charged with the commission of the crime or that
prosecution has been begun in the demanding state before some court or magistrate (35 C.J.S.
406-407). The extradition documents are then filed with the governor of the asylum state, and
must contain such papers and documents prescribed by statute, which essentially include a copy
of the instrument charging the person demanded with a crime, such as an indictment or an
affidavit made before a magistrate. Statutory requirements with respect to said charging
instrument or papers are mandatory since said papers are necessary in order to confer
jurisdiction on the government of the asylum state to effect extradition (35 C.J.S. 408-410). A
statutory provision requiring duplicate copies of the indictment, information, affidavit, or
judgment of conviction or sentence and other instruments accompanying the demand or
requisitions be furnished and delivered to the fugitive or his attorney is directory. However, the
right being such a basic one has been held to be a right mandatory on demand (Ibid., p. 410,
citing Ex parte Moore, 256 S.W. 2d 103, 158 Tex. Cr. 407 andEx parte Tucker, Cr., 324, S.W.2d
853).
In international proceedings, extradition treaties generally provide for the presentation to the
executive authority of the Requested State of a requisition or demand for the return of the
alleged offender, and the designation of the particular officer having authority to act in behalf of
the demanding nation (31A Am Jur 2d 815).
In petitioner's memorandum filed on September 15, 1999, he attached thereto a letter dated
September 13, 1999 from the Criminal Division of the U.S. Department of Justice, summarizing
the U.S. extradition procedures and principles, which are basically governed by a combination of
treaties (with special reference to the RP-US Extradition Treaty), federal statutes, and judicial
decisions, to wit:
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1. All requests for extradition are transmitted through the diplomatic channel. In urgent
cases, requests for the provincial arrest of an individual may be made directly by the
Philippine Department of Justice to the U.S. Department of Justice, and vice-versa. In the
event of a provisional arrest, a formal request for extradition is transmitted subsequently
through the diplomatic channel.
2. The Department of State forwards the incoming Philippine extradition request to the
Department of Justice. Before doing so, the Department of State prepares a declaration
confirming that a formal request has been made, that the treaty is in full force and effect,
that under Article 17 thereof the parties provide reciprocal legal representation in
extradition proceedings, that the offenses are covered as extraditable offenses under
Article 2 thereof, and that the documents have been authenticated in accordance with the
federal statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the arrest of the
prospective extraditee (18 U.S.C. 3184). Said judge or magistrate is authorized to hold a
hearing to consider the evidence offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested is extraditable to
the foreign country. The court must also determine that (a) it has jurisdiction over the
defendant and jurisdiction to conduct the hearing; (b) the defendant is being sought for
offenses for which the applicable treaty permits extradition; and (c) there is probable
cause to believe that the defendant is the person sought and that he committed the
offenses charged (Ibid.)
5. The judge or magistrate judge is vested with jurisdiction to certify extraditability after
having received a "complaint made under oath, charging any person found within his
jurisdiction" with having committed any of the crimes provided for by the governing treaty
in the country requesting extradition (Ibid.) [In this regard, it is noted that a long line of
American decisions pronounce that international extradition proceedings partake of the
character of a preliminary examination before a committing magistrate, rather than a trial
of the guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are present, it
incorporates its determinations in factual findings and conclusions of law and certifies the
person's extraditability. The court then forwards this certification of extraditability to the
Department of State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18 U.S.C. 3186).
7. The subject of an extradition request may not litigate questions concerning the motives
of the requesting government in seeking his extradition. However, a person facing
extradition may present whatever information he deems relevant to the Secretary of
State, who makes the final determination whether to surrender an individual to the foreign
government concerned.
From the foregoing, it may be observed that in the United States, extradition begins and ends
with one entity the Department of State which has the power to evaluate the request and
the extradition documents in the beginning, and, in the person of the Secretary of State, the
power to act or not to act on the court's determination of extraditability. In the Philippine setting,
it is the Department of Foreign Affairs which should make the initial evaluation of the request,
and having satisfied itself on the points earlier mentioned (see pp. 10-12), then forwards the
request to the Department of Justice for the preparation and filing of the petition for extradition.
Sadly, however, the Department of Foreign Affairs, in the instant case, perfunctorily turned over
80

the request to the Department of Justice which has taken over the task of evaluating the request
as well as thereafter, if so warranted, preparing, filing, and prosecuting the petition for
extradition.
Private respondent asks what prejudice will be caused to the U.S. Government should the person
sought to be extradited be given due process rights by the Philippines in the evaluation stage. He
emphasizes that petitioner's primary concern is the possible delay in the evaluation process.
We agree with private respondent's citation of an American Supreme Court ruling:
The establishment of prompt efficacious procedures to achieve legitimate state ends is a
proper state interest worthy of cognizance in constitutional adjudication. But the
Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly
say of the Bill of Rights in general, and the Due Process Clause, in particular, that they
were designed to protect the fragile values of a vulnerable citizenry from the overbearing
concern for efficiency and efficacy that may characterize praiseworthy government
officials no less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as the Philippine Government that no right
that of liberty secured not only by the Bills of Rights of the Philippines Constitution but of
the United States as well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondent's Memorandum.)
In the Philippine context, this Court's ruling is invoked:
One of the basic principles of the democratic system is that where the rights of the
individual are concerned, the end does not justify the means. It is not enough that there
be a valid objective; it is also necessary that the means employed to pursue it be in
keeping with the Constitution. Mere expediency will not excuse constitutional shortcuts.
There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed
under Article III of the Constitution is a majority of one even as against the rest of the
nation who would deny him that right (Association of Small Landowners in the Philippines,
Inc. vs. Secretary of Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioner's argument that extradition is a tool of criminal law
enforcement. To be effective, requests for extradition or the surrender of accused or convicted
persons must be processed expeditiously. Nevertheless, accelerated or fast-tracked proceedings
and adherence to fair procedures are, however, not always incompatible. They do not always
clash in discord. Summary does not mean precipitous haste. It does not carry a disregard of the
basic principles inherent in "ordered liberty."
Is there really an urgent need for immediate action at the evaluation stage? At that point, there
is no extraditee yet in the strict sense of the word. Extradition may or may not occur. In
interstate extradition, the governor of the asylum state may not, in the absence of mandatory
statute, be compelled to act favorably (37 C.J.S. 387) since after a close evaluation of the
extradition papers, he may hold that federal and statutory requirements, which are significantly
jurisdictional, have not been met (31 Am Jur 2d 819). Similarly, under an extradition treaty, the
executive authority of the requested state has the power to deny the behest from the requesting
81

state. Accordingly, if after a careful examination of the extradition documents the Secretary of
Foreign Affairs finds that the request fails to meet the requirements of the law and the treaty, he
shall not forward the request to the Department of Justice for the filing of the extradition petition
since non-compliance with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice exerted notable efforts in
assuring compliance with the requirements of the law and the treaty since it even informed the
U.S. Government of certain problems in the extradition papers (such as those that are in Spanish
and without the official English translation, and those that are not properly authenticated). In
fact, petitioner even admits that consultation meetings are still supposed to take place between
the lawyers in his Department and those from the U.S. Justice Department. With the meticulous
nature of the evaluation, which cannot just be completed in an abbreviated period of time due to
its intricacies, how then can we say that it is a proceeding that urgently necessitates immediate
and prompt action where notice and hearing can be dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness of administrative action. Is
private respondent precluded from enjoying the right to notice and hearing at a later time
without prejudice to him? Here lies the peculiarity and deviant characteristic of the evaluation
procedure. On one hand there is yet no extraditee, but ironically on the other, it results in an
administrative if adverse to the person involved, may cause his immediate incarceration. The
grant of the request shall lead to the filing of the extradition petition in court. The "accused" (as
Section 2[c] of Presidential Decree No. 1069 calls him), faces the threat of arrest, not only after
the extradition petition is filed in court, but even during the evaluation proceeding itself by virtue
of the provisional arrest allowed under the treaty and the implementing law. The prejudice to the
"accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due process cannot be dispensed
with and shelved aside.
Apart from the due process clause of the Constitution, private respondent likewise invokes
Section 7 of Article III which reads:
Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.
The above provision guarantees political rights which are available to citizens of the Philippines,
namely: (1) the right to information on matters of public concern, and (2) the corollary right of
access to official records documents. The general right guaranteed by said provision is the right
to information on matters of public concern. In its implementation, the right of access to official
records is likewise conferred. These cognate or related rights are "subject to limitations as may
be provided by law" (Bernas, The 1987 Phil. Constitution A Reviewer-Primer, 1997 ed., p. 104)
and rely on the premise that ultimately it is an informed and critical public opinion which alone
can protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondent's letter-request dated July 1,
1999 do not fall under the guarantee of the foregoing provision since the matters contained in
the documents requested are not of public concern. On the other hand, private respondent
argues that the distinction between matters vested with public interest and matters which are of
purely private interest only becomes material when a third person, who is not directly affected by
82

the matters requested, invokes the right to information. However, if the person invoking the right
is the one directly affected thereby, his right to information becomes absolute.
The concept of matters of public concerns escapes exact definition. Strictly speaking, every act
of a public officer in the conduct of the governmental process is a matter of public concern
(Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p. 336). This concept
embraces a broad spectrum of subjects which the public may want to know, either because
these directly affect their lives or simply because such matters arouse the interest of an ordinary
citizen (Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence, the real party in
interest is the people and any citizen has "standing".
When the individual himself is involved in official government action because said action has a
direct bearing on his life, and may either cause him some kind of deprivation or injury, he
actually invokes the basic right to be notified under Section 1 of the Bill of Rights and not exactly
the right to information on matters of public concern. As to an accused in a criminal proceeding,
he invokes Section 14, particularly the right to be informed of the nature and cause of the
accusation against him.
The right to information is implemented by the right of access to information within the control of
the government (Bernas, The 1987 Constitution of the Republic of the Philippines, 1996 ed., p.
337). Such information may be contained in official records, and in documents and papers
pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to official government
action from the U.S. Government. No official action from our country has yet been taken.
Moreover, the papers have some relation to matters of foreign relations with the U.S.
Government. Consequently, if a third party invokes this constitutional provision, stating that the
extradition papers are matters of public concern since they may result in the extradition of a
Filipino, we are afraid that the balance must be tilted, at such particular time, in favor of the
interests necessary for the proper functioning of the government. During the evaluation
procedure, no official governmental action of our own government has as yet been done; hence
the invocation of the right is premature. Later, and in contrast, records of the extradition hearing
would already fall under matters of public concern, because our government by then shall have
already made an official decision to grant the extradition request. The extradition of a fellow
Filipino would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the instant controversy:
Would private respondent's entitlement to notice and hearing during the evaluation stage of the
proceedings constitute a breach of the legal duties of the Philippine Government under the RPExtradition Treaty? Assuming the answer is in the affirmative, is there really a conflict between
the treaty and the due process clause in the Constitution?
First and foremost, let us categorically say that this is not the proper time to pass upon the
constitutionality of the provisions of the RP-US Extradition Treaty nor the Extradition Law
implementing the same. We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign relations.
The rule of pacta sunt servanda, one of the oldest and most fundamental maxims of international
law, requires the parties to a treaty to keep their agreement therein in good faith. The
observance of our country's legal duties under a treaty is also compelled by Section 2, Article II
of the Constitution which provides that "[t]he Philippines renounces war as an instrument of
national policy, adopts the generally accepted principles of international law as part of the law of
the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity
83

with nations." Under the doctrine of incorporation, rules of international law form part of the law
of the and land no further legislative action is needed to make such rules applicable in the
domestic sphere (Salonga & Yap, Public International Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are
confronted with situations in which there appears to be a conflict between a rule of international
law and the provisions of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be presumed that municipal
law was enacted with proper regard for the generally accepted principles of international law in
observance of the observance of the Incorporation Clause in the above-cited constitutional
provision (Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation, however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and
municipal law, jurisprudence dictates that municipal law should be upheld by the municipal
courts (Ichong vs. Hernandez, 101 Phil. 1155 [1957]; Gonzales vs. Hechanova, 9 SCRA 230
[1963]; In re: Garcia, 2 SCRA 984 [1961]) for the reason that such courts are organs of municipal
law and are accordingly bound by it in all circumstances (Salonga & Yap, op. cit., p. 13). The fact
that international law has been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the municipal sphere. The doctrine
of incorporation, as applied in most countries, decrees that rules of international law are given
equal standing with, but are not superior to, national legislative enactments. Accordingly, the
principle lex posterior derogat priori takes effect a treaty may repeal a statute and a statute
may repeal a treaty. In states where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be invalidated if they are in conflict
with the constitution (Ibid.).
In the case at bar, is there really a conflict between international law and municipal or national
law? En contrario, these two components of the law of the land are not pined against each other.
There is no occasion to choose which of the two should be upheld. Instead, we see a void in the
provisions of the RP-US Extradition Treaty, as implemented by Presidential Decree No. 1069, as
regards the basic due process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after the filing of the extradition
petition and during the judicial determination of the propriety of extradition, the rights of notice
and hearing are clearly granted to the prospective extraditee. However, prior thereto, the law is
silent as to these rights. Reference to the U.S. extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights. Consequently, he describes the
evaluation procedure as an "ex parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of fair play. An application of
the basic twin due process rights of notice and hearing will not go against the treaty or the
implementing law. Neither the Treaty nor the Extradition Law precludes these rights from a
prospective extraditee. Similarly, American jurisprudence and procedures on extradition pose no
proscription. In fact, in interstate extradition proceedings as explained above, the prospective
extraditee may even request for copies of the extradition documents from the governor of the
asylum state, and if he does, his right to be supplied the same becomes a demandable right (35
C.J.S. 410).
Petitioner contends that the United States requested the Philippine Government to prevent
unauthorized disclosure of confidential information. Hence, the secrecy surrounding the action of
the Department of Justice Panel of Attorneys. The confidentiality argument is, however,
84

overturned by petitioner's revelation that everything it refuses to make available at this stage
would be obtainable during trial. The Department of Justice states that the U.S. District Court
concerned has authorized the disclosure of certain grand jury information. If the information is
truly confidential, the veil of secrecy cannot be lifted at any stage of the extradition proceedings.
Not even during trial.
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition Law, as well as American
jurisprudence and procedures on extradition, for any prohibition against the conferment of the
two basic due process rights of notice and hearing during the evaluation stage of the extradition
proceedings. We have to consider similar situations in jurisprudence for an application by
analogy.
Earlier, we stated that there are similarities between the evaluation process and a preliminary
investigation since both procedures may result in the arrest of the respondent or the prospective
extraditee. In the evaluation process, a provisional arrest is even allowed by the Treaty and the
Extradition Law (Article 9, RP-US Extradition Treaty; Sec. 20, Presidential Decree No. 1069).
Following petitioner's theory, because there is no provision of its availability, does this imply that
for a period of time, the privilege of the writ of habeas corpus is suspended, despite Section 15,
Article III of the Constitution which states that "[t]he privilege of the writ or habeas corpus shall
not be suspended except in cases of invasion or rebellion when the public safety requires it"?
Petitioner's theory would also infer that bail is not available during the arrest of the prospective
extraditee when the extradition petition has already been filed in court since Presidential Decree
No. 1069 does not provide therefor, notwithstanding Section 13, Article III of the Constitution
which provides that "[a]ll persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas corpus is suspended. . ." Can petitioner
validly argue that since these contraventions are by virtue of a treaty and hence affecting foreign
relations, the aforestated guarantees in the Bill of Rights could thus be subservient thereto?
The basic principles of administrative law instruct us that "the essence of due process in
administrative proceeding is an opportunity to explain one's side or an opportunity to seek
reconsideration of the actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96 [1997];
Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC, 276 SCRA 1 [1997]; Helpmate, Inc. vs.
NLRC, 276 SCRA 315 [1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer vs. NLRC,
278 SCRA 632 [1997]). In essence, procedural due process refers to the method or manner by
which the law is enforced (Corona vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of constitutional guarantees in the
enforcement of a law or treaty. Petitioner's fears that the Requesting State may have valid
objections to the Requested State's non-performance of its commitments under the Extradition
Treaty are insubstantial and should not be given paramount consideration.
How then do we implement the RP-US Extradition Treaty? Do we limit ourselves to the four
corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service Insurance System vs. Court of
Appeals (201 SCRA 661 [1991]) and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential Decree No. 807 (Providing for
the Organization of the Civil Service Commission in Accordance with Provisions of the
Constitution, Prescribing its Powers and Functions and for Other Purposes), and Presidential
Decree No. 971 (Providing Legal Assistance for Members of the Integrated National Police who
85

may be charged for Service-Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for other purposes), as amended by
Presidential Decree No. 1707, although summary dismissals may be effected without the
necessity of a formal investigation, the minimum requirements of due process still operate. As
held in GSIS vs. Court of Appeals:
. . . [I]t is clear to us that what the opening sentence of Section 40 is saying is that an
employee may be removed or dismissed even without formal investigation, in certain
instances. It is equally clear to us that an employee must be informed of the charges
preferred against him, and that the normal way by which the employee is so informed is
by furnishing him with a copy of the charges against him. This is a basic procedural
requirement that a statute cannot dispense with and still remain consistent with the
constitutional provision on due process. The second minimum requirement is that the
employee charged with some misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to say, his defenses against the
charges levelled against him and to present evidence in support of his defenses. . . .
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature, yet we upheld the due
process rights of the respondent.
In the case at bar, private respondent does not only face a clear and present danger of loss of
property or employment, but of liberty itself, which may eventually lead to his forcible
banishment to a foreign land. The convergence of petitioner's favorable action on the extradition
request and the deprivation of private respondent's liberty is easily comprehensible.
We have ruled time and again that this Court's equity jurisdiction, which is aptly described as
"justice outside legality," may be availed of only in the absence of, and never against, statutory
law or judicial pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267 SCRA 530 [1997];
David-Chan vs. Court of Appeals, 268 SCRA 677 [1997]). The constitutional issue in the case at
bar does not even call for "justice outside legality," since private respondent's due process
rights, although not guaranteed by statute or by treaty, are protected by constitutional
guarantees. We would not be true to the organic law of the land if we choose strict construction
over guarantees against the deprivation of liberty. That would not be in keeping with the
principles of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing currents of liberty and
government authority, he must ever hold the oar of freedom in the stronger arm, lest an errant
and wayward course be laid.
WHEREFORE, in view of the foregoing premises, the instant petition is hereby DISMISSED for lack
of merit. Petitioner is ordered to furnish private respondent copies of the extradition request and
its supporting papers, and to grant him a reasonable period within which to file his comment with
supporting evidence. The incidents in Civil Case No. 99-94684 having been rendered moot and
academic by this decision, the same is hereby ordered dismissed.
SO ORDERED.
Bellosillo, Purisima, Buena and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., I join Mr. Justice Puno in his dissent.
Puno, J., please see dissent.
Vitug, J., see separate opinion.
86

Kapunan, J., see separate concurring opinion.

Panganiban, J., please see my dissenting opinion.
Mendoza, J., I join the dissents of Puno and Panganiban, JJ.
Quisumbing, J., with concurring opinion.
Pardo, J., I join J. Puno & J. Panganiban.
Gonzaga-Reyes, J., I join the dissent of Justices Puno & Panganiban.
Ynares-Santiago, J., please see separate concurring opinion.
Separate Opinions
VITUG, J., separate opinion;
The only real issue before the Court, I would take it, is whether or not private respondent can
validly ask for copies of pertinent documents while the application for extradition against him is
still undergoing process by the Executive Department.
There is, I agree with the majority, a right of access to such extradition documents conformably
with the provisions of Article III, Section 7, of the Philippine Constitution.1 The constitutional right
to free access to information of public concern is circumscribed only by the fact that the desired
information is not among the species exempted by law from the operation of the constitutional
guaranty and that the exercise of the right conforms with such reasonable conditions as may be
prescribed by law.
There is no hornbook rule to determine whether or not an information is of public concern. The
term "public concern" eludes exactitude, and it can easily embrace a broad spectrum of matters
which the public may want to know either because the subject thereof can affect their lives or
simply because it arouses concern.2
I am not convinced that there is something so viciously wrong with, as to deny, the request of
private respondent to be furnished with copies of the extradition documents.
I add. The constitutional right to due process secures to everyone an opportunity to be heard,
presupposing foreknowledge of what he may be up against, and to submit any evidence that he
may wish to proffer in an effort to clear himself. This right is two-pronged substantive and
procedural due process founded, in the first instance, on Constitutional or statutory provisions,
and in the second instance, on accepted rules of procedure.3Substantive due process looks into
the extrinsic and intrinsic validity of the law that figures to interfere with the right of a person to
his life, liberty and property. Procedural due process the more litigated of the two focuses
on the rules that are established in order to ensure meaningful adjudication in the enforcement
and implementation of the law. Like "public concern," the term due process does not admit of
any restrictive definition. Justice Frankfurter has viewed this flexible concept, aptly I believe, as
being ". . . compounded by history, reason, the past course of decisions, and stout confidence in
the democratic faith."4 The framers of our own Constitution, it would seem, have deliberately
intended, to make it malleable to the ever-changing milieu of society. Hitherto, it is dynamic and
resilient, adaptable to every situation calling for its application that makes it appropriate to
accept an enlarged concept of the term as and when there is a possibility that the right of an
individual to life, liberty and property might be diffused.5 Verily, whenever there is an imminent
threat to the life, liberty or property of any person in any proceeding conducted by or under the
auspices of the State, his right to due process of law, when demanded, must not be ignored.
A danger to the liberty of the extraditee, the private respondent, is real. Article 9 of the
Extradition Treaty between the Government of the Republic of the Philippines and the
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Government of the United States of America provides that in case of urgency, a Contracting Party
may request the provisional arrest of the person prior to the presentation of the request for
extradition. I see implicit in this provision that even after the request for extradition is made and
before a petition for extradition is filed with the courts, the possibility of an arrest being made on
the basis of a mere evaluation by the Executive on the request for extradition by the foreign
State cannot totally be discounted.
The conclusion reached by the majority, I hasten to add, does not mean that the Executive
Department should be impeded in its evaluation of the extradition request. The right of the
extraditee to be furnished, upon request, with a copy of the relevant documents and to file his
comment thereon is not necessarily anathema to the proceedings duly mandated by the treaty
to be made.
I vote to deny the petition.
KAPUNAN, J., separate concurring opinion;
I vote to dismiss the petition, both on technical and substantial grounds.
The petition in the case at bar raises one and only issue, which is the validity of the Temporary
Restraining Order (TRO) issued by respondent Judge Ralph C. Lantion on August 9, 1999 in Civil
Case No. 99-94684. The TRO directed respondents in said case to:
. . . maintain the status quo by refraining from committing the acts complained of; from
conducting further proceedings in connection with the request of the United States
Government for the extradition of the petitioner; from filing the corresponding Petition with
the Regional Trial Court; and from performing any act directed to the extradition of the
petitioner to the United States, for a period of twenty days from the service on
respondents of this Order, pursuant to Section 5, Rule 58 of the 1997 Rules of
Court.1 (Emphasis ours.)
The petition itself categorically states that "(t)he issue sought to be presented and litigated here
is solely-the validity of the TRO."2
Notably, there is no allegation in the petition that respondent Judge is without jurisdiction to hear
the case below or that he has exceeded his jurisdiction in hearing the same. Nor is there any
other act, ruling, order, or decision, apart from the TRO already mentioned, of respondent Judge
that is being challenged in the petition before us.
Since, as alleged in the petition, a copy of the TRO was served on respondents below on August
10, 1999, the TRO ceased to be effective on August 30, 1999; consequently, the instant petition
has become moot and academic. This Court does not exercise jurisdiction over cases which are
moot and academic or those not ripe for judicial consideration.3
Assuming that the present case has not become moot and academic, still, it should be dismissed
for lack of merit.
The substantive issues raised in this case are: (a) whether a person whose extradition is sought
by a foreign state has due process rights under Section 2, Article III of the 1997 Constitution
before the Department of Justice as the request for extradition is being evaluated, or whether
due process rights maybe invoked only upon the filing of a petition for extradition before a
88

regional trial court; and (b) whether or not private respondent has a right of access to extradition
documents under Section 7, Article III of the 1997 Constitution.
Petitioner contends that due process rights such as the right to be informed of the basis of the
request for extradition and to have an opportunity to controvert are not provided in the
extradition treaty or in P.D. 1069 and therefore does not exist in this stage of the proceedings.
Further, he argues that the documents sought to be furnished to private respondent only
involve private concerns, and not matters of public concern to which the people have a
constitutional right to access.
While the evaluation process conducted by the Department of Justice is not exactly a preliminary
investigation of criminal cases, it is akin to a preliminary investigation because it involves the
basic constitutional rights of the person sought to be extradited. A person ordered extradited is
arrested, forcibly taken from his house, separated from his family and delivered to a foreign
state. His rights of abode, to privacy, liberty and pursuit of happiness are taken away from him
a fate as harsh and cruel as a conviction of a criminal offense. For this reason, he is entitled to
have access to the evidence against him and the right to controvert them.
While the extradition treaty and P.D. 1069 do not provide for a preliminary investigation, neither
does either prohibit it. The right to due process is a universal basic right which is deemed written
into our laws and treaties with foreign countries.
Like a preliminary investigation, the evaluation by the Department of Justice of the extradition
request and its accompanying documents is to establish probable cause and to secure the
innocent against hasty, malicious and oppressive prosecution.
In this connection, it should be stressed that the evaluation procedure of the extradition request
and its accompanying documents by the Department of Justice cannot be characterized as a
mere "ex-parte technical assessment of the sufficiency" thereof. The function and responsibilities
of the Department of Justice in evaluating the extradition papers involve the exercise of
judgment. They involve a determination whether the request for extradition conforms fully to the
requirements of the extradition treaty and whether the offense is extraditable. These include,
among others, whether the offense for which extradition is requested is a political or military
offense (Article 3); whether the documents and other informations required under Article 7(2)
have been provided (Article 7); and whether the extraditable offense is punishable under the
laws of both contracting parties by deprivation of liberty for a period of more than one year
(Article 2). Consequently, to arrive at a correct judgment, the parties involved are entitled to be
heard if the requirements of due process and equal protection are to be observed.
With respect to petitioner's claim that private respondent has no right to demand access to the
documents relating to the request for extradition, suffice it to say, that any document used in a
proceeding that would jeopardize a person's constitutional rights is matter of public concern. As
Martin Luther King said, "injustice anywhere is a threat to justice everywhere," so any violation of
one's rights guaranteed by the Bill of Rights is everybody's concern because they, one way or
another, directly or indirectly, affect the rights of life and liberty of all the citizens as a whole.
Due process rights in a preliminary investigation is now an established principle. The respondent
has a right of access to all of the evidence. He has the right to submit controverting evidence.
The prosecuting official who conducts the preliminary investigation is required to be neutral,
objective, and impartial in resolving the issue of probable cause. I see no reason why the same
rights may not be accorded a person sought to be extradited at the stage where the Department
of Justice evaluates whether a petition for extradition would be filed before a regional trial court.
If denied such rights, not only denial of due process rights but of equal protection may be raised.
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It is suggested that after a petition for extradition is filed with a regional trial court, the person
sought to be extradited may exercise all due process rights. He may then have access to all the
records on the basis of which the request for extradition has been made. He may controvert that
evidence and raise all defenses he may consider appropriate. That, it is urged, meets the due
process requirement.
But why must he wait until the petition for extradition is filed? As succinctly expressed, if the
right to notice and hearing is to serve its full purpose, then, it is clear that it must be granted at a
time when the deprivation can still be prevented.4 Like the filing of an information in a criminal
case, the mere filing of a petition for extradition causes immediate impairment of the liberty of
the person sought to be extradited and a substantial curtailment of other rights. His arrest may
be immediately ordered by the regional trial court. He would be compelled to face an open and
public trial. He will be constrained to seek the assistance of counsel and incur other expenses of
litigation. The public eye would be directed at him with all the concomitant intrusions to his right
to privacy. Where the liberty of a person is at risk, and extradition strikes at the very core of
liberty, invocation of due process rights can never be too early.
QUISUMBING, J., concurring opinion;
As I concur in the result reached by the ponencia of Justice Melo, may I just add my modest
observations.
The human rights of person, whether citizen or alien, and the rights of the accused guaranteed in
our Constitution should take precedence over treaty rights claimed by a contracting state. Stated
otherwise, the constitutionally mandated duties of our government to the individual deserve
preferential consideration when they collide with its treaty obligations to the government of
another state. This is so although we recognize treaties as a source of binding obligations under
generally accepted principles of international law incorporated in our Constitution as part of the
law of the land.
For this primordial reason, I vote to DENY the petition.
Moreover, considering that the Extradition Treaty between the USA and Philippines appears mute
on the specific issue before us, the Court in the exercise of its judicial power to find and state
what the law is has this rare opportunity of setting a precedent that enhances respect for
human rights and strengthens due process of law.
As both majority and dissenting colleagues in the Court will recognize, American authorities
follow two tracks in extradition proceedings: (1) the interstate practice where, pursuant to
statute, the state Executive upon demand furnishes the would be extraditee or counsel copies of
pertinent documents as well as the request for extradition; and (2) the international practice
where the Executive department need not initially grant notice and hearing at all. Rules of
reciprocity and comity, however, should not bar us from applying internationally now what
appears the more reasonable and humane procedure, that is, the interstate practice among
Americans themselves. For in this case the American people should be among the most
interested parties.
Truly, what private respondent is asking our Executive department (notice, copies of documents,
and the opportunity to protect himself at the earliest time against probable peril) does not, in my
view, violate our Extradition Treaty with the USA. His request if granted augurs well for
transparency in interstate or intergovernmental relations rather than secrecy which smacks of
medieval diplomacy and the inquisition discredited long ago.
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That private respondent is a Filipino citizen is not decisive of the issue here, although it is
obviously pertinent. Even if he were a resident alien (other than American perhaps), he is, in my
view, entitled to our full protection against the hazards of extradition (or deportation, similarly)
from the very start. More so because, looking at the facts adduced at the hearing and on the
record of this case, the charges against him involve or are co-mingled with, if not rooted in,
certain offenses of a political nature or motivation such as the ones involving alleged financial
contributions to a major American political party. If so, long established is the principle that
extradition could not be utilized for political offenses or politically motivated charges.
There may, of course, be other charges against private respondent in the USA. But then they are,
in my view, already tainted there with political color due to the highly charged partisan campaign
atmosphere now prevailing. That private respondent's cases will be exploited as political fodder
there is not far-fetched, hence the need here for cautious but comprehensive deliberation on the
matter at bar. For, above all, it is not only a Treaty provision we are construing; it is about
constitutional and human rights we are most concerned.
YNARES-SANTIAGO, J., concurring opinion;
I concur in the ponencia of Mr. Justice Jose A.R. Melo with its conceptive analysis of a citizen's
right to be given what is due to him. I join in his exposition of this Court's constitutional duty to
strike the correct balance between overwhelming Government power and the protection of
individual rights where only one person is involved.
However, I am constrained to write this short concurrence if only to pose the question of why
there should be any debate at all on a plea for protection of one's liberty which, if granted, will
not result in any meaningful impediment of thwarting any state policy and objectives.
I see no reason why respondent Mark Jimenez, or other citizens not as controversial or talked
about, should first be exposed to the indignity, expense, and anxiety of a public denunciation in
court before he may be informed of what the contracting states in an extradition treaty have
against him. There is no question that everything which respondent Jimenez now requests will be
given to him during trial. Mr. Jimenez is only petitioning that, at this stage, he should be informed
why he may be deported from his own country.
I see no ill effects which would arise if the extradition request and supporting documents are
shown to him now, instead of later.
Petitioner Secretary of Justice states that his action on the extradition request and its supporting
documents will merely determine whether or not the Philippines is complying with its treaty
obligations. He adds that, therefore, the constitutional rights of an accused in all criminal
prosecutions are not available to the private respondent.
The July 13, 1999 reply-letter from petitioner states the reasons why he is denying respondent
Jimenez's requests. In short, the reasons are:
1. In evaluating the documents, the Department merely determines whether the
procedures and requirements under the relevant law and treaty have been complied with
by the Requesting Government. The constitutional rights of the accused in all criminal
prosecutions are, therefore, not available.
2. The United States Government has requested the Philippine Government to prevent
unauthorized disclosure of certain grand jury information.
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3. The petitioner cannot hold in abeyance proceedings in connection with an extradition

request. For extradition to be an effective tool of criminal law enforcement, requests for
surrender of accused or convicted persons must be processed expeditiously.
I respectfully submit that any apprehensions in the Court arising from a denial of the petition
"breach of an international obligation, rupture of states relations, forfeiture of confidence,
national embarrassment, and a plethora of other equally undesirable consequences" are more
illusory than real. Our country is not denying the extradition of a person who must be extradited.
Not one provision of the extradition treaty is violated. I cannot imagine the United States taking
issue over what, to it, would be a minor concession, perhaps a slight delay, accorded in the name
of human rights. On the other hand, the issue is fundamental in the Philippines. A citizen is
invoking the protection, in the context of a treaty obligation, of rights expressly guaranteed by
the Philippine Constitution.
Until proved to be a valid subject for extradition, a person is presumed innocent or not covered
by the sanctions of either criminal law or international treaty. At any stage where a still
prospective extraditee only seeks to know so that he can prepare and prove that he should not
be extradited, there should be no conflict over the extension to him of constitutional protections
guaranteed to aliens and citizens alike.
Petitioner cites as a reason for the denial of respondent's requests, Article 7 of the Treaty. Article
7 enumerates the required documents and establishes the procedures under which the
documents shall be submitted and admitted as evidence. There is no specific provision on how
that Secretary of Foreign Affairs should conduct his evaluation. The Secretary of Justice is not
even in the picture at this stage. Under petitioner's theory, silence in the treaty over a citizen's
rights during the evaluation stage is interpreted as deliberate exclusion by the contracting states
of the right to know. Silence is interpreted as the exclusion of the right to a preliminary
examination or preliminary investigation provided by the laws of either one of the two states.
The right to be informed of charges which may lead to court proceedings and result in a
deprivation of liberty is ordinarily routine. It is readily available to one against whom the state's
coercive power has already been focused. I fail to see how silence can be interpreted as
exclusion. The treaty is silent because at this stage, the preliminary procedure is still an internal
matter. And when a law or treaty is silent, it means a right or privilege may be granted. It is not
the other way around.
The second reason alleging the need for secrecy and confidentiality is even less convincing. The
explanation of petitioner is self-contradictory. On one hand, petitioner asserts that the United
States Government requested the Philippine Government to prevent unauthorized disclosure of
certain information. On the other hand, petitioner declares that the United States has already
secured orders from concerned District Courts authorizing the disclosure of the same grand jury
information to the Philippine Government and its law enforcement personnel.
Official permission has been given. The United States has no cause to complain about the
disclosure of information furnished to the Philippines.
Moreover, how can grand jury information and documents be considered confidential if they are
going to be introduced as evidence in adversely proceedings before a trial court? The only issue
is whether or not Mr. Jimenez should be extradited. His innocence or guilt of any crime will be
determined in an American court. It is there where prosecution strategies will be essential. If the
Contracting States believed in a total non-divulging of information prior to court hearings, they
would have so provided in the extradition treaty. A positive provision making certain rights
unavailable cannot be implied from silence.
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I cannot believe that the United States and the Philippines with identical constitutional provisions
on due process and basic rights should sustain such a myopic view in a situation where the grant
of a right would not result in any serious setbacks to criminal law enforcement.
It is obvious that any prospective extraditee wants to know if his identity as the person indicated
has been established. Considering the penchant of Asians to adopt American names when in
America, the issue of whether or not the prospective extraditee truly is the person charged in the
United States becomes a valid question. It is not only identity of the person which is involved.
The crimes must also be unmistakably identified and their essential elements clearly stated.
There are other preliminary matters in which respondent is interested. I see nothing in our laws
or in the Treaty which prohibits the prospective extraditee from knowing until after the start of
trial whether or not the extradition treaty applies to him.
Paraphrasing Hasmin vs. Boncan, 71 Phil. 216; Trocio vs. Manta, 118 SCRA 241 (1941);
and Salonga vs. Hon. Pao, 134 SCRA 438 (1985), the purpose of a preliminary evaluation is to
secure an innocent person against hasty, faulty and, therefore, oppressive proceedings; to
protect him from an open and extensively publicized accusation of crimes; to spare him the
trouble, expense, and anxiety of a public trial; and also to protect the state from useless and
expensive trails. Even if the purpose is only to determine whether or not the respondent is a
proper subject for extradition, he is nonetheless entitled to the guarantees of fairness and
freedom accorded to those charged with ordinary crimes in the Philippines.
The third reason given by petitioner is the avoidance of delay. Petitioner views the request to be
informed as part of undesirable delaying tactics. This is most unfortunate. Any request for
extradition must be viewed objectively and impartially without any predisposition to granting it
and, therefore, hastening the extradition process.
In the first place, any assistance which the evaluating official may get from the participation of
respondent may well point out deficiencies and insufficiencies in the extradition documents. It
would incur greater delays if these are discovered only during court trial. On the other hand, if,
from respondent's participation, the evaluating official discovers a case of mistaken identity,
insufficient pleadings, inadequate complaints, or any ruinous shortcoming, there would be no
delays during trial. An unnecessary trial with all its complications would be avoided.
The right to be informed is related to the constitutional right to a speedy trial. The constitutional
guarantee extends to the speedy disposition of cases before all quasi-judicial and administrative
bodies (Constitution, Art. III, Sec. 16). Speedy disposition, however, does not mean the deliberate
exclusion of the defendant or respondent from the proceedings. As this Court rules in Acebedo
vs. Sarmiento, 36 SCRA 247 (1970), "the right to a speedy trial, means one free from vexatious,
capricious and oppressive delays, its salutary objective being to assure that an innocent person
may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt
(in this case, his being extradited) determined within the shortest possible time compatible with
the presentation and consideration of whatsoever legitimate defense he may interpose."
The right to be informed and the right to a preliminary hearing are not merely for respondent.
They also serve the interests of the State.1wphi1.nt
In closing, I maintain that the paramount consideration of guaranteeing the constitutional rights
of individual respondent override the concerns of petitioner. There should be no hurried or
indifferent effort to routinely comply with all requests for extradition. I understand that this is
truer in the United States than in other countries. Proposed extraditees are given every legal
93

protection available from the American justice system before they are extradited. We serve
under a government of limited powers and inalienable rights. Hence, this concurrence.
PUNO, J., dissenting opinion;
If the case at bar was strictly a criminal case which involves alone the right of an accused to due
process, I would have co-signed the ponencia of our esteemed colleague, Mr. Justice Jose A.R.
Melo, without taking half a pause.But the case at bar does not involve the guilt or innocence of
an accused but the interpretation of an extradition treaty where at stake is our government's
international obligation to surrender to a foreign state a citizen of its own so he can be tried for
an alleged offense committed within that jurisdiction. The issues are of first impression and the
majority opinion dangerously takes us to unknown shoals in constitutional and international laws,
hence this dissenting opinion.
Extradition is a well-defined concept and is more a problem in international law. It is the "process
by which persons charged with or convicted of crime against the law of a State and found in a
foreign State are returned by the latter to the former for trial or punishment. It applies to those
who are merely charged with an offense but have not been brought to trial; to those who have
been tried and convicted and have subsequently escaped from custody; and those who have
been convicted in absentia. It does not apply to persons merely suspected of having committed
an offense but against who no charge has been laid or to a person whose presence is desired as
a witness or for obtaining or enforcing a civil judgment."1 The definition covers the private
respondent who is charged with two (2) counts of conspiracy to commit offense or to defraud the
United States, four (4) counts of attempt to evade or defeat tax, two (2) counts of fraud by wire,
radio or television, six (6) counts of false statements or entries and thirty-three (33) counts of
election contributions in the name of another. There is an outstanding warrant of arrest against
the private respondent issued by the US District Court, Southern District of Florida.
A brief review of the history of extradition law will illumine our labor. Possibly the most
authoritative commentator on extradition today, M. Cherif Bassiouni, divides the history of
extradition into four (4) periods: "(1) ancient times to seventeenth century a period revealing
almost exclusive concern for political and religious offenders; (2) the eighteenth century and half
of the nineteenth century a period of treaty-making chiefly concerned with military offenders
characterizing the condition of Europe during that period; (3) from 1833 to 1948 a period of
collective concern in suppressing common criminality; and (4) post-1948 developments which
ushered in a greater concern for protecting the human rights of persons and revealed an
awareness of the need to have international due process of law regulate international
relations."2
It is also rewarding to have a good grip on the changing slopes in the landscape of extradition
during these different periods. Extradition was first practiced by the Egyptians, Chinese,
Chaldeans and Assyro-Babylonians but their basis for allowing extradition was unclear.
Sometimes, it was granted due to pacts; at other times, due to plain good will.3 The classical
commentators on international law thus focused their early views on the nature of the duty to
surrender an extraditee whether the duty is legal or moral in character. Grotius and de Vattel
led the school of thought that international law imposed a legal duty called civitas maxima to
extradite criminals.4 In sharp contrast, Puffendorf and Billot led the school of thought that the socalled duty was but an "imperfect obligation which could become enforceable only by a contract
or agreement between states.5
Modern nations tilted towards the view of Puffendorf and Billot that under international law there
is no duty to extradite in the absence of treaty, whether bilateral or multilateral. Thus, the US
Supreme Court in US v.Rauscher,6 held: ". . . . it is only in modern times that the nations of the
94

earth have imposed upon themselves the obligation of delivering up these fugitives from justice
to the states where their crimes were committed, for trial and punishment. This has been done
generally by treaties . . . Prior to these treaties, and apart from them there was no well-defined
obligation on one country to deliver up such fugitives to another; and though such delivery was
often made it was upon the principle of comity . . ."
Then came the long and still ongoing debate on what should be the subject of international law.
The 20th century saw the dramatic rise and fall of different types and hues of authoritarianism
the fascism of Italy's Mussolini and Germany's Hitler, the militarism of Japan's Hirohito and the
communism of Russia's Stalin, etc. The sinking of these isms led to the elevation of the rights of
the individual against the state. Indeed, some species of human rights have already been
accorded universal recognition.7 Today, the drive to internationalize rights of women and
children is also on high gear.8 The higher rating given to human rights in the hierarchy of values
necessarily led to the re-examination of rightful place of the individual in international law. Given
the harshest eye is the moss-covered doctrine that international law deals only with States and
that individuals are not its subject. For its undesirable corrally is the sub-doctrine that an
individual's right in international law is a near cipher. Translated in extradition law, the view that
once commanded a consensus is that since a fugitive is a mere object and not a subject of
international law, he is bereft of rights. An extraditee, so it was held, is a mere "object
transported from one state to the other as an exercise of the sovereign will of the two states
involved."9 The re-examination consigned this pernicious doctrine to the museum of
ideas.10 The new thinkers of international law then gave a significant shape to the role and
rights of the individual in state-concluded treaties and other international agreements. So it was
declared by then US Ambassador Philip C. Jessup in audible italics: "A very large part of
international affairs and, thus, of the process of international accommodation, concerns the
relations between legal persons known as states. This is necessarily so. But it is no longer novel
for the particular interest of the human being to break through the mass of interstate
relationship."11 The clarion call to re-engineer a new world order whose dominant interest would
transcend the parochial confines of national states was not unheeded. Among the world class
scholars who joined the search for the elusive ideological underpinnings of a new world order
were Yale Professor Myres McDougal and Mr. Justice Florentino Feliciano. In their seminal
work. Law and Minimum World Public Order, they suggested that the object of the new world
should be "to obtain in particular situations and in the aggregate flow of situations the outcome
of a higher degree of conformity with the security goals of preservation, deterrence, restoration,
rehabilitation and reconstruction of all societies comprising the world community."12 Needless to
stress, all these prescient theses accelerated the move to recognize certain rights of the
individual in international law.
We have yet to see the final and irrevocable place of individual rights, especially the rights of an
extraditee, in the realm of international law. In careful language, Bassiouni observes that today,
"institutionalized conflicts between states are still rationalized in terms of sovereignty, national
interest, and national security, while human interests continue to have limited, though growing
impact on the decision-making processes which translate national values and goals into specific
national and international policy."13
I belabor the international law aspect of extradition as the majority opinion hardly gives it a
sideglance. It is my humble submission that the first consideration that should guide us in the
case at bar is that a bilateral treaty the RP-US Extradition Treaty is the subject matter of the
litigation. In our constitutional scheme, the making of a treaty belongs to the executive and
legislative departments of our government. Between these two departments, the executive has a
greater say in the making of a treaty. Under Section 21, Article VII of our Constitution,
the President has the sole power to negotiate treaties and international agreements although to
be effective, they must be concurred in by at least two thirds of all the members of the Senate.
Section 20 of the same Article empowers the President to contract or guarantee foreign loans
95

with the prior concurrence of the Monetary Board. Section 16 of the same Article gives the
President the power to appoint ambassadors, other public ministers and consuls subject to
confirmation by the Commission on Appointments. In addition, the President has the power to
deport undesirable aliens. The concentration of these powers in the person of the President is not
without a compelling consideration. The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act on the basis of the
best available information and can decide with decisiveness. Beyond debate, the President is the
single most powerful official in our land for Section 1 of Article VII provides that "the executive
power shall be vested in the President of the Philippines," whereas Section 1 of Article VI states
that "the legislative power shall be vested in the Congress of the Philippines which shall consist
of a Senate and a House of Representatives . . . except to the extent reserved to the people by
the provision on initiative and referendum," while Section 1 of Article VIII provides that "judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by
law." Thus, we can see that executive power is vested in the President alone whereas legislative
and judicial powers are shared and scattered. It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries for our diplomatic
and consular officials regularly brief him on meaningful events all over the world. He has also
unlimited access to ultra-sensitive military intelligence data.14 In fine, the presidential role in
foreign affairs is dominant and the President is traditionally accorded a wider degree of discretion
in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged
under less stringent standards, lest their judicial repudiation lead to breach of an international
obligation, rupture of state relations, forfeiture of confidence, national embarrassment and a
plethora of other problems with equally undesirable consequences.
These are some of the dominant policy considerations in international law that the Court must
balance against the claim of the private respondent that he has a right to be given the
extradition documents against him and to comment thereon even while they are still at
the evaluation stage by the petitioner Secretary of Justice, an alter ego of the President. The
delicate questions of what constitutional rights and to what degree they can be claimed by an
extraditee do not admit of easy answers and have resulted in discrete approaches the world
over.15 On one end of the pole is the more liberal European approach. The European Court of
Human Rights embraces the view that an extraditee is entitled to the benefit of all relevant
provisions of the European Convention for the Protection of Human Rights and Fundamental
Freedoms. It has held that ". . . in so far as a measure of the extradition has consequences
adversely affecting the enjoyment of a convention right, it may, assuming that the consequences
are not too remote, attract the obligations of a Contracting State under the relevant convention
guarantee."16 At the other end of the pole is the more cautious approach of the various Courts of
Appeal in the United States. These courts have been more conservative in light of the principle of
separation of powers and their faith in the presumptive validity of executive decisions. By and
large, they adhere to the rule of non-inquiryunder which the extraditing court refuses to examine
the requesting country's criminal justice system or consider allegations that the extraditee will
be mistreated or denied a fair trial in that country.17
The case at bar, I respectfully submit, does not involve an irreconcilable conflict between the RPUS Extradition Treaty and our Constitution where we have to choose one over the other. Rather, it
calls for a harmonizationbetween said treaty and our Constitution. To achieve this desirable
objective, the Court should consider whether the constitutional rights invoked by the private
respondent have truly been violated and even assuming so,whether he will be denied
fundamental fairness. It is only when their violation will destroy the respondent's right to
fundamental fairness that his constitutional claims should be given primacy.
Given this balancing approach, it is my humble submission that considering all the facts and
facets of the case,the private respondent has not proved entitlement to the right he is claiming .
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The majority holds that the Constitution, the RP-US extradition and P.D. No. 1069 do not prohibit
respondent's claims, hence, it should be allowed. This is too simplistic an approach. Rights do not
necessarily arise from a vacuum. Silence of the law can even mean an implied denial of a right.
Also, constitutional litigations do not always involve a clear cut choice between right and wrong.
Sometimes, they involve a difficult choice between right against right. In these situations, there
is need to balance the contending rights and primacy is given to the right that will serve the
interest of the nation at that particular time. In such instances, the less compelling right is
subjected to soft restraint but without smothering its essence. Proceeding from this premise
of relativism of rights, I venture the view that even assuming arguendo respondent's weak claim,
still, the degree of denial of private respondent's rights to due process and to information is too
slight to warrant the interposition of judicial power. As admitted in the ponencia itself, an
extradition proceeding is sui generis. It is, thus, futile to determine what it is. What is certainis
that it is not a criminal proceeding where there is an accused who claim the entire array of rights
guaranteed by the Bill of Rights. Let it be stressed that in an extradition proceeding, there is no
accused and the guilt or innocence of the extraditee will not be passed upon by our executive
officials nor by the extradition judge. Hence, constitutional rights that are only relevant do
determine the guilt or innocence of an accused cannot be invoked by an extraditee. Indeed, an
extradition proceeding is summary in nature which is untrue of criminal proceedings.18Even
the rules of evidence are different in an extradition proceeding. Admission of evidence is less
stringent, again because the guilt of the extraditee is not under litigation.19 It is not only the
quality but even the quantum of evidence in extradition proceeding is different. In a criminal
case, an accused can only be convicted by proof beyond reasonable doubt.20 In an extradition
proceeding, an extraditee can be ordered extradited "upon showing of the existed of a prima
facie case."21 If more need be said, the nature of an extradition decision is different from a
judicial decision whose finality cannot be changed by executive fiat. Our courts22 may hold an
individual extraditable but the ultimate decision to extradite the individual lies in the hands of
the Executive. Section 3, Article 3 of the RP-US Extradition Treaty specifically provides that
"extradition shall not be granted if the executive authority of the Requested State determined
that the request was politically motivated, or that the offense is a military offense which is not
punishable under non-military penal legislation." In the United States, the Secretary of State
exercises this ultimate power and is conceded considerable discretion. He balances the equities
of the case and the demands of the nation's foreign relations.23 In sum, he is not straitjacketed
by strict legal considerations like an ordinary court.
The type of issue litigated in extradition proceedings which does not touch on the guilt or
innocence of the extraditee, the limited nature of the extradition proceeding, the availability of
adequate remedies in favor of the extraditee, and the traditional leeway given to the
Executive in the conduct of foreign affairs have compelled courts to put a high threshold before
considering claims of individuals that enforcement of an extradition treaty will violate their
constitutional rights. Exemplifying such approach is the Supreme Court of Canada which has
adopted a highly deferential standard that emphasizes international comity and the executive's
experience in international matters.24 It continues to deny Canada's charter protection
to extraditees unless the violation can be considered shocking to the conscience.
In the case, at bar and with due respect, the ponencia inflates with too much significance
the threat to liberty of the private respondent to prop us its thesis that his constitutional rights to
due process and access to information must immediately be vindicated. Allegedly, respondent
Jimenez stands in danger of provisional arrest, hence, the need for him to be immediately
furnished copies of documents accompanying the request for his extradition.Respondent's fear of
provisional arrest is not real. It is a self-imagined fear for the realities on the ground show that
the United States authorities have not manifested any desire to request for his arrest. On the
contrary, they filed the extradition request through the regular channel and, even with the
pendency of the case at bar, they have not moved for respondent's arrest on the ground of
probable delay in the proceedings. To be sure, the issue of whether respondent Jimenez will be
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provisionally arrested is now moot. Under Section 1 of Article 9 of the RP-US Extradition Treaty, in
relation to Section 20(a) of PD No. 1069, the general principle is enunciated that a request for
provisional arrest must be made pending receipt of the request for extradition. By filing the
request for extradition, the US authorities have implicitly decided not to move for respondent's
provisional arrest. But more important, a request for respondent's arrest does not mean he will
be the victim of an arbitrary arrest. He will be given due process before he can be arrested.
Article 9 of the treaty provides:
PROVISIONAL ARREST
1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
2. The application for provisional arrest shall contain:
a) a description of the person sought;
b) the location of the person sought, if known;
c) a brief statements of the facts of the case, including, if possible, the time and
location of the offense;
d) a description of the laws violated;
e) a statement of the existence of a warrant of a warrant of arrest or finding of guilt
or judgment of conviction against the person sought; and
f) a statement that a request for extradition for the person sought will follow.
3. The Requesting State shall be notified without delay of the disposition of its application
and the reasons for any denial.
4. A person who is provisionally arrested may be discharged from custody upon the
expiration of sixty (60) days from the date of arrest pursuant to this Treaty if the executive
authority of the Requested State has not received the formal request for extradition and
the supporting documents required in Article 7.
In relation to the above, Section 20 of P.D. No. 1069 provides:
Sec. 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to
the relevant treaty or convention and while the same remains in force, request for the
provisional arrest of the accused, pending receipt of the request for extradition made in
accordance with Section 4 of this Decree.
(b) A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.
(c) The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest of
the accused from the presiding judge of the Court of First Instance of the province or city
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having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the
accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.
(d) If within a period of 20 days after the provisional arrest, the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of
this Decree, the accused shall be released from custody.
The due process protection of the private-respondent against arbitrary arrest is written in cyrillic
letters in these two (2) related provisions. It is self-evident under these provisions that a request
for provisional arrest does not mean it will be granted ipso facto. The request must comply with
certain requirements. It must be based on an "urgent" factor. This is subject to verification and
evaluation by our executive authorities. The request can be denied if not based on a real
exigency of if the supporting documents are insufficient. The protection of the respondent
against arbitrary provisional arrest does not stop on the administrative level. For even if the
Director of the National Bureau of Investigation agrees with the request for the provisional arrest
of the respondent, still he has to apply for a judicial warrant from the "presiding judge of the
Court of First Instance (now RTC) of the province of city having jurisdiction of the place. . . . ." It is
a judge who will issue a warrant for the provisional arrest of the respondent. The judge has
comply with Section 2, Article III of the Constitution which provides that "no . . . warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the . . . persons or things to be seized." The message that leaps to the
eye is that compliance with this requirements precludes any arbitrary arrest.
In light of all these considerations, I respectfully submit that denying respondent's constitutional
claim to be furnished all documents relating to the request for his extradition by the US
authorities during their evaluation stage will not subvert his right to fundamental fairness. It
should be stressed that this is not a case where the respondent will not be given an opportunity
to know the basis of the request for his extradition. In truth, and contrary to the impression of the
majority, P.D. No. 1069 fixes the specific time when he will be given the papers constituting the
basis for his extradition. The time is when he is summoned by the extradition court and required
to answer the petition for extradition. Thus, Section 6 of P.D. No. 1069 provides:
Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1)
Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and
hour fixed in the order. He may issue a warrant for the immediate arrest of the accused
which may be served anywhere within the Philippines if it appears to the presiding judge
that the immediate arrest and temporary detention of the accused will best serve the ends
of justice. Upon receipt of the answer within the time fixed, the presiding judge shall hear
the case or set another date for the hearing thereof.
(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be
promptly served each upon the accused and the attorney having charge of the case.
Upon receipt of the summons and the petition, respondent is free to foist all defense available to
him. Such an opportunity does not deny him fairness which is the essence of due process of law.
Thus, with due respect, I submit that the ponencia failed to accord due importance to the
international law aspect of an extradition treaty as it unduly stressed its constitutional law
dimension. This goes against the familiar learning that in balancing the clashing interests
involved in extradition treaty, national interest is more equal than the others. While lately,
99

humanitarian considerations are being factored in the equation, still the concept of extradition as
a national act is the guiding idea. Requesting and granting extradition remains a power and
prerogative of the national government of a State. The process still involves relations between
international personalities.25 Needless to state, a more deferential treatment should be given to
national interest than to individual interest. Our national interest in extraditing persons who have
committed crimes in a foreign country are succinctly expressed in the whereas clauses of P.D.
No. 1069, viz:
WHEREAS, the Constitution of the Philippines adopts the generally accepted principles of
international law as part of law of the land, and adheres to the policy of peace, equality,
justice, freedom, cooperation and amity with all nations;
WHEREAS, the suppression of crime is the concern not only of the state where it is
committed but also of any other state to which the criminal may have escaped, because it
saps the foundation of social life and is an outrage upon humanity at large, and it is in the
interest of civilized communities that crimes should not go unpunished. . . . .
The increasing incidence of international and transnational crimes, the development of new
technologies of death,and the speed and scale of improvement of communication are factors
which have virtually annihilated time and distance. They make more compelling the vindication
of national interest to insure that the punishment of criminals should not be frustrated by the
frontiers of territorial sovereignty. This overriding national interest must be upheld as against
respondent's weak constitutional claims which in no way amount to denial of fundamental
fairness.
At bottom, this case involves the respect that courts should accord to the Executive that
concluded the RP-US Extradition Treaty in the conduct of our foreign affairs. As early as 1800, the
legendary John Marshall, then a congressman, has opined that the power to extradite pursuant to
a treaty rests in the executive branch as part of its power to conduct foreign affairs.26 Courts
have validated this forward-looking opinion in a catena of unbroken cases. They defer to the
judgment of the Executive on the necessities of our foreign affairs and on its view of the
requirements of international comity. The deferential attitude is dictated by the robust reality
that of the three great branches of our government, it is the Executive that is most qualified to
guide the ship of the state on the known and unknown continents of foreign relations . It is also
compelled by considerations of the principle ofseparation of powers for the Constitution has
clearly allocated the power to conduct our foreign affairs to the Executive. I respectfully submit
that the majority decision has weakened the Executive by allowing nothing less than an
unconstitutional headbutt on the power of the Executive to conduct our foreign affairs . The
majority should be cautions in involving this Court in the conduct of the nation's foreign relations
where the inviolable rule dictated by necessity is that the nation should speak with one voice. We
should not overlook the reality that courts by their nature, are ill-equipped to fully comprehend
the foreign policy dimension of a treaty, some of which are hidden in shadows and silhouettes.
I vote to grant the petition.
PANGANIBAN, J., dissenting opinion;
With due respect, I dissent.
The main issue before us is whether Private Respondent Mark B. Jimenez is entitled to the due
process rights of notice and hearing during the preliminary or evaluation stage of the extradition
proceeding against him.
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Two Staged in Extradition

There are essentially two stages in extradition proceedings: (1) the preliminary or evaluation
stage, whereby the executive authority of the requested state ascertains whether the extradition
request is supported by the documents and information required under the Extradition Treaty;
and (2) the extradition hearing, whereby the petition for extradition is heard before a court of
justice, which determines whether the accused should be extradited.
The instant petition refers only to the first stage. Private respondent claims that he has a right to
be notified and to be heard at this early stage. However, even the ponencia admits that neither
the RP-US Extradition Treaty nor PD 1069 (the Philippine Extradition Law) expressly requires the
Philippine government, upon receipt of the request for extradition, to give copies thereof and its
supporting documents to the prospective extraditee, much less to give him an opportunity to be
heard prior to the filing of the petition in court.
Notably, international extradition proceedings in the United States do not include the grant by
the executive authority of notice and hearing to the prospective extraditee at this initial stage. It
is the judge or magistrate who is authorized to issue a warrant of arrest and to hold a hearing to
consider the evidence submitted in support of the extradition request. In contrast, in interstate
rendition, the governor must, upon demand, furnish the fugitive or his attorney copies of the
request and its accompanying documents, pursuant to statutory provisions.1 In the Philippines,
there is no similar statutory provision.
Evaluation Stage Essentially Ministerial
The evaluation stage simply involves the ascertainment by the foreign affairs secretary of
whether the extradition request is accompanied by the documents stated in paragraphs 2 and 3,
Article 7 of the Treaty, relating to the identity and the probable location of the fugitive; the facts
of the offense and the procedural history of the case; provisions of the law describing the
essential elements of the offense charged and the punishment therefor; its prescriptive period;
such evidence as would provide probable cause for the arrest and the committal for trial of the
fugitive; and copies of the warrant or order of arrest and charging document. The foreign affairs
secretary also sees to it that these accompanying documents have been certified by the principal
diplomatic or consular officer of the Philippines in the United States, and that they are in English
language or have English translations. Pursuant to Article 3 of the Treaty, he also determines
whether the request is politically motivated, and whether the offense charged is a military
offense not punishable under non-military penal legislation.2
Upon a finding of the secretary of foreign affairs that the extradition request and its supporting
documents are sufficient and complete in form and substance, he shall deliver the same to the
justice secretary, who shall immediately designate and authorize an attorney in his office to take
charge of the case. The lawyer designated shall then file a written petition with the proper
regional trial court, with a prayer that the court take the extradition request under
consideration.3
When the Right to Notice and Hearing Becomes Available
According to private Respondent Jimenez, his right to due process during the preliminary stage
emanates from our Constitution, particularly Section 1, Article III thereof, which provides:
No person shall be deprived of life, liberty or property without due process of law.

101

He claims that this right arises immediately, because of the possibility that he may be
provisionally arrested pursuant to Article 9 of the RP-US Treaty, which reads:
In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest
may be transmitted through the diplomatic channel or directly between the Philippine
Department of Justice and the United States Department of Justice.
xxx

xxx

xxx

Justice Melo's ponencia supports private respondent's contention. It states that there are two
occasions wherein the prospective extraditee may be deprived of liberty: (1) in case of a
provisional arrest pending the submission of the extradition request and (2) his temporary arrest
during the pendency of the extradition petition in court.4 The second instance is not in issue
here, because no petition has yet been filed in court.
However, the above-quoted Article 9 on provisional arrest is not automatically operative at all
times, and in enforcement does not depend solely on the discretion of the requested state. From
the wordings of the provision itself, there are at least three requisites: (1) there must be an
urgency, and (2) there is a corresponding request (3) which must be made prior to the
presentation of the request for extradition.
In the instant case, there appears to be no urgency characterizing the nature of the extradition of
private respondent. Petitioner does not claim any such urgency. There is no request from the
United States for the provisional arrest of Mark Jimenez either. And the secretary of justice states
during the Oral Argument that he had no intention of applying for the provisional arrest of private
respondent.5 Finally, the formal request for extradition has already been made; therefore,
provisional arrest is not likely, as it should really come before the extradition request.6
Mark Jimenez Not in Jeopardy of Arrest
Under the outlined facts of this case, there is no open door for the application of Article 9,
contrary to the apprehension of private respondent. In other words, there is no actual danger
that Jimenez will be provisionally arrested or deprived of his liberty. There is as yet no threat that
his rights would be trampled upon, pending the filing in court of the petition for his extradition.
Hence, there is no substantial gain to be achieved in requiring the foreign affairs (or justice)
secretary to notify and hear him during the preliminary stage, which basically involves only the
exercise of the ministerial power of checking the sufficiency of the documents attached to the
extradition request.
It must be borne in mind that during the preliminary stage, the foreign affairs secretary's
determination of whether the offense charged is extraditable or politically motivated is
merely preliminary. The same issue will be resolved by the trial court.7 Moreover, it is also the
power and the duty of the court, not the executive authority, to determine whether there is
sufficient evidence to establish probable cause that the extraditee committed the crimes
charged.8 The sufficiency of the evidence of criminality is to be determined based on the laws of
the requested state.9 Private Respondent Jimenez will, therefore, definitely have his full
opportunity before the court, in case an extradition petition will indeed be filed, to be heard on
all issues including the sufficiency of the documents supporting the extradition request.10
Private respondent insists that the United States may still request his provisional arrest at any
time. That is purely speculative. It is elementary that this Court does not declare judgments or
grant reliefs based on speculations, surmises or conjectures.
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In any event, even granting that the arrest of Jimenez is sought at any time despite the
assurance of the justice secretary that no such measure will be undertaken, our local laws and
rules of procedure respecting the issuance of a warrant of arrest will govern, there being no
specific provision under the Extradition Treaty by which such warrant should issue. Therefore,
Jimenez will be entitled to all the rights accorded by the Constitution and the laws to any person
whose arrest is being sought.
The right of one state to demand from another the return of an alleged fugitive from justice and
the correlative duty to surrender the fugitive to the demanding country exist only when created
by a treaty between the two countries. International law does not require the voluntary surrender
of a fugitive to a foreign government, absent any treaty stipulation requiring it.11 When such a
treaty does exist, as between the Philippines and the United States, it must be presumed that the
contracting states perform their obligations under it with uberrimae fidei, treaty obligations being
essentially characterized internationally by comity and mutual respect.
The Need for Respondent Jimenez to Face Charges in the US
One final point. Private respondent also claims that from the time the secretary of foreign affairs
gave due course to the request for his extradition, incalculable prejudice has been brought upon
him. And because of the moral injury caused, he should be given the opportunity at the earliest
possible time to stop his extradition. I believe that any moral injury suffered by private
respondent had not been caused by the mere processing of the extradition request. And it will
not cease merely by granting him the opportunity to be heard by the executive authority. The
concrete charges that he has allegedly committed certain offenses already exist. These charges
have been filed in the United States and are part of public and official records there. Assuming
the existence of moral injury, the only means by which he can restore his good reputation is to
prove before the proper judicial authorities in the US that the charges against him are
unfounded. Such restoration cannot be accomplished by simply contending that the documents
supporting the request for his extradition are insufficient.
Conclusion
In the context of the factual milieu of private respondent, there is really no threat of any
deprivation of his liberty at the present stage of the extradition process. Hence, the
constitutional right to due process particularly the right to be heard finds no application. To
grant private respondent's request for copies of the extradition documents and for an
opportunity to comment thereon will constitute "over-due process" and unnecessarily delay the
proceedings.
WHEREFORE, I vote to grant the Petition.

103

Republic of the Philippines

SUPREME COURT
Baguio City
EN BANC
G.R. No. 190582

April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
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. Barnette1
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.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of
the Commission on Elections (COMELEC) dated November 11, 20092 (the First Assailed Resolution) and
December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELECs refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays,
bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for
registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the
104

organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition5 for
registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented
sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines
enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang
Ladlad laid out its national membership base consisting of individual members and organizational supporters,
and outlined its platform of governance.7
On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed
the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and
Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends
religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change the natural use into that
which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust
one toward another; men with men working that which is unseemly, and receiving in themselves that
recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people transgressing beyond
bounds." (7.81) "And we rained down on them a shower (of brimstone): Then see what was the end of those
who indulged in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people who do mischief"
(29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual
partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied
with for accreditation.
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ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregardsdecency or morality x x x
It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object
or purpose is contrary to law, morals, good customs, public order or public policy are inexistent and void from
the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes
Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of
prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and
fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. (a) The authors of obscene literature, published with their knowledge in any form; the editors
publishing such literature; and the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral
plays, scenes, acts or shows, it being understood that the obscene literature or indecent or
immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue
hereof, shall include those which: (1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or pornography; (3) offend any race or
religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs,established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for
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."
Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that
does not conform to the teachings of our faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A.
said in one article that "older practicing homosexuals are a threat to the youth." As an agency of the
government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed Resolution
(Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners
voted to deny Ang Ladlads Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N.
Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his
Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
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Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has
properly proven its under-representation and marginalization, it cannot be said that Ladlads expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing
congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented
sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute
to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its
constituencies, then all representative organizations would have found themselves into the party-list race. But
that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the
realization of aspirations of marginalized individuals whose interests are also the nations only that their
interests have not been brought to the attention of the nation because of their under representation. Until the
time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is
beneficial to the nation, its application for accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize
lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has
also been held that homosexuality is not a constitutionally protected fundamental right, and that "nothing in the
U.S. Constitution discloses a comparable intent to protect or promote the social or legal equality of homosexual
relations," as in the case of race or religion or belief.
xxxx
Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying
that Ladlad constituencies are still males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is
there any attempt to any particular religious groups moral rules on Ladlad. Rather, what are being adopted as
moral parameters and precepts are generally accepted public morals. They are possibly religious-based, but as a
society, the Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing, such that
some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly
accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised
Penal Code imposes the penalty of prision mayor upon "Those who shall publicly expound or proclaim
doctrines openly contrary to public morals." It penalizes "immoral doctrines, obscene publications and
exhibition and indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear from
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its Petitions paragraph 6F: "Consensual partnerships or relationships by gays and lesbians who are already of
age It is further indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with
Men or MSMs in the Philippines were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which shocks, defies or disregards decency or
morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and
direct the COMELEC to grant Ang Ladlads application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it
would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of
COMELEC not later than 12:00 noon of January 11, 2010.11 Instead of filing a Comment, however, the OSG
filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of petitioners application.13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own comment.14 The
COMELEC, through its Law Department, filed its Comment on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12,
2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to
cease and desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear
as Amicus Curiae, attaching thereto its Comment-in-Intervention.17 The CHR opined that the denial of Ang
Ladladspetition on moral grounds violated the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR).
On January 19, 2010, we granted the CHRs motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was granted on
February 2, 2010.19
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma,
violated the constitutional guarantees against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and assembly, and
equal protection of laws, as well as constituted violations of the Philippines international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners
application for registration since there was no basis for COMELECs allegations of immorality. It also opined
that LGBTs have their own special interests and concerns which should have been recognized by the
COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had been no restrictions on
these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national
political agenda to benefit the nation and that the petition was validly dismissed on moral grounds. It also
argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and RA
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7941, and that petitioner made untruthful statements in its petition when it alleged its national existence
contrary to actual verification reports by COMELECs field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlads 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 BayaniOFW 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 petitioners accreditation
mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious, considering that the
reports of petitioners 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
respondents theory, and a serious violation of petitioners right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads 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:"
Abra Gay Association
Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
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 Boys Legion Metro Manila

Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
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 Soul Jive Antipolo, Rizal

The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise
that they found that petitioner had no presence in any of these regions. In fact, if COMELECs findings are to be
believed, petitioner does not even exist in Quezon City, which is registered as Ang Ladlads principal place of
business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal
requirements for accreditation. Indeed, aside from COMELECs moral objection and the belated allegation of
non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong
Bayani. The difference, COMELEC claims, lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was grave violation of the non-establishment
clause for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on
whether the COMELEC is able to advance some justification for its rulings beyond mere conformity to
religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have primarily
secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr.
Justice Carpio holds. "Religious teachings as expressed in public debate may influence the civil public order but
public moral disputes may be resolved only on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled
religion," anathema to religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary religious or nonreligious views that would not support the policy. As a result, government will not provide full religious
freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class
citizens.1avvphi1
In other words, government action, including its proscription of immorality as expressed in criminal law like
concubinage, must have a secular purpose. That is, the government proscribes this conduct because it is
"detrimental (or dangerous) to those conditions upon which depend the existence and progress of human
society" and not because the conduct is proscribed by the beliefs of one religion or the other. Although
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admittedly, moral judgments based on religion might have a compelling influence on those engaged in public
deliberations over what actions would be considered a moral disapprobation punishable by law. After all, they
might also be adherents of a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and spiritual institutions of society in a
uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and
justification to pass scrutiny of the religion clauses. x x x Recognizing the religious nature of the Filipinos and
the elevating influence of religion in society, however, the Philippine constitution's religion clauses prescribe
not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government must pursue its secular
goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend compelling state
interests.27
Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be
religion-based, it has long been transplanted into generally accepted public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the
danger it poses to the people especially the youth. Once it is recognized by the government, a sector which
believes that there is nothing wrong in having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our civilized society. Any society without a set
of moral precepts is in danger of losing its own existence.28
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 groups 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 petitioners
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
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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 COMELECs 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 Ladlads 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. Respondents 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, which provides "nor shall any person be
denied equal protection of the laws," 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 COMELECs 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.
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It bears stressing that our finding that COMELECs 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 OSGs 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 ones 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 Courts analysis.
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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."43
With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant
human rights tradition, the European Court of Human Rights (ECHR) has repeatedly stated that a political party
may campaign for a change in the law or the constitutional structures of a state if it uses legal and democratic
means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is advocated by peaceful means must be
afforded a proper opportunity of expression through the exercise of the right of association, even if such ideas
may seem shocking or unacceptable to the authorities or the majority of the population.44 A political group
should not be hindered solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.45 Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection of the freedom of association
guarantee.46
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.
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang
Ladlad, and its members have not been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply
exercised its authority to review and verify the qualifications of petitioner as a sectoral party applying to
participate in the party-list system. This lawful exercise of duty cannot be said to be a transgression of Section
4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in
the conduct of elections. Their right to vote will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads
petition has the clear and immediate effect of limiting, if not outrightly nullifying the capacity of its members to
fully and equally participate in public life through engagement in the party list elections.

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This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations
imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list
system, and as advanced by the OSG itself the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of
COMELECs 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 petitioners 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.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general application relating to elections
be applied equally to all persons, regardless of sexual orientation. Although sexual orientation is not specifically
enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation."48Additionally, a variety of United Nations bodies have declared discrimination on the basis of
sexual orientation to be prohibited under various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25

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Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and
without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public Affairs and
the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt such legislative and other measures
as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article
25 lies at the core of democratic government based on the consent of the people and in conformity with the
principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any restrictions on the right to stand for election, such
as minimum age, must be justifiable on objective and reasonable criteria. Persons who are otherwise eligible to
stand for election should not be excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the
legislative provisions which exclude any group or category of persons from elective office.50
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 petitioners 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.1avvphi1
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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 Courts
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. The Resolutions of the Commission on Elections dated
November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission
on Elections is directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice

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