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Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 188550 August 19, 2013

DEUTSCHE BANK AG MANILA BRANCH, PETITIONER, vs. COMMISSIONER OF INTERNAL


REVENUE, RESPONDENT.

SERENO, CJ.:

This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch (petitioner) under Rule 45 of the
1997 Rules of Civil Procedure assailing the Court of Tax Appeals En Banc (CTA En Banc) Decision 2 dated
29 May 2009 and Resolution3 dated 1 July 2009 in C.T.A. EB No. 456.

THE FACTS

In accordance with Section 28(A)(5)4 of the National Internal Revenue Code (NIRC) of 1997, petitioner
withheld and remitted to respondent on 21 October 2003 the amount of PHP 67,688,553.51, which
represented the fifteen percent (15%) branch profit remittance tax (BPRT) on its regular banking unit
(RBU) net income remitted to Deutsche Bank Germany (DB Germany) for 2002 and prior taxable years. 5

Believing that it made an overpayment of the BPRT, petitioner filed with the BIR Large Taxpayers
Assessment and Investigation Division on 4 October 2005 an administrative claim for refund or
issuance of its tax credit certificate in the total amount of PHP 22,562,851.17. On the same date,
petitioner requested from the International Tax Affairs Division (ITAD) a confirmation of its entitlement
to the preferential tax rate of 10% under the RP-Germany Tax Treaty. 6

Alleging the inaction of the BIR on its administrative claim, petitioner filed a Petition for Review 7 with
the CTA on 18 October 2005. Petitioner reiterated its claim for the refund or issuance of its tax credit
certificate for the amount of PHP 22,562,851.17 representing the alleged excess BPRT paid on branch
profits remittance to DB Germany.

THE CTA SECOND DIVISION RULING8

After trial on the merits, the CTA Second Division found that petitioner indeed paid the total amount of
PHP 67,688,553.51 representing the 15% BPRT on its RBU profits amounting to PHP 451,257,023.29 for
2002 and prior taxable years. Records also disclose that for the year 2003, petitioner remitted to DB
Germany the amount of EURO 5,174,847.38 (or PHP 330,175,961.88 at the exchange rate of PHP
63.804:1 EURO), which is net of the 15% BPRT.

However, the claim of petitioner for a refund was denied on the ground that the application for a tax
treaty relief was not filed with ITAD prior to the payment by the former of its BPRT and actual
remittance of its branch profits to DB Germany, or prior to its availment of the preferential rate of ten
percent (10%) under the RP-Germany Tax Treaty provision. The court a quo held that petitioner violated
the fifteen (15) day period mandated under Section III paragraph (2) of Revenue Memorandum Order
(RMO) No. 1-2000.

Further, the CTA Second Division relied on Mirant (Philippines) Operations Corporation (formerly
Southern Energy Asia-Pacific Operations [Phils.], Inc.) v. Commissioner of Internal Revenue 9 (Mirant)
where the CTA En Banc ruled that before the benefits of the tax treaty may be extended to a foreign
corporation wishing to avail itself thereof, the latter should first invoke the provisions of the tax treaty
and prove that they indeed apply to the corporation.

THE CTA EN BANC RULING10

The CTA En Banc affirmed the CTA Second Divisions Decision dated 29 August 2008 and Resolution
dated 14 January 2009. Citing Mirant, the CTA En Banc held that a ruling from the ITAD of the BIR must
be secured prior to the availment of a preferential tax rate under a tax treaty. Applying the principle of
stare decisis et non quieta movere, the CTA En Banc took into consideration that this Court had denied
the Petition in G.R. No. 168531 filed by Mirant for failure to sufficiently show any reversible error in the
assailed judgment.11 The CTA En Banc ruled that once a case has been decided in one way, any other
case involving exactly the same point at issue should be decided in the same manner.

The court likewise ruled that the 15-day rule for tax treaty relief application under RMO No. 1-2000
cannot be relaxed for petitioner, unlike in CBK Power Company Limited v. Commissioner of Internal
Revenue.12 In that case, the rule was relaxed and the claim for refund of excess final withholding taxes
was partially granted. While it issued a ruling to CBK Power Company Limited after the payment of
withholding taxes, the ITAD did not issue any ruling to petitioner even if it filed a request for
confirmation on 4 October 2005 that the remittance of branch profits to DB Germany is subject to a
preferential tax rate of 10% pursuant to Article 10 of the RP-Germany Tax Treaty.

ISSUE

This Court is now confronted with the issue of whether the failure to strictly comply with RMO No. 1-
2000 will deprive persons or corporations of the benefit of a tax treaty.

THE COURTS RULING

The Petition is meritorious.

Under Section 28(A)(5) of the NIRC, any profit remitted to its head office shall be subject to a tax of
15% based on the total profits applied for or earmarked for remittance without any deduction of the tax
component. However, petitioner invokes paragraph 6, Article 10 of the RP-Germany Tax Treaty, which
provides that where a resident of the Federal Republic of Germany has a branch in the Republic of the
Philippines, this branch may be subjected to the branch profits remittance tax withheld at source in
accordance with Philippine law but shall not exceed 10% of the gross amount of the profits remitted by
that branch to the head office.

By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch in the Philippines,
remitting to its head office in Germany, the benefit of a preferential rate equivalent to 10% BPRT.

On the other hand, the BIR issued RMO No. 1-2000, which requires that any availment of the tax treaty
relief must be preceded by an application with ITAD at least 15 days before the transaction. The Order
was issued to streamline the processing of the application of tax treaty relief in order to improve
efficiency and service to the taxpayers. Further, it also aims to prevent the consequences of an
erroneous interpretation and/or application of the treaty provisions (i.e., filing a claim for a tax
refund/credit for the overpayment of taxes or for deficiency tax liabilities for underpayment). 13

The crux of the controversy lies in the implementation of RMO No. 1-2000.

Petitioner argues that, considering that it has met all the conditions under Article 10 of the RP-Germany
Tax Treaty, the CTA erred in denying its claim solely on the basis of RMO No. 1-2000. The filing of a tax
treaty relief application is not a condition precedent to the availment of a preferential tax rate. Further,
petitioner posits that, contrary to the ruling of the CTA, Mirant is not a binding judicial precedent to
deny a claim for refund solely on the basis of noncompliance with RMO No. 1-2000.

Respondent counters that the requirement of prior application under RMO No. 1-2000 is mandatory in
character. RMO No. 1-2000 was issued pursuant to the unquestioned authority of the Secretary of
Finance to promulgate rules and regulations for the effective implementation of the NIRC. Thus, courts
cannot ignore administrative issuances which partakes the nature of a statute and have in their favor a
presumption of legality.

The CTA ruled that prior application for a tax treaty relief is mandatory, and noncompliance with this
prerequisite is fatal to the taxpayers availment of the preferential tax rate.

We disagree.
A minute resolution is not a binding precedent

At the outset, this Courts minute resolution on Mirant is not a binding precedent. The Court has
clarified this matter in Philippine Health Care Providers, Inc. v. Commissioner of Internal Revenue 14 as
follows:

It is true that, although contained in a minute resolution, our dismissal of the petition was a disposition
of the merits of the case. When we dismissed the petition, we effectively affirmed the CA ruling being
questioned. As a result, our ruling in that case has already become final. When a minute resolution
denies or dismisses a petition for failure to comply with formal and substantive requirements, the
challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. But
what is its effect on other cases?

With respect to the same subject matter and the same issues concerning the same parties, it
constitutes res judicata. However, if other parties or another subject matter (even with the same
parties and issues) is involved, the minute resolution is not binding precedent. Thus, in CIR v. Baier-
Nickel, the Court noted that a previous case, CIR v. Baier-Nickel involving the same parties and the
same issues, was previously disposed of by the Court thru a minute resolution dated February 17, 2003
sustaining the ruling of the CA. Nonetheless, the Court ruled that the previous case "ha(d) no bearing"
on the latter case because the two cases involved different subject matters as they were concerned
with the taxable income of different taxable years.

Besides, there are substantial, not simply formal, distinctions between a minute resolution and a
decision. The constitutional requirement under the first paragraph of Section 14, Article VIII of the
Constitution that the facts and the law on which the judgment is based must be expressed clearly and
distinctly applies only to decisions, not to minute resolutions. A minute resolution is signed only by the
clerk of court by authority of the justices, unlike a decision. It does not require the certification of the
Chief Justice. Moreover, unlike decisions, minute resolutions are not published in the Philippine Reports.
Finally, the proviso of Section 4(3) of Article VIII speaks of a decision. Indeed, as a rule, this Court lays
down doctrines or principles of law which constitute binding precedent in a decision duly signed by the
members of the Court and certified by the Chief Justice. (Emphasis supplied)

Even if we had affirmed the CTA in Mirant, the doctrine laid down in that Decision cannot bind this Court
in cases of a similar nature. There are differences in parties, taxes, taxable periods, and treaties
involved; more importantly, the disposition of that case was made only through a minute resolution.

Tax Treaty vs. RMO No. 1-2000

Our Constitution provides for adherence to the general principles of international law as part of the law
of the land.15 The time-honored international principle of pacta sunt servanda demands the
performance in good faith of treaty obligations on the part of the states that enter into the agreement.
Every treaty in force is binding upon the parties, and obligations under the treaty must be performed by
them in good faith.16 More importantly, treaties have the force and effect of law in this jurisdiction. 17

Tax treaties are entered into "to reconcile the national fiscal legislations of the contracting parties and,
in turn, help the taxpayer avoid simultaneous taxations in two different jurisdictions." 18 CIR v. S.C.
Johnson and Son, Inc. further clarifies that "tax conventions are drafted with a view towards the
elimination of international juridical double taxation, which is defined as the imposition of comparable
taxes in two or more states on the same taxpayer in respect of the same subject matter and for
identical periods. The apparent rationale for doing away with double taxation is to encourage the free
flow of goods and services and the movement of capital, technology and persons between countries,
conditions deemed vital in creating robust and dynamic economies. Foreign investments will only thrive
in a fairly predictable and reasonable international investment climate and the protection against
double taxation is crucial in creating such a climate."19

Simply put, tax treaties are entered into to minimize, if not eliminate the harshness of international
juridical double taxation, which is why they are also known as double tax treaty or double tax
agreements.
"A state that has contracted valid international obligations is bound to make in its legislations those
modifications that may be necessary to ensure the fulfillment of the obligations undertaken." 20 Thus,
laws and issuances must ensure that the reliefs granted under tax treaties are accorded to the parties
entitled thereto. The BIR must not impose additional requirements that would negate the availment of
the reliefs provided for under international agreements. More so, when the RP-Germany Tax Treaty does
not provide for any pre-requisite for the availment of the benefits under said agreement.

Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which would indicate a
deprivation of entitlement to a tax treaty relief for failure to comply with the 15-day period. We
recognize the clear intention of the BIR in implementing RMO No. 1-2000, but the CTAs outright denial
of a tax treaty relief for failure to strictly comply with the prescribed period is not in harmony with the
objectives of the contracting state to ensure that the benefits granted under tax treaties are enjoyed by
duly entitled persons or corporations.

Bearing in mind the rationale of tax treaties, the period of application for the availment of tax treaty
relief as required by RMO No. 1-2000 should not operate to divest entitlement to the relief as it would
constitute a violation of the duty required by good faith in complying with a tax treaty. The denial of the
availment of tax relief for the failure of a taxpayer to apply within the prescribed period under the
administrative issuance would impair the value of the tax treaty. At most, the application for a tax
treaty relief from the BIR should merely operate to confirm the entitlement of the taxpayer to the relief.

The obligation to comply with a tax treaty must take precedence over the objective of RMO No. 1-
2000.1wphi1 Logically, noncompliance with tax treaties has negative implications on international
relations, and unduly discourages foreign investors. While the consequences sought to be prevented by
RMO No. 1-2000 involve an administrative procedure, these may be remedied through other system
management processes, e.g., the imposition of a fine or penalty. But we cannot totally deprive those
who are entitled to the benefit of a treaty for failure to strictly comply with an administrative issuance
requiring prior application for tax treaty relief.

Prior Application vs. Claim for Refund

Again, RMO No. 1-2000 was implemented to obviate any erroneous interpretation and/or application of
the treaty provisions. The objective of the BIR is to forestall assessments against corporations who
erroneously availed themselves of the benefits of the tax treaty but are not legally entitled thereto, as
well as to save such investors from the tedious process of claims for a refund due to an inaccurate
application of the tax treaty provisions. However, as earlier discussed, noncompliance with the 15-day
period for prior application should not operate to automatically divest entitlement to the tax treaty
relief especially in claims for refund.

The underlying principle of prior application with the BIR becomes moot in refund cases, such as the
present case, where the very basis of the claim is erroneous or there is excessive payment arising from
non-availment of a tax treaty relief at the first instance. In this case, petitioner should not be faulted for
not complying with RMO No. 1-2000 prior to the transaction. It could not have applied for a tax treaty
relief within the period prescribed, or 15 days prior to the payment of its BPRT, precisely because it
erroneously paid the BPRT not on the basis of the preferential tax rate under

the RP-Germany Tax Treaty, but on the regular rate as prescribed by the NIRC. Hence, the prior
application requirement becomes illogical. Therefore, the fact that petitioner invoked the provisions of
the RP-Germany Tax Treaty when it requested for a confirmation from the ITAD before filing an
administrative claim for a refund should be deemed substantial compliance with RMO No. 1-2000.

Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy for tax recovery when
there has been an erroneous payment of tax.1wphi1 The outright denial of petitioners claim for a
refund, on the sole ground of failure to apply for a tax treaty relief prior to the payment of the BPRT,
would defeat the purpose of Section 229.

Petitioner is entitled to a refund


It is significant to emphasize that petitioner applied though belatedly for a tax treaty relief, in
substantial compliance with RMO No. 1-2000. A ruling by the BIR would have confirmed whether
petitioner was entitled to the lower rate of 10% BPRT pursuant to the RP-Germany Tax Treaty.

Nevertheless, even without the BIR ruling, the CTA Second Division found as follows:

Based on the evidence presented, both documentary and testimonial, petitioner was able to establish
the following facts:

a. That petitioner is a branch office in the Philippines of Deutsche Bank AG, a corporation
organized and existing under the laws of the Federal Republic of Germany;

b. That on October 21, 2003, it filed its Monthly Remittance Return of Final Income Taxes
Withheld under BIR Form No. 1601-F and remitted the amount of P67,688,553.51 as branch
profits remittance tax with the BIR; and

c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having issued a clearance,
petitioner remitted to Frankfurt Head Office the amount of EUR5,174,847.38
(or P330,175,961.88 at 63.804 Peso/Euro) representing its 2002 profits remittance. 22

The amount of PHP 67,688,553.51 paid by petitioner represented the 15% BPRT on its RBU net income,
due for remittance to DB Germany amounting to PHP 451,257,023.29 for 2002 and prior taxable
years.23

Likewise, both the administrative and the judicial actions were filed within the two-year prescriptive
period pursuant to Section 229 of the NIRC.24

Clearly, there is no reason to deprive petitioner of the benefit of a preferential tax rate of 10% BPRT in
accordance with the RP-Germany Tax Treaty.

Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU net income amounting to
PHP 451,257,023.29 for 2002 and prior taxable years, applying the 10% BPRT. Thus, it is proper to grant
petitioner a refund ofthe difference between the PHP 67,688,553.51 (15% BPRT) and PHP
45,125,702.34 (10% BPRT) or a total of PHP 22,562,851.17.

WHEREFORE, premises considered, the instant Petition is GRANTED. Accordingly, the Court of Tax
Appeals En Banc Decision dated 29 May 2009 and Resolution dated 1 July 2009 are REVERSED and SET
ASIDE. A new one is hereby entered ordering respondent Commissioner of Internal Revenue to refund
or issue a tax credit certificate in favor of petitioner Deutsche Bank AG Manila Branch the amount of
TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE PESOS AND
SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine currency, representing the erroneously paid
BPRT for 2002 and prior taxable years.

SO ORDERED.
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 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.

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
disregards decency 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

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 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 Ladlads petition 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 Intervene 18 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 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 Bayani-OFW Labor Party v. Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector is specifically
enumerated, but whether a particular organization complies with the requirements of the Constitution
and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that
it had nationwide existence through its members and affiliate organizations. The COMELEC claims that
upon verification by its field personnel, it was shown that "save for a few isolated places in the country,
petitioner does not exist in almost all provinces in the country." 21

This argument that "petitioner made untruthful statements in its petition when it alleged its national
existence" is a new one; previously, the COMELEC claimed that petitioner was "not being truthful when
it said that it or any of its nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground for denial of 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 (etc)

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 non-religious 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 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 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.

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.

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.

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

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
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.
EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor
children, LUCIA CARLOS IMBONG and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners, vs. HON. PAQUITO N. OCHOA, JR., Executive
Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management,
HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its
President, Maria Concepcion S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose
S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez, Salvador S.
Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
Racho & Traquilina Racho, F emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette C. Tansingco, Lorenzo
Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan
Paolo C. Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on
behalf of their minor children, Ramon Carlos Z. Araneta & Maya Angelica Z. Araneta,
Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor
children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C.
Castor, Spouses Alexander R. Racho & Zara Z. Racho for themselves and on behalf of their
minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor
children Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura
Racho, Spouses David R. Racho & Armilyn A. Racho for themselves and on behalf of their
minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary,
Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social Welfare and
Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ARSENIO M. BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented
by its President Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE
PHILIPPINES, represented by its President Donato Marcos, Respondents.

x---------------------------------x (etc several cases)

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of others and
with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence as a developed country,
leaving our people beleaguered in a state of hunger, illiteracy and unemployment. While governmental
policies have been geared towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every member of society. The
government continues to tread on a trying path to the realization of its very purpose, that is, the
general welfare of the Filipino people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to enact laws and policies that
aim to remedy looming societal woes, while the executive is closed set to fully implement these
measures and bring concrete and substantial solutions within the reach of Juan dela Cruz. Seemingly
distant is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its
watchful eyes on clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its solemn duty to interpret legislation vis-a-
vis the most vital and enduring principle that holds Philippine society together - the supremacy of the
Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control,
abortion and contraception. As in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized by
members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep division in every level of the society. Despite
calls to withhold support thereto, however, Republic Act (R.A.) No. 10354, otherwise known as the
Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by Congress on
December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of
society came knocking on the doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting impact that its decision may produce,
the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2) petitions-
in-intervention.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH
Law on the following GROUNDS:

The RH Law violates the right to life of the unborn. According to the petitioners,
notwithstanding its declared policy against abortion, the implementation of the RH Law would
authorize the purchase of hormonal contraceptives, intra-uterine devices and injectables which
are abortives, in violation of Section 12, Article II of the Constitution which guarantees protection
of both the life of the mother and the life of the unborn from conception. 35

The RH Law violates the right to health and the right to protection against hazardous products.
The petitioners posit that the RH Law provides universal access to contraceptives which are
hazardous to one's health, as it causes cancer and other health problems. 36

The RH Law violates the right to religious freedom. The petitioners contend that the RH Law
violates the constitutional guarantee respecting religion as it authorizes the use of public funds
for the procurement of contraceptives. For the petitioners, the use of public funds for purposes
that are believed to be contrary to their beliefs is included in the constitutional mandate
ensuring religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution,
imprisonment and other forms of punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors; and 2] to provide full and correct
information on reproductive health programs and service, although it is against their religious beliefs
and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-
IRR),39 provides that skilled health professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers, medical specialists, rural health
physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors. 40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools
should not be allowed as it is an affront to their religious beliefs. 41
While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that
the RH Law fails to satisfy the "clear and present danger test" and the "compelling state interest test"
to justify the regulation of the right to free exercise of religion and the right to free speech. 42

The RH Law violates the constitutional provision on involuntary servitude. According to the
petitioners, the RH Law subjects medical practitioners to involuntary servitude because, to be
accredited under the PhilHealth program, they are compelled to provide forty-eight (48) hours of
pro bona services for indigent women, under threat of criminal prosecution, imprisonment and
other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical
practitioner would effectively be forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the public would no longer be able to avail of
the practitioners services.44

The RH Law violates the right to equal protection of the law. It is claimed that the RH Law
discriminates against the poor as it makes them the primary target of the government program
that promotes contraceptive use. The petitioners argue that, rather than promoting reproductive
health among the poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45

The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution.
In imposing the penalty of imprisonment and/or fine for "any violation," it is vague because it
does not define the type of conduct to be treated as "violation" of the RH Law. 46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by
removing from them (the people) the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall offer." 47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in accordance with their own
discretion and judgment.

The RH Law violates the right to free speech. To compel a person to explain a full range of
family planning methods is plainly to curtail his right to expound only his own preferred way of
family planning. The petitioners note that although exemption is granted to institutions owned
and operated by religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure. 48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is
contended that the RH Law providing for mandatory reproductive health education intrudes
upon their constitutional right to raise their children in accordance with their beliefs. 49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health
procedure, the RH Law forsakes any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-being of their family. In the same
breath, it is also claimed that the parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use contraceptives. 50

The RH Law violates the constitutional principle of non-delegation of legislative authority. The
petitioners question the delegation by Congress to the FDA of the power to determine whether a
product is non-abortifacient and to be included in the Emergency Drugs List (EDL). 51

The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of
the Constitution.52

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the
Autonomous Region of Muslim Mindanao {ARMM). It is contended that the RH Law, providing for
reproductive health measures at the local government level and the ARMM, infringes upon the
powers devolved to LGUs and the ARMM under the Local Government Code and R.A . No. 9054. 54

Various parties also sought and were granted leave to file their respective comments-in-intervention in
defense of the constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG)
which commented on the petitions in behalf of the respondents, 55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-Tan, and
Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH), 58 Ana Theresa
"Risa" Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also granted
leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the
dismissal of the petitions for the principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo
Ante Order (SQAO), enjoining the effects and implementation of the assailed legislation for a period of
one hundred and twenty (120) days, or until July 17, 2013. 62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine
and/or identify the pertinent issues raised by the parties and the sequence by which these issues were
to be discussed in the oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013, the
cases were heard on oral argument. On July 16, 2013, the SQAO was ordered extended until further
orders of the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days
and, at the same time posed several questions for their clarification on some contentions of the
parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and
distribution of contraceptive drugs and devices. As far back as June 18, 1966, the country enacted R.A.
No. 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive
Drugs and Devices." Although contraceptive drugs and devices were allowed, they could not be sold,
dispensed or distributed "unless such sale, dispensation and distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a qualified medical practitioner." 65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of
abortifacients or anti-conceptional substances and devices." Under Section 37 thereof, it was provided
that "no drug or chemical product or device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered or sold to any person without a proper
prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which
recognized that the population problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No. 6365, approved on August 16,
1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to couples desiring to space or
limit family size; mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree.
(P.D.) No. 79,68 dated December 8, 1972, which, among others, made "family planning a part of a broad
educational program," provided "family planning services as a part of over-all health care," and made
"available all acceptable methods of contraception, except abortion, to all Filipino citizens desirous of
spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family planning methods evolved from
being a component of demographic management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population and Development. 70 Thus, on August
14, 2009, the country enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among others,
mandated the State to provide for comprehensive health services and programs for women, including
family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an
uncontrollable pace. From a paltry number of just over 27 million Filipinos in 1960, the population of the
country reached over 76 million in the year 2000 and over 92 million in 2010. 72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the problem, the RH Law was
enacted to provide Filipinos, especially the poor and the marginalized, access and information to the full
range of modem family planning methods, and to ensure that its objective to provide for the peoples'
right to reproductive health be achieved. To make it more effective, the RH Law made it mandatory for
health providers to provide information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current
laws on contraception, women's health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI,
in particular, argues that the government sponsored contraception program, the very essence of the RH
Law, violates the right to health of women and the sanctity of life, which the State is mandated to
protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to the passage of
the RH Law - must be maintained."73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided
under Republic Act No. 5921 and Republic Act No. 4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly licensed by a physician. What the Petitioners find
deplorable and repugnant under the RH Law is the role that the State and its agencies - the entire
bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program to the fullest extent
possible using taxpayers' money. The State then will be the funder and provider of all forms of family
planning methods and the implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and supplies. 74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and
refined them to the following principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule


II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life

2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the
Court to resolve some procedural impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to
the legislative and political wisdom of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic process" 75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of the Court to review social
legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to
implement the constitutional policies and positive norms with the political departments, in particular,
with Congress.77 It further asserts that in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition utilized by the petitioners are improper to
assail the validity of the acts of the legislature.79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the
assailed law has yet to be enforced and applied to the petitioners, and that the government has yet to
distribute reproductive health devices that are abortive. It claims that the RH Law cannot be challenged
"on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and
the Legislature, it is often sought that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the principle of separation of powers. To be
clear, the separation of powers is a fundamental principle in our system of government, which obtains
not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction and is supreme within its own
sphere.81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of
the Philippines;82 (b) the executive power shall be vested in the President of the Philippines; 83 and (c)
the judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law.84 The Constitution has truly blocked out with deft strokes and in bold lines, the allotment of
powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which
imposes upon the courts proper restraint, born of the nature of their functions and of their respect for
the other branches of government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution. 86

It has also long been observed, however, that in times of social disquietude or political instability, the
great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. 87 In
order to address this, the Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the same time, allows it to
cross the line of separation - but only at a very limited and specific point - to determine whether the
acts of the executive and the legislative branches are null because they were undertaken with grave
abuse of discretion.88 Thus, while the Court may not pass upon questions of wisdom, justice or
expediency of the RH Law, it may do so where an attendant unconstitutionality or grave abuse of
discretion results.89 The Court must demonstrate its unflinching commitment to protect those cherished
rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the
Constitution makes no distinction as to the kind of legislation that may be subject to judicial scrutiny,
be it in the form of social legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative and the executive
branches, since its duty is not to review their collective wisdom but, rather, to make sure that they
have acted in consonance with their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review.90 This is in line with Article VIII, Section 1 of the
Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and
mandamus are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify,
when proper, acts of legislative and executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on applied in Macalintal v.
COMELEC,92 Aldaba v. COMELEC,93Magallona v. Ermita,94 and countless others. In Tanada, the Court
wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution,
the petition no doubt raises a justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. "The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a "controversy
as to the application or interpretation of constitutional provision is raised before this Court (as in the
instant case), it becomes a legal issue which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is
essential for the maintenance and enforcement of the separation of powers and the balancing of
powers among the three great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review is the chief, indeed the
only, medium of participation - or instrument of intervention - of the judiciary in that balancing
operation.95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to
rule on just any and every claim of constitutional violation. Jurisprudence is replete with the rule that
the power of judicial review is limited by four exacting requisites, viz : (a) there must be an actual case
or controversy; (b) the petitioners must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.96

Actual Case or Controversy


Proponents of the RH Law submit that the subj ect petitions do not present any actual case or
controversy because the RH Law has yet to be implemented.97 They claim that the questions raised by
the petitions are not yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is
premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.99 The rule is that courts do not sit to adjudicate mere academic questions to satisfy
scholarly interest, however intellectually challenging. The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a theoretical question or
issue. There ought to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 101 A
question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that
something has then been accomplished or performed by either branch before a court may come into
the picture, and the petitioner must allege the existence of an immediate or threatened injury to
himself as a result of the challenged action. He must show that he has sustained or is immediately in
danger of sustaining some direct injury as a result of the act complained of 102

In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the
constitutionality of an unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD)
was put in question, it was argued that the Court has no authority to pass upon the issues raised as
there was yet no concrete act performed that could possibly violate the petitioners' and the
intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being
not yet effective does not negate ripeness. Concrete acts under a law are not necessary to render the
controversy ripe. Even a singular violation of the Constitution and/or the law is enough to awaken
judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe
for judicial determination. Considering that the RH Law and its implementing rules have already taken
effect and that budgetary measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when an action of the
legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right,
but also a duty of the Judiciary to settle the dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical
providers are in danger of being criminally prosecuted under the RH Law for vague violations thereof,
particularly public health officers who are threatened to be dismissed from the service with forfeiture of
retirement and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending
that the RH Law cannot be challenged "on its face" as it is not a speech regulating measure. 105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge,
is one that is launched to assail the validity of statutes concerning not only protected speech, but also
all other rights in the First Amendment.106 These include religious freedom, freedom of the press, and
the right of the people to peaceably assemble, and to petition the Government for a redress of
grievances.107 After all, the fundamental right to religious freedom, freedom of the press and peaceful
assembly are but component rights of the right to one's freedom of expression, as they are modes
which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained,
albeit with some modifications. While this Court has withheld the application of facial challenges to
strictly penal statues,108 it has expanded its scope to cover statutes not only regulating free speech, but
also those involving religious freedom, and other fundamental rights. 109 The underlying reason for this
modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction,
is mandated by the Fundamental Law not only to settle actual controversies involving rights which are
legally demandable and enforceable, but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a proactive
Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional
human rights to life, speech and religion and other fundamental rights mentioned above have been
violated by the assailed legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this
Court as a reactive branch of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It
contends that the "as applied challenge" lodged by the petitioners cannot prosper as the assailed law
has yet to be enforced and applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers in establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the challenged governmental act. 113 It
requires a personal stake in the outcome of the controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the
constitutionality of a statute only if he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute grounded on a violation of the rights of third persons not
before the court. This rule is also known as the prohibition against third-party standing. 115

Transcendental Importance

Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure,
hence, can be relaxed for non-traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest." 116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount
importance where serious constitutional questions are involved, the standing requirement may be
relaxed and a suit may be allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases, 118 ordinary citizens and taxpayers were
allowed to question the constitutionality of several executive orders although they had only an indirect
and general interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied
challenge, still, the Court has time and again acted liberally on the locus s tandi requirement. It has
accorded certain individuals standing to sue, not otherwise directly injured or with material interest
affected by a Government act, provided a constitutional issue of transcendental importance is invoked.
The rule on locus standi is, after all, a procedural technicality which the Court has, on more than one
occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in the public interest, albeit they may not have been directly
injured by the operation of a law or any other government act. As held in Jaworski v. PAGCOR: 119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being of this nation, specially
the youth; hence, their proper and just determination is an imperative need. This is in accordance with
the well-entrenched principle that rules of procedure are not inflexible tools designed to hinder or
delay, but to facilitate and promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial justice, must
always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the
bench and bar, the issues raised must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and health, the freedom of religion
and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum of
society, the Court entertains no doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly, considering that it is the right to life of the
mother and the unborn which is primarily at issue, the Court need not wait for a life to be taken away
before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the
Constitution are being imperilled to be violated. To do so, when the life of either the mother or her child
is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief
over which the Court has no original jurisdiction.120 Suffice it to state that most of the petitions are
praying for injunctive reliefs and so the Court would just consider them as petitions for prohibition
under Rule 65, over which it has original jurisdiction. Where the case has far-reaching implications and
prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule 65. 121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ),
Article VI of the Constitution,122 prescribing the one subject-one title rule. According to them, being one
for reproductive health with responsible parenthood, the assailed legislation violates the constitutional
standards of due process by concealing its true intent - to act as a population control measure. 123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control
measure,124and that the concepts of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a
population control measure. The corpus of the RH Law is geared towards the reduction of the country's
population. While it claims to save lives and keep our women and children healthy, it also promotes
pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to provide Filipinos,
especially the poor and the marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or modem, however, are
clearly geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in
the country.

It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A
large portion of the law, however, covers the dissemination of information and provisions on access to
medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive health care
services, methods, devices, and supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades
the entire RH Law. It is, in fact, the central idea of the RH Law. 126 Indeed, remove the provisions that
refer to contraception or are related to it and the RH Law loses its very foundation. 127 As earlier
explained, "the other positive provisions such as skilled birth attendance, maternal care including pre-
and post-natal services, prevention and management of reproductive tract infections including
HIV/AIDS are already provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr.
v. The Commission on Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title
of the enactment language of such precision as to mirror, fully index or catalogue all the contents and
the minute details therein. The rule is sufficiently complied with if the title is comprehensive enough as
to include the general object which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of the proposed law and its operation.
Moreover, this Court has invariably adopted a liberal rather than technical construction of the rule "so
as not to cripple or impede legislation." [Emphases supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive
health" and "responsible parenthood" are interrelated and germane to the overriding objective to
control the population growth. As expressed in the first paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right to education and
information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain
that the average person reading it would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any expression or indication of the
real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which
bears to the attainment of the goal of achieving "sustainable human development" as stated under its
terms, the Court finds no reason to believe that Congress intentionally sought to deceive the public as
to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life


Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child
under Section 12, Article II of the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion. 130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law
considers contraceptives that prevent the fertilized ovum to reach and be implanted in the mother's
womb as an abortifacient; thus, sanctioning contraceptives that take effect after fertilization and prior
to implantation, contrary to the intent of the Framers of the Constitution to afford protection to the
fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal
contraceptives, intrauterine devices, injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that contraceptives use results in
abortion as they operate to kill the fertilized ovum which already has life. 131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the
State sanction of contraceptive use contravenes natural law and is an affront to the dignity of man. 132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration
(FDA) to certify that the product or supply is not to be used as an abortifacient, the assailed legislation
effectively confirms that abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products and supplies to prospective
patients, there is no way it can truthfully make a certification that it shall not be used for abortifacient
purposes.133

Position of the Respondents


For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution
was simply the prohibition of abortion. They contend that the RH Law does not violate the Constitution
since the said law emphasizes that only "non-abortifacient" reproductive health care services, methods,
devices products and supplies shall be made accessible to the public. 134

According to the OSG, Congress has made a legislative determination that contraceptives are not
abortifacients by enacting the RH Law. As the RH Law was enacted with due consideration to various
studies and consultations with the World Health Organization (WHO) and other experts in the medical
field, it is asserted that the Court afford deference and respect to such a determination and pass
judgment only when a particular drug or device is later on determined as an abortive. 135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not
violated considering that various studies of the WHO show that life begins from the implantation of the
fertilized ovum. Consequently, he argues that the RH Law is constitutional since the law specifically
provides that only contraceptives that do not prevent the implantation of the fertilized ovum are
allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life. 137

Even if not formally established, the right to life, being grounded on natural law, is inherent and,
therefore, not a creation of, or dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the
Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of
recent vintage. From the enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and Devices "on June 18, 1966, prescribing
rules on contraceptive drugs and devices which prevent fertilization, 138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the country
has long recognized the need to promote population control through the use of contraceptives in order
to achieve long-term economic development. Through the years, however, the use of contraceptives
and other family planning methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive health. 140

This has resulted in the enactment of various measures promoting women's rights and health and the
overall promotion of the family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta of
Women" were legislated. Notwithstanding this paradigm shift, the Philippine national population
program has always been grounded two cornerstone principles: "principle of no-abortion" and the
"principle of non-coercion."141 As will be discussed later, these principles are not merely grounded on
administrative policy, but rather, originates from the constitutional protection expressly provided to
afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a
scientific and medical issue that should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that the individual members of the
Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of Section
12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family
as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the support of the
Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable
because before conception, there is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or when life begins. The problem has
arisen because, amazingly, there are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the view that life begins at implantation.
Hence, the issue of when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of
the female ovum by the male sperm.142 On the other side of the spectrum are those who assert that
conception refers to the "implantation" of the fertilized ovum in the uterus. 143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their
plain and ordinary meaning. As held in the recent case of Chavez v. Judicial Bar Council: 144

One of the primary and basic rules in statutory construction is that where the words of a statute are
clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional construction that the language
employed in the Constitution must be given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution should be understood in the sense they
have in common use. What it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on the postulate that the framers and
the people mean what they say. Verba legis non est recedendum - from the words of a statute there
should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in
which constitutional provisions are couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but essentially that of the people, in
whose consciousness it should ever be present as an important condition for the rule of law to prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as
described and defined by all reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of
a viable zygote; the fertilization that results in a new entity capable of developing into a being like its
parents.145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female
ovum by the male spermatozoon resulting in human life capable of survival and maturation under
normal conditions.146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel
Manufacturing Corporation v. Hon. Accredited Voluntary Arbitrator Allan S. Montano, 147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before he/she
could die. Even a child inside the womb already has life. No less than the Constitution recognizes the
life of the unborn from conception, that the State must protect equally with the life of the mother. If the
unborn already has life, then the cessation thereof even prior to the child being delivered, qualifies as
death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the
State "has respect for human life at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149

Intent of the Framers


Records of the Constitutional Convention also shed light on the intention of the Framers regarding the
term "conception" used in Section 12, Article II of the Constitution. From their deliberations, it clearly
refers to the moment of "fertilization." The records reflect the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm
that there is human life. x x x.150

xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was
explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be
answered is: Is the fertilized ovum alive? Biologically categorically says yes, the fertilized ovum is alive.
First of all, like all living organisms, it takes in nutrients which it processes by itself. It begins doing this
upon fertilization. Secondly, as it takes in these nutrients, it grows from within. Thirdly, it multiplies
itself at a geometric rate in the continuous process of cell division. All these processes are vital signs of
life. Therefore, there is no question that biologically the fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of
conception, the nuclei of the ovum and the sperm rupture. As this happens 23 chromosomes from the
ovum combine with 23 chromosomes of the sperm to form a total of 46 chromosomes. A chromosome
count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized ovum is human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is
both alive and human, then, as night follows day, it must be human life. Its nature is human. 151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of
fertilization" was not because of doubt when human life begins, but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with
the scientific phrase "fertilized ovum" may be beyond the comprehension of some people; we want to
use the simpler phrase "from the moment of conception." 152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was
discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution,
without specifying "from the moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own
admission, he would leave it to Congress to define when life begins. So, Congress can define life to
begin from six months after fertilization; and that would really be very, very, dangerous. It is now
determined by science that life begins from the moment of conception. There can be no doubt about it.
So we should not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the
questions I was going to raise during the period of interpellations but it has been expressed already.
The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn from the moment of
conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain
contraceptives that we know today are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus. If fertilization has already occurred,
the next process is for the fertilized ovum to travel towards the uterus and to take root. What happens
with some contraceptives is that they stop the opportunity for the fertilized ovum to reach the uterus.
Therefore, if we take the provision as it is proposed, these so called contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and,
therefore, would be unconstitutional and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these
certain contraceptives are abortifacient. Scientifically and based on the provision as it is now proposed,
they are already considered abortifacient.154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized
that the State shall provide equal protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to prohibit Congress from
enacting measures that would allow it determine when life begins.

Equally apparent, however, is that the Framers of the Constitution did not intend to ban all
contraceptives for being unconstitutional. In fact, Commissioner Bernardo Villegas, spearheading the
need to have a constitutional provision on the right to life, recognized that the determination of
whether a contraceptive device is an abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an
abortive and thus prohibited. Conversely, contraceptives that actually prevent the union of the male
sperm and the female ovum, and those that similarly take action prior to fertilization should be deemed
non-abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would
like not only to protect the life of the unborn, but also the lives of the millions of people in the world by
fighting for a nuclear-free world. I would just like to be assured of the legal and pragmatic implications
of the term "protection of the life of the unborn from the moment of conception." I raised some of these
implications this afternoon when I interjected in the interpellation of Commissioner Regalado. I would
like to ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception"
we are also actually saying "no," not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn
yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the
intra-uterine device which actually stops the egg which has already been fertilized from taking route to
the uterus. So if we say "from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.


Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by
petitioners during the oral arguments. There it was conceded that tubal ligation, vasectomy, even
condoms are not classified as abortifacients. 157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:

So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here
Section 12, Article II, Your Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor. 158

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing,
and Allied Health Dictionary defines conception as "the beginning of pregnancy usually taken to be the
instant a spermatozoon enters an ovum and forms a viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote from which the
embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological Obstetrics), 161 used by medical schools in the
Philippines, also concludes that human life (human person) begins at the moment of fertilization with
the union of the egg and the sperm resulting in the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after
the union of male and female gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with the contact of a sperm
(spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid
nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized
ovum, known as a zygote, is a large diploid cell that is the beginning, or primordium, of a human
being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life
is a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a
new, genetically distinct human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus the diploid number is
restored and the embryonic genome is formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive
Health Bill (Responsible Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong
position that fertilization is sacred because it is at this stage that conception, and thus human life,
begins. Human lives are sacred from the moment of conception, and that destroying those new lives is
never licit, no matter what the purported good outcome would be. In terms of biology and human
embryology, a human being begins immediately at fertilization and after that, there is no point along
the continuous line of human embryogenesis where only a "potential" human being can be posited. Any
philosophical, legal, or political conclusion cannot escape this objective scientific fact.

The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a
new human being commences at a scientifically well defined "moment of conception." This conclusion
is objective, consistent with the factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos. 164

Conclusion: The Moment of Conception is Reckoned from


Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more
importantly, following the intention of the Framers of the Constitution, the undeniable conclusion is that
a zygote is a human organism and that the life of a new human being commences at a scientifically
well-defined moment of conception, that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life
begins at implantation.165 According to him, "fertilization and conception are two distinct and successive
stages in the reproductive process. They are not identical and synonymous." 166 Citing a letter of the
WHO, he wrote that "medical authorities confirm that the implantation of the fertilized ovum is the
commencement of conception and it is only after implantation that pregnancy can be medically
detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does
not pertain to the beginning of life but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and 46 chromosomes. 168 Implantation
has been conceptualized only for convenience by those who had population control in mind. To adopt it
would constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device
that would prevent the implantation of the fetus at the uterine wall. It would be provocative and further
aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the
unborn from conception was to prevent the Legislature from enacting a measure legalizing abortion. It
was so clear that even the Court cannot interpret it otherwise. This intent of the Framers was captured
in the record of the proceedings of the 1986 Constitutional Commission. Commissioner Bernardo
Villegas, the principal proponent of the protection of the unborn from conception, explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or
any pro-abortion decision passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion.
While the Court has opted not to make any determination, at this stage, when life begins, it finds that
the RH Law itself clearly mandates that protection be afforded from the moment of fertilization. As
pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe travel to the uterus for implantation. 170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code,
which penalizes the destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as
follows:

xxx.

(q) Reproductive health care refers to the access to a full range of methods, facilities, services and
supplies that contribute to reproductive health and well-being by addressing reproductive health-
related problems. It also includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;

xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and
responsibly whether or not to have children; the number, spacing and timing of their children; to make
other decisions concerning reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual health and reproductive
health: Provided, however, That reproductive health rights do not include abortion, and access to
abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or
issuance, executive order, letter of instruction, administrative order, rule or regulation contrary to or is
inconsistent with the provisions of this Act including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear,
Section 4(a) of the RH Law defines an abortifacient as:
Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of
fertilization. By using the word " or," the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon
determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the
Constitution, recognizes that the fertilized ovum already has life and that the State has a bounden duty
to protect it. The conclusion becomes clear because the RH Law, first, prohibits any drug or device that
induces abortion (first kind), which, as discussed exhaustively above, refers to that which induces the
killing or the destruction of the fertilized ovum, and, second, prohibits any drug or device the fertilized
ovum to reach and be implanted in the mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be
implanted in the mother's womb is an abortifacient (third kind), the RH Law does not intend to mean at
all that life only begins only at implantation, as Hon. Lagman suggests. It also does not declare either
that protection will only be given upon implantation, as the petitioners likewise suggest. Rather, it
recognizes that: one, there is a need to protect the fertilized ovum which already has life, and two, the
fertilized ovum must be protected the moment it becomes existent - all the way until it reaches and
implants in the mother's womb. After all, if life is only recognized and afforded protection from the
moment the fertilized ovum implants - there is nothing to prevent any drug or device from killing or
destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH
Law does not sanction abortion. To repeat, it is the Court's position that life begins at fertilization, not at
implantation. When a fertilized ovum is implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It started earlier. And as defined by the RH
Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized ovum or
prevents the fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or
supply included or to be included in the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be used as an abortifacient" as empty as
it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device will not all be used
as an abortifacient, since the agency cannot be present in every instance when the contraceptive
product or supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient
contraceptives, however, the Court finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or to be included in the EDL must have
a certification from the FDA that said product and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is consistent with the proviso under the second
paragraph of the same section that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency
contraceptive pills, postcoital pills, abortifacients that will be used for such purpose and their other
forms or equivalent.

Abortifacients under the RH-IRR


At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office
when they redefined the meaning of abortifacient. The RH Law defines "abortifacient" as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the mother's
womb upon determination of the FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus
inside the mother's womb or the prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the Food and Drug Administration (FDA). [Emphasis supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning
method, device, or health product, whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the Food and Drug Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient"
only those that primarily induce abortion or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb. 172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed
out, with the insertion of the word "primarily," Section 3.0l(a) and G) of the RH-IRR 173 must be struck
down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed
ultra vires. It contravenes Section 4(a) of the RH Law and should, therefore, be declared invalid. There
is danger that the insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an "abortifacient" if its sole known effect is
abortion or, as pertinent here, the prevention of the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives
which are actually abortifacients because of their fail-safe mechanism. 174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives
cannot act as abortive. With this, together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable conclusion is that contraceptives to
be included in the PNDFS and the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb, but also those that
do not have the secondary action of acting the same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that
laws should be construed in a manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the validity of
Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary effect
of being an abortive would effectively "open the floodgates to the approval of contraceptives which
may harm or destroy the life of the unborn from conception/fertilization in violation of Article II, Section
12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional
protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of
hormonal contraceptives, intrauterine devices, injectables and family products and supplies in the
National Drug Formulary and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the matter, the petitioners posit that
the risk of developing breast and cervical cancer is greatly increased in women who use oral
contraceptives as compared to women who never use them. They point out that the risk is decreased
when the use of contraceptives is discontinued. Further, it is contended that the use of combined oral
contraceptive pills is associated with a threefold increased risk of venous thromboembolism, a twofold
increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under Sections 4(p) 178 and
(w)179 of the RH Law, the petitioners assert that the assailed legislation only seeks to ensure that
women have pleasurable and satisfying sex lives.180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being
a mere statement of the administration's principle and policy. Even if it were self-executory, the OSG
posits that medical authorities refute the claim that contraceptive pose a danger to the health of
women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is
replete with provisions protecting and promoting the right to health. Section 15, Article II of the
Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health
consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the
people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and
undertake appropriate health, manpower development, and research, responsive to the country's
health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-
development, and self-reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or
hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions
clearly express the contrary, the provisions of the Constitution should be considered self-executory.
There is no need for legislation to implement these self-executing provisions. 182 In Manila Prince Hotel v.
GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional
mandate, the presumption now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead of self-executing, the legislature
would have the power to ignore and practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always been, that

... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing.
. . . Unless the contrary is clearly intended, the provisions of the Constitution should be considered self-
executing, as a contrary rule would give the legislature discretion to determine when, or whether, they
shall be effective. These provisions would be subordinated to the will of the lawmaking body, which
could make them entirely meaningless by simply refusing to pass the needed implementing statute.
(Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question
contraception and contraceptives per se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921
and R.A. No. 4729, the sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be maintained. 185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of
R.A. No. 4729. There is no intention at all to do away with it. It is still a good law and its requirements
are still in to be complied with. Thus, the Court agrees with the observation of respondent Lagman that
the effectivity of the RH Law will not lead to the unmitigated proliferation of contraceptives since the
sale, distribution and dispensation of contraceptive drugs and devices will still require the prescription
of a licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to ensure the
public that only contraceptives that are safe are made available to the public. As aptly explained by
respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and
used without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of
Contraceptive Drugs and Devices" and Republic Act No. 5921 or "An Act Regulating the Practice of
Pharmacy and Setting Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with the
RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are
particularly governed by RA No. 4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise
distribute whether for or without consideration, any contraceptive drug or device, unless such sale,
dispensation or distribution is by a duly licensed drug store or pharmaceutical company and with the
prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively
for the purpose of preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the
female reproductive system for the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished
with a fine of not more than five hundred pesos or an imprisonment of not less than six months or more
than one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or
drug of whatever nature and kind or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the
pretension of the petitioners that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted and baseless. 186 [Emphases in the
Original. Underlining supplied.]

In Re: Section 10 of the RH Law:

The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute
to LGUs and monitor the usage of family planning supplies for the whole country. The DOH shall
coordinate with all appropriate local government bodies to plan and implement this procurement and
distribution program. The supply and budget allotments shall be based on, among others, the current
levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program
consistent with the overall provisions of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions
of R.A. No. 4729, which is still in effect, and ensure that the contraceptives that it will procure shall be
from a duly licensed drug store or pharmaceutical company and that the actual dispensation of these
contraceptive drugs and devices will done following a prescription of a qualified medical practitioner.
The distribution of contraceptive drugs and devices must not be indiscriminately done. The public
health must be protected by all possible means. As pointed out by Justice De Castro, a heavy
responsibility and burden are assumed by the government in supplying contraceptive drugs and
devices, for it may be held accountable for any injury, illness or loss of life resulting from or incidental
to their use.187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA
pursuant to the RH Law. It behooves the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure that food and medicines available to
the public are safe for public consumption. Consequently, the Court finds that, at this point, the attack
on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must first be
measured up to the constitutional yardstick as expounded herein, to be determined as the case
presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal
contraceptives and intra-uterine devices are safe and non-abortifacient. The first sentence of Section 9
that ordains their inclusion by the National Drug Formulary in the EDL by using the mandatory "shall" is
to be construed as operative only after they have been tested, evaluated, and approved by the FDA.
The FDA, not Congress, has the expertise to determine whether a particular hormonal contraceptive or
intrauterine device is safe and non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family planning supply from the EDL supports
this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-
uterine devices, injectables, and other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is not mandatory. There must first be
a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of
contraceptives are "safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the
constitutional proscription, there are those who, because of their religious education and background,
sincerely believe that contraceptives, whether abortifacient or not, are evil. Some of these are medical
practitioners who essentially claim that their beliefs prohibit not only the use of contraceptives but also
the willing participation and cooperation in all things dealing with contraceptive use. Petitioner PAX
explained that "contraception is gravely opposed to marital chastity, it is contrary to the good of the
transmission of life, and to the reciprocal self-giving of the spouses; it harms true love and denies the
sovereign rule of God in the transmission of Human life."188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the
expenditure of their taxes on contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189

2. On Religious Accommodation and


The Duty to Refer

Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by
making provisions for a conscientious objector, the constitutional guarantee is nonetheless violated
because the law also imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be able to provide for the
patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate
with the very thing he refuses to do without violating his/her religious beliefs. 190

They further argue that even if the conscientious objector's duty to refer is recognized, the recognition
is unduly limited, because although it allows a conscientious objector in Section 23 (a)(3) the option to
refer a patient seeking reproductive health services and information - no escape is afforded the
conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive health
procedures. They claim that the right of other individuals to conscientiously object, such as: a) those
working in public health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in public schools referred to in
Section 14 of the RH Law, are also not recognize.191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to
refer the matter to another health care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling them to do the act against their will
violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular that
they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required. 192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking
reproductive health care services to another provider infringes on one's freedom of religion as it forces
the objector to become an unwilling participant in the commission of a serious sin under Catholic
teachings. While the right to act on one's belief may be regulated by the State, the acts prohibited by
the RH Law are passive acts which produce neither harm nor injury to the public. 193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of
religious freedom because it mentions no emergency, risk or threat that endangers state interests. It
does not explain how the rights of the people (to equality, non-discrimination of rights, sustainable
human development, health, education, information, choice and to make decisions according to
religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of religious freedom. 194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend
family planning and responsible parenthood seminars and to obtain a certificate of compliance. They
claim that the provision forces individuals to participate in the implementation of the RH Law even if it
contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of fine and/or
imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and information to contraception against their
beliefs must be struck down as it runs afoul to the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or
type of contraceptives be used, be it natural or artificial. It neither imposes nor sanctions any religion or
belief.196 They point out that the RH Law only seeks to serve the public interest by providing accessible,
effective and quality reproductive health services to ensure maternal and child health, in line with the
State's duty to bring to reality the social justice health guarantees of the Constitution, 197 and that what
the law only prohibits are those acts or practices, which deprive others of their right to reproductive
health.198 They assert that the assailed law only seeks to guarantee informed choice, which is an
assurance that no one will be compelled to violate his religion against his free will. 199

The respondents add that by asserting that only natural family planning should be allowed, the
petitioners are effectively going against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In other words, by seeking the declaration
that the RH Law is unconstitutional, the petitioners are asking that the Court recognize only the
Catholic Church's sanctioned natural family planning methods and impose this on the entire citizenry. 201

With respect to the duty to refer, the respondents insist that the same does not violate the
constitutional guarantee of religious freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to keep silent but is required to refer
-and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession given
by the State under Section 7 and 23(a)(3) is sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the rights of others. 202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is
limited in duration, location and impact. 203

Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a
reasonable regulation providing an opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the required seminars are not
compelled to accept information given to them. They are completely free to reject any information they
do not agree with and retain the freedom to decide on matters of family life without intervention of the
State.204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only
method acceptable to Catholics and the Catholic hierarchy. Citing various studies and surveys on the
matter, they highlight the changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its followers in planning their
families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of
diverse ethnic, cultural and religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups and is tolerant towards all
- the religious people of different sects and the non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him to be, and to whom they call for guidance
and enlightenment in crafting our fundamental law. Thus, the preamble of the present Constitution
reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and
humane society, and establish a Government that shall embody our ideals and aspirations, promote the
common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom,
love, equality, and peace, do ordain and promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our
nature and consciousness as a people, shaped by tradition and historical experience. As this is
embodied in the preamble, it means that the State recognizes with respect the influence of religion in
so far as it instills into the mind the purest principles of morality. 205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and
accommodating provisions towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into
the affairs of the church, and vice-versa. The principle of separation of Church and State was, thus,
enshrined in Article II, Section 6 of the 1987 Constitution, viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect.1wphi1 Generally,
the State cannot meddle in the internal affairs of the church, much less question its faith and dogmas
or dictate upon it. It cannot favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It cannot
demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country.

Consistent with the principle that not any one religion should ever be preferred over another, the
Constitution in the above-cited provision utilizes the term "church" in its generic sense, which refers to
a temple, a mosque, an iglesia, or any other house of God which metaphorically symbolizes a religious
organization. Thus, the "Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect the
State from the pursuit of its secular objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise
thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for
the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution,
or government orphanage or leprosarium.

In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment
Clause and the Free Exercise Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any
religion as against other religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state religion and the use of public resources
for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human
conscience.207 Under this part of religious freedom guarantee, the State is prohibited from unduly
interfering with the outside manifestations of one's belief and faith. 208 Explaining the concept of
religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union 209 wrote:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the
modes of worship of any sect, thus forestalling compulsion by law of the acceptance of any creed or the
practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures the
free exercise of one's chosen form of religion within limits of utmost amplitude. It has been said that the
religion clauses of the Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to profess his beliefs, and to live as
he believes he ought to live, consistent with the liberty of others and with the common good. Any
legislation whose effect or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the burden may be characterized
as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state
regulates conduct by enacting, within its power, a general law which has for its purpose and effect to
advance the state's secular goals, the statute is valid despite its indirect burden on religious
observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes. They
have a single goal-to promote freedom of individual religious beliefs and practices. In simplest terms,
the free exercise clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits government from inhibiting
religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses
were intended to deny government the power to use either the carrot or the stick to influence individual
religious beliefs and practices.210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of
religious freedom is comprised of two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v. Secretary of Education: 211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought.
So is the freedom of belief, including religious belief, limitless and without bounds. One may believe in
most anything, however strange, bizarre and unreasonable the same may appear to others, even
heretical when weighed in the scales of orthodoxy or doctrinal standards. But between the freedom of
belief and the exercise of said belief, there is quite a stretch of road to travel. 212

The second part however, is limited and subject to the awesome power of the State and can be enjoyed
only with proper regard to the rights of others. It is "subject to regulation where the belief is translated
into external acts that affect the public welfare."213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the
doctrine of benevolent neutrality. This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine Constitution." 215 In the same
case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions,
accommodation of religion may be allowed, not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its 'burdensome
effect,' whether by the legislature or the courts."217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is
proper.218Underlying the compelling state interest test is the notion that free exercise is a fundamental
right and that laws burdening it should be subject to strict scrutiny. 219 In Escritor, it was written:

Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case
on the Free Exercise Clause, American Bible Society, the Court mentioned the "clear and present
danger" test but did not employ it. Nevertheless, this test continued to be cited in subsequent cases on
religious liberty. The Gerona case then pronounced that the test of permissibility of religious freedom is
whether it violates the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general applicability may
burden religious exercise provided the law is the least restrictive means to accomplish the goal of the
law. The case also used, albeit inappropriately, the "compelling state interest" test. After Victoriano ,
German went back to the Gerona rule. Ebralinag then employed the "grave and immediate danger" test
and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and
present danger" test in the maiden case of A merican Bible Society. Not surprisingly, all the cases which
employed the "clear and present danger" or "grave and immediate danger" test involved, in one form
or another, religious speech as this test is often used in cases on freedom of expression. On the other
hand, the Gerona and German cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the "grave and immediate danger" test . Victoriano was the
only case that employed the "compelling state interest" test, but as explained previously, the use of the
test was inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo
where the "clear and present danger" and "grave and immediate danger" tests were appropriate as
speech has easily discernible or immediate effects. The Gerona and German doctrine, aside from
having been overruled, is not congruent with the benevolent neutrality approach, thus not appropriate
in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious
belief. The "compelling state interest" test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the state's interests: some effects may be immediate and short-
term while others delayed and far-reaching. A test that would protect the interests of the state in
preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the Free Exercise
Clause is an appeal to a higher sovereignty. The entire constitutional order of limited government is
premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of
Almighty God in order to build a just and humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount interests can limit this fundamental right. A
mere balancing of interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's interest and religious liberty,
reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests of the state.
This was the test used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the "compelling state interest" test, by upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be preserved. [Emphases in the original.
Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of
contraceptives or one's participation in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong according to one's dogma or belief.
For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which are
outside the province of the civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at bench should be understood
only in this realm where it has authority. Stated otherwise, while the Court stands without authority to
rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and
convictions. It is replete with assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their right to equality
and nondiscrimination of these rights, the right to sustainable human development, the right to health
which includes reproductive health, the right to education and information, and the right to choose and
make decisions for themselves in accordance with their religious convictions, ethics, cultural beliefs,
and the demands of responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the foundation of the family
which in turn is the foundation of the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the
demands of responsible parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family
planning, including effective natural and modern methods which have been proven medically safe,
legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for the poor and marginalized as
identified through the NHTS-PR and other government measures of identifying marginalization:
Provided, That the State shall also provide funding support to promote modern natural methods of
family planning, especially the Billings Ovulation Method, consistent with the needs of acceptors and
their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of
children they desire with due consideration to the health, particularly of women, and the resources
available and affordable to them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that are in
accordance with their religious convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations,


civil society, faith-based organizations, the religious sector and communities is crucial to ensure that
reproductive health and population and development policies, plans, and programs will address the
priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and
aspirations of the family and children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing and timing of their children according
to their own family life aspirations, taking into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)]
(Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To
some medical practitioners, however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion, it
also limits what religious sects can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for everyone, nor can they not cause the
government to restrict other groups. To do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its
population control program through the RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded to pursue its legitimate secular
objectives without being dictated upon by the policies of any one religion. One cannot refuse to pay his
taxes simply because it will cloud his conscience. The demarcation line between Church and State
demands that one render unto Caesar the things that are Caesar's and unto God the things that are
God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse
religious beliefs in line with the Non-Establishment Clause, the same conclusion cannot be reached with
respect to Sections 7, 23 and 24 thereof. The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health care and services under the law to
another accessible healthcare provider despite their conscientious objections based on religious or
ethical beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or
practice, the compelling state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the conscientious objector's claim to
religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of an
important secular objective. Necessarily so, the plea of conscientious objectors for exemption from the
RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has
been burdened. As in Escritor, there is no doubt that an intense tug-of-war plagues a conscientious
objector. One side coaxes him into obedience to the law and the abandonment of his religious beliefs,
while the other entices him to a clean conscience yet under the pain of penalty. The scenario is an
illustration of the predicament of medical practitioners whose religious beliefs are incongruent with
what the RH Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief
and conviction of a conscientious objector. Once the medical practitioner, against his will, refers a
patient seeking information on modem reproductive health products, services, procedures and
methods, his conscience is immediately burdened as he has been compelled to perform an act against
his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the basis of the
free exercise clause is the respect for the inviolability of the human conscience. 222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise
because it makes pro-life health providers complicit in the performance of an act that they find morally
repugnant or offensive. They cannot, in conscience, do indirectly what they cannot do directly. One may
not be the principal, but he is equally guilty if he abets the offensive act by indirect participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it
being an externalization of one's thought and conscience. This in turn includes the right to be silent.
With the constitutional guarantee of religious freedom follows the protection that should be afforded to
individuals in communicating their beliefs to others as well as the protection for simply being silent. The
Bill of Rights guarantees the liberty of the individual to utter what is in his mind and the liberty not to
utter what is not in his mind.223 While the RH Law seeks to provide freedom of choice through informed
consent, freedom of choice guarantees the liberty of the religious conscience and prohibits any degree
of compulsion or burden, whether direct or indirect, in the practice of one's religion. 224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and
the interest of the State, on the other, to provide access and information on reproductive health
products, services, procedures and methods to enable the people to determine the timing, number and
spacing of the birth of their children, the Court is of the strong view that the religious freedom of health
providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector
should be exempt from compliance with the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of
Doogan and Wood v. NHS Greater Glasgow and Clyde Health Board, 225 that the midwives claiming to be
conscientious objectors under the provisions of Scotland's Abortion Act of 1967, could not be required
to delegate, supervise or support staff on their labor ward who were involved in abortions. 226 The Inner
House stated "that if 'participation' were defined according to whether the person was taking part
'directly' or ' indirectly' this would actually mean more complexity and uncertainty." 227

While the said case did not cover the act of referral, the applicable principle was the same - they could
not be forced to assist abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and
operated by a religious group and health care service providers. Considering that Section 24 of the RH
Law penalizes such institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative of the
freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24,
considering that in the dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of health care service providers
should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary 228 it
was stressed:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this
Court has consistently affirmed this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of others and
with the common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance.
Without set consequences for either an active violation or mere inaction, a law tends to be toothless
and ineffectual. Nonetheless, when what is bartered for an effective implementation of a law is a
constitutionally-protected right the Court firmly chooses to stamp its disapproval. The punishment of a
healthcare service provider, who fails and/or refuses to refer a patient to another, or who declines to
perform reproductive health procedure on a patient because incompatible religious beliefs, is a clear
inhibition of a constitutional guarantee which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of
hospital, head nurses, supervising midwives, among others, who by virtue of their office are specifically
charged with the duty to implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.

This is discriminatory and violative of the equal protection clause. The conscientious objection clause
should be equally protective of the religious belief of public health officers. There is no perceptible
distinction why they should not be considered exempt from the mandates of the law. The protection
accorded to other conscientious objectors should equally apply to all medical practitioners without
distinction whether they belong to the public or private sector. After all, the freedom to believe is
intrinsic in every individual and the protective robe that guarantees its free exercise is not taken off
even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human
values. The mind must be free to think what it wills, whether in the secular or religious sphere, to give
expression to its beliefs by oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in such concept then are
freedom of religion, freedom of speech, of the press, assembly and petition, and freedom of
association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law itself
but also because it is violative of the equal protection clause in the Constitution. Quoting respondent
Lagman, if there is any conflict between the RH-IRR and the RH Law, the law must prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH
Law is replete with provisions in upholding the freedom of religion and respecting religious convictions.
Earlier, you affirmed this with qualifications. Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the
nuances of the provisions.
Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says:
" .... skilled health professionals such as provincial, city or municipal health officers, chief of hospitals,
head nurses, supervising midwives, among others, who by virtue of their office are specifically charged
with the duty to implement the provisions of the RPRH Act and these Rules, cannot be considered as
conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious
objectors, skilled health professionals cannot be considered conscientious objectors. Do you agree with
this? Is this not against the constitutional right to the religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail. 230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the
subject provisions, were able to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2] discharge the burden of proof that
the obligatory character of the law is the least intrusive means to achieve the objectives of the law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was
curiously silent in the establishment of a more compelling state interest that would rationalize the
curbing of a conscientious objector's right not to adhere to an action contrary to his religious
convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:

Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in
imposing this duty to refer to a conscientious objector which refuses to do so because of his religious
belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an
ordinary health legislation involving professionals. This is not a free speech matter or a pure free
exercise matter. This is a regulation by the State of the relationship between medical doctors and their
patients.231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of
the conscientious objectors, however few in number. Only the prevention of an immediate and grave
danger to the security and welfare of the community can justify the infringement of religious freedom.
If the government fails to show the seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act or
not to act according to what one believes. And this freedom is violated when one is compelled to act
against one's belief or is prevented from acting according to one's belief. 233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the
perceived scenario of the subject provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is contingent on whether or not the
mother decides to adopt or use the information, product, method or supply given to her or whether she
even decides to become pregnant at all. On the other hand, the burden placed upon those who object
to contraceptive use is immediate and occurs the moment a patient seeks consultation on reproductive
health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious
objector's religious freedom, the respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a person's fundamental right to
religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means. 234 Other
than the assertion that the act of referring would only be momentary, considering that the act of
referral by a conscientious objector is the very action being contested as violative of religious freedom,
it behooves the respondents to demonstrate that no other means can be undertaken by the State to
achieve its objective without violating the rights of the conscientious objector. The health concerns of
women may still be addressed by other practitioners who may perform reproductive health-related
procedures with open willingness and motivation. Suffice it to say, a person who is forced to perform an
act in utter reluctance deserves the protection of the Court as the last vanguard of constitutional
freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to
health is protected. Considering other legislations as they stand now, R.A . No. 4 729 or the
Contraceptive Act, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710, otherwise
known as "The Magna Carta of Women," amply cater to the needs of women in relation to health
services and programs. The pertinent provision of Magna Carta on comprehensive health services and
programs for women, in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all
times, provide for a comprehensive, culture-sensitive, and gender-responsive health services and
programs covering all stages of a woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive health services, due respect
shall be accorded to women's religious convictions, the rights of the spouses to found a family in
accordance with their religious convictions, and the demands of responsible parenthood, and the right
of women to protection from hazardous drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and infant
health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services
without prejudice to the primary right and duty of parents to educate their children;
(5) Prevention and management of reproductive tract infections, including sexually
transmitted diseases, HIV, and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical
cancers, and other gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims and
survivors shall be provided with comprehensive health services that include psychosocial,
therapeutic, medical, and legal interventions and assistance towards healing, recovery,
and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical
norms and medical standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women and
girls. In addition, healthy lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors
with appropriate, timely, complete, and accurate information and education on all the above-stated
aspects of women's health in government education and training programs, with due regard to the
following:

(1) The natural and primary right and duty of parents in the rearing of the youth and the
development of moral character and the right of children to be brought up in an
atmosphere of morality and rectitude for the enrichment and strengthening of character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility
awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest
was "Fifteen maternal deaths per day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by concrete facts and figures from
reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal
mortality rate dropped to 48 percent from 1990 to 2008, 236 although there was still no RH Law at that
time. Despite such revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for
Filipino women, they could not be solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases

All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While
generally healthcare service providers cannot be forced to render reproductive health care procedures
if doing it would contravene their religious beliefs, an exception must be made in life-threatening cases
that require the performance of emergency procedures. In these situations, the right to life of the
mother should be given preference, considering that a referral by a medical practitioner would amount
to a denial of service, resulting to unnecessarily placing the life of a mother in grave danger. Thus,
during the oral arguments, Atty. Liban, representing CFC, manifested: "the forced referral clause that
we are objecting on grounds of violation of freedom of religion does not contemplate an emergency." 237
In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged
always to try to save both lives. If, however, it is impossible, the resulting death to one should not be
deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of
Representatives of the principle of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect. In a conflict situation between the
life of the child and the life of the mother, the doctor is morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily the mother) when it is medically impossible to
save both, provided that no direct harm is intended to the other. If the above principles are observed,
the loss of the child's life or the mother's life is not intentional and, therefore, unavoidable. Hence, the
doctor would not be guilty of abortion or murder. The mother is never pitted against the child because
both their lives are equally valuable.238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child
may be resorted to even if is against the religious sentiments of the medical practitioner. As quoted
above, whatever burden imposed upon a medical practitioner in this case would have been more than
justified considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage
license, the Court finds the same to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious freedom of the petitioners is not at all
violated. All the law requires is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even mandate the type of family planning
methods to be included in the seminar, whether they be natural or artificial. As correctly noted by the
OSG, those who receive any information during their attendance in the required seminars are not
compelled to accept the information given to them, are completely free to reject the information they
find unacceptable, and retain the freedom to decide on matters of family life without the intervention of
the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the
Constitution by intruding into marital privacy and autonomy. It argues that it cultivates disunity and
fosters animosity in the family rather than promote its solidarity and total development. 240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social
institution. In fact, one article, Article XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be
protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the demands of
responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all
forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of
policies and programs that affect them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions
which tend to wreck the family as a solid social institution. It bars the husband and/or the father from
participating in the decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal
age on the ground of lack of consent or authorization of the following persons in the following
instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of
the one undergoing the procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy which,
by their very nature, should require mutual consent and decision between the husband and the wife as
they affect issues intimately related to the founding of a family. Section 3, Art. XV of the Constitution
espouses that the State shall defend the "right of the spouses to found a family." One person cannot
found a family. The right, therefore, is shared by both spouses. In the same Section 3, their right "to
participate in the planning and implementation of policies and programs that affect them " is equally
recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute
authority to the spouse who would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the husband and wife, possibly result in
bitter animosity, and endanger the marriage and the family, all for the sake of reducing the population.
This would be a marked departure from the policy of the State to protect marriage as an inviolable
social institution.241

Decision-making involving a reproductive health procedure is a private matter which belongs to the
couple, not just one of them. Any decision they would reach would affect their future as a family
because the size of the family or the number of their children significantly matters. The decision
whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as one
cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right. Unless it
prejudices the State, which has not shown any compelling interest, the State should see to it that they
chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the
"Magna Carta for Women," provides that women shall have equal rights in all matters relating to
marriage and family relations, including the joint decision on the number and spacing of their children.
Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared responsibility
between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional
mandate to protect and strengthen the family by giving to only one spouse the absolute authority to
decide whether to undergo reproductive health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and such
state intervention would encroach into the zones of spousal privacy guaranteed by the Constitution. In
our jurisdiction, the right to privacy was first recognized in Marje v. Mutuc, 243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully deserving of constitutional
protection."244 Marje adopted the ruling of the US Supreme Court in Griswold v. Connecticut, 245 where
Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than
our school system. Marriage is a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an
association for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal
offense on the ground of its amounting to an unconstitutional invasion of the right to privacy of married
persons. Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples. Justice Douglas
in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras, formed by
emanations from those guarantees that help give them life and substance. Various guarantees create
zones of privacy."246

At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be
undergoing a procedure, is already a parent or has had a miscarriage. Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning services, whether natural or
artificial: Provided, That minors will not be allowed access to modern methods of family planning
without written consent from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is already a parent or
has had a miscarriage, the parents are excluded from the decision making process of the minor with
regard to family planning. Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of
her own parents. The State cannot replace her natural mother and father when it comes to providing
her needs and comfort. To say that their consent is no longer relevant is clearly anti-family. It does not
promote unity in the family. It is an affront to the constitutional mandate to protect and strengthen the
family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary
right and duty of parents in the rearing of the youth for civic efficiency and the development of moral
character shall receive the support of the Government."247 In this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the
assertion that the right of parents is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-
child or the right of the spouses to mutually decide on matters which very well affect the very purpose
of marriage, that is, the establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and strongly-held Filipino
tradition of maintaining close family ties and violative of the recognition that the State affords couples
entering into the special contract of marriage to as one unit in forming the foundation of the family and
society.

The State cannot, without a compelling state interest, take over the role of parents in the care and
custody of a minor child, whether or not the latter is already a parent or has had a miscarriage. Only a
compelling state interest can justify a state substitution of their parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph of
Section 7 or with respect to the consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern family planning methods
themselves, on the other. Insofar as access to information is concerned, the Court finds no
constitutional objection to the acquisition of information by the minor referred to under the exception in
the second paragraph of Section 7 that would enable her to take proper care of her own body and that
of her unborn child. After all, Section 12, Article II of the Constitution mandates the State to protect
both the life of the mother as that of the unborn child. Considering that information to enable a person
to make informed decisions is essential in the protection and maintenance of ones' health, access to
such information with respect to reproductive health must be allowed. In this situation, the fear that
parents might be deprived of their parental control is unfounded because they are not prohibited to
exercise parental guidance and control over their minor child and assist her in deciding whether to
accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases that
require the performance of emergency procedures. In such cases, the life of the minor who has already
suffered a miscarriage and that of the spouse should not be put at grave risk simply for lack of consent.
It should be emphasized that no person should be denied the appropriate medical care urgently needed
to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii) 249 should be struck down. By effectively
limiting the requirement of parental consent to "only in elective surgical procedures," it denies the
parents their right of parental authority in cases where what is involved are "non-surgical procedures."
Save for the two exceptions discussed above, and in the case of an abused child as provided in the first
sentence of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional right of
parental authority. To deny them of this right would be an affront to the constitutional mandate to
protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of
Age-and Development-Appropriate Reproductive Health Education under threat of fine and/or
imprisonment violates the principle of academic freedom . According to the petitioners, these
provisions effectively force educational institutions to teach reproductive health education even if they
believe that the same is not suitable to be taught to their students. 250 Citing various studies conducted
in the United States and statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births; divorce and breakdown of
families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the aging of society;
and promotion of promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature
because the Department of Education, Culture and Sports has yet to formulate a curriculum on age-
appropriate reproductive health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and whether they will contradict the
religious beliefs of the petitioners and validate their apprehensions. Thus, considering the premature
nature of this particular issue, the Court declines to rule on its constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right
and duty of parents in the rearing of the youth for civic efficiency and development of moral character
shall receive the support of the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of parents in preparing the youth
to become productive members of society. Notably, it places more importance on the role of parents in
the development of their children by recognizing that said role shall be "primary," that is, that the right
of parents in upbringing the youth is superior to that of the State. 252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral development
of the youth. Indeed, the Constitution makes mention of the importance of developing the youth and
their important role in nation building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the development of
knowledge and skills in self-protection against discrimination; sexual abuse and violence against
women and children and other forms of gender based violence and teen pregnancy; physical, social and
emotional changes in adolescents; women's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR
and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior, gender
sensitivity and physical and emotional changes among adolescents - the Court finds that the legal
mandate provided under the assailed provision supplements, rather than supplants, the rights and
duties of the parents in the moral development of their children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education program
shall be developed in conjunction with parent-teacher-community associations, school officials and
other interest groups, it could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the petitioners' contention that
Section 14 violates Article XV, Section 3(1) of the Constitution is without merit. 254

While the Court notes the possibility that educators might raise their objection to their participation in
the reproductive health education program provided under Section 14 of the RH Law on the ground that
the same violates their religious beliefs, the Court reserves its judgment should an actual case be filed
before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process
clause of the Constitution. According to them, Section 23 (a)(l) mentions a "private health service
provider" among those who may be held punishable but does not define who is a "private health care
service provider." They argue that confusion further results since Section 7 only makes reference to a
"private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by
religious groups from rendering reproductive health service and modern family planning methods. It is
unclear, however, if these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures under Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect
information, but at the same time fails to define "incorrect information."

The arguments fail to persuade.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men
of common intelligence must necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words used in a statute are vague, words must not
only be taken in accordance with their plain meaning alone, but also in relation to other parts of the
statute. It is a rule that every part of the statute must be interpreted with reference to the context, that
is, every part of it must be construed together with the other parts and kept subservient to the general
intent of the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service provider,"
reference must be made to Section 4(n) of the RH Law which defines a "public health service provider,"
viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed
and accredited and devoted primarily to the maintenance and operation of facilities for health
promotion, disease prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care; (2)
public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health
worker engaged in the delivery of health care services; or (4) barangay health worker who has
undergone training programs under any accredited government and NGO and who voluntarily renders
primarily health care services in the community after having been accredited to function as such by the
local health board in accordance with the guidelines promulgated by the Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private
health care service provider," should not be a cause of confusion for the obvious reason that they are
used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to render
reproductive health service and modem family planning methods, includes exemption from being
obligated to give reproductive health information and to render reproductive health procedures. Clearly,
subject to the qualifications and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family planning methods, necessarily
includes exemption from being obligated to give reproductive health information and to render
reproductive health procedures. The terms "service" and "methods" are broad enough to include the
providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service
providers who intentionally withhold, restrict and provide incorrect information regarding reproductive
health programs and services. For ready reference, the assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide
incorrect information regarding programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with
established rules; inaccurate, faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other hand, the word "knowingly" means with
awareness or deliberateness that is intentional.258 Used together in relation to Section 23(a)(l), they
connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature and
effect of programs and services on reproductive health. Public health and safety demand that health
care service providers give their honest and correct medical information in accordance with what is
acceptable in medical practice. While health care service providers are not barred from expressing their
own personal opinions regarding the programs and services on reproductive health, their right must be
tempered with the need to provide public health and safety. The public deserves no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the Constitution
as it discriminates against the poor because it makes them the primary target of the government
program that promotes contraceptive use . They argue that, rather than promoting reproductive health
among the poor, the RH Law introduces contraceptives that would effectively reduce the number of the
poor. Their bases are the various provisions in the RH Law dealing with the poor, especially those
mentioned in the guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive health
education program imposed by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission, 261 the Court had the occasion to expound on the concept of
equal protection. Thus:

One of the basic principles on which this government was founded is that of the equality of right which
is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal
protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed." It
"requires public bodies and inst itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted authorities." "In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those of the legislature. Its
inhibitions cover all the departments of the government including the political and executive
departments, and extend to all actions of a state denying equal protection of the laws, through
whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without
distinction. What it simply requires is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits classification. Such classification, however, to
be valid must pass the test of reasonableness. The test has four requisites: (1) The classification rests
on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing
conditions only; and (4) It applies equally to all members of the same class. "Superficial differences do
not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all persons
who naturally belong to the class. "The classification will be regarded as invalid if all the members of
the class are not similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense that the members of
the class should possess the same characteristics in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by the classification are to be treated equally. The
mere fact that an individual belonging to a class differs from the other members, as long as that class is
substantially distinguishable from all others, does not justify the non-application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude
addition to the number included in the class. It must be of such a nature as to embrace all those who
may thereafter be in similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases supplied; citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care program
is not a violation of the equal protection clause. In fact, it is pursuant to Section 11, Article XIII of the
Constitution which recognizes the distinct necessity to address the needs of the underprivileged by
providing that they be given priority in addressing the health development of the people. Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development
which shall endeavor to make essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are
suffering from fertility issues and desire to have children. There is, therefore, no merit to the contention
that the RH Law only seeks to target the poor to reduce their number. While the RH Law admits the use
of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1) explains, the
"promotion and/or stabilization of the population growth rate is incidental to the advancement of
reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not
impose conditions upon couples who intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children only if they would raise them in a
truly humane way, a deeper look into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government programs to promote basic
reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive health
education program under Section 14, suffice it to state that the mere fact that the children of those
who are less fortunate attend public educational institutions does not amount to substantial distinction
sufficient to annul the assailed provision. On the other hand, substantial distinction rests between
public educational institutions and private educational institutions, particularly because there is a need
to recognize the academic freedom of private educational institutions especially with respect to
religious instruction and to consider their sensitivity towards the teaching of reproductive health
education.

8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional
prohibition against involuntary servitude. They posit that Section 17 of the assailed legislation requiring
private and non-government health care service providers to render forty-eight (48) hours of pro bono
reproductive health services, actually amounts to involuntary servitude because it requires medical
practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be
considered as forced labor analogous to slavery, as reproductive health care service providers have the
discretion as to the manner and time of giving pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the accreditation of medical practitioners with
PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest that
it is both a power and a duty of the State to control and regulate it in order to protect and promote the
public welfare. Like the legal profession, the practice of medicine is not a right but a privileged
burdened with conditions as it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the qualifications for the practice of professions or trades
which affect the public welfare, the public health, the public morals, and the public safety; and to
regulate or control such professions or trades, even to the point of revoking such right altogether. 264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of
force, threats, intimidation or other similar means of coercion and compulsion. 265 A reading of the
assailed provision, however, reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-accreditation with PhilHealth,
no penalty is imposed should they choose to do otherwise. Private and non-government reproductive
healthcare service providers also enjoy the liberty to choose which kind of health service they wish to
provide, when, where and how to provide it or whether to provide it all. Clearly, therefore, no
compulsion, force or threat is made upon them to render pro bono service against their will. While the
rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary incentive imposed by
Congress in the furtherance of a perceived legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that
conscientious objectors are exempt from this provision as long as their religious beliefs and convictions
do not allow them to render reproductive health service, pro bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine
whether or not a supply or product is to be included in the Essential Drugs List (EDL). 266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the
competency to evaluate, register and cover health services and methods. It is the only government
entity empowered to render such services and highly proficient to do so. It should be understood that
health services and methods fall under the gamut of terms that are associated with what is ordinarily
understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food
and Drug Administration (FDA) in the Department of Health (DOH). Said Administration shall be under
the Office of the Secretary and shall have the following functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations
issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products
standards, and to recommend standards of identity, purity, safety, efficacy, quality and fill of
container;
"(e) To issue certificates of compliance with technical requirements to serve as basis for the
issuance of appropriate authorization and spot-check for compliance with regulations regarding
operation of manufacturers, importers, exporters, distributors, wholesalers, drug outlets, and
other establishments and facilities of health products, as determined by the FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of
appropriate authorizations to ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers,


retailers, consumers, and non-consumer users of health products to report to the FDA any
incident that reasonably indicates that said product has caused or contributed to the death,
serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health products,
whether or not registered with the FDA Provided, That for registered health products, the cease
and desist order is valid for thirty (30) days and may be extended for sixty ( 60) days only after
due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to
have caused death, serious illness or serious injury to a consumer or patient, or is found to be
imminently injurious, unsafe, dangerous, or grossly deceptive, and to require all concerned to
implement the risk management plan which is a requirement for the issuance of the appropriate
authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable
the agency to carry out the mandates of the law. Being the country's premiere and sole agency that
ensures the safety of food and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the principle of necessary implication,
the mandate by Congress to the FDA to ensure public health and safety by permitting only food and
medicines that are safe includes "service" and "methods." From the declared policy of the RH Law, it is
clear that Congress intended that the public be given only those medicines that are proven medically
safe, legal, non-abortifacient, and effective in accordance with scientific and evidence-based medical
research standards. The philosophy behind the permitted delegation was explained in Echagaray v.
Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of the
legislature to cope directly with the many problems demanding its attention. The growth of society has
ramified its activities and created peculiar and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in legislation has become necessary. To many
of the problems attendant upon present day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the required direct and efficacious, not to
say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the
powers devolved to local government units (LGUs) under Section 17 of the Local Government Code.
Said Section 17 vested upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:

SECTION 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the
powers and discharging the duties and functions currently vested upon them. They shall also
discharge the functions and responsibilities of national agencies and offices devolved to them
pursuant to this Code. Local government units shall likewise exercise such other powers and
discharge such other functions and responsibilities as are necessary, appropriate, or incidental
to efficient and effective provision of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and
responsibilities that have already been devolved upon them from the national agencies on the
aspect of providing for basic services and facilities in their respective jurisdictions, paragraph (c)
of the same provision provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services.268Thus:

(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure
projects and other facilities, programs and services funded by the National Government under
the annual General Appropriations Act, other special laws, pertinent executive orders, and those
wholly or partially funded from foreign sources, are not covered under this Section, except in
those cases where the local government unit concerned is duly designated as the implementing
agency for such projects, facilities, programs and services. [Emphases supplied]

The essence of this express reservation of power by the national government is that, unless an LGU is
particularly designated as the implementing agency, it has no power over a program for which funding
has been provided by the national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the LGU. 269 A complete
relinquishment of central government powers on the matter of providing basic facilities and services
cannot be implied as the Local Government Code itself weighs against it. 270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of
health care facilities,271 the hiring of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say when it comes to national
priority programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these
services. There is nothing in the wording of the law which can be construed as making the availability
of these services mandatory for the LGUs. For said reason, it cannot be said that the RH Law amounts
to an undue encroachment by the national government upon the autonomy enjoyed by the local
governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied
to the ARMM. The RH Law does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and
11 of R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah to justify the
exemption of the operation of the RH Law in the autonomous region, refer to the policy statements for
the guidance of the regional government. These provisions relied upon by the petitioners simply
delineate the powers that may be exercised by the regional government, which can, in no manner, be
characterized as an abdication by the State of its power to enact legislation that would benefit the
general welfare. After all, despite the veritable autonomy granted the ARMM, the Constitution and the
supporting jurisprudence, as they now stand, reject the notion of imperium et imperio in the
relationship between the national and the regional governments. 274 Except for the express and implied
limitations imposed on it by the Constitution, Congress cannot be restricted to exercise its inherent and
plenary power to legislate on all subjects which extends to all matters of general concern or common
interest.275

11 - Natural Law

With respect to the argument that the RH Law violates natural law, 276 suffice it to say that the Court
does not duly recognize it as a legal basis for upholding or invalidating a law. Our only guidepost is the
Constitution. While every law enacted by man emanated from what is perceived as natural law, the
Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to it. To begin
with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in the actual law of the past
or present.277 Unless, a natural right has been transformed into a written law, it cannot serve as a basis
to strike down a law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and whether it conforms with
both the Constitution and natural law. Rather, natural law is to be used sparingly only in the most
peculiar of circumstances involving rights inherent to man where no law is applicable. 279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not
allow abortion in any shape or form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access
to medically-safe, non-abortifacient, effective, legal, affordable, and quality reproductive healthcare
services, methods, devices, and supplies. As earlier pointed out, however, the religious freedom of
some sectors of society cannot be trampled upon in pursuit of what the law hopes to achieve. After all,
the Constitutional safeguard to religious freedom is a recognition that man stands accountable to an
authority higher than the State.

In conformity with the principle of separation of Church and State, one religious group cannot be
allowed to impose its beliefs on the rest of the society. Philippine modem society leaves enough room
for diversity and pluralism. As such, everyone should be tolerant and open-minded so that peace and
harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it
seeks to address is the problem of rising poverty and unemployment in the country. Let it be said that
the cause of these perennial issues is not the large population but the unequal distribution of wealth.
Even if population growth is controlled, poverty will remain as long as the country's wealth remains in
the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European and
Asian countries, which embarked on such a program generations ago , are now burdened with ageing
populations. The number of their young workers is dwindling with adverse effects on their economy.
These young workers represent a significant human capital which could have helped them invigorate,
innovate and fuel their economy. These countries are now trying to reverse their programs, but they are
still struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino
Workers. This is because we have an ample supply of young able-bodied workers. What would happen if
the country would be weighed down by an ageing population and the fewer younger generation would
not be able to support them? This would be the situation when our total fertility rate would go down
below the replacement level of two (2) children per woman. 280

Indeed, at the present, the country has a population problem, but the State should not use coercive
measures (like the penal provisions of the RH Law against conscientious objectors) to solve it.
Nonetheless, the policy of the Court is non-interference in the wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the
law is as enacted by the lawmaking body. That is not the same as saying what the law should be or
what is the correct rule in a given set of circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality, the Court must carry out the
delicate function of interpreting the law, guided by the Constitution and existing legislation and mindful
of settled jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to
the judicial task of saying what the law is, as enacted by the lawmaking body. 281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the
prior existing contraceptive and reproductive health laws, but with coercive measures. Even if the Court
decrees the RH Law as entirely unconstitutional, there will still be the Population Act (R.A. No. 6365),
the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The Magna Carta of
Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the same, the
principle of "no-abortion" and "non-coercion" in the adoption of any family planning method should be
maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as
NOT UNCONSTITUTIONAL except with respect to the following provisions which are declared
UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private
health facilities and non-maternity specialty hospitals and hospitals owned and operated by a
religious group to refer patients, not in an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem methods of family
planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any healthcare service provider who fails and or refuses to
disseminate information regarding programs and services on reproductive health regardless of
his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a
married individual, not in an emergency or life-threatening case, as defined under Republic Act
No. 8344, to undergo reproductive health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the
requirement of parental consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24
thereof, insofar as they punish any healthcare service provider who fails and/or refuses to refer a
patient not in an emergency or life-threatening case, as defined under Republic Act No. 8344, to
another health care service provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24
thereof, insofar as they punish any public officer who refuses to support reproductive health
programs or shall do any act that hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro
bona reproductive health service in so far as they affect the conscientious objector in securing
PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in
defining abortifacients and contraceptives, as they are ultra vires and, therefore, null and void
for contravening Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July
16, 2013 , is hereby LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein
declared as constitutional.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner, vs.THE HONORABLE RAY ALAN T. DRILON, Presiding Judge,
Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in
behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino
women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years
2000-2003, "female violence comprised more than 90o/o of all forms of abuse and violence and more
than 90% of these reported cases were committed by the women's intimate partners such as their
husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted
Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their Children,
Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for Other Purposes." It
took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or any
person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials,
law enforcers, prosecutors and court personnel, social workers, health care providers, and other local
government officials in responding to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the
equal protection and due process clauses, and an undue delegation of judicial power to barangay
officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support. 7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural
child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years old; and
Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and
demands absolute obedience from his wife and children. He forbade private respondent to pray, and
deliberately isolated her from her friends. When she took up law, and even when she was already
working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay
at home. He was often jealous of the fact that his attractive wife still catches the eye of some men, at
one point threatening that he would have any man eyeing her killed. 9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank,
Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when private
respondent confronted him about it in 2004. He even boasted to the household help about his sexual
relations with said bank manager. Petitioner told private respondent, though, that he was just using the
woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally
wounded. In one of their quarrels, petitioner grabbed private respondent on both arms and shook her
with such force that caused bruises and hematoma. At another time, petitioner hit private respondent
forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire on their daughter,
Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing
on him. He beat Jo-Ann on the chest and slapped her many times. When private respondent decided to
leave petitioner, Jo-Ann begged her mother to stay for fear that if the latter leaves, petitioner would
beat her up. Even the small boys are aware of private respondent's sufferings. Their 6-year-old son said
that when he grows up, he would beat up his father because of his cruelty to private respondent. 11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by her
son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital. Private
respondent was hospitalized for about seven (7) days in which time petitioner never bothered to visit,
nor apologized or showed pity on her. Since then, private respondent has been undergoing therapy
almost every week and is taking anti-depressant medications. 12

When private respondent informed the management of Robinson's Bank that she intends to file charges
against the bank manager, petitioner got angry with her for jeopardizing the manager's job. He then
packed his things and told private respondent that he was leaving her for good. He even told private
respondent's mother, who lives with them in the family home, that private respondent should just
accept his extramarital affair since he is not cohabiting with his paramour and has not sired a child with
her.13

Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single centavo. 14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly salary
of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses
amounting to not less than P200,000.00 a month are paid for by private respondent through the use of
credit cards, which, in turn, are paid by the same corporation together with the bills for utilities. 15

On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of pesos
from the corporations.16After private respondent confronted him about the affair, petitioner forbade her
to hold office at JBTC Building, Mandalagan, where all the businesses of the corporations are conducted,
thereby depriving her of access to full information about said businesses. Until the filing of the petition
a quo, petitioner has not given private respondent an accounting of the businesses the value of which
she had helped raise to millions of pesos.17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:


a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering that
he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act No.
9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent herein)
to enter the conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner
decides to return to the conjugal dwelling to remove things, the Petitioner shall be assisted by
police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006
because of the danger that the Respondent will attempt to take her children from her when he
arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the
Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation rights
to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering
the Philippine National Police Firearms and Explosives Unit and the Provincial Director of the PNP
to cancel all the Respondent's firearm licenses. He should also be ordered to surrender any
unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for
them, and educational and medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from
all the corporations from 1 January 2006 up to 31 March 2006, which himself and as President of
the corporations and his Comptroller, must submit to the Court not later than 2 April 2006.
Thereafter, an accounting of all these funds shall be reported to the court by the Comptroller,
copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect Contempt of
Court.

h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner sues
she will not get a single centavo, the Respondent is ordered to put up a BOND TO KEEP THE
PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol
and the Starex Van which they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Paraaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.

l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty
Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to its
rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond
from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from
receipt of the Temporary Protection Order by his counsel, otherwise be declared in Indirect
Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house
in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove
Respondent from the conjugal dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48 hours after the petitioners
have left, so that the petitioner Rosalie and her representatives can remove things from the
conjugal home and make an inventory of the household furniture, equipment and other things in
the conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00
for clothes of the three petitioners (sic) children within 24 hours from receipt of the Temporary
Protection Order by his counsel, otherwise be declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court
within 24 hours from receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation
of proof of payment of such expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24for the issuance of a TPO ex parte. She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private respondent
by a group of six or seven policemen with long firearms that scared the two small boys, Jessie Anthone
and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On another
occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened her. 26 The
incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint against her
father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola. 27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

1) Prohibited from threatening to commit or committing, personally or through another, acts of


violence against the offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in


any form with the offended party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents, from
all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her
mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros, laundrywoman
Mercedita Bornales, security guard Darwin Gayona and the petitioner's other household helpers
from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the
Petitioners are temporarily residing, as well as from the schools of the three children;
Furthermore, that respondent shall not contact the schools of the children directly or indirectly in
any manner including, ostensibly to pay for their tuition or other fees directly, otherwise he will
have access to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the
Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for
rental for the period from August 6 to September 6, 2006; and support in arrears from March
2006 to August 2006 the total amount of Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex
van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles, respondent is
ordered to provide the petitioner another vehicle which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal
assets, or those real properties in the name of Jesus Chua Garcia only and those in which the
conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent have an interest
in, especially the conjugal home located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod
City, and other properties which are conjugal assets or those in which the conjugal partnership
of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in
Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy
of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer, sale,
encumbrance or disposition of these above-cited properties to any person, entity or corporation
without the personal presence of petitioner Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale of these properties to defraud her or the
conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten
(10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO should
not be renewed, extended, or modified. Upon petitioner's manifestation, 30 however, that he has not
received a copy of private respondent's motion to modify/renew the TPO, the trial court directed in its
Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an
Order32 dated a day earlier, October 5, had already been issued renewing the TPO dated August 23,
2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection
Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and continuously
extended and renewed for thirty (30) days, after each expiration, until further orders, and subject to
such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due process
and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil case for
being "an unwanted product of an invalid law."

On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 36 (TRO) against the
enforcement of the TPO, the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed 36 the petition for failure of
petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case, which
is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial
court constituted a collateral attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution 37 dated
August 14, 2007, petitioner is now before us alleging that

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION
CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER
TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF
THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE
BARANGAY OFFICIALS.38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262,
we shall first tackle the propriety of the dismissal by the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial court,
it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law in
advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional
Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family courts have
exclusive original jurisdiction to hear and decide cases of domestic violence against women and
children.42 In accordance with said law, the Supreme Court designated from among the branches of the
Regional Trial Courts at least one Family Court in each of several key cities identified. 43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts
designated as Family Courts shall have original and exclusive jurisdiction over cases of VAWC defined
under the latter law, viz:

SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and exclusive
jurisdiction over cases of violence against women and their children under this law. In the absence of
such court in the place where the offense was committed, the case shall be filed in the Regional Trial
Court where the crime or any of its elements was committed at the option of the complainant.
(Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a
court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal, special
proceedings, land registration, guardianship, naturalization, admiralty or insolvency. 44 It is settled that
RTCs have jurisdiction to resolve the constitutionality of a statute, 45 "this authority being embraced in
the general definition of the judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46 The Constitution vests the power of judicial
review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any
treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in part as
follows:

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

xxx

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

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

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been
raised at the earliest opportunity in his Opposition to the petition for protection order before the RTC of
Bacolod City, which had jurisdiction to determine the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down
a new kind of procedure requiring the respondent to file an opposition to the petition and not an
answer.49 Thus:

SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why a
temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and
third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein. 51Finally, a third-party complaint is a claim that
a defending party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 52 As pointed
out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action
that could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not
prohibited from being raised in the opposition in view of the familiar maxim expressio unius est exclusio
alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right
of private respondent to a protection order is founded solely on the very statute the validity of which is
being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of its
enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid cause
for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence. 54 Be that as it may, Section 25
of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues, among
others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to
the extent possible, within the 30-day period of the effectivity of the temporary protection order
issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary,
Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order issued is due to
expire, the trial court may extend or renew the said order for a period of thirty (30) days each time until
final judgment is rendered. It may likewise modify the extended or renewed temporary protection order
as may be necessary to meet the needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional issues, without necessarily running
afoul of the very purpose for the adoption of the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted an
injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO,
the amended TPOs and other orders pursuant thereto was improper, and it effectively hindered the
case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover,
if the appeal of a judgment granting permanent protection shall not stay its enforcement, 55 with more
reason that a TPO, which is valid only for thirty (30) days at a time, 56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States
declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune from prosecution, in good faith, for
his alleged criminal acts. The imminence of such a prosecution even though alleged to be unauthorized
and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only
to prevent irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits
of the case. It bears stressing, however, that protection orders are granted ex parte so as to protect
women and their children from acts of violence. To issue an injunction against such orders will defeat
the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again, discharged
our solemn duty as final arbiter of constitutional issues, and with more reason now, in view of private
respondent's plea in her Comment59 to the instant Petition that we should put the challenge to the
constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse,
which could very well be committed by either the husband or the wife, gender alone is not enough
basis to deprive the husband/father of the remedies under the law. 60

A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262, reveals
that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had
originally proposed what she called a "synthesized measure"62 an amalgamation of two measures,
namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate Relationships
Act"63 providing protection to "all family members, leaving no one in isolation" but at the same time
giving special attention to women as the "usual victims" of violence and abuse, 64 nonetheless, it was
eventually agreed that men be denied protection under the same measure. We quote pertinent portions
of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence apart
from against women as well as other members of the household, including children or the husband,
they fear that this would weaken the efforts to address domestic violence of which the main victims or
the bulk of the victims really are the wives, the spouses or the female partners in a relationship. We
would like to place that on record. How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in
Intimate Relationship. They do not want to include men in this domestic violence. But plenty of men are
also being abused by women. I am playing safe so I placed here members of the family, prescribing
penalties therefor and providing protective measures for victims. This includes the men, children, live-
in, common-law wives, and those related with the family. 65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x


Also, may the Chair remind the group that there was the discussion whether to limit this to women and
not to families which was the issue of the AWIR group. The understanding that I have is that we would
be having a broader scope rather than just women, if I remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to
file a case against their spouses, their live-in partners after years, if not decade, of battery and abuse. If
we broaden the scope to include even the men, assuming they can at all be abused by the women or
their spouses, then it would not equalize the already difficult situation for women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to the
Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the
family members have been included in this proposed measure since the other members of the family
other than women are also possible victims of violence. While women are most likely the intended
victims, one reason incidentally why the measure focuses on women, the fact remains that in some
relatively few cases, men also stand to be victimized and that children are almost always the helpless
victims of violence. I am worried that there may not be enough protection extended to other family
members particularly children who are excluded. Although Republic Act No. 7610, for instance, more or
less, addresses the special needs of abused children. The same law is inadequate. Protection orders for
one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that
they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in our
society, I believe we have an obligation to uphold inherent rights and dignity of both husband and wife
and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical
input arrived at after a series of consultations/meetings with various NGOs, experts, sports groups and
other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That will
be the net effect of that proposed amendment. Hearing the rationale mentioned by the distinguished
sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent
of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong
babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi iyan. Okey lang iyan. But
I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment

The President Pro Tempore. To the amendment.

Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is not
limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old
children being abused by their fathers, even by their mothers. And it breaks my heart to find out about
these things.

Because of the inadequate existing law on abuse of children, this particular measure will update that. It
will enhance and hopefully prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not
the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and children
only. No proper challenge on said grounds may be entertained in this proceeding. Congress has made
its choice and it is not our prerogative to supplant this judgment. The choice may be perceived as
erroneous but even then, the remedy against it is to seek its amendment or repeal by the legislative.
By the principle of separation of powers, it is the legislative that determines the necessity, adequacy,
wisdom and expediency of any law.68 We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early case
of Victoriano v. Elizalde Rope Workers' Union69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws
upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on persons merely as such,
but on persons according to the circumstances surrounding them. It guarantees equality, not identity of
rights. The Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to things that
are different. It does not prohibit legislation which is limited either in the object to which it is directed or
by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as
in the other departments of knowledge or practice, is the grouping of things in speculation or practice
because they agree with one another in certain particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of inequality, so that it goes without saying that the
mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences; that it must be germane to the purpose of the
law; that it must not be limited to existing conditions only; and that it must apply equally to each
member of the class. This Court has held that the standard is satisfied if the classification or distinction
is based on a reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection clause
by favoring women over men as victims of violence and abuse to whom the State extends its
protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all make
for real differences justifying the classification under the law. As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of true equality." 70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and take
on dominant roles in society while women are nurturers, men's companions and supporters, and take
on subordinate roles in society. This perception leads to men gaining more power over women. With
power comes the need to control to retain that power. And VAW is a form of men's expression of
controlling women to retain power.71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence
and developments in advocacies to eradicate VAW, in his remarks delivered during the Joint Launching
of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent portions of which are
quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the early
studies:

Traditions subordinating women have a long history rooted in patriarchy the institutional rule of men.
Women were seen in virtually all societies to be naturally inferior both physically and intellectually. In
ancient Western societies, women whether slave, concubine or wife, were under the authority of men.
In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to limit
the right of husbands to chastise their wives. Thus, common law developed the rule of thumb, which
allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit
in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged by
our law... In person, the wife is entitled to the same protection of the law that the husband can invoke
for himself.

As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as the
root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was joined by suffragette movements, expanding
the liberation movement's agenda. They fought for women's right to vote, to own property, and more.
Since then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women per
year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted
by a partner or ex-partner during their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual
assault... In families where wife beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser can
be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all homicide
victims in the United States are killed by their spouses...Thirty percent of female homicide victims are
killed by their male partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States
Charter and the Universal Declaration of Human Rights affirmed the equality of all human beings. In
1979, the UN General Assembly adopted the landmark Convention on the Elimination of all Forms of
Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also adopted the
Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of
women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself
established a Commission on the Status of Women.

The Philippines has been in cadence with the half and full steps of all these women's movements.
No less than Section 14, Article II of our 1987 Constitution mandates the State to recognize the role of
women in nation building and to ensure the fundamental equality before the law of women and men.
Our Senate has ratified the CEDAW as well as the Convention on the Rights of the Child and its two
protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties therefor and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and
children show that

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here
are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003. Female
violence comprised more than 90% of all forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners such as their husbands and live-in
partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against
women across an eight-year period from 2004 to August of 2011 with violations under R.A. 9262
ranking first among the different VAW categories since its implementation in 2004, 74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported 200 200 200 200 200 200


2010 2011
Cases 4 5 6 7 8 9

1,04
Rape 997 927 659 837 811 770 832
2

Incestuous
38 46 26 22 28 27 19 23
Rape
Attempted
194 148 185 147 204 167 268 201
Rape

Acts of
Lascivious 580 536 382 358 445 485 745 625
ness

Physical 3,55 2,33 1,89 1,50 1,30 1,49 2,01 1,58


Injuries 3 5 2 5 7 8 8 8

Sexual
Harassmen 53 37 38 46 18 54 83 63
t

1,26 2,38 3,59 5,28 9,97 9,02


RA 9262 218 924
9 7 9 5 4 1

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubina
121 102 93 109 109 99 158 128
ge

RA 9208 17 11 16 24 34 152 190 62

Abduction
/Kidnappin 16 34 23 28 18 25 22
g 29

Unjust
90 50 59 59 83 703 183 155
Vexation

6,27 5,37 4,88 5,72 6,90 9,48 15,1 12,9


Total
1 4 1 9 5 5 04 48

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men
in the Philippines because incidents thereof are relatively low and, perhaps, because many men will not
even attempt to report the situation. In the United Kingdom, 32% of women who had ever experienced
domestic violence did so four or five (or more) times, compared with 11% of the smaller number of men
who had ever experienced domestic violence; and women constituted 89% of all those who had
experienced 4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence
by a woman against a man is less likely to cause injury than the other way around (18 percent versus
44 percent). Men, who experience violence from their spouses are much less likely to live in fear of
violence at the hands of their spouses, and much less likely to experience sexual assault. In fact, many
cases of physical violence by a woman against a spouse are in self-defense or the result of many years
of physical or emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to
pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicle-drawing
animals in any public highways, streets, plazas, parks or alleys, said ordinance was challenged as
violative of the guaranty of equal protection of laws as its application is limited to owners and drivers of
vehicle-drawing animals and not to those animals, although not utilized, but similarly pass through the
same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-
drawing animals that also traverse the city roads, "but their number must be negligible and their
appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result in
actual inequality is not violative of the right to equal protection, for every classification of persons or
things for regulation by law produces inequality in some degree, but the law is not thereby rendered
invalid.78

C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against Women
Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress' authority
under the Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the
U.S. has institutionalized historic prejudices against victims of rape or domestic violence, subjecting
them to "double victimization" first at the hands of the offender and then of the legal system. 79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the parties
to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the latter is
hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the complainant in
a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner" and presenting her as
an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even called her a
"prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices
against women. As emphasized by the CEDAW Committee on the Elimination of Discrimination against
Women, addressing or correcting discrimination through specific measures focused on women does not
discriminate against men.82 Petitioner's contention,83 therefore, that R.A. 9262 is discriminatory and that
it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a State
Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the social
and cultural patterns of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women." 84 Justice Puno correctly
pointed out that "(t)he paradigm shift changing the character of domestic violence from a private affair
to a public offense will require the development of a distinct mindset on the part of the police, the
prosecution and the judges."85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address
violence committed against women and children, spelled out in its Declaration of Policy, as follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect the
family and its members particularly women and children, from violence and threats to their personal
safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms
of Discrimination Against Women, Convention on the Rights of the Child and other international human
rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on October
6, 2003.86 This Convention mandates that State parties shall accord to women equality with men before
the law87 and shall take all appropriate measures to eliminate discrimination against women in all
matters relating to marriage and family relations on the basis of equality of men and women. 88 The
Philippines likewise ratified the Convention on the Rights of the Child and its two protocols. 89 It is, thus,
bound by said Conventions and their respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and their
children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof
defines VAWC as:

x x x any act or a series of acts committed by any person against a woman who is his wife, former wife,
or against a woman with whom the person has or had a sexual or dating relationship, or with whom he
has a common child, or against her child whether legitimate or illegitimate, within or without the family
abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child.
It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex
object, making demeaning and sexually suggestive remarks, physically attacking the sexual
parts of the victim's body, forcing her/him to watch obscene publications and indecent shows or
forcing the woman or her child to do indecent acts and/or make films thereof, forcing the wife
and mistress/lover to live in the conjugal home or sleep together in the same room with the
abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force,
threat of force, physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes causing
or allowing the victim to witness the physical, sexual or psychological abuse of a member of the family
to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets
or to unlawful or unwanted deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which
includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any legitimate
profession, occupation, business or activity, except in cases wherein the other spouse/partner
objects on valid, serious and moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and
enjoyment of the conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or
properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research
that has exposed the dimensions and dynamics of battery. The acts described here are also found in
the U.N. Declaration on the Elimination of Violence Against Women. 90 Hence, the argument advanced
by petitioner that the definition of what constitutes abuse removes the difference between violent
action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast between
the innocent and the prohibited acts. They are worded with sufficient definiteness that persons of
ordinary intelligence can understand what conduct is prohibited, and need not guess at its meaning nor
differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to deprive
the woman or her child of a legal right," "solely controlling the conjugal or common money or
properties," "marital infidelity," and "causing mental or emotional anguish" are so vague that they
make every quarrel a case of spousal abuse. However, we have stressed that the "vagueness" doctrine
merely requires a reasonable degree of certainty for the statute to be upheld not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity,
is permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be
held invalid merely because it might have been more explicit in its wordings or detailed in its
provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the person
has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word "person" who
has or had a sexual or dating relationship with the woman encompasses even lesbian relationships.
Moreover, while the law provides that the offender be related or connected to the victim by marriage,
former marriage, or a sexual or dating relationship, it does not preclude the application of the principle
of conspiracy under the Revised Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses Tan, 94 the
parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be proper respondents in the case
filed by the latter upon the allegation that they and their son (Go-Tan's husband) had community of
design and purpose in tormenting her by giving her insufficient financial support; harassing and
pressuring her to be ejected from the family home; and in repeatedly abusing her verbally, emotionally,
mentally and physically.

R.A. 9262 is not violative of the


due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all in a matter of seconds, without an inkling
of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing acts
that jeopardize the employment and support of the victim. It also enables the court to award temporary
custody of minor children to protect the children from violence, to prevent their abduction by the
perpetrator and to ensure their financial support."97

The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented," 99 the court is authorized
to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property of the
victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the
victim from the immediate and imminent danger of VAWC or to prevent such violence, which is about to
recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the time
in which the hearing will take could be enough to enable the defendant to abscond or dispose of his
property,102 in the same way, the victim of VAWC may already have suffered harrowing experiences in
the hands of her tormentor, and possibly even death, if notice and hearing were required before such
acts could be prevented. It is a constitutional commonplace that the ordinary requirements of
procedural due process must yield to the necessities of protecting vital public interests, 103 among which
is protection of women and children from violence and threats to their personal safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice
be immediately given to the respondent directing him to file an opposition within five (5) days from
service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service
of the notice upon the respondent requiring him to file an opposition to the petition within five (5) days
from service. The date of the preliminary conference and hearing on the merits shall likewise be
indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should not
be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the fear
of petitioner of being "stripped of family, property, guns, money, children, job, future employment and
reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of an
overactive imagination. The essence of due process is to be found in the reasonable opportunity to be
heard and submit any evidence one may have in support of one's defense. "To be heard" does not only
mean verbal arguments in court; one may be heard also through pleadings. Where opportunity to be
heard, either through oral arguments or pleadings, is accorded, there is no denial of procedural due
process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion
for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise, on May 23,
2006, petitioner filed a motion for the modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26, 2006, gave him five days (5) within which
to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the required
comment arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal
of the questioned TPO was only for a limited period (30 days) each time, and that he could prevent the
continued renewal of said order if he can show sufficient cause therefor. Having failed to do so,
petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued to
the wife to claim any property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this
is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of
the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things and escort him from the
residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless
of ownership, only temporarily for the purpose of protecting the latter. Such removal and exclusion may
be permanent only where no property rights are violated. How then can the private respondent just
claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case


to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and strengthen
the family as a basic autonomous social institution."109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a
mediator. The reason behind this provision is well-explained by the Commentary on Section 311 of the
Model Code on Domestic and Family Violence as follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject for
compromise. A process which involves parties mediating the issue of violence implies that the victim is
somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is
problematic because the petitioner is frequently unable to participate equally with the person against
whom the protection order has been sought. (Emphasis supplied)

There is no undue delegation of


judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established by
law" and, thus, protests the delegation of power to barangay officials to issue protection orders. 111 The
pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection Orders
(BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator to desist
from committing acts under Section 5 (a) and (b) of this Act.1wphi1 A Punong Barangay who receives
applications for a BPO shall issue the protection order to the applicant on the date of filing after ex
parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the
BPO is issued by a Barangay Kagawad, the order must be accompanied by an attestation by the
Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO.
BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the
Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent,
or direct any barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her child
physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in pursuance
of his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain
public order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers." 115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused is
probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that an
imminent danger of violence against the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would be
very unlikely that they would remain objective and impartial, and that the chances of acquittal are nil.
As already stated, assistance by barangay officials and other law enforcement agencies is consistent
with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with full
knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the
majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of law
itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for equality
but will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit. SO
ORDERED.
THIRD DIVISION

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner, vs. LIBERTY D. ALBIOS, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the September
29, 2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April 25,
2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC). declaring the marriage of Daniel Lee
Fringer (Fringer) and respondent Liberty Albios (A/bios) as void from the beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I. Calo
of the Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate of
Marriage with Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage
with Fringer. She alleged that immediately after their marriage, they separated and never lived as
husband and wife because they never really had any intention of entering into a married state or
complying with any of their essential marital obligations. She described their marriage as one made in
jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed a
motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant Provincial
Prosecutor to conduct an investigation and determine the existence of a collusion. On October 2, 2007,
the Assistant Prosecutor complied and reported that she could not make a determination for failure of
both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the
hearing despite being duly notified of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty
Albios and Daniel Lee Fringer as void from the very beginning. As a necessary consequence of this
pronouncement, petitioner shall cease using the surname of respondent as she never acquired any
right over it and so as to avoid a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence to
the testimony of Albios, it stated that she contracted Fringer to enter into a marriage to enable her to
acquire American citizenship; that in consideration thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the parties went their separate ways; that Fringer returned to the
United States and never again communicated with her; and that, in turn, she did not pay him the
$2,000.00 because he never processed her petition for citizenship. The RTC, thus, ruled that when
marriage was entered into for a purpose other than the establishment of a conjugal and family life,
such was a farce and should not be recognized from its inception.
Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a
motion for reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the motion for
want of merit. It explained that the marriage was declared void because the parties failed to freely give
their consent to the marriage as they had no intention to be legally bound by it and used it only as a
means to acquire American citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that the
essential requisite of consent was lacking. The CA stated that the parties clearly did not understand the
nature and consequence of getting married and that their case was similar to a marriage in jest. It
further explained that the parties never intended to enter into the marriage contract and never
intended to live as husband and wife or build a family. It concluded that their purpose was primarily for
personal gain, that is, for Albios to obtain foreign citizenship, and for Fringer, the consideration of
$2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A MARRIAGE


CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE,
LACKING IN THE ESSENTIAL ELEMENT OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for Fringer
to be paid $2,000.00, both parties freely gave their consent to the marriage, as they knowingly and
willingly entered into that marriage and knew the benefits and consequences of being bound by it.
According to the OSG, consent should be distinguished from motive, the latter being inconsequential to
the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest. The
parties here intentionally consented to enter into a real and valid marriage, for if it were otherwise, the
purpose of Albios to acquire American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her marriage
was similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply 10 reiterating its arguments in its petition for review on
certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole
purpose of acquiring American citizenship in consideration of $2,000.00, void ab initio on the ground of
lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for the
purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of
marriage fraud for the sole purpose of availing of particular benefits. In the United States, marriages
where a couple marries only to achieve a particular purpose or acquire specific benefits, have been
referred to as "limited purpose" marriages.11 A common limited purpose marriage is one entered into
solely for the legitimization of a child. 12Another, which is the subject of the present case, is for
immigration purposes. Immigration law is usually concerned with the intention of the couple at the time
of their marriage,13 and it attempts to filter out those who use marriage solely to achieve immigration
status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service, 15 established the principal
test for determining the presence of marriage fraud in immigration cases. It ruled that a "marriage is a
sham if the bride and groom did not intend to establish a life together at the time they were married.
"This standard was modified with the passage of the Immigration Marriage Fraud Amendment of 1986
(IMFA), which now requires the couple to instead demonstrate that the marriage was not "entered into
for the purpose of evading the immigration laws of the United States." The focus, thus, shifted from
determining the intention to establish a life together, to determining the intention of evading
immigration laws.16 It must be noted, however, that this standard is used purely for immigration
purposes and, therefore, does not purport to rule on the legal validity or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited
purpose of immigration is also legally void and in existent. The early cases on limited purpose
marriages in the United States made no definitive ruling. In 1946, the notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the
country, the parties had agreed to marry but not to live together and to obtain a divorce within six
months. The Court, through Judge Learned Hand, ruled that a marriage to convert temporary into
permanent permission to stay in the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to every
contract; and no matter what forms or ceremonies the parties may go through indicating the contrary,
they do not contract if they do not in fact assent, which may always be proved. x x x Marriage is no
exception to this rule: a marriage in jest is not a marriage at all. x x x It is quite true that a marriage
without subsequent consummation will be valid; but if the spouses agree to a marriage only for the
sake of representing it as such to the outside world and with the understanding that they will put an
end to it as soon as it has served its purpose to deceive, they have never really agreed to be married at
all. They must assent to enter into the relation as it is ordinarily understood, and it is not ordinarily
understood as merely a pretence, or cover, to deceive others. 18

(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines, 19 which declared as valid
a marriage entered into solely for the husband to gain entry to the United States, stating that a valid
marriage could not be avoided "merely because the marriage was entered into for a limited
purpose."20 The 1980 immigration case of Matter of McKee,21 further recognized that a fraudulent or
sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as
problematic. The problem being that in order to obtain an immigration benefit, a legal marriage is first
necessary.22 At present, United States courts have generally denied annulments involving" limited
purpose" marriages where a couple married only to achieve a particular purpose, and have upheld such
marriages as valid.23

The Court now turns to the case at hand.

Respondents marriage not void

In declaring the respondents marriage void, the RTC ruled that when a marriage was entered into for a
purpose other than the establishment of a conjugal and family life, such was a farce and should not be
recognized from its inception. In its resolution denying the OSGs motion for reconsideration, the RTC
went on to explain that the marriage was declared void because the parties failed to freely give their
consent to the marriage as they had no intention to be legally bound by it and used it only as a means
for the respondent to acquire American citizenship. Agreeing with the RTC, the CA ruled that the
essential requisite of consent was lacking. It held that the parties clearly did not understand the nature
and consequence of getting married. As in the Rubenstein case, the CA found the marriage to be similar
to a marriage in jest considering that the parties only entered into the marriage for the acquisition of
American citizenship in exchange of $2,000.00. They never intended to enter into a marriage contract
and never intended to live as husband and wife or build a family.

The CAs assailed decision was, therefore, grounded on the parties supposed lack of consent. Under
Article 2 of the Family Code, consent is an essential requisite of marriage. Article 4 of the same Code
provides that the absence of any essential requisite shall render a marriage void ab initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence of
a solemnizing officer. A "freely given" consent requires that the contracting parties willingly and
deliberately enter into the marriage. Consent must be real in the sense that it is not vitiated nor
rendered defective by any of the vices of consent under Articles45 and 46 of the Family Code, such as
fraud, force, intimidation, and undue influence.24 Consent must also be conscious or intelligent, in that
the parties must be capable of intelligently understanding the nature of, and both the beneficial or
unfavorable consequences of their act.25 Their understanding should not be affected by insanity,
intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real
consent because it was not vitiated nor rendered defective by any vice of consent. Their consent was
also conscious and intelligent as they understood the nature and the beneficial and inconvenient
consequences of their marriage, as nothing impaired their ability to do so. That their consent was freely
given is best evidenced by their conscious purpose of acquiring American citizenship through marriage.
Such plainly demonstrates that they willingly and deliberately contracted the marriage. There was a
clear intention to enter into a real and valid marriage so as to fully comply with the requirements of an
application for citizenship. There was a full and complete understanding of the legal tie that would be
created between them, since it was that precise legal tie which was necessary to accomplish their goal.

In ruling that Albios marriage was void for lack of consent, the CA characterized such as akin to a
marriage by way of jest. A marriage in jest is a pretended marriage, legal in form but entered into as a
joke, with no real intention of entering into the actual marriage status, and with a clear understanding
that the parties would not be bound. The ceremony is not followed by any conduct indicating a purpose
to enter into such a relation.27 It is a pretended marriage not intended to be real and with no intention
to create any legal ties whatsoever, hence, the absence of any genuine consent. Marriages in jest are
void ab initio, not for vitiated, defective, or unintelligent consent, but for a complete absence of
consent. There is no genuine consent because the parties have absolutely no intention of being bound
in any way or for any purpose.

The respondents marriage is not at all analogous to a marriage in jest.1wphi1 Albios and Fringer had
an undeniable intention to be bound in order to create the very bond necessary to allow the respondent
to acquire American citizenship. Only a genuine consent to be married would allow them to further their
objective, considering that only a valid marriage can properly support an application for citizenship.
There was, thus, an apparent intention to enter into the actual marriage status and to create a legal tie,
albeit for a limited purpose. Genuine consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a
conjugal and family life. The possibility that the parties in a marriage might have no real intention to
establish a life together is, however, insufficient to nullify a marriage freely entered into in accordance
with law. The same Article 1 provides that the nature, consequences, and incidents of marriage are
governed by law and not subject to stipulation. A marriage may, thus, only be declared void or voidable
under the grounds provided by law. There is no law that declares a marriage void if it is entered into for
purposes other than what the Constitution or law declares, such as the acquisition of foreign
citizenship. Therefore, so long as all the essential and formal requisites prescribed by law are present,
and it is not void or voidable under the grounds provided by law, it shall be declared valid. 28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on
the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into the
realm of their right to privacy and would raise serious constitutional questions. 29 The right to marital
privacy allows married couples to structure their marriages in almost any way they see fit, to live
together or live apart, to have children or no children, to love one another or not, and so on. 30 Thus,
marriages entered into for other purposes, limited or otherwise, such as convenience, companionship,
money, status, and title, provided that they comply with all the legal requisites, 31 are equally valid.
Love, though the ideal consideration in a marriage contract, is not the only valid cause for marriage.
Other considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondents attempt to utilize marriage for dishonest
purposes, It cannot declare the marriage void. Hence, though the respondents marriage may be
considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues
to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the
Family Code. Only the circumstances listed under Article 46 of the same Code may constitute fraud,
namely, (1) non- disclosure of a previous conv1ctwn involving moral turpitude; (2) concealment by the
wife of a pregnancy by another man; (3) concealment of a sexually transmitted disease; and (4)
concealment of drug addiction, alcoholism, or homosexuality. No other misrepresentation or deceit shall
constitute fraud as a ground for an action to annul a marriage. Entering into a marriage for the sole
purpose of evading immigration laws does not qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground of fraud may only be brought by the injured or innocent
party. In the present case, there is no injured party because Albios and Fringer both conspired to enter
into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with
Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot
declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they
have availed of its benefits, or simply have no further use for it. These unscrupulous individuals cannot
be allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a
judicial institution to enter into a marriage of convenience; she should not be allowed to again abuse it
to get herself out of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the
foundation of the family and shall be protected by the State. 32 It must, therefore, be safeguarded from
the whims and caprices of the contracting parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs of the parties, and just as easily nullified
when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals in CA-
G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of merit.

SO ORDERED.
EN BANC

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,


INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIO, DR.
BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN,
ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL
CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND


NATURAL RESOURCES, BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE
AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v. COURT OF APPEALS,
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG
III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ
LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT,
JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON,
MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, RESPONDENTS. CROP LIFE
PHILIPPINES, INC. Petitioner-in-Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE


SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG
AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO
MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY.
HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),


MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP.
TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III,
CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR.
ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013 and
Resolution2 dated September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which
permanently enjoined the conduct of field trials for genetically modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace Southeast
Asia, a regional office of Greenpeace International registered in Thailand. 3 Greenpeace is a non-
governmental environmental organization which operates in over 40 countries and with an international
coordinating body in Amsterdam, Netherlands. It is well known for independent direct actions in the
global campaign to preserve the environment and promote peace.
Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an
international non-profit organization founded in 1990 "to facilitate the acquisition and transfer of
agricultural biotechnology applications from the industrial countries, for the benefit of resource-poor
farmers in the developing world" and ultimately "to alleviate hunger and poverty in the developing
countries." Partly funded by the United States Agency for International Development (USAID), ISAAA
promotes the use of agricultural biotechnology, such as genetically modified organisms (GMOs). 4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of local


farmers, scientists and NGOs working towards "the sustainable use and management of biodiversity
through farmers' control of genetic and biological resources, agricultural production, and associated
knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the University of the
Philippines (UP), originally established as the UP College of Agriculture. It is the center of biotechnology
education and research in Southeast Asia and home to at least four international research and
extension centers. Petitioner UPLB Foundation, Inc. (UPLBFI) is a private corporation organized "to be an
instrument for institutionalizing a rational system of utilizing UPLB expertise and other assets for
generating additional revenues and other resources needed by [UPLB]". Its main purpose is to assist
UPLB in "expanding and optimally utilizing its human, financial, and material resources towards a
focused thrust in agriculture, biotechnology, engineering and environmental sciences and related
academic programs and activities." A memorandum of agreement between UPLBFI and UPLB allows the
former to use available facilities for its activities and the latter to designate from among its staff such
personnel needed by projects.5

Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908. Under
its new charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria Macapagal-Arroyo,
UP was declared as the national university tasked "to perform its unique and distinctive leadership in
higher education and development." Among others, UP was mandated to "serve as a research
university in various fields of expertise and specialization by conducting basic and applied research and
development, and promoting research in various colleges and universities, and contributing to the
dissemination and application of knowledge."7

The other individual respondents are Filipino scientists, professors, public officials and ordinary citizens
invoking their constitutionally guaranteed right to health and balanced ecology, and suing on their
behalf and on behalf of future generations of Filipinos.

Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living
organisms or substances from those organisms to make or modify a product, to improve plants or
animals, or to develop microorganisms for specific uses."8 Its many applications include agricultural
production, livestock, industrial chemicals and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the
National Institute for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier
national research and development (R & D) institution applying traditional and modern biotechnologies
in innovating products, processes, testing and analytical services for agriculture, health, energy,
industry and development.9

In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National
Committee on Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and
evaluate potential hazards involved in initiating genetic engineering experiments or the introduction of
new species and genetically engineered organisms and recommend measures to minimize risks" and to
"formulate and review national policies and guidelines on biosafety, such as the safe conduct of work
on genetic engineering, pests and their genetic materials for the protection of public health,
environment and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the
importation or introduction, movement and field release of potentially hazardous biological materials in
the Philippines. The guidelines also describe the required physical and biological containment and
safety procedures in handling biological materials. This was followed in 1998 by the "Guidelines on
Planned Release of Genetically Manipulated Organisms (GMOs) and Potentially Harmful Exotic
Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral
treaty recognized that "modern biotechnology has great potential for human well-being if developed
and used with adequate safety measures for the environment and human health." Its main objectives,
as spelled out in Article 1, are the "conservation of biological diversity, the sustainable use of its
components and the fair and equitable sharing of the benefits arising out of the utilization of genetic
resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena
Protocol), a supplemental to the CBD. The Cartagena Protocol aims "to contribute to ensuring an
adequate level of the safe transfer, handling and use of living modified organisms resulting from
modern biotechnology that may have adverse effects on the conservation and sustainable use of
biological diversity, taking into account risks to human health, and specifically focusing on
transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September
11, 2003. On August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the
"Resolution Concurring in the Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN
Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the
government policy of promoting the safe and responsible use of modern biotechnology and its products
as one of several means to achieve and sustain food security, equitable access to health services,
sustainable and safe environment and industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08 providing
rules and regulations for the importation and release into the environment of plants and plant products
derived from the use of modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has been
altered or produced through the use of modem biotechnology if the donor organism, host organism, or
vector or vector agent belongs to the genera or taxa classified by the Bureau of Plant Industry (BPI) as
meeting the definition of plant pest or is a medium for the introduction of noxious weeds; or (2) any
plant or plant product altered through the use of modem biotechnology which may pose significant
risks to human health and the environment based on available scientific and technical information.

The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514
(EO 514) on March 17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing
Guidelines for its Implementation, and Strengthening the NCBP." The NBF shall apply to the
development, adoption and implementation of all biosafety policies, measures and guidelines and in
making decisions concerning the research, development, handling and use, transboundary movement,
release into the environment and management of regulated articles. 12

EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-
2002, the NCBP Guidelines on the Contained Use of Genetically Modified Organisms, except for
provisions on potentially harmful exotic species which were repealed, and all issuances of the Bureau of
Food and Drugs Authority (FDA) on products of modem biotechnology, shall continue to be in force and
effect.13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between UPLBFI, ISAAA
and UP Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants that are
resistant to the fruit and shoot borer. Other partner agencies involved in the project were UPLB through
its Institute of Plant Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University
and the Agricultural Biotechnology Support Project II (ABSPII) of US AID.

As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the pest-
resistant crop subject of the field trial was described as a "bioengineered eggplant." The crystal toxin
genes from the soil bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong)
genome to produce the protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to
be highly specific to lepidopteran larvae such as the fruit and shoot borer (FSB), the most destructive
insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially
completed on March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained
Experiment stating that "During the conduct of the experiment, all the biosafety measures have been
complied with and no untoward incident has occurred."16
BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field testing
of Bt talong commenced on various dates in the following approved trial sites: Kabacan, North
Cotabato; Sta. Maria, Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a
petition for writ of kalikasan and writ of continuing mandamus with prayer for the issuance of a
Temporary Environmental Protection Order (TEPO). They alleged that the Bt talong field trials violate
their constitutional right to health and a balanced ecology considering that (1) the required
environmental compliance certificate under Presidential Decree (PD) No. 1151 was not secured prior to
the project implementation; (2) as a regulated article under DAO 08-2002, Bt talong is presumed
harmful to human health and the environment, and there is no independent, peer-reviewed study on
the safety of Bt talong for human consumption and the environment; (3) a study conducted by
Professor Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn, while local scientists
also attested to the harmful effects of GMOs to human and animal health; (4) Bt crops can be directly
toxic to non-target species as highlighted by a research conducted in the US which demonstrated that
pollen from Bt maize was toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize
indicate that beneficial insects have increased mortality when fed on larvae of a maize pest, the corn
borer, which had been fed on Bt, and hence non-target beneficial species that may feed on eggplant
could be similarly affected; (6) data from China show that the use of Bt crops (Bt cotton) can
exacerbate populations of other secondary pests; (7) the built-in pesticides of Bt crops will lead
to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set by BPI is
not sufficient to stop contamination of nearby non-Bt eggplants because pollinators such as honeybees
can fly as far as four kilometers and an eggplant is 48% insect-pollinated. The full acceptance by the
project proponents of the findings in the MAHYCO Dossier was strongly assailed on the ground that
these do not precisely and adequately assess the numerous hazards posed by Bt talong and its field
trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the required
public consultation under Sections 26 & 27 of the Local Government Code, A random survey by
Greenpeace on July 21, 2011 revealed that ten households living in the area immediately around the Bt
talong experimental farm in Bay, Laguna expressed lack of knowledge about the field testing in their
locality. The Sangguniang Barangay of Pangasugan in Baybay, Leyte complained about the lack of
information on the nature and uncertainties of the Bt talong field testing in their barangay. The Davao
City Government likewise opposed the project due to lack of transparency and public consultation. It
ordered the uprooting of Bt eggplants at the trial site and disposed them strictly in accordance with
protocols relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the city government's
policy on "sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta. Barbara,
Iloilo passed a resolution suspending the field testing due to the following: lack of public consultation;
absence of adequate study to determine the effect of Bt talong field testing on friendly insects; absence
of risk assessment on the potential impacts of genetically modified (GM) crops on human health and
the environment; and the possibility of cross-pollination of Bt eggplants with native species or variety of
eggplants, and serious threat to human health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary principle, the Bt
talong field testing being a classic environmental case where scientific evidence as to the health,
environmental and socio-economic safety is insufficient or uncertain and preliminary scientific
evaluation indicates reasonable grounds for concern that there are potentially dangerous effects on
human health and the environment.

The following reliefs are thus prayed for:


a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i)
enjoining public respondents BPI and FPA of the DA from processing for field testing, and registering as
herbicidal product, Bt talong in the Philippines; (ii) stopping all pending field testing
of Bt talong anywhere in the Philippines; and (in) ordering the uprooting of planted Bt talong for field
trials as their very presence pose significant and irreparable risks to human health and the
environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement system under
the Environmental Management Bureau;

(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report,
regulatory compliance reports and supporting documents, and other material particulars of the Bt
talong field trial;
(iii) Respondents to submit all its issued certifications on public information, public consultation, public
participation, and consent of the local government units in the barangays, municipalities, and provinces
affected by the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with
stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety Framework of
the Philippines, and DA Administrative Order No. 08, defining or incorporating an independent,
transparent, and comprehensive scientific and socio-economic risk assessment, public information,
consultation, and participation, and providing for their effective implementation, in accord with
international safety standards; and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced
nationwide public information on the nature of Bt talong and Bt talong field trial, and a survey of social
acceptability of the same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their
respective returns and explain why they should not be judicially sanctioned for violating or threatening
to violate or allowing the violation of the above-enumerated laws, principles, and international principle
and standards, or committing acts, which would result into an environmental damage of such
magnitude as to prejudice the life, health, or property of petitioners in particular and of the Filipino
people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be
violating the abovementioned laws, principles, and international standards; and recommend to
Congress curative legislations to effectuate such order. 18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management
Bureau (EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB, 18-a ordering them to make a verified
return within a non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of
Procedure for Environmental Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that the
issuance of writ of kalikasan is not proper because in the implementation of the Bt talong project, all
environmental laws were complied with, including public consultations in the affected communities, to
ensure that the people's right to a balanced and healthful ecology was protected and respected. They
also asserted that the Bt talong project is not covered by the Philippine Environmental Impact
Statement (PEIS) Law and that Bt talong field trials will not significantly affect the quality of the
environment nor pose a hazard to human health. ISAAA contended that the NBF amply safeguards the
environment policies and goals promoted by the PEIS Law. On its part, UPLBFI asserted that there is a
"plethora of scientific works and literature, peer-reviewed, on the safety of Bt talong for human
consumption."20 UPLB, which filed an Answer21 to the petition before the CA, adopted said position of
UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field
trial stage as none of the eggplants will be consumed by humans or animals, and all materials that will
not be used for analyses will be chopped, boiled and buried following the Biosafety Permit
requirements. It cited a 50-year history of safe use and consumption of agricultural products sprayed
with commercial Bt microbial pesticides and a 14-year history of safe consumption of food and feed
derived from Bt crops. Also mentioned is the almost 2 million hectares of land in the Philippines which
have been planted with Bt corn since 2003, and the absence of documented significant and negative
impact to the environment and human health. The statements given by scientists and experts in
support of the allegations of Greenpeace, et al. on the safety of Bt corn was also addressed by citing
the contrary findings in other studies which have been peer-reviewed and published in scientific
journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for non-
observance of the rule on hierarchy of courts and the allegations therein being mere assertions and
baseless conclusions of law. EMB, BPI and FPA questioned the legal standing of Greenpeace, et al. in
filing the petition for writ of kalikasan as they do not stand to suffer any direct injury as a result of
the Bt talong field tests. They likewise prayed for the denial of the petition for continuing mandamus for
failure to state a cause of action and for utter lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they have been
prejudiced or damaged, or their constitutional rights to health and a balanced ecology were violated or
threatened to be violated by the conduct of Bt talong field trials. Insofar as the field trials in Davao City,
the actual field trials at Bago Oshiro started on November 25, 2010 but the plants were uprooted by
Davao City officials on December 17-18, 2010. There were no further field trials conducted and hence
no violation of constitutional rights of persons or damage to the environment, with respect to Davao
City, occurred which will justify the issuance of a writ of kalikasan. UPMFI emphasized that under the
MOU, its responsibility was only to handle the funds for the project in their trial site. It pointed out that
in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for Field Testing, and Terminal
Report (Davao City Government) by respondent Leonardo R. Avila III, nowhere does UPMFI appear either
as project proponent, partner or implementing arm. Since UPMFI, which is separate and distinct from
UP, undertook only the fund management of Bt talong field test project the duration of which expired
on July 1, 2011, it had nothing to do with any field trials conducted in other parts of the country.

Finally, it is argued that the precautionary principle is not applicable considering that the field testing is
only a part of a continuing study being done to ensure that the field trials have no significant and
negative impact on the environment. There is thus no resulting environmental damage of such
magnitude as to prejudice the life, health, property of inhabitants in two or more cities or provinces.
Moreover, the issues raised by Greenpeace, et al. largely involve technical matters which pertain to the
special competence of BPI whose determination thereon is entitled to great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the return of
the writ and for hearing, reception of evidence and rendition of judgment. 22

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the following
procedural issues: (1) whether or not Greenpeace, et al. have legal standing to file the petition for writ
of kalikasan; (2) whether or not said petition had been rendered moot and academic by the alleged
termination of the Bt talong field testing; and (3) whether or not the case presented a justiciable
controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess the
requisite legal standing to file the petition for writ of kalikasan; (2) assuming arguendo that the field
trials have already been terminated, the case is not yet moot since it is capable of repetition yet
evading review; and (3) the alleged non-compliance with environmental and local government laws
present justiciable controversies for resolution by the court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the
expert witnesses of both parties testify at the same time. Greenpeace, et al. presented the following as
expert witnesses: Dr. Ben Malayang III (Dr. Malayang), Dr. Charito Medina (Dr. Medina), and Dr. Tushar
Chakraborty (Dr. Chakraborty). On the opposing side were the expert witnesses in the persons of Dr.
Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos (Dr. Halos), Dr. Flerida Cario (Dr. Cario), and Dr. Peter
Davies (Dr. Davies). Other witnesses who testified were: Atty. Carmelo Segui (Atty. Segui), Ms. Merle
Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr. Randy Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent Motion for
Leave to Intervene as Respondent.24 It claimed to have a legal interest in the subject matter of the case
as a broad-based coalition of advocates for the advancement of modern biotechnology in the
Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating that the
latter had no direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the
petition filed in this case. The respondents are DIRECTED to:chanRoblesvirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing
judgment of this Court.

No costs.

SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and Technology
(DOST) are insufficient to guarantee the safety of the environment and health of the people. Concurring
with Dr. Malayang's view that the government must exercise precaution "under the realm of public
policy" and beyond scientific debate, the appellate court noted the possible irreversible effects of the
field trials and the introduction of Bt talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary
principle set forth in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases27 finds
relevance in the present controversy. Stressing the fact that the "over-all safety guarantee of the bt
talong" remains unknown, the appellate court cited the testimony of Dr. Cario who admitted that the
product is not yet safe for consumption because a safety assessment is still to be done. Again, the
Decision quoted from Dr. Malayang who testified that the question of Bt talong's safety demands
maximum precaution and utmost prudence, bearing in mind the country's rich biodiversity. Amid the
uncertainties surrounding the Bt talong, the CA thus upheld the primacy of the people's constitutional
right to health and a balanced ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in its
Resolution dated September 20, 2013 rejected the argument of UPLB that the appellate court's ruling
violated UPLB's constitutional right to academic freedom. The appellate court pointed out that the writ
of kalikasan originally issued by this Court did not stop research on Bt talong but only the particular
procedure adopted in doing field trials and only at this time when there is yet no law in the form of a
congressional enactment for ensuring its safety and levels of acceptable risks when introduced into the
open environment. Since the writ stops the field trials of Bt talong as a procedure but does not stop Bt
talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically modified
plant into our ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic
(living) and non-biotic things interacting as a living community in a particular space and time. In the
ecosystem are found specific and particular biotic and non-biotic entities which depend on each other
for the biotic entities to survive and maintain life. A critical element for biotic entities to maintain life
would be that their populations are in a proper and natural proportion to others so that, in the given
limits of available non-biotic entities in the ecosystem, no one population overwhelms another. In the
case of the Philippines, it is considered as one of the richest countries in terms of biodiversity. It has so
many plants and animals. It also has many kinds of other living things than many countries in the
world. We do not fully know how all these living things or creatures interact among themselves. But, for
sure, there is a perfect and sound balance of our biodiversity as created or brought about by
God out of His infinite and absolute wisdom. In other words, every living creature has been in
existence or has come into being for a purpose. So, we humans are not supposed to tamper with any
one element in this swirl of interrelationships among living things in our ecosystem. Now, introducing
a genetically modified plant in our intricate world of plants by humans certainly appears to
be an ecologically imbalancing act. The damage that it will cause may be irreparable and
irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on November 20,
2012 wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant
[Physiology]), Dr. Tuskar Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito Medina
(Ph.D in Environmental Biology), Dr. Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida Cario (Ph.D in
Insecticide Toxicology), Dr. Ben Malayang (Ph.D in Wildland Resource Science) and Dr. Saturnina Halos
(Ph.D in Genetics) were in unison in admitting that bt talong is an altered plant. x x x

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an
otherwise natural state of affairs. It is designed and intended to alter natural feed-feeder relationships
of the eggplant. It is a deliberate genetic reconstruction of the eggplant to alter its natural order which
is meant to eliminate one feeder (the borer) in order to give undue advantage to another feeder (the
humans). The genetic transformation is one designed to make bt talong toxic to its pests (the targeted
organisms). In effect, bt talong kills its targeted organisms. Consequently, the testing or
introduction of bt talong into the Philippines, by its nature and intent, is a grave and
present danger to (and an assault on) the Filipinos' constitutional right to a balanced
ecology because, in any book and by any yardstick, it is an ecologically imbalancing event or
phenomenon. It is a willful and deliberate tampering of a naturally ordained feed-feeder relationship in
our environment. It destroys the balance of our biodiversity. Because it violates the conjunct right of our
people to a balanced ecology, the whole constitutional right of our people (as legally and logically
construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This
is because while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of
it actually causing acute or chronic harm to any or a number of ostensibly identifiable perms, on the
other hand, there is correspondingly no factual evidence either of it not causing harm to anyone.
However, in a study published on September 20, 2012 in "Food and Chemical Toxicology", a team of
scientists led by Professor Gilles-Eric Seralini from the University of Caen and backed by the France-
based Committee of Independent Research and Information on Genetic Engineering came up with a
finding that rats fed with Roundup-tolerant genetically modified corn for two years developed cancers,
tumors and multiple organ damage. The seven expert witnesses who testified in this Court in the
hearing conducted on November 20, 2012 were duly confronted with this finding and they were not
able to convincingly rebut it. That is why we, in deciding this case, applied the precautionary principle
in granting the petition filed in the case at bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole
Constitutional guarantee is factually and is undoubtedly at risk, and the other still factually uncertain,
the entire constitutional right of the Filipino people to a balanced and healthful ecology is at risk.
Hence, the issuance of the writ of kalikasan and the continuing writ of mandamus is justified and
warranted.28 (Additional Emphasis supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:


I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT
AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL
QUESTIONS.

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT


OF THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE PHILIPPINES,
AND DA ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE COURT OF APPEALS
"RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW
THE WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH THE COURT
OF APPEALS IS WITHOUT JURISDICTION TO DO SO.

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING
THE STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY
DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO
EXHAUST ADMINISTRATIVE REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF
CONTINUING MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER
THE SAME LIES WITH THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE WHEN IT
RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER
2013.

VI
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF
RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG
FIELD TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN
ORDER TO ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL
ECOLOGY ARE PROTECTED AND RESPECTED.

B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT CAUSE
ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND PROPERTY OF
INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE IN


THIS CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF
EVIDENCE TO PROVE THEIR CLAIM.

VII

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS AGAINST
PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013
IS AN AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS. 29ChanRoblesVirtualawlibrary
G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the CA
Decision granting the petition for writ of kalikasan and writ of continuing mandamus despite the failure
of Greenpeace, et al. (respondents) to prove the requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly show signs of
toxicity in genetically engineered eggplant and other crops, these studies are insubstantial as they
were not published in peer-reviewed scientific journals. Respondents thus failed to present evidence to
prove their claim that the Bt talong field trials violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application in this case
is misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not formally offered in
evidence. In volunteering the said article to the parties, petitioners lament that the CA manifested its
bias towards respondents' position and did not even consider the testimony of Dr. Davies who stated
that "Seralini's work has been refuted by International committees of scientists" 30 as shown by
published articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be ingested by any
human being during the field trial stage. Besides, if the results of said testing are adverse, petitioners
will not allow the release of Bt talong to the environment, in line with the guidelines set by EO 514. The
CA thus misappreciated the regulatory process as approval for field testing does not automatically
mean approval for propagation of the same product. And even assuming that the field trials may indeed
cause adverse environmental or health effects, the requirement of unlawful act or omission on the part
of petitioners or any of the proponents, was still absent. Respondents clearly failed to prove there was
any unlawful deviation from the provisions of DAO 08-2002. The BPI's factual finding on the basis of risk
assessment on the Bt talong project should thus be accorded respect, if not finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect,
preserve, rehabilitate and restore the environment, lacking in specifics which only indicates that there
was really nothing to preserve, rehabilitate or restore as there was nothing damaged or adversely
affected in the first place. As to the supposed inadequacy and ineffectiveness of existing regulations,
these are all political questions and policy issues best left to the discretion of the policy-makers, the
Legislative and Executive branches of government. Petitioners add that the CA treads on judicial
legislation when it recommended the re-examination of country's existing laws and regulations
governing studies and research on GMOs.

GR. No. 209301


Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to
prove actual or imminent injury to them or the environment as to render the controversy ripe for
judicial determination. It points out that nowhere in the testimonies during the "hot-tub" presentation of
expert witnesses did the witnesses for respondents claim actual or imminent injury to them or to the
environment as a result of the Bt talong field tests, as they spoke only of injury in the speculative,
imagined kind without any factual basis. Further, the petition for writ of kalikasan has been mooted by
the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the
nature, character, scale, duration, design, processes undertaken, risk assessments and strategies
employed, results heretofore recorded, scientific literature, the safeguards and other precautionary
measures undertaken and applied, the Bt talong field tests did not or could not have violated the right
of respondents to a balanced and healthful ecology. The appellate court apparently misapprehended
the nature, character, design of the field trials as one for "consumption" rather than for "field testing"
as defined in DAO 08-2002, the sole purpose of which is for the "efficacy" of the eggplant variety's
resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by
competent evidence on record" (admitted exhibits)31:
118. Since the technology's inception 50 years ago, studies have shown that genetically modified
crops, including Bt talong, significantly reduce the use of pesticides by farmers in growing
eggplants, lessening pesticide poisoning to humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-
resistant genetically modified crops. Moreover, that insect-resistant genetically modified crops
significantly reduce the use of pesticides in growing plants thus lessening pesticide poisoning
in humans, reducing pesticide load in the environment and encouraging more biodiversity in
farms.

120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton
industry by largely controlling Lepidopteran pests. To date, it had no significant impact on the
invertebrate community studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory
heteropterans and, therefore, cultivation of Bt cotton may provide an opportunity for
conservation of these predators in cotton ecosystems by reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively
affect monarch butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners because flight
distance of the pollinators is a deterrent to cross pollination. Studies reveal that there can be
no cross pollination more than a fifty (50) meter distance.

xxx
x

135. There is a 50 year history of safe use and consumption of agricultural products sprayed with
commercial Bt microbial pesticides and a 14 year history of safe consumption of food and feed
derived from Bt crops.
xxx
x

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards
Australia and New Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by
[respondents] was dismissed as "scientifically flawed", thus providing no plausible basis to the
proposition that Bt talong is dangerous to public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM
Crops: 2011," the Philippines was cited to be the first country in the ASEAN region to
implement a regulatory system for transgenic crops (which includes DAO 08-[2]002).
Accordingly, the said regulatory system has also served as a model for other countries in the
region and other developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial
and documentary evidence of respondents, taken together, do not amount to "scientifically plausible"
evidence of threats of serious and irreversible damage to the environment. In fact, since BPI started
regulating GM crops in 2002, they have monitored 171 field trials all over the Philippines and said
agency has not observed any adverse environmental effect caused by said field trials. Plainly,
respondents failed to show proof of "specific facts" of environmental damage of the magnitude
contemplated under the Rules of Procedure for Environmental Cases as to warrant sanctions over
the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of
scientists and other academicians of UP, of which they have been deprived without due process of law.
Stressing that a possibility is not a fact, UPLBFI deplores the CA decision's pronouncement of their guilt
despite the preponderance of evidence on the environmental safety of the field trials, as evident from
its declaration that "the over-all safety guarantee of Bt talong remains to be still unknown." It thus asks
if in the meantime, petitioners must bear the judicial stigma of being cast as violators of the right of the
people to a balanced and healthful ecology for an injury or damage unsubstantiated by evidence of
scientific plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the exercise
of UPLB's academic freedom, which is a constitutional right. In this case, there is nothing based on
evidence on record or overwhelming public welfare concern, such as the right of the people to a
balanced and healthful ecology, which would warrant restraint on UPLB's exercise of academic freedom.
Considering that UPLB complied with all laws, rules and regulations regarding the application and
conduct of field testing of GM eggplant, and was performing such field tests within the prescribed limits
of DAO 08-2002, and there being no harm to the environment or prejudice that will be caused to the
life, health or property of inhabitants in two or more cities or provinces, to restrain it from performing
the said field testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case, in violation
of the standards set by the Rules of Procedure for Environmental Cases. It points out that
the Bt eggplants are not yet intended to be introduced into the Philippine ecosystem nor to the local
market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is an
entomologist and expert in integrated pest management and insect taxonomy, and Dr. Davies, a
member of the faculty of the Department of Plant Biology and Horticulture at Cornell University for 43
years and served as a senior science advisor in agricultural technology to the United States
Department of State. Both had testified that based on generally accepted and scientific methodology,
the field trial of Bt crops do not cause damage to the environment or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts that
the CA could not support its Decision and Resolution on the pure conjectures and imagination of one
witness. Basic is the rule that a decision must be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely because
of the serious safety concerns on the impact of Bt talong toxin on human and animal health and the
environment through field trial contamination. They point out that the inherent and potential risks and
adverse effects of GM crops are recognized in the Cartagena Protocol and our biosafety regulations (EO
514 and DAO 08-2002). Contamination may occur through pollination, ingestion by insects and other
animals, water and soil run off, human error, mechanical accident and even by stealing was inevitable
in growing Bt talong in an open environment for field trial. Such contamination may manifest even after
many years and in places very far away from the trial sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission,
respondents assert that, in the face of scientific uncertainties on the safety and effects of Bt talong,
petitioners omitted their crucial duties to conduct environmental impact assessment (EIA); evaluate
health impacts; get the free, prior and informed consent of the people in the host communities; and
provide remedial and liability processes in the approval of the biosafety permit and conduct of the field
trials in its five sites located in five provinces. These omissions have put the people and the
environment at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A
Compilation of Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a study
on Bt corn in the Philippines, "Socio-economic Impacts of Genetically Modified Corn in the Philippines"
published by MASIPAG in 2013; and the published report of the investigation conducted by Greenpeace,
"White Corn in the Philippines: Contaminated with Genetically Modified Corn Varieties" which revealed
positive results for samples purchased from different stores in Sultan Kudarat, Mindanao, indicating that
they were contaminated with GM corn varieties, specifically the herbicide tolerant and Bt insect
resistant genes from Monsanto, the world's largest biotech company based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the
studies of Drs. L. Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron, all
from the Universidad Nacional Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles Seralini of
the University of Caen, France, who is also the president of the Scientific Council of the Committee for
Independent Research and Information on Genetic Engineering (CRIIGEN), in his review, commissioned
by Greenpeace, of Mahyco's data submitted in support of the application to grow and
market Bt eggplant in India; and the medical interpretations of Prof. Seralini's findings by Filipino
doctors Dr. Romeo Quijano of the University of the Philippines-Philippine General Hospital and Dr.
Wency Kiat, Jr. of St. Luke's Medical Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks are
strengthened by the findings of a review of the safety claims in the MAHYCO Dossier authored by Prof.
David A. Andow of the University of Minnesota, an expert in environmental assessment in crop science.
The review was made upon the request in 2010 of His Honorable Shri Jairam Ramesh of the Ministry of
Environment and Forests of India, where MAHYCO is based. MAHYCO is the corporate creator and patent
owner of the Bt gene inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized 32 by respondents, as
follows:
Studies/interpretation by Conclusion/interpretation
Drs. L. Moreno-Fierros, N. Garcia, R. For Bt modified crops (like Bt talong), there is concern over
Gutierrez, R. its potential
Lopez-Revilla, and RI Vazquez-Padron allergenicity. CrylAcc (the gene inserted in Bt talong)
protoxin is a potent immunogen (triggers immune
response); the protoxin is immunogenic by both the
intraperitoneal (injected) and intragastric (ingested) route;
the immune response to the protoxin is both systemic and
mucosal; and CrylAcc protoxin binds to surface proteins in
the mouse small intestine. These suggest that extreme
caution is required in the use of CrylAcc in food crops.
Prof. Eric-Gilles Seralini His key findings showed statistical significant differences
between group of animals fed GM and non-GM eggplant that
raise food safety concerns and warrant further
investigation.
Dr. Romeo Quijano & Dr. Wency Kiat, Jr. Interpreting Prof. Seralini's findings, the altered condition of
rats symptomatically indicate hazards for human
health.
Prof. David A. Andow The MAHYCO dossier is inadequate to support the needed
environmental risk assessment; MAHYCO's food safety
assessment does not comply with international standards;
and that MAHYCO relied on dubious scientific assumptions
and disregarded real environmental threats.
As to environmental effects, respondents said these include the potential for living modified organisms,
such as Bt talong tested in the field or released into the environment, to contaminate non-GM
traditional varieties and other wild eggplant relatives and turn them into novel pests, outcompete and
replace their wild relatives, increase dependence on pesticides, or spread their introduced genes to
weedy relatives, potentially creating superweeds, and kill beneficial insects.

Respondents then gave the following tabulated summary33 of field trial contamination cases drawn from
various news reports and some scientific literature submitted to the court:
What happened Impact How did it occur
During 2006 and 2007, traces of In July 2011, Bayer eventually agreed Field trials were conducted
three varieties of unapproved to a $750m US dollar settlement between the mid-1990s
genetically modified rice owned by resolving claims with about 11,000 and early 2000s. The US
Bayer Crop Science were found in US farmers for market losses and Department of Agriculture
US rice exports in over 30 clean-up costs. (USDA) reported these
countries worldwide. field trials were the likely
The total costs to the rice industry sources of the
are likely to have been over $1bn contamination between
worldwide. the modified rice and
conventional varieties.
However, it was unable to
conclude [if it] was caused
by gene flow (cross
pollination) or mechanical
mixing.
In 2009, unauthorised GElinseed Canada lost exports to its main In the late 1980s a public
(also known as 'flax') produced by European market worth hundreds of research institution, the
a public research institution was millions of dollars and non-GElinseed Crop Development Centre
discovered in food in several EU farmers have faced huge costs and in Saskatoon, Saskat-
countries, having been imported market losses. chewan, developed a
from Canada. GElinseed variety FP96
believed to be the origin
of the contamination.
During 2004, the Thai government Exports of papaya to Europe have GEpapaya is not grown
found that papaya samples from been hit because of fears that commercially in Thailand,
85 farms were genetically contamination could have spread. so it was clear that the
modified. The contamination The Thai government said it was contamination originated
continued into 2006 and it is likely taking action to destroy the from the government
that the GE contamination contaminated trees. station experimentally
reached the food chain. breeding GE papaya trees.
Tests that showed that one
third of papaya orchards
tested in the eastern
province of Rayong and
the north-eastern
provinces of
Mahasarakham,
Chaiyaphum and
Kalasinhad GE-
contaminated papaya
seeds in July 2005. The
owners said that a
research station gave
them the seeds.
In the US in 2002, seeds from a Prodigene, the company responsible, Seeds from the GEmaize
GEmaize pharma-crop containing was fined $3m for tainting half a crop sprouted voluntarily
a pig vaccine grew independently million bushels of soya bean with a in the following season.
among normal soybean crops. trial vaccine used to prevent
stomach upsets in piglets. Prodigene
agreed to pay a fine of $250,000 and
to repay the government for the cost
of incinerating the soya bean that
had been contaminated with
genetically altered corn.
In 2005, Greenpeace discovered The European Commission adopted The source of the
that GE rice seeds had been emergency measures (on 15 August contamination appears to
illegally sold in Hubei, China. 2008) to require compulsory have been the result of
Then, in 2006, GE rice event Bt63 certification for the imports of illegal planting of
was found in baby food sold in Chinese rice products that could GEseeds. Seed companies
Beijing, Guangzhou and Hong contain the unauthorised GE rice in China found to have
Kong. In late 2006, GE rice Bt63 Bt63. sold GErice hybrid seed to
was found to be contaminating farmers operated directly
exports in Austria, France, the UK The Chinese government took under the university
and Germany. In 2007 it was again several measures to try to stop the developing GM rice. It has
found in EU imports to Cyprus, contamination, which included been reported that the key
Germany, Greece, Italy and punishing seed companies, scientist sat on the board
Sweden. confiscating GEseed, destroying of one GEseed company.
GErice grown in the field and
tightening control over the food
chain.

In 2005, the European Commission The European Commission blocked The contamination arose
announced that illegal Bt10 US grain import unless they could be because Syngenta's
GEmaize produced by GEseed guaranteed free of Bt10. The USDA quality control procedures
company Syngenta had entered fined Syngenta $375,000. There are did not differentiate
the European food chain. The no figures for the wider costs. between Bt10 and its
GEmaize Bt10 contains a marker sister commercial line,
gene that codes for the widely- Bt11. As a result, the
used antibiotic ampicillin, while experimental and
the Bt11 does not. According to substantially different
the international Codex Bt10 line was mistakenly
Alimentarius Guideline for Conduct used in breeding. The
of Food Safety Assessment of error was detected four
Foods Derived from Recombinant- years later when one of
DNA:Plants: 'Antibiotic resistance the seed companies
genes used in food production that developing Bt11 varieties
encode resistance to clinically adopted more
used antibiotics should not be sophisticated analytical
present in foods' because it techniques.
increases the risk of antibiotic
resistance in the population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field
trial is isolated, restricted and that "each experiment per site per season consists of a maximum net
area planted to Bt eggplant of between 480 sq. meters to 1,080 sq. meters,"34 respondents emphasize
that as shown by the above, contamination knows no size and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the issuance of writ
of kalikasan, respondents assert that while the Bt talong field trials were conducted in only five
provinces, the environmental damage prejudicial to health extends beyond the health of the present
generation of inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury, respondents
said that biosafety evidence could not be readily contained in a corpus delicti to be presented in court.
Indeed, the inherent and potential risks and adverse effects brought by GMOs are not like dead bodies
or wounds that are immediately and physically identifiable to an eyewitness and which are resulting
from a common crime. Precisely, this is why the Cartagena Protocol's foundation is on the
precautionary principle and development of sound science and its links, to social and human rights law
through its elements of public awareness, public participation and public right to know. This is also why
the case was brought under the Rules of Procedure for Environmental Cases and not under ordinary or
other rules, on the grounds of violation of the rights of the Filipino people to health, to a balanced and
healthful ecology, to information on matters of national concern, and to participation. The
said Rules specifically provides that the appreciation of evidence in a case like this must be guided by
the precautionary principle.

As to the non-exhaustion of administrative remedies being raised by petitioners as ground to dismiss


the present petition, respondents said that nowhere in the 22 sections of DAO 08-2002 that one can
find a remedy to appeal the decision of the DA issuing the field testing permit. What is only provided for
is a mechanism for applicants of a permit, not stakeholders like farmers, traders and consumers to
appeal a decision by the BPI-DA in case of denial of their application for field testing. Moreover, DAO 08-
2002 is silent on appeal after the issuance of the biosafety permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514 explicitly
states that the application of biosafety regulations shall be made in accordance with existing laws and
the guidelines therein provided. Hence, aside from risk assessment requirement of the biosafety
regulations, pursuant to the PEISS law and Sections 12 and 13 of the Philippine Fisheries Code of 1998,
an environmental impact statement (EIS) is required and an environmental compliance certificate (ECC)
is necessary before such Bt crop field trials can be conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental Cases do
not empower courts to adjudicate a controversy that is moot and academic. It points out that
respondents failed to satisfy all the requirements of the exception to the rule on actual controversies.
The Biosafety Permit is valid for only two years, while the purported stages in the commercialization,
propagation and registration of Bt talong still cannot confer jurisdiction on the CA to decide a moot and
academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do not
have "mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory system,
and to propose curative legislation. The law (EO 514) cited by respondents does not impose such duty
on public petitioners. As for the Cartagena Protocol, it laid down a procedure for the evaluation of the
Protocol itself, not of the Philippine biosafety regulatory system. ISAAA stresses that the CA is without
jurisdiction to review the soundness and wisdom of existing laws, policy and regulations. Indeed, the
questions posed by the respondents are political questions, which must be resolved by the executive
and legislative departments in deference to separation of powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in saying
that these are limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-2002 which
grants them the right to submit their written comments on the BPI regarding the field testing permits,
or Section 8 (P) for the revocation and cancellation of a field testing permit. Respondents' failure to
resort to the internal mechanisms provided in DAO 08-2002 violates the rule on exhaustion of
administrative remedies, which warrants the dismissal of respondents' petition.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field
testing permits, while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the DA
through the BPI, is responsible for the production of improved planting materials and protection of
agricultural crops from pests and diseases. In bypassing the administrative remedies available,
respondents not only failed to exhaust a less costly and speedier remedy, it also deprived the parties of
an opportunity to be heard by the BPI which has primary jurisdiction and knowledgeable on the issues
they sought to raise.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the
Consolidated Comment as irrelevant because it was not formally offered in evidence and are hearsay.
Majority of those records contain incomplete information and none of them pertain to the Bt talong.
Respondents likewise presented two misleading scientific studies which have already been discredited:
the 2013 study by B.P. Mezzomo, et al. and the study by Prof. Seralini in 2012. Petitioner notes that
both articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126
usable records out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo, F.
Veronesi, and D. Rosellini, entitled "An overview of the last 10 years of genetically engineered crop
safety research." The authors evaluated 1,783 scientific records of GE crop safety research papers,
reviews, relevant opinions and scientific reports from 2002-2012. Their findings concluded that "the
scientific research conducted so far has not detected any significant hazards directly connected with
the use of GE crops." In the article "Impacts of GM crops on biodiversity," in which scientific findings
concluded that "[o]verall, x x x currently commercialized GM crops have reduced the impacts of
agriculture on biodiversity, through enhanced adoption of conservation tillage practices, reduction of
insecticide use and use of more environmentally benign herbicides and increasing yields to alleviate
pressure to convert additional land into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-A
decade of EU-funded GMO research (2001-2010), concluded from more than 130 research projects,
covering a period of 25 years of research, and involving more than 500 independent research groups,
that "biotechnology, and in particular GMOs, are not per se more risky than e.g. conventional plant
breeding technologies." Another article cited is "Assessment of the health impact of GM plant diets in
long-term and multigenerational animal feeding trials: A literature review" which states that scientific
findings show that GM crops do not suggest any health hazard, and are nutritionally equivalent to their
non-GM counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental effects of GM
crops, petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of Field
Research and Commercial Cultivation" which concluded that "[T]he data available so far provide no
scientific evidence that the cultivation of the presently commercialized GM crops has caused
environmental harm." A related article, "A Meta-Analysis of Effects of Bt Cotton and Maize on Non-
target Invertebrates" states that scientific findings show that non-target insects are more abundant in
GM crop fields like Bt cotton and Bt maize fields than in non-GM crops that are sprayed with
insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA, which
presented the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering
that this was not formally offered as evidence by respondents. Hence, the same may not be considered
by the Honorable Court. (Section 34, Rule 132 of the Rules of Court; Heirs of Pedro Pasag v.
Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from
engineered E. coli and may have been contaminated by endotoxin. The CrylAcc used in the study
was not from Bt talong. Hence, respondents' attempt to extrapolate the interpretation and conclusion
of this study to Bt talong is grossly erroneous and calculated to mislead and deceive the Honorable
Court.

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-
Fierros, et al., which was published in an article entitled A Review of the Food Safety of Bt Crops, the
authors reported that Adel-Patient, et al. tried and failed to reproduce the results obtained by the study
made by L. Moreno-Fierros, et al. The reason is because of endotoxin contamination in the preparation
of the CrylAc protein. Further, when purified Cry protein was injected to mice through intra-gastric
administration, there was no impact on the immune response of the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential
health risks from human consumption of foods derived from Bt crops can be questioned because the
doses tested in mice is irrelevant to human dietary exposure, i.e., the doses given were "far in excess of
potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any
weight and consideration because his sworn statement was not admitted in evidence by the Court of
Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed
by Seralini's statistical analysis as examples of random biological variation that occurs when many
measurements are made on test animals, and which have no biological significance. Hence, there are
no food safety concerns. Further, petitioner ISAAA presented in evidence the findings of regulatory
bodies, particularly the EFSA and the FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ
rejected Seralini's findings because the same were based on questionable statistical
procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier
decision approving the safety of Bt eggplant notwithstanding the findings of Seralini's assessment. In
effect, Seralini's findings and interpretation were rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not
entitled to any weight and consideration because the Court of Appeals did not admit their sworn
statement. Further, Drs. Romeo Quijano and Wency Kiat sought to interpret a seriously flawed study,
making their sworn statements equally flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A.
Andow as the work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In
truth, as Prof. David A. Andow indicated in the preface, the report was produced upon the request of
Aruna Rodriguez, a known anti-GM campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the environment of
Mahyco's Bt brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all over
the country. He concluded, however, that the dossier is inadequate for ERA. This is perplexing
considering this is the same gene that has been used in Bt cotton since 1996. Scores of environmental
and food safety risk assessment studies have been conducted and there is wealth of information and
experience on its safety. Various meta-analyses indicate that delaying the use of this already
effective Bt brinjal for managing this devastating pest only ensures the continued use of frequent
insecticide sprays with proven harm to human and animal health and the environment and loss of
potential income of resource-poor small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian
regulatory body, GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on
the recommendation of two expert committees which found the Mahyco regulatory dossier compliant to
the ERA stipulated by the Indian regulatory body. In effect, like Seralini, Andow's findings and
interpretation were also rejected by the Indian regulatory agency. 35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid
requirements under Section 8 of DAO 08-2002 already takes into consideration any and all significant
risks not only to the environment but also to human health. The requirements under Sections 26 and 27
of the Local Government Code are also inapplicable because the field testing is not among the six
environmentally sensitive activities mentioned therein; the public consultations and prior local
government unit (LGU) approval, were nevertheless complied with. Moreover, the field testing is an
exercise of academic freedom protected by the Constitution, the possibility of Bt talong's
commercialization in the future is but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are
inadmissible, hearsay and unreliable. These were not formally offered in evidence; self-serving as it was
conducted by respondents Greenpeace and MASIPAG themselves; the persons who prepared the same
were not presented in court to identify and testify on its findings; and the methods used in the
investigation and research were not scientific. Said studies failed to establish any correlation
between Bt corn and the purported environmental and health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the same
reasons given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit of Dr. Kiat
and Dr. Quijano were denied admission by the CA. Given the failure of the respondents to present
scientific evidence to prove the claim of environmental and health damages, respondents are not
entitled to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the latter
complied with all the requirements under DAO 08-2002, including the conduct of risk assessment. The
applications for field testing of Bt talong thus underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications
for issuance of Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the
proponent submitted its application, petitioner BPI conducted a consultative meeting with the
proponent to enlighten the latter about the requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA
AO No. 8 and found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as
required in Section 8 (A) (1) of DA AO No. 08.

Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated
article has undergone satisfactory testing under contained conditions in the Philippines, (ii) technical
dossier consisting of scientific literature and other scientific materials relied upon by the applicant
showing that Bt talong will not pose any significant risks to human health and the environment, and (iii)
copy of the proposed PIS for Field Testing as prescribed by Section 8 (A) (2) of DA AO No. 08; and
Third. The applications contained the Endorsement of proposal for field testing, duly approved by the
majority of all the members of the respective Institutional Biosafety Committees (IBC), including at
least one community representative, as required by Section 8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the
risk assessment and risk management strategies of the applicant for field testing using the NCBP
guidelines. The IBC shall determine if the data obtained under contained conditions provide
sufficient basis to authorize the field testing of the regulated article. In making the
determination, the IBC shall ensure that field testing does not pose any significant risks to
human health and the environment. The IBC may, in its discretion, require the proponent to
perform additional experiments under contained conditions before acting on the field testing proposal.
The IBC shall either endorse the field testing proposal to the BPI or reject it for failing the scientific risk
assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an
applicant for field testing to establish an IBC in preparation for the field testing of a regulated article
and whose membership has been approved by the BPI. Section 1 (L) of DA AO No. 08, requires that
the IBC shall be composed of at least five (5) members, three (3) of whom shall be designated as
"scientist-members" who shall possess scientific and technological knowledge and expertise sufficient
to enable them to evaluate and monitor properly any work of the applicant relating to the field testing
of a regulated article, and the other members are designated as "community representatives" who are
in a position to represent the interest of the communities where the field testing is to be conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of
DA AO No. 08, forwarded the complete documents to three (3) independent Scientific Technical Review
Panel (STRP) members. Pending receipt of the risk assessment reports of the three STRP members,
petitioner BPI conducted its own risk assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three
STRP members recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment
and evaluation of UPLB's application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each
concerned barangays and city/municipal halls of the localities having jurisdiction over its proposed field
trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings
and public seminars in order to provide public information and in order to give an opportunity to the
public to raise their questions and/or concerns regarding the Bt talong field
trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt
talong field testing considering that its subject matter is not mass production for human consumption.
The project entails only the planting of Bt eggplants and cultivation in a controlled environment;
indeed, the conduct of a field trial is not a guarantee that the Bt talong will be commercialized and
allowed for cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that during the
period of public consultation under DAO 08-2002, it is BPI which processes written comments on the
application for field testing of a regulated article, and has the authority to approve or disapprove the
application. Also, under Section 8 (P), BPI may revoke a biosafety permit issued on the ground of,
among others, receipt of new information that the field testing poses significant risks to human health
and the environment. Petitioners assert they were never remiss in the performance of their mandated
functions, as shown by their immediate action with respect to the defective certification of posting of
PIS in Kabacan, North Cotabato. Upon receiving the letter-complaint on January 24, 2012, BPI readily
ordered their re-posting. The same incident occurred in Davao City, where BPI refused to lift the
suspension of biosafety permits until "rectification of the conditions for public consultation is carried
out."

To underscore respondents' blatant disregard of the administrative process, petitioners refer to


documented instances when respondents took the law in their own hands. Greenpeace barged into one
of the Bt talong field trial sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the entrance gate
through the use of a bolt cutter, and then proceeded to uproot the experimental crops without
permission from BPI or the project proponents. Petitioners submit that the non-observance of the
doctrine of exhaustion of administrative remedies results in lack of cause of action, one of the grounds
under the Rules of Court justifying the dismissal of a complaint.
Petitions-in-Intervention

Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well as
regional (Crop Life Asia) networks of member-companies representing the plant science industry. It
aims to "help improve the productivity of Filipino farmers and contribute to Philippine food security in a
sustainable way." It supports "innovation, research and development in agriculture through the use of
biology, chemistry, biotechnology, plant breeding, other techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners' right
to due process because it was prevented from cross-examining the respondents' expert witnesses and
conducting re-direct examination of petitioners' own witnesses, and being an evidently partial and
prejudiced court. It said the petition for writ of kalikasan should have been dismissed outright as it
effectively asks the Court to engage in "judicial legislation" to "cure" what respondents feel is an
inadequate regulatory framework for field testing of GMOs in the Philippines. Respondents also violated
the doctrine of exhaustion of administrative remedies, and their petition is barred by estoppel and
laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and prove
the particular environmental damage resulting from the Bt talong field testing. It cites the scientific
evidence on record and the internationally accepted scientific standards on GMOs and GMO field
testing, and considering the experience of various countries engaged in testing GMOs, telling us that
GMO field testing will not damage the environment nor harm human health and more likely bring about
beneficial improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously
equated field testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was no
particular environmental damage identified, much less proven; relied upon the article of Prof. Seralini
that was retracted by the scientific journal which published it; there is no scientific uncertainty on the
adverse effects of GMOs to environment and human health; and did not consider respondents' failure to
prove the insufficiency of the regulatory framework under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely safe
before any field testing may be allowed, would result in permanently placing the Philippines in the
shadows of more developed nations (whose economies rest on emerging markets importing products
from them). It points out that the testing of Bt talong specifically addresses defined problems such as
the need to curb the misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of


advocates of modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:


I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE ABSENCE
OF ANY JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE


PRECAUTIONARY PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF SUSTAINED,


WOULD PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-TECHNOLOGY AND,
ULTIMATELY, DETRIMENTAL TO THE FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field
trials having been terminated, the CA entertained a prohibited collateral attack on the sufficiency of
DAO 08-2002. Though not invalidating the issuance, which the CA knew was highly improper, it
nonetheless granted the petition for writ of kalikasan on the theory that "mere biosafety regulations"
were insufficient to guarantee the safety of the environment and the health of the people.

Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust
administrative remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to regulated articles
prior to any release in the environment for field testing mandated by AO No. 8 sufficiently complies with
the rationale behind the development of the precautionary principle. By implementing the stringent
provisions of DAO 08-2002, in conjunction with the standards set by EO 514 and the NBF, the
government preemptively intervenes and takes precautionary measures prior to the release of any
potentially harmful substance or article into the environment. Thus, any potential damage to the
environment is prevented or negated. Moreover, international instruments ratified and formally
adopted by the Philippines (CBD and the Cartagena Protocol) provide additional support in the proper
application of the precautionary principle in relation to GMOs and the environment.

On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic premise
for its application is the existence of threat of harm or damage to the environment, which must be
backed by a reasonable scientific basis and not based on mere hypothetical allegation, before the
burden of proof is shifted to the public respondents in a petition for writ of kalikasan. Here, the CA
relied heavily on its observation that "... field trials of bt talong could not be declared ... as safe to
human health and to ecology, with full scientific certainty, being an alteration of an otherwise natural
state of affairs in our ecology" and "introducing a genetically modified plant in our intricate world of
plants by humans certainly appears to be an ecologically imbalancing act," among others. BCP finds
that this pronouncement of the CA constitutes an indictment not only against Bt talong but against all
GMOs as well. The appellate court's opinion is thus highly speculative, sweeping and laced with obvious
bias.

There being no credible showing in the record that the conduct of Bt talong field trials entails real
threats and that these threats pertain to serious and irreversible damage to the environment, BCP
maintains that the precautionary principle finds no application in this case. While Rule 20 of the Rules of
Procedure for Environmental Cases states that "[w]hen there is a lack of full scientific certainty in
establishing a causal link between human activity and environmental effect, the court shall apply the
precautionary principle in resolving the case before it," the CA failed to note that the element of lack of
full scientific certainty pertains merely to the causal link between human activity and environmental
effect, and not the existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against
technological advancements, especially those in agriculture. Affirming the CA decision thus sets a
dangerous precedent where any and all human activity may be enjoined based on unfounded fears of
possible damage to health or the environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative


remedies;

4. Application of the law on environmental impact statement/assessment on projects


involving the introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the environment in two or
more provinces, as a result of the Bt talong field trials;

6. Neglect or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing; and
7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers particularly to
"a party's personal and substantial interest in a case where he has sustained or will sustain direct injury
as a result" of the act being challenged, and "calls for more than just a generalized grievance." 39

However, the rule on standing is a matter of procedure which can be relaxed for non-traditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as
when the matter is of transcendental importance, of overreaching significance to society, or of
paramount public interest.40 The Court thus had invariably adopted a liberal policy on standing to allow
ordinary citizens and civic organizations to prosecute actions before this Court questioning the
constitutionality or validity of laws, acts, rulings or orders of various government agencies or
instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits. In said
case, we recognized the "public right" of citizens to "a balanced and healthful ecology which, for the
first time in our nation's constitutional history, is solemnly incorporated in the fundamental law." We
held that such right need not be written in the Constitution for it is assumed, like other civil and political
rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of
transcendental importance with intergenerational implications. Such right carries with it the correlative
duty to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their own and future generations. Thus:
Petitioners minors assert that they represent their generation as well as generations yet unborn. We
find no difficulty in ruling that they can, for themselves, for others of their generation and for the
succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding
generations can only be based on the concept of intergenerational responsibility insofar as
the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers the "rhythm and harmony of nature." Nature means the created world in its
entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their exploration,
development and utilization be equitably accessible to the present as well as future generations.
Needless to say, every generation has a responsibility to the next to preserve that rhythm and harmony
for the full enjoyment of a balanced and healthful ecology. Put a little differently, the minors' assertion
of their right to a sound environment constitutes, at the same time, the performance of their obligation
to ensure the protection of that right for the generations to come. 43(Emphasis supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental
Cases which allows the filing of a citizen suit in environmental cases. 44 The provision on citizen suits in
the Rules "collapses the traditional rule on personal and direct interest, on the principle that humans
are stewards of nature," and aims to "further encourage the protection of the environment." 45

There is therefore no dispute on the standing of respondents to file before this Court their petition for
writ of kalikasan and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on August 10, 2012. In
fact, the validity of all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because the issues
involved have become academic or dead, or when the matter in dispute has already been resolved and
hence, one is not entitled to judicial intervention unless the issue is likely to be raised again between
the parties.46 Time and again, courts have refrained from even expressing an opinion in a case where
the issues have become moot and academic, there being no more justiciable controversy to speak of,
so that a determination thereof would be of no practical use or value. 47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave violation
of the Constitution; second, the exceptional character of the situation and the paramount public
interest is involved; third, when the constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar and the public; and fourth, the case is capable of repetition yet
evading review.48 We find that the presence of the second and fourth exceptions justified the CA in not
dismissing the case despite the termination of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field trials, it is not
certain if they have actually completed the field trial stage for the purpose of data gathering. At any
rate, it is on record that the proponents expect to proceed to the next phase of the project, the
preparation for commercial propagation of the Bt eggplants. Biosafety permits will still be issued by the
BPI for Bt talong or other GM crops. Hence, not only does this case fall under the "capable of repetition
yet evading review" exception to the mootness principle, the human and environmental health hazards
posed by the introduction of a genetically modified plant, a very popular staple vegetable among
Filipinos, is an issue of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies

In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and exhaustion
of administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail of all
the means afforded him by administrative processes. The issues which administrative agencies are
authorized to decide should not be summarily taken from them and submitted to a court without first
giving such administrative agency the opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction;
that is, courts cannot or will not determine a controversy involving a question which is within the
jurisdiction of the administrative tribunal prior to the resolution of that question by the administrative
tribunal, where the question demands the exercise of sound administrative discretion requiring the
special knowledge, experience and services of the administrative tribunal to determine technical and
intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of
primary jurisdiction, which are based on sound public policy and practical considerations, are not
inflexible rules. There are many accepted exceptions, such as: (a) where there is estoppel on the
part of the party invoking the doctrine; (b) where the challenged administrative act is patently illegal,
amounting to lack of jurisdiction; (c) where there is unreasonable delay or official inaction that will
irretrievably prejudice the complainant; (d) where the amount involved is relatively small so as to make
the rule impractical and oppressive; (e) where the question involved is purely legal and will ultimately
have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted acts violate due
process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot;
(j) when there is no other plain, speedy and adequate remedy; (k) when strong public interest is
involved; and, (1) in quo warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public
information sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field
testing permit on certain grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following
grounds:

1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions specified in the
permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated article poses
significant risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment; or

6. Such other grounds as BPI may deem reasonable to prevent significant risks to human
health and the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious
health and environmental adverse effects of the Bt talong field trials due to "inherent risks" associated
with genetically modified crops and herbicides. They sought the immediate issuance of a TEPO to
enjoin the processing for field testing and registering Bt talong as herbicidal product in the Philippines,
stopping all pending field trials of Bt talong anywhere in the country, and ordering the uprooting of
planted Bt talong in the field trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of
continuing mandamus commanding the respondents to: (1) comply with the requirement of
environmental impact statement; (2) submit comprehensive risk assessments, field test reports,
regulatory compliance reports and other material documents on Bt talong including issued certifications
on public consultation with LGUs; (3) work with other agencies to submit a draft amendment to
biosafety regulations; and (4) BPI, in coordination with relevant government agencies, conduct
balanced nationwide public information on the nature of Bt talong field trial, and a survey of its social
acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the
respondents "to determine the questions of unique national and local importance raised here that
pertain to laws and rules for environmental protection, thus [they were] justified in coming to this
Court."50 We take judicial notice of the fact that genetically modified food is an intensely debated global
issue, and despite the entry of GMO crops (Bt corn) into the Philippines in the last decade, it is only now
that such controversy involving alleged damage or threat to human health and the environment from
GMOs has reached the courts.

Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill
specific purposes. The basic strategy employed is to use the sexual mechanism to reorganize the
genomes of two individuals in a new genetic matrix, and select for individuals in the progeny with the
desirable combination of the parental characteristics. Hybridization is the conventional way of creating
variation. In animals, mating is effected by introducing the desired sperm donor to the female at the
right time. In plants, pollen grains from the desired source are deposited on the stigma of a receptive
female plant. Pollination or mating is followed by fertilization and subsequently development into an
embryo. The effect of this action is the reorganization of the genomes of two parents into a new genetic
matrix to create new individuals expressing traits from both parents. The ease of crossing of mating
varies from one species to another. However, conventional breeding technologies are limited by their
long duration, need for sexual compatibility, low selection efficiency, and restricted gene pool. 51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to
transfer genes from one organism to any other, circumventing the sexual process. For example, a gene
from a bacterium can be transferred to corn. Consequently, DNA technology allowed scientists to treat
all living things as belonging to one giant breeding pool. Unlike other natural genome rearrangements
phenomena, rDNA introduces alien DNA sequences into the genome. Even though crossing of two
sexually compatible individuals produces recombinant progeny, the term recombinant DNA is restricted
to the product of the union of DNA segments of different biological origins. The product of recombinant
DNA manipulation is called a transgenic organism. rDNA is the core technology of biotechnology. 52

The organism that is created through genetic engineering is called a genetically modified organism
(GMO). Since the production of the first GMOs in the 1970s, genes have been transferred between
animal species, between plant species, and from animal species to plant species. Some genes can
make an animal or plant grow faster or larger, or both. A gene produced by flounder (anti-freeze) was
transplanted into salmon so that salmon can be farmed in colder climates. Many species offish are
genetically engineered to speed growth, to alter flesh quality, and to increase cold and disease
resistance. In farm animals such as cattle, genes can be inserted to reduce the amount of fat in meat,
to increase milk production, and to increase superior cheese-making proteins in milk. Biotechnology has
also modified plants to produce its own pesticide, resist common diseases or to tolerate weed-killing
herbicide sprays.53

Despite these promising innovations, there has been a great deal of controversy over bioengineered
foods. Some scientists believe genetic engineering dangerously tampers with the most fundamental
natural components of life; that genetic engineering is scientifically unsound; and that when scientists
transfer genes into a new organism, the results could be unexpected and dangerous. But no long-term
studies have been done to determine what effects GMO foods might have on human health. 54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest
molecular biology techniques. These plants are modified in the laboratory to enhance desired traits
such as increased resistance to herbicides or improved nutritional content. 55 Genetic modification of
plants occurs in several stages:

1. An organism that has the desired characteristic is identified and the specific gene
producing this characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the cells of the
plant to be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene works
adequately when it is introduced into the plant.

4. The gene of interest together with carrier and promoter is then inserted into bacterium,
and is allowed to reproduce to create many copies of the gene which are then transferred
into the plant being modified.

5. The plants are examined to ensure that they have the desired physical characteristic
conferred by the new gene.

6. The genetically modified plants are bred with conventional plants of the same variety to
produce seed for further testing and possibly for future commercial use. The entire
process from the initial gene selection to commercial production can take up to ten years
or more.56

Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major constraints
being faced in farming such as insect pest infestation and diseases which lead to substantial yield
losses. Pest-resistant crops could substantially improve yields in developing countries where pest
damage is rampant and reduce the use of chemical pesticides. Crop plants which have been genetically
engineered to withstand the application of powerful herbicides 57 using genes from soil bacteria
eliminates the time-consuming and not cost-effective physical removal of weeds by tilling. The
herbicides to which the GM crops are tolerant are "broad spectrum" weedkillers, which means they can
be sprayed over the entire field, killing all plants apart from the GM crop. Herbicide-tolerant crops
include transgenes providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These
herbicides kill nearly all kinds of plants except those that have the tolerance gene. Another important
benefit is that this class of herbicides breaks down quickly in the soil, eliminating residue carryover
problems and reducing adverse environmental impacts.58

Some plants are genetically engineered to withstand cold climates such as GM strawberries or
soybeans, expressing the anti-freeze gene of arctic flounder, to protect themselves against the
damaging effects of the frost; and GM tobacco and potato with anti-freeze gene from cold water fish.
Crops could also be genetically modified to produce micronutrients vital to the human diet such as the
"golden rice" genetically modified to produce beta-carotene, which can solve Vitamin A deficiency and
prevent night blindness in pre-school children. Other efforts to enhance nutritional content of plants
include the genetic modification of canola to enhance Vitamin E content or better balance fatty acids,
cereals for specific starch or protein, rice for increased iron to reduce anemia, and plant oils to adjust
cholesterol levels. There are also food crops engineered to produce edible vaccines against infectious
diseases that would make vaccination more readily available to children around the world. For example,
transgenic bananas containing inactivated viruses protecting against common developing world
diseases such as cholera, hepatitis B and diarrhea, have been produced. These vaccines will be much
easier to ship, store and administer than traditional injectable vaccines. 59

Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the
often opposing goals of meeting the human demand for food, nutrition, fiber, timber, and other natural
resources. Biotech crops could put more food on the table per unit of land and water used in
agriculture, thus resulting in decreased land and water diverted to human uses. Increasing crop yields
and reducing the amount of cultivated land necessary would also reduce the area subject to soil erosion
from agricultural practices, which in turn would limit associated environmental effects on water bodies
and aquatic species and would reduce loss of carbon sinks and stores into the atmosphere. 60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there emerged
controversial issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects. Based on
scientific studies, these foods can unleash new pathogens, contain allergens and toxins, and increase
the risk of cancer, herbicide exposure, and harm to fetuses and infants. 61 Independent studies
conducted went as far to conclude that GM food and feed are "inherently hazardous to health." 62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the
methionine content for animal feed. The protein was subsequently shown to be an allergen and the
product was never marketed. Genetically modified foods can introduce novel proteins into the food
supply from organisms that are never consumed as foods, which may pose a health risk. This may elicit
potentially harmful immunological responses, including allergic hypersensitivity. 63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically
altered to produce lectins, natural insecticides, to protect them against aphids, damaged the animals'
gut, other organs, and immune system. Dr. Pusztai found that "the damage originated not from the
transgene and its expressed product but from the damage caused by the insertion of the transgene,
probably due to insertional mutagenesis."64 If confirmed, Pusztai's conclusions will reinforce concerns
that gene insertion itself may create new toxins; it will also implicate the toxin commonly used in other
genetically engineered crops - the Bt toxin which, Pusztai says, is also a lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps
determine if the foreign gene has successfully spliced into the host organism, is another cause of grave
concern among scientists. These arm genes might unexpectedly recombine with disease-causing
bacteria or microbes in the environment or in the guts of animals or humans who eat GM food, thus
contributing to the growing public health danger of antibiotic-resistance of infections that cannot be
cured with traditional antibiotics (e.g., new strains of salmonella, e-coli, campylobacter and
enterococci).66However, recent advances in genetic engineering indicate that use of such selection
markers is likely to diminish with the anticipated development of alternative types of marker genes. 67

Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone
genetically modified to stimulate milk production in cows was found to elevate levels of IGF-1 (insulin-
like Growth Factor-1, identical versions of which occurs in cows and humans) in cow's milk by 80%. IGF-
1 is reported to be a key factor in prostate cancer, breast cancer and lung cancer. 68 Dr. Samuel Epstein
of the University of Illinois warned of the danger of high levels of IGF-1 contained in milk cows injected
with synthetic bovine growth hormone (rBGH), which could be a potential risk factor for breast and
gastrointestinal cancers.69

Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to worsen
modern diseases. A report published in the journal Entropy argues that glyphosate residues, found in
most commonly consumed foods in the Western diet courtesy of genetically engineered sugar, corn,
soy and wheat, "enhance the damaging effects of other food-borne chemical residues and toxins in the
environment to disrupt normal body functions and induce disease." Another research demonstrated a
connection between increased use of Roundup with rising autism rates in the US. 70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-GMO
plants, creating super weeds and super pests, harming non-target species, changing soil microbial and
biochemical properties, and threatening biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide
tolerance (HT). Both have drastic modes of action to kill the target species at high efficiency. Bt crops
contain a toxin lethal to certain insects, and Bt sprays have been used by organic farmers as a last
option to deal with certain pests like the corn borer. It is feared that genetically modified Bt crops will
speed up resistance to Bt, thereby rendering the organic spray ineffective.71 Lab and field tests also
indicate that common plant pests such as cotton bollworms, living under constant pressure from GE
crops, will soon evolve into "superpests" completely immune to Bt sprays and other environmentally
sustainable biopesticides.72 In the case of HT, the technology involves the combined use of a chemical
herbicide and a GM plant. The herbicide is generally a broad spectrum herbicide (commonly glyphosate
or glufosinate) which kills weeds while leaving the crop plant alive as it is genetically engineered to be
resistant to the herbicide. The herbicide acts to inhibit an essential enzyme that is found in all plants
and as a result is able to eliminate all weeds whereas most conventional herbicides are selective in
their action and target a limited number of weeds. Concern has been raised regarding over-reliance on
use of one or two herbicides in increased amounts over time which leads to the emergence of herbicide
resistant weeds. Also, the transfer of an herbicide-resistance gene into a weed can convert it into a
superweed. Pests and weeds will emerge that are pesticide or herbicide resistant, which means that
stronger, more toxic chemicals will be needed to get rid of the pests. 73

It is a well-accepted fact that genetically engineered plants can move beyond the field sites and cross
with wild relatives.74 It is by nature a design of plants to cross pollinate to spread genes further afield.
Maize, oil seed rape, sugar beet, barley, among others, are wind and insect pollinated, allowing pollen
to travel large distances. In GM crop fields, pollen drift and insect pollination create obvious problems
for nearby non-GM or organic crops.75 GM maize could cross-pollinate neighboring non-GM or organic
maize crops. Maize pollen can travel at least 500-700 meters and still be viable and distances of several
kilometers have even been reported.76 But many experiments showed varying results and actual cross-
pollinations were observed in Mexico up to 200 meters only, while in Oklahoma it was 500 meters. In
crop species that are outcrossers, many environmental factors influence the maximum pollination
distance such as the size of pollen grains, the humidity in the air, and the wind speed. 77Brinjal is usually
self-pollinated, but the extent of cross-pollination has been reported as high as 48% and hence it is
classified as cross-pollinated crop. The cone-like formation of anthers favors self-pollination; but since
the stigma ultimately projects beyond the anthers, there is an ample opportunity for cross-pollination.
The rates of natural cross-pollination may vary depending on genotype, location, and insect activity.
The extent of outcrossing has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of
2.7%) at Asian Vegetable Research Development Centre; however the Indian researchers have reported
2 to 48% outcrossing in brinjal varieties in India. Outcrossing primarily takes place with the help of
insects.78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically modified
yellow corn which contains the pesticide Bt in every cell, was found in white corn tortilla chips in
Florida, USA. Starlink had been approved for animal feed but not for human consumption due to
concerns about dangerous allergic reactions. The Starlink incident is often cited to illustrate how
difficult it is to keep genetically modified crops from spreading. 79

This gene flow to wild species is particularly alarming to environmentalists. The wild species from which
our agricultural plants originate are an important genetic resource for further plant breeding if, for
example, there is a requirement for improved resistance to climate change or plant pests. Future plant
breeding could be jeopardized if transgenes spread into these resources. Similarly, agriculture in the
centers of origin could be permanently damaged if transgenes spread into regional
landraces.80 Invasive species can replace a single species or a whole range of species, and they can
also change the conditions within ecological systems. Crossing can cause losses in the genetic
information of the original species, a reduction in genetic diversity and an ongoing incremental change
of genetic identity in the original plants. It is hard to predict which species will become
invasive.81 Indeed, GM crops could threaten the centers of crop biodiversity or outgrow a local flora to
the detriment of native species.82

Bt gene in genetically modified crops might be toxic to non-target organisms that consume it.
When Bt corn sheds its pollen, these are cast into the wind, dusting nearby plants and trees. Concern
has been expressed about the potential toxicity of the Bt toxin in corn pollen to the monarch butterfly
because initial laboratory studies showed increased mortality in larvae. However, in another study it
was believed that it is unlikely that a significant risk to those butterflies exists. 83

On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their
effects on microbial properties and enzyme activities. Results showed that there was persistence of said
proteins in soil under 4-year consecutive cultivation of transgenic cottons. Soil microbial biomass
carbon, microbial activities, and soil enzyme activities (except urease and phosphodiesterase)
significantly decreased in soil under transgenic cottons.84

In another review, it was stated that the direct effects of the plant that has been modified is of the most
concern since the introduction of transgenic proteins for pest and disease resistance can involve the
production of chemical substances that are potentially toxic to non-target soil organisms, including
mycorrhizal fungi and soil microfauna that are involved in organic matter decomposition. Experimental
studies have shown that the transgenic proteins Bt crystal toxin and T4 lysozyme, though used to
prevent insect damage to the above ground plant parts, are not only present in root exudates but that
they maintain biological activity after entering the soil.85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include
compaction and resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion of
necessary minerals and nutrients that plants require. It was found that glyphosate "locks up"
manganese and other minerals in the soil so that they can't be utilized by the plants that need them,
and that it is toxic to rhizobia, the bacterium that fixes nitrogen in the soil. There is likewise evidence
showing that glyphosates can make their way to groundwater supplies. 86 In a study which tested the
effects of the herbicide Roundup on six species of larval amphibians from North America, it was
demonstrated that when we "use realistic exposure times and the frequently occurring stress of
predators found in natural ecologic communities, one of our most widely applied herbicides (Roundup)
has the potential to kill many species of amphibians." At the same time, the study noted that Monsanto
Corporation has recently released "an additional formulation of glyphosate (Roundup Biactive), which
contains a different (but unspecified) surfactant that is reported to be less toxic." 87

Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of scientific
studies and articles in support of their respective positions on the benefits and risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the allegations raised
in the petition concerning damage or threat of damage to human health and the environment resulting
from the conduct of Bt talong field trials in the Philippines. The CA conducted "hot tubbing," the
colloquial term for concurrent expert evidence, a method used for giving evidence in civil cases in
Australia. In a "hot tub" hearing, the judge can hear all the experts discussing the same issue at the
same time to explain each of their points in a discussion with a professional colleague. The objective is
to achieve greater efficiency and expedition, by reduced emphasis on cross-examination and increased
emphasis on professional dialogue, and swifter identification of the critical areas of disagreement
between the experts.88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the chairman
and members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr. Malayang
were presented by the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cario appeared for the
respondents.

The following are summaries of the expert witnesses' judicial affidavits:


For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as
senior science advisor on agricultural biotechnology in the US Department of State, and editor for plant
physiology for McGraw-Hill Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable
report of a field trial of any GM crop that caused damage to the environment and to human health. This
involves more than 25,000 field trials in 20 years with crops such as Bt eggplant, Bt cotton, Bt corn, and
others. The same applies to the commercial cultivation of Bt crops, which have been grown in ever
increasing quantities worldwide for 16 years and now comprise the majority of the world acreage of
maize and cotton.

A recent European Union (EU) report which concludes that more than 130 EU research projects covering
a period of more than 25 years of research involving more than 500 independent research groups, show
that consuming foods containing ingredients derived from GM crops is no riskier than consuming the
same foods containing ingredients from conventional crops. The World Health Organization (WHO),
American Medical Association, US National Academy of Sciences, European Food Safety Authority
(EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly
done studies purportedly claiming negative effects, should be viewed with great caution and have been
highly criticized for their veracity by the overwhelming majority of highly respected scientists. Many
hundreds of studies show no harmful effects. To date, not a single rigorous study of GM foods in animals
has revealed any adverse effect; not a single case of allergy, illness, cancer, or death have been shown
to be associated with foods derived from GM crops, despite the fact that they have been consumed by
Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those
where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an
increase in insect diversity and abundance and a decrease in crop damaging insects not only in Bt crop
fields but also in surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security
worldwide, protect against devastating crop losses and famine, improve nutrition, and some GM crop
techniques help combat climate change.89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy
(Plant Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist,
Research Director at UPLB, UP Diliman, De La Salle University, Forest Research Institute now
Ecosystems Research and Development Bureau of DENR and the Biotechnology Coalition of the
Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also
in Bt eggplant has been found safe by many food and environmental safety regulatory agencies such as
those in Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa,
Japan and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were
for Bt corn, cotton and eggplant. No adverse effect of any of these Bt crop field trials have been
reported. No report of adverse effects of Bt crop field trial exists. All claims of adverse health and
environmental effects of Bt crops has not been scientifically validated. The yearly expansion of GM crop
areas in both the developing and industrialized countries is an attestation of the preference of farmers
and the economic benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have reduced the
adverse impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use of
pesticides, and also increased farmer incomes.90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology
(Insect Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology,
Osaka University, Japan, and Intellectual Property Management and Technology Transfer, ISAAA
AmeriCenter, Cornell University, USA. Director, and Research Associate Professor, National Institute of
Molecular Biology and Biotechnology (BIOTECH), UPLB; Philippine Coordinator of the Program for
Biosafety Systems; former Executive Director, Philippine Council for Industry, Energy and Emerging
Technology Research and Development, DOST; former Chair, Biosafety Committee, DOST; and was a
Member of the Institutional Biosafety Committees of UPLB and International Rice Research Institute
(IRRI); and was extensively involved in the isolation, bioassay or efficacy testing and development
of Bt as microbial insecticides for the control of Asian corn borer and mosquito larvae at BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on cross-
pollination or horizontal gene transfer, pollination distances, harm to beneficial organisms, and
development of insect resistance. To prevent cross-pollination, an isolation distance of 200 meters from
other areas where eggplants are grown or wild relatives are present, was observed, and with five (5)
rows of non-transgenic eggplants that serve as pollen trap plants. As to the flight distance of
honeybees reaching 4 kilometers, what was not mentioned is the viability of pollen after it was shed
and travelled at a certain distance. Numerous literatures have shown that isolation distances much less
than 200 meters is sufficient to prevent cross-pollination. Two studies are cited: Sekara and Bieniasz
(2008) noted that cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable
Research and Development Center (AVRDC) indicated that eggplants produce perfect flowers which
may be cross-pollinated but self-pollination is more common, the extent of natural crossing depends
upon insect activity and this can be avoided by isolating each variety by 20 meters or with another tall
flowering plant. The isolation distance imposed by DA-BPI is 1 Ox the recommended isolation distance;
the 200 meters distance was found sufficient for pure seed production in India (the same
recommendation by Chen [2001] of AVRDC foundation for seed production purity standards); field
studies in 2 locations in India have shown that at a distance beyond 30 meters no more outcrossing
could be detected. Taking all these data into account, the 48% outcrossing being raised by petitioners is
most likely for adjacent plants and therefore not a valid argument for the on-going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of
insect pests because it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly
and moths). The selective toxicity of Bt protein in Bt talong is partly due to the fact that the gut
physiology of these insects is very different from caterpillars, and not all caterpillars are affected by it.
There is a significant number of literature on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field trials
for Bt talong because of low selection pressure and limited exposure of the insect pest to Bt talong.
Insect resistance is not unique to GM crops as it is a commonly observed biological reaction of insect
pests to control measures like insecticides. In the event Bt talong is approved for commercialization and
will be widely used by fanners, this concern could be addressed by insect resistance management
(IRM); an IRM strategy should be required prior to the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed
so that scientists and researchers will be able to generate valuable data and information which will be
helpful in making informed decisions regarding the usefulness of the technology. 91

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A.
Philosophy, M.A. International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB
Philosophy, UP Diliman; former Undersecretary of Environment and Natural Resources; served as
Environmental Science representative in the National Biosafety Committee of the Philippines and
participated in the drafting of the Philippines Biosafety Framework; and student, lecturer and advocate
of biodiversity, food security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as against being used
for academic research) in the Philippines on the following grounds: (a) how they might contaminate the
indigenous genetic resources of the country; (b) how they may cause an imbalance of predator-prey
relationships in ecosystems, so that certain species might dominate ecological niches and erode their
biodiversity and ecological stability; (c) how they may erode the ability of farmers to control their
genetic resources to sustain their cropping systems; and (d) how much are present biosafety protocols
able to safeguard the long-term ecological and economic interests of the Philippines as a particularly
biodiversity-rich country and which is, therefore, highly sensitive to genetic pollution; to the extent that
its biodiversity is its long-term equity to advances in biotechnology, the most robust measures must be
taken so that such resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a
3-stage approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of
standards for determining the level of robustness of biosafety measures and protocols that would be
acceptable in the particular case of the Philippines; include required scoping and internal and external
validity requirements of impact and safety assessments; Stage 2 - Using the criteria produced in Stage
1, develop biosafety measures and protocols to be adopted in the Philippines; and Stage 3 - Apply the
protocol with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its
considerations being restricted only to specific professionals and sectors in the country; biosafety must
be based on an enactment of Congress and open to challenge and adjudication against international
laws; provisions must be made to make it a crime against humanity to recklessly erode and weaken
genetic resources of our people.92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant
Ecology) and B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in
more than a hundred trainings and seminars, both local and abroad; served as member in international
agricultural assessment sponsored by Food and Agriculture Organization (FAO), United Nations
Environment Program (UNEP), WHO, and the World Bank; worked on a project for development of
resistance to corn borer in 1981 at the Institute of Plant Breeding in UPLB, and served as researcher
and later Associate Professor of Environmental Management of the UP Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the following risks or
hazards: (a) While natural Bt sprays used in organic farming have little effect on non-target organisms
because the bacterial 'pro-toxin' is in an inactive state and only becomes toxic when processed and
reduced in the gut of certain (targeted) species of insect larvae, in contrast, Bt plants contain an
artificial, truncated Bt gene and less processing is required to generate the toxin because the toxin is
already in its active form. It is therefore less selective, and may harm non-target insects that do not
have the enzymes to process the pro-toxin, as well as the pests for which it is intended; (b) Bt proteins
from natural Bt sprays degrade relatively quickly in the field as a result of ultraviolet light and lose most
toxic activity within several days to two weeks after application. In Bt crops, however, the Bt toxin is
produced by the internal system of the plants thus non-degradable by mere exposure to sunlight and
generated throughout the entire lifespan of the plant; (c) Bt talong can also affect the environment by
harming important or beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like
other Bt crops, could be harmful to non-target organisms if they consume the toxin directly in pollen or
plant debris. This could cause harm to ecosystems by reducing the numbers of important species, or
reducing the numbers of beneficial organisms that would naturally help control the pest species; (c)
The evolution of resistance to Bt crops is a real risk and is treated as such in ecological science
throughout the world. If enough individuals become resistant then the pest control fails; the pest
becomes abundant and affects crop yield. Granting the pest control practice is successful, it may also
simply swap one pest for another, a phenomenon known as secondary pest outbreak. Several studies
have shown that other pest insects are filling the void left by the absence of the one (or very few)
insect pests that Bt crops target, and this is now the problem with Bt maize.
Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt
talong will eventually lead to contamination of non-genetically modified eggplant varieties. Insects,
particularly honeybees, can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen
trap area in the confined field testing set by BPI is not sufficient. And once contamination occurs,
genetic cleanup of eggplant or any other plant is impossible. Moreover, intra-specific gene flow from Bt
talong to other varieties and populations of eggplants should be examined, as cultivated eggplant
(Solanum melongena) can cross breed with feral populations of S. melongena, and it is possible that
cultivated varieties can revert to wild phenotypes. Additionally, there is likely to be natural crossing
between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative species
needs to be evaluated carefully and the consequences of any hybridization that occurs needs to be
evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision for
moratorium of Bt Brinjal, listed potential contamination of eggplant varieties as one of the reasons why
the release of Bt Brinjal was not allowed. Dr. Andow of the University of Minnesota also published an 84-
pages report on the Environmental Risk Assessment of Bt Brinjal, and among his conclusions is that
several environmental risks were not considered and nearly all the risk assessment done were
inadequate. He concluded that until the risks were understood or managed, there seems to be little
reason to approve Bt Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University;
Molecular Biologist, presently Principal Scientist and Head of the Gene Regulation Laboratory in the
Council of Scientific and Industrial Research - Indian Institute of Chemical Biology (CSIR-IICB); Member,
Governing Body and Executive Committee of the state council of Biotechnology, Government of West
Bengal and Chairman of the Biotechnology group of the state council of Science and Technology,
Government of West Bengal; Visiting Professor of the National Institute of Science, Technology and
Development (CSIR-NISTAD); citizen of India and resident of Kolkata, India.

GMO is a classic example of "paradoxes of consequences", where human actions have unintended
consequences, which are in direct opposition to what was intended. The difference in controlled
laboratory condition and standards, and real life open field level micro and macro-environment pushes
the advantage towards the target and non-target living system, with time. The pest resistance
to Bt toxin and development of herbicide tolerance (HT) in weeds is just a matter of time. The decade
long experience in Bt and Ht genes amply proves this point. If we ignore this now - we are
manufacturing a global environmental disaster - which will be a crime against humanity. There is no
way to recall these GMO from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will
help the monopoly agribusiness and the expenses of monopolistic competition or cooperative organic
farming. Hot climate and rich biodiversity is detrimental towards the effectiveness of Bt constructs, and
helpful towards unintended gene flow. Moreover, the genetic manipulation is no way fail safe or exact.
Shotgun techniques are being adapted, aided by focused laboratory based screen of traits - rather than
the host or the full natural product. The GM labeling is avoided to cover up this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness.
Before going ahead with spread of this technology, even in a batter form, the foremost task is to
establish rigorous test and assessment procedures. There are excellent available tools of preteomics,
transcriptomics, and metabolomics for detailed compositional analysis in our hand to do this. Please
ask, why they are not being employed? In fact, there is not a single centre to test GM products on
behalf of the corporate GM Agribusiness house. Thus, low level, long term toxicity of GM foods are yet
to be tested. I believe the time has come to establish a standardization facility to carry out such test
facility in any country before giving permission to GM trial or cultivation. 94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
Dr. Cario:chanRoblesvirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not
supposed to be consumed at the moment still under field trial, so it is not supposed to be eaten at the
moment. It has not been released for food nor for feed and so in the context of a confined field test, it
has supposed to have it out in the field in a very controlled manner and any produce that comes out
from that area is supposed to be destroyed or kept from further safety and analysis only.

Chairperson:chanRoblesvirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?
Dr. Cario:chanRoblesvirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of
the BT toxin in BT Talong is CrylAcc, there are numerous studies that had been actually published on
relative safety of CrylAcc protein and it is actually considered as an additional protein and the various
reviews can be seen in the OECD Digest of risk assessments on CrylAcc protein. Alternatively, if you are
looking at the possibility of harm coming from the introduced protein as yet, we have not done a full
blown assessment of it as of the moment. But we look at the protein sequence and with a comparison
of its sequence with other sequences in the data basis to see if it is similar to this amino acid sequence
of other known toxins and, so far, I have actually ... in my affidavit, I have actually seen personally that
it is not closely related to any of the known toxins that are found into its system.

Chairperson:chanRoblesvirtualLawlibrary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?

Dr. Cario:chanRoblesvirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify one point. When
any GM material is supposed to be introduced for food and for feed and before it is actually utilized for
life skill production, it goes through several steps. The first step is actually the "lab", laboratory work
and it is actually tested in this clean-houses, rolled-out confined limited field test and then it goes
to butyl abyss of field tests where it is like generating more and more informations. We are still early on
in this pathway, so we are only in the confined field test and, at the moment, the thing is that it is still
being tested. The focus is on its efficacy after doing a preliminary assessment of the possible
pathological and ecological effect, and that is the pathway that has been recommended by so many
academics as well as scientific institutions as well. And, that has been a tract followed by almost all the
genetically modified crops that is being introduced in the market today, but at the moment BT Talong is
not yet a commodity. It is not yet being evaluated as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?

Dr. Cario:chanRoblesvirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by human beings
because it has not been introduced as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of course?

Dr. Cario:chanRoblesvirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it would not to be
evaluated in a step of the way much like to evaluate any new product that is coming into the market
evaluation, goes on a step-by-step and at least day-to-day basis.

Dr. Davies:chanRoblesvirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to make a little bit of
explanation.

Chairperson:chanRoblesvirtualLawlibrary

Proceed.

Dr. Davies:chanRoblesvirtualLawlibrary

I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I think
of the name BT toxin is very fortunate. It is really a protein. A protein is an essential constituent of life.
It is an essential constituent of our food. In the human body, and in the body of other animals, this
protein is under the same as any other protein in food. It has no effect on the human body. This has
been shown for many, many years, knowing BT Talong but BT has been a constituent of "maize" in
commercial production for 16 years.
xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in
corn products and by any other people who in[g]est American maize corn products x x x. There is not a
single case of illness or toxicity or allergenicity that can be or that has been associated with this protein
and, therefore, any food containing this protein has been declared by authorities in all the countries
that was mentioned by my colleagues, including the European Union and the United States x x x to be
as safe as any food derived from the same plant species not containing this gene. I hope that explains a
little bit about what it is.

Chairperson:chanRoblesvirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that Monsanto's
genetically modified corn is linked to cancer?

Dr. Davies:chanRoblesvirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini? I
think this is one of the publications by Seralini's group. Dr. Seralini's work has been refuted by
International committees of scientists...

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake venoms.
They are poisons, so whether it is protein or not that is not the question. So proteins obviously venoms
and proteins and enzymes and they are poisons so protein can be a poison so that is now the point at
all to be considered. The second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in
human or in any other animal have not been tested. So that is true so we do not know direct
consumption of this, because notice have been turned down, that is the objective fact. The third point is
about the "American Corn", and if I can give you such anecdotes, "American GM Corn" are not labelled,
how do you know that? What is its effect? What is its toxicity? And, obviously, there are more than a
hundred of papers showing and published in very good journals. I can give many references which have
shown the detrimental effect of BT Toxin.

xxxx

Chairperson:chanRoblesvirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper that it should
be first determined whether this food product is really safe for eating or not?

Dr. Cario:chanRoblesvirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex Alimentarius of the
WHO, the thing that you do at this early stage of development is to compare the sequence of the
protein that is being introduced with published sequence of allergens, as well as toxicants and toxins.
So that has been done. Then you have to look for instability under heat conditions because there is
seldom do we heat grow eggplants, so is it stable under heating. Is it stable in the presence of digestive
juices? And, if the answer is "yes", there is at least fair certainty, a fair assurance that it is likely to be
safe but then you start thinking of what other component not present in the product, does this. For
example, any product that we consume today has something that is bad for you, otherwise, you will not
see it right now. Otherwise all the different herbivores will be eating it up, right? It will be extinct if it
does not have anything to protect itself and, so, the thing is one, to quantify how much of that has
changed when you lead the genetic modification. So "Talong" has been known to have Solanine and
glycoalkaloids whose level well have to quantify. We have not done that yet. They have not submitted
the data for that and this as secondary metabolize whose relative concentration will change depending
on the environment to which you actually place the system.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You known
that BT Cotton was introduced in India through the back door black market entry. During the field trial,
some of those seeds were taken out and given to the farmers for commercial cultivation to black
market. Monsanto goes well, Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the
company and they compelled the government that farmers wanted those things and there was high ...
how they pressurized the government. Now, in case of BT cotton is one thing, but BT Eggplant is
completely a different thing. That is why [the] Supreme Court in India has taken a very strong stand
and, now, the parliamentary committee in India. The Supreme Court has also taken steps stand with
the field trial. The first thing in field trial we had to see that whether there is a definite need of this kind
of intervention, because the eggplant is a very common vegetable in this part of the world. There are
so many hundreds of varieties here, these are the origins of these varieties of this kind of vegetable. It
is cheap. It is available everyday. So why you go on changing if there is no crisis in cultivating the
eggplants at present. Therefore, when you give it to this patented seeds technology, its prices will
increase, lot of restrictions had to be deal. So, who will consume this high price eggplant. Many will be
exported, that was why the proponents are looking into it. But, basically, that is the thing that in case
of BT Brinjal, neighbor partisan is being given. There is a moratorium in India from the Supreme Court
and from the government side on field trial of BT Brinjal. Now, if x x x the BT Eggplant is being taken to
the Philippines, we guess, to get in as a bypass, and who will guarantee that it will not go to the
farmers?

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of the
planting .... of the existence of the genetically modified organism, for example, on insects, on the soil,
on the air? And then I was thinking, does this have this particular protein that result[s] due to the
genetic modification? Is it ... how is it expelled, for example how does it go into the environment? Or, on
the other hand, how does it go inside and out of human system so that does it disintegrate or is it just
there forever? I am very curious, sir. You have to educate me.

Dr. Davies:chanRoblesvirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein produced by
each cell will be this BT protein. It does not get into the environment in general. A very small amount
might be in the pollen or in the leaves that fall to the ground but it has been shown to be broken down
in the soil by organisms so it will not exist in the environment. The only way that it is going to get into
animals or insects is if they eat the fruit and this is what an insect that the "talong" fruit and shoot
borer will be trying to. But, if it eats it, it reacts with its intestine so that they become toxic to the
caterpillar but this is very specific to the digestive system of the caterpillar. It does not affect bees. It
does not affect animals. It does not affect humans.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific receptors of
the cells of the walls of the insect gut. But, this is very specific to the gut of these insects namely the
"Lepidoptera" and some "coleoptera" which are the butterflies and the beetles but it will only affect if
they try to eat the plant. Now, you are asking us if what is the effect on the environment. x x x I would
like to cite x x x a recent paper published in the journal "Nature" x x x the most prestigious scientific
journal in the world, x x x published in "Nature" in June this year and this is the result of a study of
"insects" in BT Cotton fields in China in 17 locations for 14 years of a long period study. And these
scientists revolt that they show a marked increase in the abundance of three types of generalist
arthropod predators (ladywings, lacewings and spiders) and a decrease in abundance of aphid pests
associated with widespread adoption of Bt cotton. And they are referring to China and they conclude
that such crops, x x x BT crops, can promote beneficial control services in agricultural landscapes. And,
it also showed that these effects extend beyond the field. So, essentially x x x they found that there
were more insects than in conventionally grown cotton and the insect diversity was greater surrounded
than being detrimental to an agriculture ecosystem such BT cotton falls beneficial.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another
news article, "Battlefield". One stream ecologist in United States itself, in a university, she has studied
the effect of growing BT Corn in the field and what is the effect on the stream ecology, the west water,
what is happening to other insects, insects in which it is getting that BT toxin will not go. Yes, she has
found that stream ecology...

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in Illinois
published that paper, published that article in PNAS or Proceedings of the National Academy of
Sciences, a prestigious journal? Now, they have to desert her. She was abused, so her file was taken
out. So people started e-mailing, threatening her. So "Nature" has to publish that. How dirty the field
has become so they entitled it "Battelfield." If anybody produces any evidence that BT Toxin or GM
Technology is doing any harm to the environment then it will be battered by the entire English lobby so
there is worst the situation. But National Academy of Sciences in United States has taken a strong
decision and, in last year, there were six publications that published where strong evidences are being
produced about the environmental and ecological damage cause[d] by this technology. So, that is the
case.

Dr. Davies:chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang:chanRoblesvirtualLawlibrary

I think Filipinos should be able to talk also here.

Chairperson:chanRoblesvirtualLawlibrary

Can we give a chance to Dr. Malayang?

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily
the intricacies of the science involved in genetic modification per se which, I think our international
friends, would like to focus on. x x x

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced
from the most robust sciences, a technology could fail to be as useful as it was intended or its use lead
to an [unintended harm to humans and the environment. This is so because science, by nature, as
many scientists will agree, is very probabilistic rather than absolutist. Many cases of common
knowledge illustrate this point. May I just refer, for the Court's notice for, First, the Nuclear Power Plants
in Japan x x x. The best science and the best technology did not necessarily translate to absolute
safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production
ton at its time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take
advantage of a large pesticide market in India to help the country's farmers led to a massive and
deadly safety failure.

The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic
chemicals for fertilizer and pesticides that were [at] the time hailed as wonder technologies. Many
scientists in the world at that time argued for their wider use but they later turned out to harm people,
soils and water. They prove good then bad, so bad that scientists today are using their ill effects as
justification for adopting alternative technologies to get us out of the synthetic chemical regime in
agriculture.

And finally, the most common example would be the unintended effects of medicine. x x x Medicines
are technologies intended to do good but, with even the best science and the vetting processes using
rigid safety and risk assessment methods, they still could cause side effects entirely undesired and
many of which can cause chronic or acute threats to human life. This includes the use of "DDT" that
was used to control lice among soldiers after the II World War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and
context, the particular place and context of the introduction of BT crops like BT talong. x x x the
Philippines is among the world's biologically rich countries. x x x So, many of our insects are not even
fully known. We do not know how they all behave to influence the transfer of genetic materials from
plants to other plants. We do not fully know what we do not know about the intricate interactions
between plants and between insects and other living things that define the universe of our healthful
and balanced ecology. The universe of our healthful and balanced ecology certainly go beyond specific
crops. I am concerned that, absent a full as against partial understanding of the intricate web of genetic
flows and interactions among plants, animals and other living things in our wet and tropical
ecosystems, it will require extraordinary care to tamper with any one element of this swirl of
interrelationships. This is notwithstanding the seeming preponderance of evidence of safety in other
countries and environment that are certainly not the same as ours. x x x we must be extra careful
because the effects might be irreversible. Introducing a genetically modified plant x x x could cause a
string of changes across many plants that, like the green revolution or in the case of medicine and the
two other cases cited above, could turn out and only to be realized much later to be harmful to humans
and the environment more than they were intended to be useful. x x x let us ensure that we adopt in
the country a biosafety vetting protocol that is: (1) sensitive to our high biodiversity this is a particular
condition in the Philippines; and (2) tested for error levels that are acceptable to or which can be
tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests that we will
be doing is a test process acceptable to all as well rather than merely concocted or designed by just a
few people x x x must be a product of wider citizens' participation and reflect both scientific and
traditional knowledge and cultural sensitivity of our people. It is in the NBF after all, x x x introducing
BT Talong in the Philippines must be decided on the grounds of both science and public policy and
public policy, in this case, must involve full public disclosure and participation in accepting both the
potential gains and possible pains of BT Talong. The stakes, both positive and negative, are so high that
I believe BT Talong would require more public scrutiny and wider democratic decision making beyond
the [realm] of science. x x x for the sake of our country and our rich biodiversity x x x prudence
requires that maximum efforts be exerted to ensure its safety beyond the parameters of science and
into the sphere of public policy. For to fail in doing so what might be highly anticipated to be beneficial
may in some twist of failure or precaution and prudence and failure for due diligence to establish the
safety of Bt Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This
we certainly do not want to do. I submit these views to the Court.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market in the Philippines
and you see nice Talong, it has probably been treated with various insecticides. So, there has been
insecticide spray on your tips in your crops which are going to be harm on your farmers, your farmer's
children, the insect populations and also dangerous to the consumers as well. By contrast, Bt Talong, if
it is adopted, the BT has been shown to be beneficial to the insects and the environment and also has
been shown not to be toxic in food. Therefore, we are changing a highly toxic chemical application for a
much more benign modern technique that is beneficial to the environment and beneficial to the
consumers. That is my comment with the views just made by my Filipino colleagues, your Honors.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone population or a
reduction of that population it would still be both not beneficial to the healthful and balanced ecological
health of the ecosystem. So to say that because the population of insects are exploded and the
diversity of insects exploded as a result of this particular intervention is not necessarily good. That is
my first point. The second one, you mentioned x x x the "talong" is laden with pesticide. The same
pesticide were advised by scientists from the USAID before for us to use in this country because this is
how to expand our production of food. This was part of the green revolution, the systemic use of
pesticides and fertilizer. Now, of course, they were misused, I can guarantee that but, again, if that be
the case, in the case of pesticide why can it not be in the case of BT that it can also be misused? x x x
we are talking here not of the science or of the technology but on the policy aspect of the adoption of
the technology. As I said, I am talking about the bakery not of a baked-bread.

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use
of Bt Talong, then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we have a
very strict highly monitored field testing and I think Dr. Malayang knows about that because he was one
of those who prepared the guidelines for the field testing. So that is not going to happen, it is a very
strict regulatory system. We are known for that, actually, and...

xxxx

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary


No, no. It does not happen because we have a risk management plan x x x.

xxxx

Dr. Halos:chanRoblesvirtualLawlibrary

x x x As far as do we know what is happening after we have given approval, yes, we are monitoring. We
are monitoring as far as BT corn is concerned. We are monitoring, continuously monitoring, not only for
the beneficial insects but also the effects that is continuing, we are also continuing to monitor the
weeds, weed population. In weed we decide to spray...

Dr. Malayang:chanRoblesvirtualLawlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos:chanRoblesvirtualLawlibrary

No we have to know what is happening.

Dr. Malayang:chanRoblesvirtualLawlibrary

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, we are going to give you the data for that because you keep on asking, you know, you asked for a
long term and we are going to give you that complete data.

xxxx

Dr. Medina:chanRoblesvirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies mentioned
that the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are safe, Dr. Davies?
Are you aware of anti-nutrients and allergens and other kinds of protein x x x it is a misleading
generalization. Secondly, I would like to say also that, when you say that BT crops is beneficial to insect
population but, how about humans? But, let me tell and inform the Honorable Justices also that, in
agriculture, there can be, the pests are there to reduce the yield. There are also diseases so, that
this Bt is only controlling one kind of pest and, in my monitoring of BT corn as an example to this 2
years after the commercialization in 2003, at first planting in 2003, the corn is attacked by about a
dozen insect pests and six major diseases. The Bt corn was attacked a "stem rot", a fungal disease.
And, in this case in eggplant, there are many fungal diseases, "phomopsis" x x x So in that case it is not
field safe that you will not be using pesticide anymore with BT eggplant. When you use
the BT eggplant, assuming that there is no more insect pests x x x There are many other methods of
control and, therefore, do not assume that you do not use pesticide therefore, BT is the only
solution. That is also a risky and wrong generalization or statement, x x x Dr. Halos x x x says that field
tests are safe. I intend to disagree with that. Safe to what? Especially to contamination. If I may use this
picture of the field testing of the Bt eggplant x x x it was encircled with cyclone wire with a diameter of
something like approximately 10 cm. by 7 cm. hole. While bees that can pollinate that, the size is about
1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that case, they can easily get in
and get out and when they settle into the flowers and snip nectars and the fall of the pollen then they
can bring out the pollen to contaminate outside that. In fact, even assuming that the fence is very small
in size of the mess, the holes, still the insects can fly above that fence because the fence is only about
5 feet in height. So, in that case it is not safe. Some arguments say that "well the pollen will be dead"
but, according to this technical manual of the Training Workshop On Data Collection for Researchers
And Collaborators of Multi-Location Trials of Fruit and Shoot Borers Resistant Eggplant, that is
the Bt Eggplant produced by the Institute of Plant Breeding in UPLB who is one of the main researchers
the datas, here say according to "Rasco", cited by Dr. Narciso, is that the pollen can live 8 to 10 days
pollen by ability at 20 to 22 degrees centigrade, with a relative humidity of 50 to 55. x x x Meaning to
say, that pollen can survive. This can fly as fast as something like 60 kilometers per hours so it just take
may be 3 minutes and it can travel 4 kilometers and 4 kilometers is the effective flying distance of a
bee in their normal foraging.

xxxx
Dr. Medina:chanRoblesvirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they conclude that it is
safe when they have not monitored any potential pollen flow by insect mitigated or insect mediated
flow pollen? So, in that case, the conclusion or the statement is really beyond what their data may be is
if their data is about safety.

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

xxxx

x x x I hope that we will be able to look at the experimental design and you will see that all the things
are properly addressed, our risk assessment was done step by step, x x x I beg to disagree with my
friend Dr. Medina because it is becoming ... we are confusing 2 things. We are not referring to contained
trial. We are referring to confined field trial and in the design of this particular experiment, you have
your BT eggplant, your non-BT eggplant so that you can compare the performance with the 2 crops.
And, on design, you have 5 rows of plant BT eggplants that will serve as a pollen trap. When we say
pollen trap is that it just open the pollen from the transgenic. It is going to be trapped by those plants,
5 rows, and then, after that, you have a space of 200 meters surrounding the field which is the isolation
distance. That means no eggplant should be present in that particular distance because that is the
isolation distance that is found to be safe, x x x we know that Bt protein is very specific x x x effective
only against caterpillar x x x if they are eaten by other organism, they are not affected because it is
very specific. The gut of the larva is very alkaline while the gut of other insects is likely acidic and, in
that case, it does not have any harmful effect, x x x So another thing is we are saying that it seems to
be ridiculous that you are saying that honeybee is going to fly from the fence and the size were even
indicated. I would like to indicate that, that is not the purpose of the fence. It is not to contain the
insects. It is to prevent vandalism which is quite, unfortunately, being done by other groups who are
against the technology. x x x We should be able to have our own space, our own time, considering the
given regulation. Follow them. But our experimentation not be destroyed because it is only then that
we will be able to get the valuable data that is needed for an informed decision. Without that we will
not be able to proceed and I hope we can discuss this based on the merits of the field trial, not from
any other concern because the writ of kalikasan is about the effect of field trial in the environment.

Dr. Medina:chanRoblesvirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the
"CrylAcc" is specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can
read by chemical and by physical research communications this is Volume 271, pages 54-58, authored
by Vasquez Pardonnet, published in 2000, publication under letter (b), "CrylAcc protoxin" binds to the
mucosal surface of the mouse small intestine. Small intestine ay mammal po iyan so, meaning, it is a
proxy animal for safety [testing] to humans because we are also mammals so, the mice are usually the
mammals 12 years ago, the data has been already there that there is binding site, therefore it is not
only specific to insects but also to mammals. x x x he is saying that, by working on the natural BT is the
same as the transformed BT it is not true because the natural BT has 1155 "base pairs" of nucleic acids.
And the transformed GM Crop contains a fragment of that BT gene which is only half of that. And the
mechanism, by the way, x x x the natural toxin is broken into smaller pieces inside the intestine of the
insects because it is alkaline in terms of its system "ph" and for humans acidic. So it does not work.
But, because the transformed BT is already half, almost half of the normal or natural[ly] occurring BT
protein, it is already activated and, in that case, that is the reason why there is a test and immediate
effect to non-insect, meaning, to mammal, so that is the explanation of scientist doing studies on that
aspect.

x x xx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x x x
I will give some example. Yes, BT toxin, was it really good biological control agent? But it is a completely
different gene when you produce it into an edible plant inside genetically. So, these are 2 different
things. What will happen? We are scared that the efficacy, the use of BT toxin as a spray, as biological
control agent, will be vanished because now there will be resistance against those in BT toxin, x x x
resistance is coming very quickly, just like antibiotic resistance, x x x The second thing, I have asked
many plant biologists this simple question, simple honest question. Do you know any plant that can kill
a bee or a moth? No! There is no way, why? Because those are the "pollinators". Plant never kills a bee
or a moth that goes against nature, x x x So, nature, for thousands of years, farmers help select or
adopt edible non-toxic plants. And, now, with the high science we are converting them, non-toxic edible
plant into a toxic plant. So not only toxic for the human, for the root microorganisms, x x x Those
eggplants are not only for humans to consume. So human effect, we do not know but what will be the
effect? Who will mind the effect? Is it the animal which goes through it? x x x in India, x x x farmers x x
x while growing BT cotton x x x the leaves and other they use to attract animals to eat. x x x they found
suddenly one thing that the BT cotton plants are not touched by those buffalos, those cows, those
[boars], but they can distinguish which is BT and non-BT. x x x and when their animals started dying in
some cases, they always blame, it is this animal which has eaten that BT? x x x these are [going]
against nature. Only few edible seed plants are there and we are converting one safest plant into a
poisonous and toxic plant and what is the effect on the root microorganisms on the degrading animals
and other? We do not know. That hard thing is the tunnel vision, the confined field trial, x x x why
implement this confined field trial? Is this safe? Why do they have to do this x x x these things do good
for a normal hybrid that is something but for the gene concept we cannot follow the same separation
rules, same rules? So those are used, those separation distincts, those parameters are used not for the
gene. So, which is the safe field trial protocol for the gene plants? We do not know. So there goes
against [the] writ of kalikasan.

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

How much is the increase in crop yield? x x x

Dr. Halos:chanRoblesvirtualLawlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is actually taken by our
own Filipino scientists, Dr. Lluroge and Dr. Gonzales.

xxxx

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so, you
mean to say that corn production in the country has gone up and, because of that, you are saying that
24% and the income of farmers had gone up as well? Do you mean to say that the price of com had
also gone up as a result of the increase in the volume of com production in the Philippines?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, the price is dictated by the market.

Dr.Malayang:chanRoblesvirtualLawlibrary

That is precisely the point.

Dr. Halos:chanRoblesvirtualLawlibrary

Yes.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology such
as GM Com or GM Talong affecting market there is also not only the regulatory but economic regime
that is attendant to it that makes adjustments. So it may not be harmful to humans because we will not
come out when we eat it but it might be harmful to the economy of a particular agricultural crop. x x x

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are
independent studies. And, precisely, this is to determine the effect on natural enemies and the different
insects x x x and some of those are already available, x x x you will be able to protect the environment
only if you know how to have a proper information in making the decision. So, again, I am saying that,
in field trial, you will be generating a lot of information that you will be able to use in making a wise
decision and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding
butterflies and moths. Because they are not affected by BT because they are adult insects. The only
one that is affected are actually the larva, not even the pupa. So, we would like that to be clear
because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime
and that is the reason why we have a continuous breeding program. So, it is a natural mechanism by an
organism as mode of ad[a]potation. x x x are you telling us that we are going to stop our breeding work
because, anyway, they are going to develop resistance. I think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you
can have the effect if you have, for example, the insects, you have a receptor. The toxin will bind into
the receptor. Toxin has to fall and then the toxin has re-insert into the membrane. If you eliminate one
of those steps you do not have any toxicity. So, that means binding by itself will not be toxicity. It is a
wrong impression that, since you have binding, there will be toxicity. It is simply wrong because, the
actuality that it should bind, it should fall then, it should insert, and it is a very common x x x. To say
that binding is equivalent to toxicity is simply not true.

The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is
basically the entire crystal protein. If it is already inside the gut of the insect it has to be clipped by
the purchase coming from the gut and you have it activated and you have the toxin. So what you have
in plant is already the toxin since the anther and the toxin, and the toxin in microorganisms, the anther
which are already clipped by a purchase are the same. So, to say that they are different is actually
wrong. You are comparing protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is
why you have to characterize them and you have to separate the protein that are causing problem and
protein that are not causing problem. That is why you have allergen and, as explained by Dr. Cario,
you have to check the sequence. x x x

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the
production not that much into the safety. You have to look into it carefully that how much will get this
efficacy, not the safety to that extent x x x. Second point x x x there is this already mentioned that
European Union there is no consensus, x x x they have published and submitted the systemic list of
genetically modified crop need for new approach in risk assessment. So that is what is needed. There is
another article, how does scientific risk assessment of GM crop fit within wider risk analysis, x x x This
is genetic engineering. The production process is very precise in selecting the inserted gene but not in
its enhancement, x x x they are never looking into it. The second thing, they do not look into that from
the laboratory condition to what is the real life situation. They do not take that into account x x x so this
assessment protocol has to be modified or changed, x x x in the IAASTD or International Assessment of
Agricultural Knowledge, Science and Technology for Development. There is a supreme body, so many
nations, so many experts, scientists x x x. Only sustainable agricultural practice and that is the only
alternative. This GM technology is not going to help them x x x In my country also, when the BT toxin
evaluation was there, everybody was telling that this is pro-poor, this is scale neutral so, everybody will
be benefitted by that. So, we started questioning, x x x "What are the actual economic analysis indeed?
Just show me". Then, they come up with an answer. Scale neutral means that even small farmers
initially wanted BT cotton and big farmers also wanted BT cotton. They are partisans. It is not the
economic benefit because, economically, it is not going to be beneficial so it is very much scale
dependent its benefit. So, only the big farmers, large farmers and x x x the vegetable field you never
can give separation. Chances you never can give refuge. The 1/5 of the land given for growing pests so
that you cannot do. So it cannot help technology. They have developed this technology for partisan
large scale farming to completely automated for BT technology where no label will be there. But the
failed experiments, the contracts whose patent will be over within 2-3 years, they are testing them in
our country. So that is the bottom line.

xxxx

Chairperson:chanRoblesvirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.


The issue that the Court is really interested to resolve is whether or not the conduct of the field trial
of BT Talong by the respondents has violated or has threatened to violate the right of the people to a
balanced and healthful ecology. Is there absolute certainty that it has not so violated such right.
Because that is the requirement for applying or not applying the precautionary principle, x x x

Dr. Cario:chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson:chanRoblesvirtualLawlibrary

But there is no absolute certainty?

Dr. Cario:chanRoblesvirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures and they did not
show us, you know, there is no evidence of harm that has been shown to this Court. There is no
evidence at all.

Chairperson:chanRoblesvirtualLawlibrary

That is your opinion.95ChanRoblesVirtualawlibrary


As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of
contention between the expert witnesses, i.e., the safety of Bt talong to humans and the environment.
Evidently, their opinions are based on contrasting findings in hundreds of scientific studies conducted
from the time Bt technology was deployed in crop farming. These divergent views of local scientists
reflect the continuing international debate on GMOs and the varying degrees of acceptance of GM
technology by states especially the developed countries (USA, EU, Japan, China, Australia, etc.).

Before proceeding to the current state of global GMO research, we briefly address the strong objection
of petitioners to the CA's reliance on the research conducted by Prof. Seralini, the French scientist
whose study was published in September 2012 in Food and Chemical Toxicology, which was criticized
as a "controversial feeding study." Seralini studied rats consuming Monsanto's Roundup Ready treated
corn for two years (using the same kind of rats prone to tumors used by Monsanto in obtaining original
approval for its product and the same methodologies, but did it for 2 years which is longer than the 90-
day experiment period done by Monsanto). The rats formed massive cancerous tumors. All three test
groups of rats, with 10 rats in each group, died more frequently, suffered from liver problems, and had
a pronounced number of tumors specifically with grotesque mammary and testicular tumors. 96

Seralini's findings created an uproar and the study was expunged from the publication in November
2013 even though the Editor-in-Chief found no evidence of fraud or intentional misrepresentation of the
data. Seralini stood by his work and further conducted similar laboratory experiments. Critics faulted
the experimental method, saying the number of rats studied was too small and their diet was skewed
when compared with their natural food intake. But over 300 scientists condemned the retraction, they
said that the retraction lacked scientific integrity and requested to reinstate the study. Last June 2014,
Seralini's controversial study was republished and has passed a third peer review arranged by the
journal that is republishing the study, Environmental Sciences Europe. The republished version contains
extra material addressing criticisms of the original publication and the raw data underlying the study's
findings, and accompanied by a separate commentary by Prof. Seralini's team describing the lobbying
efforts of GMO crop supporters to force the editor of the Food and Chemical Toxicology to retract the
original publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing relevant
information for effective regulation of GMOs. There can be no argument that "[s]ince scientific advice
plays a key role in GMO regulations, scientists have a responsibility to address and communicate
uncertainty to policy makers and the public."98

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by
extensive use at present of GM technology in agriculture. The global area of GM crops has reached over
175 million hectares in 2013, more than a hundredfold increase from 1.7 million hectares in
1996.99 However, the worldwide debate on safety issues involving GM foods continues.
It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of the
technology itself. The process of combining inter-species genes, which is called recombinant DNA
technology, does not have the checks and balances that are imposed by nature in traditional breeding.
Because of this there is a risk of genetic instability. This means that no one can make any accurate
predictions about the long-term effects of GMOs on human beings and the environment. Extensive
testing in this regard is either very expensive or impractical, and there is still a great deal about the
process that scientists do not understand.100

The basic concepts for the safety assessment of foods derived from GMOs have been developed in
close collaboration under the auspices of the Organization for Economic Co-operation and Development
(OECD) and the United Nations World Health Organization (WHO) and Food and Agricultural
Organization (FAO). The OECD's group of experts on biosafety recommended conducting the safety
assessment of a GM food on case-by-case basis through comparison to an existing food with a long
history of safe use. Thus, the concept of substantial equivalence was developed that is widely used by
national and international agencies, including the US Food and Drug Administration (FDA), the WHO,
OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is found to be
substantially equivalent to an existing food or food component, it can be treated in the same manner
with respect to safety (i.e., the food or food component can be concluded to be as safe as the
conventional food or food component)."102 The safety assessment of a genetically modified food is
directed by the results of a comparison between the genetically modified food and its conventional
counterpart. It follows a stepwise process aided by a series of structured questions. Factors taken into
account in the safety assessment include:
identity;

source;

composition;

effects of processing/cooking;

transformation process;

the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

protein expression product of the novel DNA:


effects on function;

potential toxicity;

potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or metabolic
pathways, including composition of critical macro, micro-nutrients, anti-nutrients, endogenous
toxicants, allergens, and physiologically active substances; and,

potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from genetically
modified plants.104 However, the concept of substantial equivalence as the starting point of risk
assessment was criticized for being "unscientific and arbitrary" and "intentionally vague and ill-defined
to be as flexible, malleable, and open to interpretation as possible." It is likewise argued that
"comparisons are designed to conceal significant changes resulting from genetic modifications," "the
principle is weak and misleading even when it does not apply, effectively giving producers carte
blanche", and that there is insufficiency of background information for assessing substantial
equivalence. A paper presented at a WHO workshop pointed out that the main difficulty associated with
the biosafety assessment of transgenic crops is the unpredictable nature of transformation. This
unpredictability raises the concern that transgenic plants will behave in an inconsistent manner when
grown commercially.105

The method of testing GM foods was further described as inadequate, as currently the testing
procedures consist almost exclusively of specific chemical and biochemical analytical procedures
designed to quantitate a specific nutrient or a specific toxin or allergen. It was noted that in actual
practice, the investigator compares only selected characteristics of the genetically engineered food to
those of its non-genetically engineered counterpart. These testing schemes are viewed as completely
incapable of detecting unsuspected or unanticipated health risks that are generated by the process of
genetic engineering itself. Hence, clinical tests are recommended because only such tests have the
broad specificity and relevance to human physiology needed to detect the wide range of allergens and
toxins that might result from unexpected side-effects of the genetic engineering process. 106

In another review article, it was pointed out that since a genetic modification is aimed at introducing
new traits into organisms, the result will always be a different composition of genes and proteins. The
most reasonable interpretation therefore is that a food derived from a GMO is considered substantially
equivalent to its traditional counterpart if the genetic modification has not resulted in intended or
unintended alterations in the composition of relevant nutrients and inherent toxicants of the organism,
and that the new genes and proteins have no adverse impact on the dietary value of the food and do
not therefore pose any harm to the consumer or the environment. It was thus concluded that
establishing substantial equivalence is not a safety assessment in itself, but is a pragmatic tool to
analyze the safety of a new food, and hence in the testing of new foods, the latest scientific methods
have to be used. All conceivable efforts to protect consumers from health risks should thus be made,
and at the same time, consumers should be adequately informed about the real extent of risks and
hazards.107

The GMO global debate has so intensified that each side has accused the other camp of mounting "paid
advocacy" and criticizing studies adverse to their respective positions as flawed or unscientific. Both
the agri-business industry, and groups opposed to GMOs including the organic farming industry, had
utilized enormous resources and funds for lobbying and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked reduction in the
use of harmful chemical pesticides.108 The resulting increase in crop yields grown on relatively small
parcels of land is also regarded as a solution to the problem of feeding a fast growing world population.
Proponents of GM biotechnology insist that GM foods are safe to humans and the environment based on
scientific studies. On the other hand, anti-GM activists disseminate adverse results of recent studies
confirming the health and environmental hazards of genetically engineered crop farming. Also, some
countries have maintained a firm stance against genetically engineered crops or GM foods, such as
France and Austria. Over the years, however, accumulated evidence of the dangers of GMOs, as well as
unrealized socio-economic benefits, has been increasingly recognized by the scientific community.

That GE farming increases crop yield has been debunked by new studies proving the contrary. In the
article, "GM Crops Do Not Increase Yield Potential," the Institute for Responsible Technology cited
reports from actual field studies in different countries revealing downward figures for Bt crops, as
summarized below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM
counterparts.

Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with
the disruptive effect of the GM transformation process accounting for approximately half the drop in
yield.

Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the
International Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM
crop yields were "highly variable" and in some cases, "yields declined".

The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed
studies conducted by academic scientists using adequate controls, concluded that genetically
engineered herbicide tolerant soybeans and herbicide-tolerant corn has not increased yields while
insect-resistant corn has only marginally improved yields. Traditional breeding outperforms genetic
engineering hands down.

In developing countries, crop failure can have severe consequences as illustrated in India, where a
large number of cotton farmers, unable to pay back high interest loans, have committed suicide.
Several investigations have implicated the unreliable performance of Bt cotton as a major contributor.

Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems
and no increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of
2004, 85% of the original Bt cotton farmers had given up while those remaining had to be subsidized by
the government. Similarly in the US, Bt cotton yields are not necessarily consistent or more
profitable.109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports
corporate control and impedes common persons' access to adequate food. The root cause of hunger is
not a lack of food, GM critics say, but a lack of access to food. The poor lack money to buy food and
lack of land on which to grow it. It is essential to follow sustainable traditional farming practices that
keeps food production in the hands of small-scale farmers, thereby reducing corporate control. 110

As regards the existing uncertainties of potential long-term effects of the release into the environment
of GMOs, the BEETLE (Biological and Ecological Evaluation towards Long-term Effects) study of
2009,111 made for the European Commission, analyzed more than 700 scientific publications from all
over the world about GMOs and their potential effects on environment including biodiversity, and
received contributions to online surveys from 100 to 167 invited environmental experts. This study
declared the following uncertainties:
increased fitness of GM plants;

outbreeding depression after hybridization with wild relatives;

outcrossing between related species and the fate of a transferred GM trait;

altered flower phenology;

altered fecundity, increasing seed (gene) flow;

increased frequency of horizontal gene flow;

resistance development of pests;

effects on non-target organisms;

effects on non-target organisms due to altered nutritional composition of the GM plant;

effects on non-target organisms due to accumulation of toxic compounds;

effects on rhizo sphere microbiota;

effects on symbiotic non-target organisms;

changes in soil functions caused by GM traits;

effects on biological control;

altered use of agrochemicals;

indirect changes in susceptibility of crops against pathogens;

adverse effects on agro-biodiversity;

indirect effects in fertilizer use;

potential changes in landscape structure;

increased production of greenhouse gases;

increased mineral nutrient erosion and fertilizer leaching;

altered chemical attributes of soil fraction;

emerging of stacked events;

the necessity of regional differentiation of risk assessments. 112ChanRoblesVirtualawlibrary


A critical observation was made on the argument that there is not enough evidence to reject the
hypothesis that GMO and GM food is safe. The fact emphasized was that experiments designed to
clarify potential adverse effects on health or the environment are nearly absent in peer-reviewed
journals. Scientific uncertainty, omitted research areas, and lack of basic knowledge crucial to risk
assessments have become apparent. The present uncertainty warrants further research and it has been
demonstrated that there is a risk of bias relying on hypotheses that dominate mainstream science.
There is therefore a need for independent research that is without prejudice and unbiased by economic
and professional interests.113 In another article it was noted that the clinical trials carried out to ensure
that negative externalities do not affect humans and the environment are conducted by the same
private firms that created the products, raising conflict of interest concerns. 114

While existing literature on health effects of GM foods indicates that they are generally safe, and similar
conclusions have been drawn by government agencies and scientific organizations such as FAO/WHO
and Society of Toxicology, a growing number of independent scientists have spoken strongly against
such generalizations from limited research mostly sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82
countries expressed that they are extremely concerned about the hazards of GMOs to biodiversity, food
safety, human and animal health, and demanded a moratorium on environmental releases in
accordance with the precautionary principle. They are opposed to GM crops that will intensify corporate
monopoly, exacerbate inequality and prevent the essential shift to sustainable agriculture that can
provide food security and health around the world, and called a ban on patents of life forms and living
processes which threaten food security, sanction biopiracy of indigenous knowledge and genetic
resources and violate basic human rights and dignity.115

On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an
Independent Science Panel on GM at a public conference in London. On June 15, 2003, they released a
Final Report116 as their contribution to the National GM Debate in UK. In a summary 117 of the final report,
these scientists declared the following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests

3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in
claiming GM products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns
o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the
transgenic process or the transgenic construct, and may hence be general to all GM food
6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects,
and some are potent immunogens and allergens for humans and other mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to
suppress the immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects;
vaccines and viral sequences such as the 'spike' protein gene of the pig coronavirus, in the same family
as the SARS virus linked to the current epidemic; and glycoprotein gene gpl20 of the AIDS virus that
could interfere with the immune system and recombine with viruses and bacteria to generate new and
unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the
spread of transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account
for 75% of all GM crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological


toxicities, and birth defects in humans and mammals; also toxic to butterflies and a number of
beneficial insects, to larvae of clams and oysters, Daphnia and some freshwater fish, especially the
rainbow trout; it inhibits beneficial soil bacteria and fungi, especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to
many body functions have been reported after exposures at normal use levels; glyphosate exposure
nearly doubled the risk of late spontaneous abortion, and children born to users of glyphosate had
elevated neurobehavioral defects; glyphosate retards development of the foetal skeleton in laboratory
rats, inhibits the synthesis of steroids, and is genotoxic in mammals, fish and frogs; field dose exposure
of earthworms caused at least 50 percent mortality and significant intestinal damage among surviving
worms; Roundup (Monsanto's formulation of glyphosate) caused cell division dysfunction that may be
linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances
the scope and probability of horizontal gene transfer and recombination, the main route to creating
viruses and bacteria that cause disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the
laboratory millions of recombinant viruses that have never existed in billions of years of evolution

o Disease-causing viruses and bacteria and their genetic material are the predominant materials and
tools of genetic engineering, as much as for the intentional creation of bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human
volunteers; antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria,
making infections very difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian
cells, raising the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for
human beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially
unstable and prone to horizontal gene transfer and recombination, with all the attendant hazards: gene
mutations due to random insertion, cancer, re-activation of dormant viruses and generation of new
viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence, especially on
horizontal gene transfer. Key experiments failed to be performed, or were performed badly and then
misrepresented. Many experiments were not followed up, including investigations on whether the CaMV
35S promoter is responsible for the 'growth-factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating problems
on the farm. Transgenic contamination is now widely acknowledged to be unavoidable, and
hence there can be no co-existence of GM and non-GM agriculture. Most important of all,
GM crops have not been proven safe. On the contrary, sufficient evidence has emerged to
raise serious safety concerns, that if ignored could result in irreversible damage to health
and the environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all aspects
relevant to health and the environment. In addition, they bring food security and social and cultural well
being to local communities everywhere. There is an urgent need for a comprehensive global shift to all
forms of sustainable agriculture.118

In 2008, a Global Report119 was released by the International Assessment of Agricultural Knowledge,
Science and Technology for Development (IAASTD), a three-year international collaborative effort
(2005-2007) developed out of a consultative process involving 900 participants and 110 countries from
all over the world. This global initiative assessed agricultural knowledge, science and technology (AKST)
in relation to meeting development and sustainability goals of (1) reducing hunger and poverty; (2)
improving nutrition, health and rural livelihoods; and (3) facilitating social and environmental
sustainability. The report concluded that a radical transformation of the world's food and farming
systems - especially the policies and institutions that affect them - is necessary if we are to overcome
converging economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have primarily
benefited the better-resourced groups in society and transnational corporations, rather than the most
vulnerable ones. In general, the IAASTD found little evidence to support a conclusion that modern
biotechnologies are well suited to meeting the needs of small-scale and subsistence farmers,
particularly under the increasingly unpredictable environmental and economic conditions tha they
face.120

More recently, in 2013, the European Network of Scientists for Social and Environmental Responsibility
(ENSSER), an international group of more than 90 scientists, academics and physicians, released a
statement that there is no scientific consensus on the safety of GM foods and crops. 121 The
statement122 is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social
and safety assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by
GM seed developers and some scientists, commentators, and journalists that there is a "scientific
consensus" on GMO safety and that the debate on this topic is "over".

We feel compelled to issue this statement because the claimed consensus on GMO safety does not
exist. The claim that it does exist is misleading and misrepresents the currently available scientific
evidence and the broad diversity of opinion among scientists on this issue. Moreover, the claim
encourages a climate of complacency that could lead to a lack of regulatory and scientific rigour and
appropriate caution, potentially endangering the health of humans, animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current knowledge is
always open to well-founded challenge and disagreement. We endorse the need for further
independent scientific inquiry and informed public discussion on GM product safety and urge GM
proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of
animal feeding studies of GM crops found "An equilibrium in the number [of] research groups
suggesting, on the basis of their studies, that a number of varieties of GM products (mainly maize and
soybeans) are as safe and nutritious as the respective conventional non-GM plant, and those raising
still serious concerns". The review also found that most studies concluding that GM foods were as safe
and nutritious as those obtained by conventional breeding were "performed by biotechnology
companies or associates, which are also responsible [for] commercializing these GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are safe
included studies that found significant differences in the GM-fed animals. While the review authors
dismissed these findings as not biologically significant, the interpretation of these differences is the
subject of continuing scientific debate and no consensus exists on the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding
studies in which one group of animals is fed GM food and another group is fed an equivalent non-GM
diet. Independent studies of this type are rare, but when such studies have been performed, some have
revealed toxic effects or signs of toxicity in the GM-fed animals. The concerns raised by these studies
have not been followed up by targeted research that could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent
research calls of the European Union and the French government to investigate the long-term health
impacts of GM food consumption in the light of uncertainties raised by animal feeding studies. These
official calls imply recognition of the inadequacy of the relevant existing scientific research protocols.
They call into question the claim that existing research can be deemed conclusive and the scientific
debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM food


consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no
epidemiological studies in human populations have been carried out to establish whether there are any
health effects associated with GM food consumption. As GM foods are not labelled in North America, a
major producer and consumer of GM crops, it is scientifically impossible to trace, let alone study,
patterns of consumption and their impacts. Therefore, claims that GM foods are safe for human health
based on the experience of North American populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or
inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or
that they are no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of
the regulatory system for GM foods and crops in that country. The report declared that it is
"scientifically unjustifiable" to presume that GM foods are safe without rigorous scientific testing and
that the "default prediction" for every GM food should be that the introduction of a new gene will cause
"unanticipated changes" in the expression of other genes, the pattern of proteins produced, and/or
metabolic activities. Possible outcomes of these changes identified in the report included the presence
of new or unexpected allergens.

A report by the British Medical Association concluded that with regard to the long-term effects of GM
foods on human health and the environment, "many unanswered questions remain" and that "safety
concerns cannot, as yet, be dismissed completely on the basis of information currently available". The
report called for more research, especially on potential impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly qualified,
acknowledging data gaps and potential risks, as well as potential benefits, of GM technology. For
example, a statement by the American Medical Association's Council on Science and Public Health
acknowledged "a small potential for adverse events ... due mainly to horizontal gene transfer,
allergenicity, and toxicity" and recommended that the current voluntary notification procedure
practised in the US prior to market release of GM crops be made mandatory. It should be noted that
even a "small potential for adverse events" may turn out to be significant, given the widespread
exposure of human and animal populations to GM crops.

A statement by the board of directors of the American Association for the Advancement of Science
(AAAS) affirming the safety of GM crops and opposing labelling cannot be assumed to represent the
view of AAAS members as a whole and was challenged in an open letter by a group of 21 scientists,
including many long-standing members of the AAAS. This episode underlined the lack of consensus
among scientists about GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and food
safety. However, the report based on this project, "A Decade of EU-Funded GMO Research", presents no
data that could provide such evidence, from long-term feeding studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the
development of safety assessment approaches". Only five published animal feeding studies are
referenced in the SAFOTEST section of the report, which is dedicated to GM food safety. None of these
studies tested a commercialised GM food; none tested the GM food for long-term effects beyond the
subchronic period of 90 days; all found differences in the GM-fed animals, which in some cases were
statistically significant; and none concluded on the safety of the GM food tested, let alone on the safety
of GM foods in general. Therefore the EU research project provides no evidence for sweeping claims
about the safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies "document the
general safety and nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the
studies listed reveals that many do not provide evidence of GM food safety and, in fact, some provide
evidence of a lack of safety. For example:chanRoblesvirtualLawlibrary

Many of the studies are not toxicological animal feeding studies of the type that can provide useful
information about health effects of GM food consumption. The list includes animal production studies
that examine parameters of interest to the food and agriculture industry, such as milk yield and weight
gain; studies on environmental effects of GM crops; and analytical studies of the composition or genetic
makeup of the crop.

Among the animal feeding studies and reviews of such studies in the list, a substantial number found
toxic effects and signs of toxicity in GM-fed animals compared with controls. Concerns raised by these
studies have not been satisfactorily addressed and the claim that the body of research shows a
consensus over the safety of GM crops and foods is false and irresponsible.

Many of the studies were conducted over short periods compared with the animal's total lifespan and
cannot detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they
do not "document the general safety and nutritional wholesomeness of GM foods and feeds". Rather,
some of the studies give serious cause for concern and should be followed up by more detailed
investigations over an extended period of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target
organisms and effects of the herbicides used in tandem with herbicide-tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A
review of environmental risk assessment approaches for GM crops identified shortcomings in the
procedures used and found "no consensus" globally on the methodologies that should be applied, let
alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse effects on non-
target and beneficial organisms - effects that are widely neglected in regulatory assessments and by
some scientific commentators. Resistance to Bt toxins has emerged in target pests, and problems with
secondary (non-target) pests have been noted, for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies
have associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and
adverse health effects in human and animal populations exposed to Roundup, the herbicide used on
the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be
correlated with funding sources. A peer-reviewed survey of the views of 62 life scientists on the
environmental risks of GM crops found that funding and disciplinary training had a significant effect on
attitudes. Scientists with industry funding and/or those trained in molecular biology were very likely to
have a positive attitude to GM crops and to hold that they do not represent any unique risks, while
publicly-funded scientists working independently of GM crop developer companies and/or those trained
in ecology were more likely to hold a "moderately negative" attitude to GM crop safety and to
emphasize the uncertainty and ignorance involved. The review authors concluded, "The strong effects
of training and funding might justify certain institutional changes concerning how we organize science
and how we make public decisions when new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by GM foods and


crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The
Cartagena Protocol is an international agreement ratified by 166 governments worldwide that seeks to
protect biological diversity from the risks posed by GM technology. It embodies the Precautionary
Principle in that it allows signatory states to take precautionary measures to protect themselves against
threats of damage from GM crops and foods, even in case of a lack of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years
to develop international guidelines for the assessment of GM foods and crops, because of concerns
about the risks they pose. These guidelines were adopted by the Codex Alimentarius Commission, of
which over 160 nations are members, including major GM crop producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they
agree that genetic engineering differs from conventional breeding and that safety assessments should
be required before GM organisms are used in food or released into the environment.

These agreements would never have been negotiated, and the implementation processes elaborating
how such safety assessments should be conducted would not currently be happening, without
widespread international recognition of the risks posed by GM crops and foods and the unresolved state
of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and
foods that have shown adverse effects on animal health and non-target organisms, indicated above.
Many of these studies have, in fact, fed into the negotiation and/or implementation processes of the
Cartagena Protocol and Codex. We support the application of the Precautionary Principle with regard to
the release and transboundary movement of GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate that the totality of
scientific research outcomes in the field of GM crop safety is nuanced, complex, often contradictory or
inconclusive, confounded by researchers' choices, assumptions, and funding sources, and in general,
has raised more questions than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human food and
animal feed supply, and whether the identified risks are acceptable or not, are decisions that involve
socioeconomic considerations beyond the scope of a narrow scientific debate and the currently
unresolved biosafety research agendas. These decisions must therefore involve the broader society.
They should, however, be supported by strong scientific evidence on the long-term safety of GM crops
and foods for human and animal health and the environment, obtained in a manner that is honest,
ethical, rigorous, independent, transparent, and sufficiently diversified to compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading and
misrepresentative claims that a "scientific consensus" exists on GMO
safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our political
analysts now serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and
marginalize small farmers. As the statement x x x of the 81 members of the World Future Council put it,
"While profitable to the few companies producing them, GMO seeds reinforce a model of farming that
undermines sustainability of cash-poor farmers, who make up most of the world's hungry. GMO seeds
continue farmers' dependency on purchased seed and chemical inputs. The most dramatic impact of
such dependency is in India, where 270,000 farmers, many trapped in debt for buying seeds and
chemicals, committed suicide between 1995 and 2012." 124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently addressed the
uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important ingredient
in Ayurvedic medicine, and is of special value for the treatment of diabetes and liver problems. The
attempted commercial propagation of Bt brinjal spawned intense debate and suffered obstacles due to
sustained opposition from local scientists, academicians and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of eggplant's
diversity, said that if the new technology is adopted, decrease in the use of insecticides, substantial
increase in crop yields and greater food availability, can be expected. But opponents argued, alongside
food safety concerns, that there is a potential for toxic effects on populations of non-target
invertebrates, and potential replacement of traditional landraces as farmers may move towards
cultivation of a restricted number of GE forms. In addition to these issues, there was the additional
concern raised over the transfer of Bt transgenes to non-GE brinjal or its wild relatives, and the
consequences for plant biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into the environment
of Bt brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a Technical Evaluation
Committee (TEC) composed of experts nominated by the parties to undertake a comprehensive
evaluation of the feasibility of allowing the open field trials of Bt brinjal and submit a final report, and in
the event the TEC is unable to submit said final report, it was directed instead to submit an interim
report within the period set by the Court on the following issue: Whether there should or should not be
any ban, partial or otherwise, upon conducting of open field tests of the GMOs? In the event open field
trials are permitted, what protocol should be followed and conditions, if any, that may be imposed by
the Court for implementation of open field trials." The Court also directed that the TEC would be free to
review report or studies authored by national and international scientists if it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all field
trials should be stopped until certain conditions have been met. A Final Report 126 was eventually
submitted to the Court which noted weaknesses in the conditions imposed by the regulatory agencies
for conduct of field trials, as follows: 1) post-release monitoring, an important aspect of environmental
and health safety (if the GE crop is consumed as food) is not given adequate attention; 2) the
importance of need and socio-economic impact assessment of GM products as one of the criteria that
should be applied in the evaluation at an early stage; and 3) need for additional tests not currently
done such as long-term feeding studies for assessment of chronic and intergeneration toxicity in small
animals, genomewide expression analysis in the toxicity studies to screen for possible unintended
effects on host physiology. It was recommended that a moratorium on field trials of herbicide tolerant
crops until the issue had been examined by an independent committee, and also noted that said
technology may not be suitable in the Indian socio-economic context due to possible impact of
extensive use of broad spectrum herbicides on the environmental biodiversity and smaller average
farm size. Examination of the safety dossier of Bt brinjal indicated certain concerns on the data, which
had not been addressed in the course of regulatory testing leading to approval due to lack of full-time
qualified personnel for the purpose. Overall, it was found that the quality of information in several of
the applications is far below what would be expected and required for rigorous evaluation by a
regulatory body and is unlikely to meet international regulatory guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain
conditions for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally
believed that Cry toxins do not exert an effect on vertebrates as vertebrates lack the receptor for Cry
toxins, two studies (one in mice and the other in cows) have provided evidence that Cry proteins can
bind to mammalian intestinal epithelial cells. The report also discussed the emergence of resistance in
insect pests, health and food safety of Bt transgenics, and herbicide tolerant crops and their effect on
biodiversity and the environment. Specific recommendations were made to address the foregoing
issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and potential
for negative impact than for other species. To justify this, there needs to be extraordinarily compelling
reasons and only when other choices are not available. GM crops that offer incremental advantages or
solutions to specific and limited problems are not sufficient reasons to justify such release. The TEC did
not find any such compelling reasons under the present conditions. The fact is that unlike the situation
in 1960s there is no desperate shortage of food and in fact India is in a reasonably secure position. The
TEC therefore recommends that release of GM crops for which India is a centre of origin or diversity
should not be allowed.127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment
minister Jairam Ramesh placed an indefinite moratorium on its further field testing. This was done after
discussions with scientists, both pro and anti-GM crops, activists and farmers across the country.

GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed
primarily by DAO 08-2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and FPA all
maintain there was no unlawful deviation from its provisions and that respondents so far failed to
present evidence to prove their claim that Bt talong field trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory body, was
tasked to "evaluate the potential risks of the proposed activity to human health and the environment
based on available scientific and technical information." Under DA Special Order 241 and 384 (2002)
the STRP membership was expanded to include "an independent pool of experts...tapped by the [BPI]
to evaluate the potential risks of the proposed release of GMOs for field testing, propagation, food, feed
to human health and the environment based on available scientific and technical information."

DAO 08-2002 supplements the existing guidelines on the importation and release into the environment
of products of modern biotechnology by institutionalizing existing operational arrangements between
DA-BPI and the NCBP. Effective July 2003, applications for field test are received and processed by DA-
BPI, but the approval process for projects on contained use remains under the supervision of NCBP. A
mandatory risk assessment of GM plant and plant products is required prior to importation or release
into the environment. Experiments must first be conducted under contained conditions, then the
products are tested in field trials the product is reviewed for commercial release. Risk assessment is
done according to the principles provided for by the Cartagena Protocol on Biosafety. Risk assessment
is science-based, carried out on a case by case manner, targets a specific crop and its transformation
event, adopts the concept of substantial equivalence in identifying risk, allows review, and provides
that the absence of scientific information or consensus should not be interpreted to indicate the
absence or presence and level of risk.128

Greenpeace, however, claims there is actually only a committee of three to five members which
conducts the risk assessment, and is aided by an informal group, the DA's Biotech Advisory Team (BAT),
of representatives from government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST.
It also assails the government regulatory agencies for their refusal to open to scrutiny the names and
qualifications of those incharge of regulation and risk assessment, and for allowing the entry and use
of all GMO applications requested by multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for regulating
field trials of GM plants and plant products. EO 514130 establishing the National Biosafety Framework
(NBF) clearly provides that the NBF shall apply to the development, adoption and implementation
of all biosafety policies, measures and guidelines and in making biosafety decisions concerning the
research, development, handling and use, transboundary movement, release into the environment and
management of regulated articles.131 The objective of the NBF is to "[e]nhance the decision-making
system on the application of products of modern biotechnology to make it more efficient, predictable,
effective, balanced, culturally appropriate, ethical, transparent and participatory". 132 Thus, "the socio-
economic, ethical, and cultural benefit and risks of modern biotechnology to the Philippines and its
citizens, and in particular on small farmers, indigenous peoples, women, small and medium enterprises
and the domestic scientific community, shall be taken into account in implementing the NBF." 133 The
NBF also mandates that decisions shall be arrived at in a transparent and participatory manner,
recognizing that biosafety issues are best handled with the participation of all relevant stakeholders
and organizations who shall have appropriate access to information and the opportunity to participate
responsibly and in an accountable manner in biosafety decision-making process. 134

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant
provisions of the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the
precautionary approach shall guide biosafety decisions. The principles and elements of this approach
are hereby implemented through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are expected
to follow and which their respective rules and regulations must conform with. In cases of conflict in
applying the principles, the principle of protecting public interest and welfare shall always prevail, and
no provision of the NBF shall be construed as to limit the legal authority and mandate of heads of
departments and agencies to consider the national interest and public welfare in making biosafety
decisions.135
As to the conduct of risk assessment to identify and evaluate the risks to human health and the
environment, these shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a
RA to determine whether a regulated article poses significant risks to human health and the
environment:chanRoblesvirtualLawlibrary

5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based on
available scientific and technical information. The expert advice of and guidelines
developed by, relevant international organizations, including intergovernmental
bodies, and regulatory authorities of countries with significant experience in the
regulatory supervision of the regulated article shall be taken into account in the
conduct of risk assessment;

5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as


indicating a particular level of risk, an absence of risk, or an acceptable risk;

5.2.1.3 The identified characteristics of a regulated article and its use which have the potential to
pose significant risks to human health and the environment shall be compared to those
presented by the non-modified organism from which it is derived and its use under the same
conditions;

5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event. The
required information may vary in nature and level of detail from case to case depending on
the regulated article concerned, its intended use and the receiving environment; and,

5.2.1.5 If new information on the regulated article and its effects on human health and the
environment becomes available, and such information is relevant and significant, the RA
shall be readdressed to determine whether the risk has changed or whether there is a need
to amend the risk management strategies accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies
shall be in accordance with the policies and standards on RA issued by the NCBP. Annex III of the
Cartagena Protocol shall also guide RA. As appropriate, such department and agencies may issue their
own respective administrative issuances establishing the appropriate RA under their particular
jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety
decisions shall be determined by concerned departments and agencies subject to the
requirements of law and the standards set by the NCBP. Where applicable and under the
coordination of the NCBP, concerned departments and agencies shall issue joint guidelines on the
matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national biosafety
regulation to date, compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7
of the NBF mandates a more transparent, meaningful and participatory public consultation on the
conduct of field trials beyond the posting and publication of notices and information sheets,
consultations with some residents and government officials, and submission of written comments,
provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety policies,
guidelines and measures and in making biosafety decisions, shall promote, facilitate, and conduct
public awareness, education, meaningful, responsible and accountable participation. They shall
incorporate into their respective administrative issuances and processes best practices and
mechanisms on public participation in accordance with the following
guidelines:chanRoblesvirtualLawlibrary

7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety
decision-making process from the time the application is received. For applications on
biotechnology activities related to research and development, limited primarily for contained use,
notice of the filing of such application with the NCBP shall be sufficient, unless the NCBP deems that
public interest and welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation processes,


the following minimum requirements shall be followed:chanRoblesvirtualLawlibrary

7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to
which they have access. Such notice must be adequate, timely, and effective and posted prominently in
public places in the areas affected, and in the case of commercial releases, in the national print media;
in all cases, such notices must be posted electronically in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures
should allow relevant stakeholders to understand and analyze the benefits and risks, consult with
independent experts, and make timely interventions. Concerned departments and agencies shall
include in their appropriate rules and regulations specific time frames for their respective public
participation processes, including setting a minimum time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These
could include formal hearings in certain cases, or solicitation of public comments, particularly where
there is public controversy about the proposed activities. Public consultations shall encourage
exchanges of information between applicants and the public before the application is acted upon.
Dialogue and consensus-building among all stakeholders shall be encouraged. Concerned departments
and agencies shall specify in their appropriate rules and regulations the stages when public
consultations are appropriate, the specific time frames for such consultations, and the circumstances
when formal hearings will be required, including guidelines to ensure orderly proceedings. The
networks of agricultural and fisheries councils, indigenous peoples and community-based
organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow
public participation in writing or through public hearings, as appropriate, and which allow
the submission of any positions, comments, information, analyses or opinions. Concerned
departments and agencies shall include in their appropriate rules and regulations the stages when and
the process to be followed for submitting written comments; and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and
submission of written comments. Public concerns as reflected through the procedures for public
participation shall be considered in making the decision. The public shall be informed of the final
decision promptly, have access to the decision, and shall be provided with the reasons and
considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort
was made to operationalize the principles of the NBF in the conduct of field testing of Bt talong. The
failure of DAO 08-2002 to accommodate the NBF means that the Department of Agriculture lacks
mechanisms to mandate applicants to comply with international biosafety protocols. Greenpeace's
claim that BPI had approved nearly all of the applications for GMO field trials is confirmed by the data
posted on their website. For these reasons, the DAO 08-2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the EIS
law, EO 514 clearly mandates that concerned departments and agencies, most particularly petitioners
DENR-EMB, BPI and FPA, make a determination whether the EIS system should apply to the release of
GMOs into the environment and issue joint guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect impacts
of a project on the biophysical and human environment and ensuring that these impacts are addressed
by appropriate environmental protection and enhancement measures. It "aids proponents in
incorporating environmental considerations in planning their projects as well as in determining the
environment's impact on their project." There are six stages in the regular EIA process. The proponent
initiates the first three stages while the EMB takes the lead in the last three stages. Public participation
is enlisted in most stages.136

Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA
under existing regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects
using new processes/technologies with uncertain impacts. This is an interim category -
unclassified projects will eventually be classified into their appropriate groups after EMB
evaluation.137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to undertake
activities or projects which will affect the quality of the environment are required to prepare a detailed
Environmental Impact Statement (EIS) prior to undertaking such development activity. 138 An
environmentally critical project (ECP) is considered by the EMB as "likely to have significant adverse
impact that may be sensitive, irreversible and diverse" and which "include activities that have
significant environmental consequences."139 In this context, and given the overwhelming scientific
attention worldwide on the potential hazards of GMOs to human health and the environment, their
release into the environment through field testing would definitely fall under the category of ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on whether his
office undertook the necessary evaluation on the possible environmental impact of Bt talong field trials
subject of this case and the release of GMOs into the environment in general. While he initially cited
lack of budget and competence as reasons for their inaction, he later said that an amendment of the
law should be made since projects involving GMOs are not covered by Proclamation No. 2146 140.
Pertinent portions of his testimony before the CA are herein quoted:
xxxx

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law.
Granting Mr. Witness that a certain project or undertaking is not classified as environmentally critical
project, how would you know that the BT talong field testing is not located in an environmentally critical
area this time?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Objection Your Honor, argumentative.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Witness may answer.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition,
petitioners never alleged that the project, the subject matter rather of this instant petition, is within an
environmentally critical project.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Your Honor the Witness did not answer the question.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Please answer the question.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Personally I have conferred with our personnel from the Environmental Impact Assessment Division and
they intimated to me that the locations of the project, rather of this subject matter of the instant
petition, not within any declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

In other words, you are aware of the area where the BT Talong experiments are being conducted. Is
that the premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I said
personnel from Environmental Impact Division at our office, as I said they intimated to me that it's not
within declared environmentally critical area.
HON. J. BARRIOS:chanRoblesvirtualLawlibrary

That being the case, you did not act further? [You] did not make any further evaluation, on
whether the activity has an environmental impact? Is that the correct premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects
of the Bureau's affairs. But when it comes to highly technical matters, I have to rely on our technical
people especially on environmentally impact assessment matters.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness
coordinate with your Office with regard the field testing of BT Talong?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard
the field testing of BT Talong as required under the law?

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Already answered your Honor, objection.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

The witness in effect said he does not know, he's not in a position to answer.

xxxx

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet
received any project with respect to that Your Honor. So the witness would not be in a position to
answer that Your Honors.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Lay the basis first.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up
question is specifically Your Honor the BT talong field testing.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Unclassified?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As the section will initially provide. But there must be prior ... may I continue to harp on that Your
Honors. There must be prior ... let's say conditions ... there must be prior evaluation and assessment
just the same by the EMB.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Prior to what Mr. Witness?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Yes please.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent
evaluation or assessment of the matter to see if we also have the resources and expertise if it can be
finally unclassified. I should say should fall within the fairview of the system, the EIA system. In other
words, it's in a sort of how do you say that it's in a state of limbo. So it's unclassified, that's the most we
can do in the meantime.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects
such as this one in particular?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, Your Honors as of now.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So therefore, when you say initially it's unclassified and then you're saying afterwards the
EMB needs evaluation but then you're saying the EMB is without any capability to evaluate
then what happens?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how
we interpret it. But the truth of the matter is with all pragmatism we don't have the
resources as of now and expertise to do just that.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So in other words you admit that the EMB is without any competence to make a categorical
or initial examination of this uncategorized activity, is that what you mean?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI:chanRoblesvirtualLawlibrary
Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the
parties concerned.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So that means you are waiting for a request? Are you not? Proactive in this activity in performing your
obligations and duties?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the
environment is hardly ... the ratio is ... if we want to protect indeed the environment as we
profess, with all due respect if Congress speaks otherwise.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial
Affidavit, [you] are saying that the EMB is tasked in advising the DENR on matters related to
environmental management, conservation and pollution control, right?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical
Areas of Projects and more specifically focused on Proclamation No. 2146. With respect to
this BT Talong, you mentioned that this is at first is uncategorized, it's not within?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining
to the environment, your Office has the mandate and then you later say that your Office is without
competence, do I follow your line of standing?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now
within Proclamation 2146.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Yes, but under the implementing rules your Office has the mandate to act on other unclassified
activities and you answered that your Office has no competence.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the
Secretary of DENR. We need an amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of
serious attention to their mandate under the law in the implementation of the NBF, as provided in the
following sections of EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary
government agency responsible for the conservation, management, development and proper use of the
country's environment and natural resources, the Department of Environment and Natural Resources
(DENR) shall ensure that environmental assessments are done and impacts identified in
biosafety decisions. It shall also take the lead in evaluating and monitoring regulated articles
intended for bioremediation, the improvement of forest genetic resources, and wildlife genetic
resources.
xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point
responsible for liaison with the Secretariat shall be the Department of Foreign Affairs. The competent
national authorities, responsible for performing the administrative functions required by the Protocol,
shall be, depending on the particular genetically modified organisms in question, the
following:chanRoblesvirtualLawlibrary

xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by
the Protocol that concern regulated organisms intended for bioremediation, the improvement of
forest genetic resources, and wildlife genetic resources, and applications of modern biotechnology
with potential impact on the conservation and sustainable use of biodiversity. (Emphasis
supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned
agencies to ensure that there will be funding for the implementation of the NBF as it was intended to be
a multi-disciplinary effort involving the different government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to
implement the NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006
and thereafter, the funding requirements shall be included in the General Appropriations Bill submitted
by each of said departments to Congress.

These concerned departments shall enter into agreement on the sharing of financial and technical
resources to support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of
the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that
governments are obligated to "foresee and forestall" harm to the environment. In the following
decades, the precautionary principle has served as the normative guideline for policymaking by many
national governments.142 The Rio Declaration on Environment and Development, the outcome of the
1992 United Nations Conference on Environment and Development held in Rio de Janeiro, defines the
rights of the people to be involved in the development of their economies, and the responsibilities of
human beings to safeguard the common environment. It states that the long term economic progress is
only ensured if it is linked with the protection of the environment. 143 For the first time, the precautionary
approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which indicates
that lack of scientific certainty is no reason to postpone action to avoid potentially serious or
irreversible harm to the environment. It has been incorporated in various international legal
instruments.144 The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, finalized
and adopted in Montreal on January 29, 2000, establishes an international regime primarily aimed at
regulating trade in GMOs intended for release into the environment, in accordance with Principle 15 of
the Rio Declaration on Environment and Development. The Protocol thus provides:
Article

10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human
health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of
the living modified organism in question as referred to in paragraph 3 above, in order to avoid or
minimize such potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding
the extent of the potential adverse effects of a living modified organism on the conservation and
sustainable use of biological diversity in the Party of import, taking also into account risks to human
health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of
that living modified organism intended for direct use as food or feed, or for processing, in order to avoid
or minimize such potential adverse effects.

xxxx

Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as


indicating a particular level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met 145:

there exist considerable scientific uncertainties;

there exist scenarios (or models) of possible harm that are scientifically reasonable (that
is based on some scientifically plausible reasoning);

uncertainties cannot be reduced in the short term without at the same time increasing
ignorance of other relevant factors by higher levels of abstraction and idealization;

the potential harm is sufficiently serious or even irreversible for present or future
generations or otherwise morally unacceptable;

there is a need to act now, since effective counteraction later will be made significantly
more difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of
the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following factors, among
others, may be considered: (1) threats to human life or health; (2) inequity to present or future
generations; or (3) prejudice to the environment without legal consideration of the environmental rights
of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in
cases before the courts. The precautionary principle bridges the gap in cases where scientific certainty
in factual findings cannot be achieved. By applying the precautionary principle, the court may construe
a set of facts as warranting either judicial action or inaction, with the goal of preserving and protecting
the environment. This may be further evinced from the second paragraph where bias is created in favor
of the constitutional right of the people to a balanced and healthful ecology. In effect, the precautionary
principle shifts the burden of evidence of harm away from those likely to suffer harm and onto those
desiring to change the status quo. An application of the precautionary principle to the rules on evidence
will enable courts to tackle future environmental problems before ironclad scientific consensus
emerges.146

For purposes of evidence, the precautionary principle should be treated as a principle of last resort,
where application of the regular Rules of Evidence would cause in an inequitable result for the
environmental plaintiff

(a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible
and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious.
When these features

uncertainty, the possibility of irreversible harm, and the possibility of serious harm
coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved
in favor of the constitutional right to a balanced and healthful ecology. Parenthetically, judicial
adjudication is one of the strongest fora in which the precautionary principle may find applicability. 147

Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court
finds all the three conditions present in this case - uncertainty, the possibility of irreversible harm and
the possibility of serious harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority of
whom are poor and marginalized. While the goal of increasing crop yields to raise farm incomes is
laudable, independent scientific studies revealed uncertainties due to unfulfilled economic benefits
from Bt crops and plants, adverse effects on the environment associated with use of GE technology in
agriculture, and serious health hazards from consumption of GM foods. For a biodiversity-rich country
like the Philippines, the natural and unforeseen consequences of contamination and genetic pollution
would be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of risk
assessment and public consultation, including the determination of the applicability of the EIS
requirements to GMO field testing, are compelling reasons for the application of the precautionary
principle. There exists a preponderance of evidence that the release of GMOs into the
environment threatens to damage our ecosystems and not just the field trial sites, and eventually the
health of our people once the Bt eggplants are consumed as food. Adopting the precautionary
approach, the Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the release into the
environment of genetically modified eggplant. The more prudent course is to immediately enjoin the Bt
talong field trials and approval for its propagation or commercialization until the said government
offices shall have performed their respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite moratorium
was recommended by a Supreme Court-appointed committee till the government fixes regulatory and
safety aspects - as relevant because majority of Filipino farmers are also small-scale farmers. Further,
the precautionary approach entailed inputs from all stakeholders, including the marginalized farmers,
not just the scientific community. This proceeds from the realization that acceptance of uncertainty is
not only a scientific issue, but is related to public policy and involves an ethical dimension. 148 For
scientific research alone will not resolve all the problems, but participation of different stakeholders
from scientists to industry, NGOs, farmers and the public will provide a needed variety of perspective
foci, and knowledge.149

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for
biosafety arising from the use of modern biotechnology, which is deemed necessary to provide more
permanent rules, institutions, and funding to adequately deal with this challenge, 150 the matter is within
the exclusive prerogative of the legislative branch.
WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals in
CA-G.R. SP No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND VOID;
and

3. Consequently, any application for contained use, field testing, propagation and commercialization,
and importation of genetically modified organisms is TEMPORARILY ENJOINED until a new
administrative order is promulgated in accordance with law. No pronouncement as to costs. SO
ORDERED.ch
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M.
ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT
and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his
capacity as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,


vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE
FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF
REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board


Member -Province of Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD,
DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which
assail the constitutionality of the Pork Barrel System. Due to the complexity of the subject matter, the
Court shall heretofore discuss the systems conceptual underpinnings before detailing the particulars of
the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be
traced to the degrading ritual of rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine feast to assuage their hunger with
morsels coming from the generosity of their well-fed master.4 This practice was later compared
to the actions of American legislators in trying to direct federal budgets in favor of their
districts.5 While the advent of refrigeration has made the actual pork barrel obsolete, it persists
in reference to political bills that "bring home the bacon" to a legislators district and
constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of government
spending meant for localized projects and secured solely or primarily to bring money to a
representative's district.7 Some scholars on the subject further use it to refer to legislative
control of local appropriations.8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds
of Members of the Legislature,9 although, as will be later discussed, its usage would evolve in
reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of
"Congressional Pork Barrel" in the Philippines since the utilization of the funds
appropriated therein were subjected to post-enactment legislator approval. Particularly,
in the area of fund release, Section 312 provides that the sums appropriated for certain
public works projects13"shall be distributed x x x subject to the approval of a joint
committee elected by the Senate and the House of Representatives. "The committee
from each House may also authorize one of its members to approve the distribution
made by the Secretary of Commerce and Communications."14 Also, in the area of fund
realignment, the same section provides that the said secretary, "with the approval of said
joint committee, or of the authorized members thereof, may, for the purposes of said
distribution, transfer unexpended portions of any item of appropriation under this Act to
any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation


broadened from the areas of fund release and realignment to the area of project
identification. During that year, the mechanics of the public works act was modified to
the extent that the discretion of choosing projects was transferred from the Secretary of
Commerce and Communications to legislators. "For the first time, the law carried a list of
projects selected by Members of Congress, they being the representatives of the people,
either on their own account or by consultation with local officials or civil
leaders."16 During this period, the pork barrel process commenced with local government
councils, civil groups, and individuals appealing to Congressmen or Senators for projects.
Petitions that were accommodated formed part of a legislators allocation, and the
amount each legislator would eventually get is determined in a caucus convened by the
majority. The amount was then integrated into the administration bill prepared by the
Department of Public Works and Communications. Thereafter, the Senate and the House
of Representatives added their own provisions to the bill until it was signed into law by
the President the Public Works Act.17 In the 1960s, however, pork barrel legislation
reportedly ceased in view of the stalemate between the House of Representatives and
the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after
Martial Law was declared, an era when "one man controlled the legislature," 19 the
reprieve was only temporary. By 1982, the Batasang Pambansa had already introduced a
new item in the General Appropriations Act (GAA) called the" Support for Local
Development Projects" (SLDP) under the article on "National Aid to Local Government
Units". Based on reports,20 it was under the SLDP that the practice of giving lump-sum
allocations to individual legislators began, with each assemblyman
receiving P500,000.00. Thereafter, assemblymen would communicate their project
preferences to the Ministry of Budget and Management for approval. Then, the said
ministry would release the allocation papers to the Ministry of Local Governments, which
would, in turn, issue the checks to the city or municipal treasurers in the assemblymans
locality. It has been further reported that "Congressional Pork Barrel" projects under the
SLDP also began to cover not only public works projects, or so- called "hard projects", but
also "soft projects",21 or non-public works projects such as those which would fall under
the categories of, among others, education, health and livelihood. 22

C. Post-Martial Law Era:


Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine
democracy, "Congressional Pork Barrel" was revived in the form of the "Mindanao
Development Fund" and the "Visayas Development Fund" which were created with lump-
sum appropriations of P480 Million and P240 Million, respectively, for the funding of
development projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the Luzon legislators for a
similar funding, prompted the creation of the "Countrywide Development Fund" (CDF)
which was integrated into the 1990 GAA24 with an initial funding of P2.3 Billion to cover
"small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the
President, to be released directly to the implementing agencies but "subject to the
submission of the required list of projects and activities."Although the GAAs from 1990 to
1992 were silent as to the amounts of allocations of the individual legislators, as well as
their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving P12.5 Million each in CDF funds, while Senators were
receiving P18 Million each, without any limitation or qualification, and that they could
identify any kind of project, from hard or infrastructure projects such as roads, bridges,
and buildings to "soft projects" such as textbooks, medicines, and scholarships. 27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds
was to be made upon the submission of the list of projects and activities identified by,
among others, individual legislators. For the first time, the 1993 CDF Article included an
allocation for the Vice-President.29 As such, Representatives were allocated P12.5 Million
each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project
identification and fund release as found in the 1993 CDF Article. In addition, however, the
Department of Budget and Management (DBM) was directed to submit reports to the
Senate Committee on Finance and the House Committee on Appropriations on the
releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in
consultation with the implementing agency concerned, were directed to submit to the
DBM the list of 50% of projects to be funded from their respective CDF allocations which
shall be duly endorsed by (a) the Senate President and the Chairman of the Committee
on Finance, in the case of the Senate, and (b) the Speaker of the House of
Representatives and the Chairman of the Committee on Appropriations, in the case of the
House of Representatives; while the list for the remaining 50% was to be submitted
within six (6) months thereafter. The same article also stated that the project list, which
would be published by the DBM,35 "shall be the basis for the release of funds" and that
"no funds appropriated herein shall be disbursed for projects not included in the list
herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and
endorsements were reproduced, except that the publication of the project list was no
longer required as the list itself sufficed for the release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time.
Other forms of "Congressional Pork Barrel" were reportedly fashioned and inserted into
the GAA (called "Congressional Insertions" or "CIs") in order to perpetuate the ad
ministrations political agenda.37 It has been articulated that since CIs "formed part and
parcel of the budgets of executive departments, they were not easily identifiable and
were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the
finance and budget officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions.38Examples of these CIs are the Department of
Education (DepEd) School Building Fund, the Congressional Initiative Allocations, the
Public Works Fund, the El Nio Fund, and the Poverty Alleviation Fund. 39 The allocations
for the School Building Fund, particularly, shall be made upon prior consultation with
the representative of the legislative district concerned.40 Similarly, the legislators had
the power to direct how, where and when these appropriations were to be spent. 41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of
CIs, namely, the "Food Security Program Fund," 43 the "Lingap Para Sa Mahihirap Program
Fund,"44and the "Rural/Urban Development Infrastructure Program Fund,"45 all of which
contained a special provision requiring "prior consultation" with the Member s of
Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF)
appeared in the GAA. The requirement of "prior consultation with the respective
Representative of the District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with the
sole condition that no amount shall be used to fund personal services and other
personnel benefits.47 The succeeding PDAF provisions remained the same in view of the
re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single
special provision ordering the release of the funds directly to the implementing agency or
local government unit concerned, without further qualifications. The following year,
2003,50 the same single provision was present, with simply an expansion of purpose and
express authority to realign. Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the DepEd52 required prior
consultation with Members of Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was re-enacted. 53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority
programs and projects under the ten point agenda of the national government and shall
be released directly to the implementing agencies." It also introduced the program menu
concept,55 which is essentially a list of general programs and implementing agencies
from which a particular PDAF project may be subsequently chosen by the identifying
authority. The 2005 GAA was re-enacted56 in 2006 and hence, operated on the same
bases. In similar regard, the program menu concept was consistently integrated into the
2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific
amounts allocated for the individual legislators, as well as their participation in the
proposal and identification of PDAF projects to be funded. In contrast to the PDAF
Articles, however, the provisions under the DepEd School Building Program and the
DPWH budget, similar to its predecessors, explicitly required prior consultation with the
concerned Member of Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of
non-governmental organizations (NGO) in the implementation of government projects
were introduced. In the Supplemental Budget for 2006, with respect to the appropriation
for school buildings, NGOs were, by law, encouraged to participate. For such purpose, the
law stated that "the amount of at least P250 Million of the P500 Million allotted for the
construction and completion of school buildings shall be made available to NGOs
including the Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for
its "Operation Barrio School" program, with capability and proven track records in the
construction of public school buildings x x x."62 The same allocation was made available
to NGOs in the 2007 and 2009 GAAs under the DepEd Budget. 63 Also, it was in 2007 that
the Government Procurement Policy Board64(GPPB) issued Resolution No. 12-2007 dated
June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and
regulations65 of RA 9184,66 the Government Procurement Reform Act, to include, as a
form of negotiated procurement,67 the procedure whereby the Procuring Entity68 (the
implementing agency) may enter into a memorandum of agreement with an NGO,
provided that "an appropriation law or ordinance earmarks an amount to be specifically
contracted out to NGOs."69
G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 2011 70 PDAF
Article included an express statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given P70 Million each, broken
down into P40 Million for "hard projects" and P30 Million for "soft projects"; while P200
Million was given to each Senator as well as the Vice-President, with a P100 Million
allocation each for "hard" and "soft projects." Likewise, a provision on realignment of
funds was included, but with the qualification that it may be allowed only once. The same
provision also allowed the Secretaries of Education, Health, Social Welfare and
Development, Interior and Local Government, Environment and Natural Resources,
Energy, and Public Works and Highways to realign PDAF Funds, with the further
conditions that: (a) realignment is within the same implementing unit and same project
category as the original project, for infrastructure projects; (b) allotment released has not
yet been obligated for the original scope of work, and (c) the request for realignment is
with the concurrence of the legislator concerned. 71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects
and/or designation of beneficiaries shall conform to the priority list, standard or design
prepared by each implementing agency (priority list requirement) x x x." However, as
practiced, it would still be the individual legislator who would choose and identify the
project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the


2012 and 2013 PDAF Articles; but the allocation for the Vice-President, which was pegged
at P200 Million in the 2011 GAA, had been deleted. In addition, the 2013 PDAF Article
now allowed LGUs to be identified as implementing agencies if they have the technical
capability to implement the projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and scholarships, outside of
his legislative district provided that he secures the written concurrence of the legislator
of the intended outside-district, endorsed by the Speaker of the House. 78 Finally, any
realignment of PDAF funds, modification and revision of project identification, as well as
requests for release of funds, were all required to be favorably endorsed by the House
Committee on Appropriations and the Senate Committee on Finance, as the case may
be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of
Members of Congress, the present cases and the recent controversies on the matter have,
however, shown that the terms usage has expanded to include certain funds of the President
such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 8 80 of
Presidential Decree No. (PD) 910,81 issued by then President Ferdinand E. Marcos (Marcos) on
March 22, 1976. In enacting the said law, Marcos recognized the need to set up a special fund to
help intensify, strengthen, and consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources vital to economic growth. 82 Due
to the energy-related activities of the government in the Malampaya natural gas field in
Palawan, or the "Malampaya Deep Water Gas-to-Power Project",83 the special fund created under
PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD
1869,85 or the Charter of the Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869
was similarly issued by Marcos on July 11, 1983. More than two (2) years after, he amended PD
1869 and accordingly issued PD 1993 on October 31, 1985, 86 amending Section 1287 of the
former law. As it stands, the Presidential Social Fund has been described as a special funding
facility managed and administered by the Presidential Management Staff through which the
President provides direct assistance to priority programs and projects not funded under the
regular budget. It is sourced from the share of the government in the aggregate gross earnings
of PAGCOR.88

IV. Controversies in the Philippines.


Over the decades, "pork" funds in the Philippines have increased tremendously, 89 owing in no
small part to previous Presidents who reportedly used the "Pork Barrel" in order to gain
congressional support.90 It was in 1996 when the first controversy surrounding the "Pork Barrel"
erupted. Former Marikina City Representative Romeo Candazo (Candazo), then an anonymous
source, "blew the lid on the huge sums of government money that regularly went into the
pockets of legislators in the form of kickbacks." 91 He said that "the kickbacks were SOP
(standard operating procedure) among legislators and ranged from a low 19 percent to a high
52 percent of the cost of each project, which could be anything from dredging, rip rapping,
sphalting, concreting, and construction of school buildings." 92 "Other sources of kickbacks that
Candazo identified were public funds intended for medicines and textbooks. A few days later,
the tale of the money trail became the banner story of the Philippine Daily Inquirer issue of
August 13, 1996, accompanied by an illustration of a roasted pig." 93 "The publication of the
stories, including those about congressional initiative allocations of certain lawmakers,
including P3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as
enacted in the 2004 GAA for being unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common
exercise of unscrupulous Members of Congress," the petition was dismissed. 95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its
probe into allegations that "the government has been defrauded of some P10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."96 The investigation was spawned by sworn
affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN" standing for Janet
Lim Napoles (Napoles) had swindled billions of pesos from the public coffers for "ghost
projects" using no fewer than 20 dummy NGOs for an entire decade. While the NGOs were
supposedly the ultimate recipients of PDAF funds, the whistle-blowers declared that the money
was diverted into Napoles private accounts. 97 Thus, after its investigation on the Napoles
controversy, criminal complaints were filed before the Office of the Ombudsman, charging five
(5) lawmakers for Plunder, and three (3) other lawmakers for Malversation, Direct Bribery, and
Violation of the Anti-Graft and Corrupt Practices Act. Also recommended to be charged in the
complaints are some of the lawmakers chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the several presidents of the NGOs set up by
Napoles.98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit
investigation99 covering the use of legislators' PDAF from 2007 to 2009, or during the last three
(3) years of the Arroyo administration. The purpose of the audit was to determine the propriety
of releases of funds under PDAF and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the implementation of projects by the
appropriate implementing agencies and several government-owned-and-controlled corporations
(GOCCs).101 The total releases covered by the audit amounted to P8.374 Billion in PDAF
and P32.664 Billion in VILP, representing 58% and 32%, respectively, of the total PDAF and VILP
releases that were found to have been made nationwide during the audit period. 102 Accordingly,
the Co As findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects
(VILP)," were made public, the highlights of which are as follows: 103

Amounts released for projects identified by a considerable number of legislators


significantly exceeded their respective allocations.

Amounts were released for projects outside of legislative districts of sponsoring


members of the Lower House.

Total VILP releases for the period exceeded the total amount appropriated under the
2007 to 2009 GAAs.

Infrastructure projects were constructed on private lots without these having been
turned over to the government.

Significant amounts were released to implementing agencies without the latters


endorsement and without considering their mandated functions, administrative and
technical capabilities to implement projects.
Implementation of most livelihood projects was not undertaken by the implementing
agencies themselves but by NGOs endorsed by the proponent legislators to which the
Funds were transferred.

The funds were transferred to the NGOs in spite of the absence of any appropriation
law or ordinance.

Selection of the NGOs were not compliant with law and regulations.

Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two
(772) projects amount to P6.156 Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in whole or in part their utilization
of the Funds.

Procurement by the NGOs, as well as some implementing agencies, of goods and


services reportedly used in the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from
royalties in the operation of the Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104 According to incumbent CoA
Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this writing, in the
process of preparing "one consolidated report" on the Malampaya Funds. 105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy,
several petitions were lodged before the Court similarly seeking that the "Pork Barrel System" be
declared unconstitutional. To recount, the relevant procedural antecedents in these cases are as
follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society,
filed a Petition for Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition),
seeking that the "Pork Barrel System" be declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and Feliciano S. Belmonte, Jr., in their respective
capacities as the incumbent Senate President and Speaker of the House of Representatives, from
further taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in
whatever form and by whatever name it may be called, and from approving further releases pursuant
thereto.106 The Alcantara Petition was docketed as G.R. No. 208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M.
Abante, Quintin Paredes San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent
Petition For Certiorari and Prohibition With Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule 65 of the Rules of
Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the
provisions of the GAA of 2013 which provided for the 2013 PDAF, and the Executives lump-sum,
discretionary funds, such as the Malampaya Funds and the Presidential Social Fund, 107 be declared
unconstitutional and null and void for being acts constituting grave abuse of discretion. Also, they pray
that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary,
Secretary of the Department of Budget and Management (DBM), and National Treasurer, or their
agents, for them to immediately cease any expenditure under the aforesaid funds. Further, they pray
that the Court order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to
2013, specifying the use of the funds, the project or activity and the recipient entities or individuals,
and all pertinent data thereto"; and (b) "the use of the Executives lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and remittances from the PAGCOR x x x from
2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all
pertinent data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the
Congress of all presently off-budget, lump-sum, discretionary funds including, but not limited to,
proceeds from the Malampaya Funds and remittances from the PAGCOR." 109 The Belgica Petition was
docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated
August 23, 2012 (Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a
cease and desist order be issued restraining President Benigno Simeon S. Aquino III (President Aquino)
and Secretary Abad from releasing such funds to Members of Congress and, instead, allow their release
to fund priority projects identified and approved by the Local Development Councils in consultation with
the executive departments, such as the DPWH, the Department of Tourism, the Department of Health,
the Department of Transportation, and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b)
requiring public respondents to comment on the consolidated petitions; (c) issuing a TRO (September
10, 2013 TRO) enjoining the DBM, National Treasurer, the Executive Secretary, or any of the persons
acting under their authority from releasing (1) the remaining PDAF allocated to Members of Congress
under the GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be
hereafter directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and exploitation programs and projects of the government
under the same provision; and (d) setting the consolidated cases for Oral Arguments on October 8,
2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment
(Comment) of even date before the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of the Courts September 10, 2013 TRO,
and that the consolidated petitions be dismissed for lack of merit. 113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the
Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on
September 30, 2013, Villegas filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on
October 1, 2013, Belgica, et al. filed a Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the
parties for the Oral Arguments scheduled on October 8, 2013. In view of the technicality of the issues
material to the present cases, incumbent Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer questions related to, among others, the
budgeting process and its implementation. Further, the CoA Chairperson was appointed as amicus
curiae and thereby requested to appear before the Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the
parties to submit their respective memoranda within a period of seven (7) days, or until October 17,
2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for
the Courts resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable
controversy; (b) the issues raised in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d) the Courts Decision dated August 19,
1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution Association v.
Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against
Monopoly and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the
issue of constitutionality of the "Pork Barrel System" under the principles of res judicata and stare
decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles of/constitutional provisions on (a)
separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) "to finance the
priority infrastructure development projects and to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by the Office of the President of the
Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social
Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court shall
also tackle certain ancillary issues as prompted by the present cases.

The Courts Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the Court unless there is
compliance with the legal requisites for judicial inquiry, 117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the person challenging the act must have the
standing to question the validity of the subject act or issuance; (c) the question of constitutionality
must be raised at the earliest opportunity ; and (d) the issue of constitutionality must be the very lis
mota of the case.118 Of these requisites, case law states that the first two are the most important 119 and,
therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy. 120 This is
embodied in Section 1, Article VIII of the 1987 Constitution which pertinently states that "judicial power
includes the duty of the courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that an actual case or controversy is one
which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute. 121 In other words,
"there must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing
law and jurisprudence."122 Related to the requirement of an actual case or controversy is the
requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already ripe
for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. It is a prerequisite that something had then been
accomplished or performed by either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action."123 "Withal, courts will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical or moot questions." 124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in
these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the
parties on the constitutionality of the "Pork Barrel System." Also, the questions in these consolidated
cases are ripe for adjudication since the challenged funds and the provisions allowing for their
utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as
amended by PD 1993, for the Presidential Social Fund are currently existing and operational; hence,
there exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of
these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered
moot and academic by the reforms undertaken by respondents. A case becomes moot when there is no
more actual controversy between the parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes that respondents proposed line-item
budgeting scheme would not terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which,
being a distinct subject matter, remains legally effective and existing. Neither will the Presidents
declaration that he had already "abolished the PDAF" render the issues on PDAF moot precisely
because the Executive branch of government has no constitutional authority to nullify or annul its legal
existence. By constitutional design, the annulment or nullification of a law may be done either by
Congress, through the passage of a repealing law, or by the Court, through a declaration of
unconstitutionality. Instructive on this point is the following exchange between Associate Justice Antonio
T. Carpio (Justice Carpio) and the Solicitor General during the Oral Arguments: 126

Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct? Solicitor
General Jardeleza: Yes, Your Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act,
correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF,
the President has a duty to execute the laws but in the face of the outrage over PDAF, the President
was saying, "I am not sure that I will continue the release of the soft projects," and that started, Your
Honor. Now, whether or not that (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to
stop the releases in the meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the
Revised Administrative Code128 x x x. So at most the President can suspend, now if the President
believes that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF
because of the CoA Report, because of the reported irregularities and this Court can take judicial notice,
even outside, outside of the COA Report, you have the report of the whistle-blowers, the President was
just exercising precisely the duty .

xxxx

Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop and
investigate, and prosecute, he has done that. But, does that mean that PDAF has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to
repeal it, or this Court declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and
academic principle is not a magical formula that can automatically dissuade the Court in resolving a
case." The Court will decide cases, otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.129

The applicability of the first exception is clear from the fundamental posture of petitioners they
essentially allege grave violations of the Constitution with respect to, inter alia, the principles of
separation of powers, non-delegability of legislative power, checks and balances, accountability and
local autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved
the constitutionality of the very system within which significant amounts of public funds have been
and continue to be utilized and expended undoubtedly presents a situation of exceptional character as
well as a matter of paramount public interest. The present petitions, in fact, have been lodged at a time
when the systems flaws have never before been magnified. To the Courts mind, the coalescence of
the CoA Report, the accounts of numerous whistle-blowers, and the governments own recognition that
reforms are needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern
of abuse which only underscores the importance of the matter. It is also by this finding that the Court
finds petitioners claims as not merely theorized, speculative or hypothetical. Of note is the weight
accorded by the Court to the findings made by the CoA which is the constitutionally-mandated audit
arm of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoAs
disallowance of irregularly disbursed PDAF funds, it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary,
excessive, extravagant or unconscionable expenditures of government funds. It is tasked to be vigilant
and conscientious in safeguarding the proper use of the government's, and ultimately the people's,
property. The exercise of its general audit power is among the constitutional mechanisms that gives life
to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially one
which is constitutionally-created, such as the CoA, not only on the basis of the doctrine of separation of
powers but also for their presumed expertise in the laws they are entrusted to enforce. Findings of
administrative agencies are accorded not only respect but also finality when the decision and order are
not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only
when the CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, that this Court entertains a petition questioning its rulings. x
x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these
cases, the Court deems the findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a
definitive ruling on the systems constitutionality. As disclosed during the Oral Arguments, the CoA
Chairperson estimates that thousands of notices of disallowances will be issued by her office in
connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate controlling principles relative to the
issues raised herein in order to guide the bench, the bar, and the public, not just for the expeditious
resolution of the anticipated disallowance cases, but more importantly, so that the government may be
guided on how public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and
passage of the national budget is, by constitutional imprimatur, an affair of annual occurrence. 133 The
relevance of the issues before the Court does not cease with the passage of a "PDAF -free budget for
2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout the course
of history, lends a semblance of truth to petitioners claim that "the same dog will just resurface
wearing a different collar."135 In Sanlakas v. Executive Secretary,136 the government had already
backtracked on a previous course of action yet the Court used the "capable of repetition but evading
review" exception in order "to prevent similar questions from re- emerging." 137The situation similarly
holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public
funds are spent, if not resolved at this most opportune time, are capable of repetition and hence, must
not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies carries the assurance
that "the courts will not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a restatement of the political question doctrine
which, under the classic formulation of Baker v. Carr,139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department," "a
lack of judicially discoverable and manageable standards for resolving it" or "the impossibility of
deciding without an initial policy determination of a kind clearly for non- judicial discretion." Cast
against this light, respondents submit that the "the political branches are in the best position not only
to perform budget-related reforms but also to do them in response to the specific demands of their
constituents" and, as such, "urge the Court not to impose a solution at this stage." 140
The Court must deny respondents submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions
which are within its province to resolve. A political question refers to "those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or executive branch of the Government. It
is concerned with issues dependent upon the wisdom, not legality, of a particular measure." 141 The
intrinsic constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which the Constitution itself has commanded
the Court to act upon. Scrutinizing the contours of the system along constitutional lines is a task that
the political branches of government are incapable of rendering precisely because it is an exercise of
judicial power. More importantly, the present Constitution has not only vested the Judiciary the right to
exercise judicial power but essentially makes it a duty to proceed therewith. Section 1, Article VIII of the
1987 Constitution cannot be any clearer: "The judicial power shall be vested in one Supreme Court and
in such lower courts as may be established by law. It includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." In Estrada v. Desierto, 142 the expanded
concept of judicial power under the 1987 Constitution and its effect on the political question doctrine
was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when
it expanded the power of judicial review of this court not only to settle actual controversies involving
rights which are legally demandable and enforceable but also to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction. With the new provision, however, courts are
given a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the
new provision did not just grant the Court power of doing nothing. x x x (Emphases supplied)

It must also be borne in mind that when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; does not in reality nullify or invalidate an
act of the legislature or the executive, but only asserts the solemn and sacred obligation assigned to it
by the Constitution."144 To a great extent, the Court is laudably cognizant of the reforms undertaken by
its co-equal branches of government. But it is by constitutional force that the Court must faithfully
perform its duty. Ultimately, it is the Courts avowed intention that a resolution of these cases would not
arrest or in any manner impede the endeavors of the two other branches but, in fact, help ensure that
the pillars of change are erected on firm constitutional grounds. After all, it is in the best interest of the
people that each great branch of government, within its own sphere, contributes its share towards
achieving a holistic and genuine solution to the problems of society. For all these reasons, the Court
cannot heed respondents plea for judicial restraint.

C. Locus Standi.

"The gist of the question of standing is whether a party alleges such personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. Unless a person is
injuriously affected in any of his constitutional rights by the operation of statute or ordinance, he has no
standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and
accordingly, assert that they "dutifully contribute to the coffers of the National Treasury." 146 Clearly, as
taxpayers, they possess the requisite standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue to be utilized. It is undeniable that
petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the
Court so rules. Invariably, taxpayers have been allowed to sue where there is a claim that public funds
are illegally disbursed or that public money is being deflected to any improper purpose, or that public
funds are wasted through the enforcement of an invalid or unconstitutional law, 147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues
they have raised may be classified as matters "of transcendental importance, of overreaching
significance to society, or of paramount public interest."148 The CoA Chairpersons statement during the
Oral Arguments that the present controversy involves "not merely a systems failure" but a "complete
breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the
issues involved herein. Indeed, of greater import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute.150 All told, petitioners have sufficient locus standi to file the instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply,
stare decisis which means "follow past precedents and do not disturb what has been settled") are
general procedural law principles which both deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court examines the applicability of these
principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a
previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between
the first and second actions, there exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant hereto since Philconsa and LAMP,
respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader constitutional scrutiny of the entire "Pork Barrel System."
Also, the ruling in LAMP is essentially a dismissal based on a procedural technicality and, thus, hardly
a judgment on the merits in that petitioners therein failed to present any "convincing proof x x x
showing that, indeed, there were direct releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent evidentiary support to demonstrate the
illegal misuse of PDAF in the form of kickbacks and has become a common exercise of unscrupulous
Members of Congress." As such, the Court up held, in view of the presumption of constitutionality
accorded to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle, insofar
as the Philconsa and LAMP cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched
under Article 8152 of the Civil Code, evokes the general rule that, for the sake of certainty, a conclusion
reached in one case should be doctrinally applied to those that follow if the facts are substantially the
same, even though the parties may be different. It proceeds from the first principle of justice that,
absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where
the same questions relating to the same event have been put forward by the parties similarly situated
as in a previous case litigated and decided by a competent court, the rule of stare decisis is a bar to
any attempt to re-litigate the same issue.153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the
1994 CDF Article, was resolved by the Court. To properly understand its context, petitioners posturing
was that "the power given to the Members of Congress to propose and identify projects and activities to
be funded by the CDF is an encroachment by the legislature on executive power, since said power in an
appropriation act is in implementation of the law" and that "the proposal and identification of the
projects do not involve the making of laws or the repeal and amendment thereof, the only function
given to the Congress by the Constitution."154 In deference to the foregoing submissions, the Court
reached the following main conclusions: one, under the Constitution, the power of appropriation, or the
"power of the purse," belongs to Congress; two, the power of appropriation carries with it the power to
specify the project or activity to be funded under the appropriation law and it can be detailed and as
broad as Congress wants it to be; and, three, the proposals and identifications made by Members of
Congress are merely recommendatory. At once, it is apparent that the Philconsa resolution was a
limited response to a separation of powers problem, specifically on the propriety of conferring post-
enactment identification authority to Members of Congress. On the contrary, the present cases call for
a more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other,
formative as they are of the entire "Pork Barrel System" as well as (b) the intra-relation of post-
enactment measures contained within a particular CDF or PDAF Article, including not only those related
to the area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered
as a powerful countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent
constitutional inconsistencies which similarly countervail against a full resort to stare decisis. As may be
deduced from the main conclusions of the case, Philconsas fundamental premise in allowing Members
of Congress to propose and identify of projects would be that the said identification authority is but an
aspect of the power of appropriation which has been constitutionally lodged in Congress. From this
premise, the contradictions may be easily seen. If the authority to identify projects is an aspect of
appropriation and the power of appropriation is a form of legislative power thereby lodged in Congress,
then it follows that: (a) it is Congress which should exercise such authority, and not its individual
Members; (b) such authority must be exercised within the prescribed procedure of law passage and,
hence, should not be exercised after the GAA has already been passed; and (c) such authority, as
embodied in the GAA, has the force of law and, hence, cannot be merely recommendatory. Justice
Vitugs Concurring Opinion in the same case sums up the Philconsa quandary in this wise: "Neither
would it be objectionable for Congress, by law, to appropriate funds for such specific projects as it may
be minded; to give that authority, however, to the individual members of Congress in whatever guise, I
am afraid, would be constitutionally impermissible." As the Court now largely benefits from hindsight
and current findings on the matter, among others, the CoA Report, the Court must partially abandon its
previous ruling in Philconsa insofar as it validated the post-enactment identification authority of
Members of Congress on the guise that the same was merely recommendatory. This postulate raises
serious constitutional inconsistencies which cannot be simply excused on the ground that such
mechanism is "imaginative as it is innovative." Moreover, it must be pointed out that the recent case of
Abakada Guro Party List v. Purisima155 (Abakada) has effectively overturned Philconsas allowance of
post-enactment legislator participation in view of the separation of powers principle. These
constitutional inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing
section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and,
hence, has not set any controlling doctrine susceptible of current application to the substantive issues
in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the
terms "Pork Barrel System," "Congressional Pork Barrel," and "Presidential Pork Barrel" as they are
essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and
Executive branches of government to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as political largesse." 156 They assert that
the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and broad discretion in
determining how the funds will be used or expended; (c) the guidelines on how to spend or use the
funds in the appropriation are either vague, overbroad or inexistent; and (d) projects funded are
intended to benefit a definite constituency in a particular part of the country and to help the political
careers of the disbursing official by yielding rich patronage benefits. 157 They further state that the Pork
Barrel System is comprised of two (2) kinds of discretionary public funds: first, the Congressional (or
Legislative) Pork Barrel, currently known as the PDAF;158 and, second, the Presidential (or Executive)
Pork Barrel, specifically, the Malampaya Funds under PD 910 and the Presidential Social Fund under PD
1869, as amended by PD 1993.159

Considering petitioners submission and in reference to its local concept and legal history, the Court
defines the Pork Barrel System as the collective body of rules and practices that govern the manner by
which lump-sum, discretionary funds, primarily intended for local projects, are utilized through the
respective participations of the Legislative and Executive branches of government, including its
members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary
fund wherein legislators, either individually or collectively organized into committees, are able to
effectively control certain aspects of the funds utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it appears under the 2013 GAA, as
Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual
legislators to wield a collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum,
discretionary fund which allows the President to determine the manner of its utilization. For reasons
earlier stated,161 the Court shall delimit the use of such term to refer only to the Malampaya Funds and
the Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these
cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental
powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission, 162 it
means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government." 163 To the legislative
branch of government, through Congress,164 belongs the power to make laws; to the executive branch
of government, through the President,165belongs the power to enforce laws; and to the judicial branch of
government, through the Court,166 belongs the power to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere." 167 Thus,
"the legislature has no authority to execute or construe the law, the executive has no authority to make
or construe the law, and the judiciary has no power to make or execute the law." 168 The principle of
separation of powers and its concepts of autonomy and independence stem from the notion that the
powers of government must be divided to avoid concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch from lording its power over the other branches or
the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of
government that are equally capable of independent action in exercising their respective mandates.
Lack of independence would result in the inability of one branch of government to check the arbitrary
or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of
government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the
principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere
impermissibly with the others performance of its constitutionally assigned function"; 171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly is
entrusted to another."172 In other words, there is a violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another departments functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function
both constitutionally assigned and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution
"covers the various operational aspects of budgeting" and accordingly includes "the evaluation of work
and financial plans for individual activities," the "regulation and release of funds" as well as all "other
related activities" that comprise the budget execution cycle. 174 This is rooted in the principle that the
allocation of power in the three principal branches of government is a grant of all powers inherent in
them.175 Thus, unless the Constitution provides otherwise, the Executive department should exclusively
exercise all roles and prerogatives which go into the implementation of the national budget as provided
under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should
not cross over the field of implementing the national budget since, as earlier stated, the same is
properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters
the picture when it deliberates or acts on the budget proposals of the President. Thereafter, Congress,
"in the exercise of its own judgment and wisdom, formulates an appropriation act precisely following
the process established by the Constitution, which specifies that no money may be paid from the
Treasury except in accordance with an appropriation made by law." Upon approval and passage of the
GAA, Congress law -making role necessarily comes to an end and from there the Executives role of
implementing the national budget begins. So as not to blur the constitutional boundaries between
them, Congress must "not concern it self with details for implementation by the Executive." 176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that
"from the moment the law becomes effective, any provision of law that empowers Congress or any of
its members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the
restriction only pertains to "any role in the implementation or enforcement of the law," Congress may
still exercise its oversight function which is a mechanism of checks and balances that the Constitution
itself allows. But it must be made clear that Congress role must be confined to mere oversight. Any
post-enactment-measure allowing legislator participation beyond oversight is bereft of any
constitutional basis and hence, tantamount to impermissible interference and/or assumption of
executive functions. As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and


investigation.1wphi1 In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013 PDAF
Article "wrecks the assignment of responsibilities between the political branches" as it is designed to
allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after
the GAA is passed."179 They state that the findings and recommendations in the CoA Report provide "an
illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers." 180 Further, they point out that
the Court in the Philconsa case only allowed the CDF to exist on the condition that individual legislators
limited their role to recommending projects and not if they actually dictate their implementation. 181

For their part, respondents counter that the separations of powers principle has not been violated since
the President maintains "ultimate authority to control the execution of the GAA and that he "retains the
final discretion to reject" the legislators proposals.182 They maintain that the Court, in Philconsa,
"upheld the constitutionality of the power of members of Congress to propose and identify projects so
long as such proposal and identification are recommendatory." 183 As such, they claim that "everything
in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel
would be the authority of legislators to participate in the post-enactment phases of project
implementation.

At its core, legislators may it be through project lists, 185 prior consultations186 or program menus187
have been consistently accorded post-enactment authority to identify the projects they desire to be
funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the
statutory authority of legislators to identify projects post-GAA may be construed from the import of
Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special
Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles, allows
individual legislators to identify PDAF projects for as long as the identified project falls under a general
program listed in the said menu. Relatedly, Special Provision 2 provides that the implementing agencies
shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard
or design prepared and submitted by implementing agencies from which the legislator may make his
choice. The same provision further authorizes legislators to identify PDAF projects outside his district for
as long as the representative of the district concerned concurs in writing. Meanwhile, Special Provision
3 clarifies that PDAF projects refer to "projects to be identified by legislators" 188 and thereunder
provides the allocation limit for the total amount of projects identified by each legislator. Finally,
paragraph 2 of Special Provision 4 requires that any modification and revision of the project
identification "shall be submitted to the House Committee on Appropriations and the Senate Committee
on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be."
From the foregoing special provisions, it cannot be seriously doubted that legislators have been
accorded post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also been accorded post-enactment
authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory
authority of legislators to participate in the area of fund release through congressional committees is
contained in Special Provision 5 which explicitly states that "all request for release of funds shall be
supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House
Committee on Appropriations and the Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund realignment is contained in: first , paragraph 2,
Special Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be
submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education,
Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social
Welfare and Development and Trade and Industry190 x x x to approve realignment from one
project/scope to another within the allotment received from this Fund, subject to among others (iii) the
request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release
and fund realignment are not related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong to the sphere of budget execution.
Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to
participate in as Guingona, Jr. puts it "the various operational aspects of budgeting," including "the
evaluation of work and financial plans for individual activities" and the "regulation and release of funds"
in violation of the separation of powers principle. The fundamental rule, as categorically articulated in
Abakada, cannot be overstated from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation or enforcement of the
law violates the principle of separation of powers and is thus unconstitutional. 191 That the said authority
is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the
prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this
end, the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator
identification on the guise that the same is merely recommendatory and, as such, respondents reliance
on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position
that the identification authority of legislators is only of recommendatory import. Quite the contrary,
respondents through the statements of the Solicitor General during the Oral Arguments have
admitted that the identification of the legislator constitutes a mandatory requirement before his PDAF
can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire
budget execution process:192

Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of
the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual
legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no
identification.

xxxx
Justice Bernabe: Now, would you know of specific instances when a project was implemented without
the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples.
I would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA.
And the SARO and the NCA are triggered by an identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question,
"How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that
he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the
PDAF Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor.
(Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other
provisions of law which similarly allow legislators to wield any form of post-enactment authority in the
implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through
which legislators have effectively intruded into the proper phases of budget execution, must be
deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence,
accorded the same unconstitutional treatment. That such informal practices do exist and have, in fact,
been constantly observed throughout the years has not been substantially disputed here. As pointed
out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these
cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we
enforces the initial thought that I have, after I had seen the extent of this research made by my staff,
that neither the Executive nor Congress frontally faced the question of constitutional compatibility of
how they were engineering the budget process. In fact, the words you have been using, as the three
lawyers of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of
these things are now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify
in one section all the past practice that had been done since 1991. In a certain sense, we should be
thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring
supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal
measures written into the law or informal practices institutionalized in government agencies, else the
Executive department be deprived of what the Constitution has vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised
by the body to which the Constitution has conferred the same. In particular, Section 1, Article VI of the
1987 Constitution states that such 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. 195 Based on this provision, it is clear that only Congress, acting
as a bicameral body, and the people, through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This premise embodies the principle of non-
delegability of legislative power, and the only recognized exceptions thereto would be: (a) delegated
legislative power to local governments which, by immemorial practice, are allowed to legislate on
purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President
to, by law, exercise powers necessary and proper to carry out a declared national policy in times of war
or other national emergency,197 or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the national development program of the
Government.198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-
making authority to implementing agencies for the limited purpose of either filling up the details of the
law for its enforcement (supplementary rule-making) or ascertaining facts to bring the law into actual
operation (contingent rule-making).199 The conceptual treatment and limitations of delegated rule-
making were explained in the case of People v. Maceren 200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of
separation of powers and is an exception to the nondelegation of legislative powers. Administrative
regulations or "subordinate legislation" calculated to promote the public interest are necessary because
of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for
regulating the mode or proceeding to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment
identification authority to individual legislators, violates the principle of non-delegability since said
legislators are effectively allowed to individually exercise the power of appropriation, which as settled
in Philconsa is lodged in Congress.201 That the power to appropriate must be exercised only through
legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money
shall be paid out of the Treasury except in pursuance of an appropriation made by law." To understand
what constitutes an act of appropriation, the Court, in Bengzon v. Secretary of Justice and Insular
Auditor202 (Bengzon), held that the power of appropriation involves (a) the setting apart by law of a
certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013 PDAF
Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a)
how much from such fund would go to (b) a specific project or beneficiary that they themselves also
determine. As these two (2) acts comprise the exercise of the power of appropriation as described in
Bengzon, and given that the 2013 PDAF Article authorizes individual legislators to perform the same,
undoubtedly, said legislators have been conferred the power to legislate which the Constitution does
not, however, allow. Thus, keeping with the principle of non-delegability of legislative power, the Court
hereby declares the 2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which
contain the similar legislative identification feature as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct does
not mean that they are absolutely unrestrained and independent of each other. The Constitution has
also provided for an elaborate system of checks and balances to secure coordination in the workings of
the various departments of the government.203

A prime example of a constitutional check and balance would be the Presidents power to veto an item
written into an appropriation, revenue or tariff bill submitted to him by Congress for approval through a
process known as "bill presentment." The Presidents item-veto power is found in Section 27(2), Article
VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his
power of item-veto, forms part of the "single, finely wrought and exhaustively considered, procedures"
for law-passage as specified under the Constitution.204 As stated in Abakada, the final step in the law-
making process is the "submission of the bill to the President for approval. Once approved, it takes
effect as law after the required publication."205
Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the
Court, in Bengzon, explained that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an
integral part of the law-making power. His disapproval of a bill, commonly known as a veto, is
essentially a legislative act. The questions presented to the mind of the Chief Executive are precisely
the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but in
this respect it is a grant of power to the executive department. The Legislature has the affirmative
power to enact laws; the Chief Executive has the negative power by the constitutional exercise of which
he may defeat the will of the Legislature. It follows that the Chief Executive must find his authority in
the Constitution. But in exercising that authority he may not be confined to rules of strict construction
or hampered by the unwise interference of the judiciary. The courts will indulge every intendment in
favor of the constitutionality of a veto in the same manner as they will presume the constitutionality of
an act as originally passed by the Legislature. (Emphases supplied)

The justification for the Presidents item-veto power rests on a variety of policy goals such as to prevent
log-rolling legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive
branchs role in the budgetary process.208 In Immigration and Naturalization Service v. Chadha, the US
Supreme Court characterized the Presidents item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of factions, precipitancy, or of any impulse
unfriendly to the public good, which may happen to influence a majority of that body"; phrased
differently, it is meant to "increase the chances in favor of the community against the passing of bad
laws, through haste, inadvertence, or design." 209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item"
which may be the object of the veto. An item, as defined in the field of appropriations, pertains to "the
particulars, the details, the distinct and severable parts of the appropriation or of the bill." In the case
of Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme Court characterized an
item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of
money, not some general provision of law which happens to be put into an appropriation bill.
(Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be
able to exercise his power of item veto, must contain "specific appropriations of money" and not only
"general provisions" which provide for parameters of appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by
singular correspondence meaning an allocation of a specified singular amount for a specified singular
purpose, otherwise known as a "line-item."211 This treatment not only allows the item to be consistent
with its definition as a "specific appropriation of money" but also ensures that the President may
discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent
Fund and the Intelligence Fund, being appropriations which state a specified amount for a specific
purpose, would then be considered as "line- item" appropriations which are rightfully subject to item
veto. Likewise, it must be observed that an appropriation may be validly apportioned into component
percentages or values; however, it is crucial that each percentage or value must be allocated for its
own corresponding purpose for such component to be considered as a proper line-item. Moreover, as
Justice Carpio correctly pointed out, a valid appropriation may even have several related purposes that
are by accounting and budgeting practice considered as one purpose, e.g., MOOE (maintenance and
other operating expenses), in which case the related purposes shall be deemed sufficiently specific for
the exercise of the Presidents item veto power. Finally, special purpose funds and discretionary funds
would equally square with the constitutional mechanism of item-veto for as long as they follow the rule
on singular correspondence as herein discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that the "special appropriations bill shall
specify the purpose for which it is intended, and shall be supported by funds actually available as
certified by the National Treasurer, or t o be raised by a corresponding revenue proposal therein."
Meanwhile, with respect to discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution
requires that said funds "shall be disbursed only for public purposes to be supported by appropriate
vouchers and subject to such guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular
lump-sum amount to be tapped as a source of funding for multiple purposes. Since such appropriation
type necessitates the further determination of both the actual amount to be expended and the actual
purpose of the appropriation which must still be chosen from the multiple purposes stated in the law, it
cannot be said that the appropriation law already indicates a "specific appropriation of money and
hence, without a proper line-item which the President may veto. As a practical result, the President
would then be faced with the predicament of either vetoing the entire appropriation if he finds some of
its purposes wasteful or undesirable, or approving the entire appropriation so as not to hinder some of
its legitimate purposes. Finally, it may not be amiss to state that such arrangement also raises non-
delegability issues considering that the implementing authority would still have to determine, again,
both the actual amount to be expended and the actual purpose of the appropriation. Since the
foregoing determinations constitute the integral aspects of the power to appropriate, the implementing
authority would, in effect, be exercising legislative prerogatives in violation of the principle of non-
delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum
appropriation, the legislators identification of the projects after the passage of the GAA denies the
President the chance to veto that item later on."212 Accordingly, they submit that the "item veto power
of the President mandates that appropriations bills adopt line-item budgeting" and that "Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the
President useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which is
intended to meet the demands of a modernizing economy and, as such, lump-sum appropriations are
essential to financially address situations which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum appropriations is constitutionally allowed
and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit
since the said amount would be further divided among individual legislators who would then receive
personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion. As these intermediate appropriations are made by legislators only after
the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated
without veto consideration. This kind of lump-sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the Presidents power of item veto. As petitioners aptly point
out, the above-described system forces the President to decide between (a) accepting the entire P24.79
Billion PDAF allocation without knowing the specific projects of the legislators, which may or may not be
consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other
legislators with legitimate projects.215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article
would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum
appropriation above-characterized. In particular, the lump-sum amount of P24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical materials, construction of roads, flood
control, etc. This setup connotes that the appropriation law leaves the actual amounts and purposes of
the appropriation for further determination and, therefore, does not readily indicate a discernible item
which may be subject to the Presidents power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson
relays, "limited state auditors from obtaining relevant data and information that would aid in more
stringently auditing the utilization of said Funds."216 Accordingly, she recommends the adoption of a
"line by line budget or amount per proposed program, activity or project, and per implementing
agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all
Congressional Pork Barrel Laws of similar operation, to be unconstitutional. That such budgeting system
provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to
defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel
operate defies public accountability as it renders Congress incapable of checking itself or its Members.
In particular, they point out that the Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget" which turns them "from fiscalizers" into
"financially-interested partners."219 They also claim that the system has an effect on re- election as "the
PDAF excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power
of impeachment" as such "funds are indeed quite useful, to well, accelerate the decisions of
senators."220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public
office is a public trust," is an overarching reminder that every instrumentality of government should
exercise their official functions only in accordance with the principles of the Constitution which
embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact
accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may be
checked is the power of congressional oversight. As mentioned in Abakada, 222 congressional oversight
may be performed either through: (a) scrutiny based primarily on Congress power of appropriation and
the budget hearings conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their departments and its
power of confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to
the power of Congress to conduct inquiries in aid of legislation. 224

The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork
Barrel, among others the 2013 PDAF Article, has an effect on congressional oversight. The fact that
individual legislators are given post-enactment roles in the implementation of the budget makes it
difficult for them to become disinterested "observers" when scrutinizing, investigating or monitoring the
implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted
as said legislators, who are vested with post-enactment authority, would, in effect, be checking on
activities in which they themselves participate. Also, it must be pointed out that this very same concept
of post-enactment authorization runs afoul of Section 14, Article VI of the 1987 Constitution which
provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel
before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative
bodies. Neither shall he, directly or indirectly, be interested financially in any contract with, or in any
franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter before any office of the Government for
his pecuniary benefit or where he may be called upon to act on account of his office. (Emphasis
supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation a matter
before another office of government renders them susceptible to taking undue advantage of their own
office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the
individual legislators control of his PDAF per se would allow him to perpetuate himself in office. Indeed,
while the Congressional Pork Barrel and a legislators use thereof may be linked to this area of interest,
the use of his PDAF for re-election purposes is a matter which must be analyzed based on particular
facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between
legislators and the Executive department, through the formers post-enactment participation, may
affect the process of impeachment, this matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is an improper subject of
judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14,
Article VI of the 1987 Constitution, thus impairing public accountability, the 2013 PDAF Article and
other forms of Congressional Pork Barrel of similar nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of
political dynasties to accumulate funds to perpetuate themselves in power, in contravention of Section
26, Article II of the 1987 Constitution225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to
the qualifying phrase "as may be defined by law." In this respect, said provision does not, by and of
itself, provide a judicially enforceable constitutional right but merely specifies guideline for legislative or
executive action.226Therefore, since there appears to be no standing law which crystallizes the policy on
political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since it
has not been properly demonstrated how the Pork Barrel System would be able to propagate political
dynasties.

5. Local Autonomy.

The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3,
Article X of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive
and accountable local government structure instituted through a system of decentralization with
effective mechanisms of recall, initiative, and referendum, allocate among the different local
government units their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties of local officials,
and all other matters relating to the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of
1991" (LGC), wherein the policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them to
attain their fullest development as self-reliant communities and make them more effective partners in
the attainment of national goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of
decentralization shall proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic
consultations with appropriate local government units, nongovernmental and peoples organizations,
and other concerned sectors of the community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower
local government units (LGUs) to develop and ultimately, become self-sustaining and effective
contributors to the national economy. As explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local
autonomy which is intended to provide the needed impetus and encouragement to the development of
our local political subdivisions as "self - reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one derives its strength." The vitalization of
local governments will enable their inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the national government in purely local affairs
which are best resolved by the officials and inhabitants of such political units. The decision we reach
today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the
constitutional principles on local autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for local development. 230 The Court
agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a
recognition that individual members of Congress, far more than the President and their congressional
colleagues, are likely to be knowledgeable about the needs of their respective constituents and the
priority to be given each project."231Drawing strength from this pronouncement, previous legislators
justified its existence by stating that "the relatively small projects implemented under the
Congressional Pork Barrel complement and link the national development goals to the countryside and
grassroots as well as to depressed areas which are overlooked by central agencies which are
preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the "abolition" of PDAF
and budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the representatives to identify projects for
communities that the LGU concerned cannot afford. 233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which
actually belies the avowed intention of "making equal the unequal." In particular, the Court observes
that the gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking
into account the specific interests and peculiarities of the district the legislator represents. In this
regard, the allocation/division limits are clearly not based on genuine parameters of equality, wherein
economic or geographic indicators have been taken into consideration. As a result, a district
representative of a highly-urbanized metropolis gets the same amount of funding as a district
representative of a far-flung rural province which would be relatively "underdeveloped" compared to
the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives
and in some years, even the Vice-President who do not represent any locality, receive funding from
the Congressional Pork Barrel as well. These certainly are anathema to the Congressional Pork Barrels
original intent which is "to make equal the unequal." Ultimately, the PDAF and CDF had become
personal funds under the effective control of each legislator and given unto them on the sole account of
their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts
with the functions of the various Local Development Councils (LDCs) which are already legally
mandated to "assist the corresponding sanggunian in setting the direction of economic and social
development, and coordinating development efforts within its territorial jurisdiction." 234 Considering
that LDCs are instrumentalities whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not be overridden nor duplicated by individual
legislators, who are national officers that have no law-making authority except only when acting as a
body. The undermining effect on local autonomy caused by the post-enactment authority conferred to
the latter was succinctly put by petitioners in the following wise: 236

With PDAF, a Congressman can simply bypass the local development council and initiate projects on his
own, and even take sole credit for its execution. Indeed, this type of personality-driven project
identification has not only contributed little to the overall development of the district, but has even
contributed to "further weakening infrastructure planning and coordination efforts of the government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby
subvert genuine local autonomy, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive
issues involving the Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD
1993), which respectively provide for the Malampaya Funds and the Presidential Social Fund, as invalid
appropriations laws since they do not have the "primary and specific" purpose of authorizing the
release of public funds from the National Treasury. Petitioners submit that Section 8 of PD 910 is not an
appropriation law since the "primary and specific purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental thereto. 237 In similar
regard, petitioners argue that Section 12 of PD 1869 is neither a valid appropriations law since the
allocation of the Presidential Social Fund is merely incidental to the "primary and specific" purpose of
PD 1869 which is the amendment of the Franchise and Powers of PAGCOR. 238 In view of the foregoing,
petitioners suppose that such funds are being used without any valid law allowing for their proper
appropriation in violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No
money shall be paid out of the Treasury except in pursuance of an appropriation made by law." 239

The Court disagrees.

"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987
Constitution exists when a provision of law (a) sets apart a determinate or determinable 240 amount of
money and (b) allocates the same for a particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As the Constitution "does not provide or
prescribe any particular form of words or religious recitals in which an authorization or appropriation by
Congress shall be made, except that it be made by law," an appropriation law may according to
Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to
appropriate may be gleaned from the same. As held in the case of Guingona, Jr.: 241

There is no provision in our Constitution that provides or prescribes any particular form of words or
religious recitals in which an authorization or appropriation by Congress shall be made, except that it be
"made by law," such as precisely the authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an appropriation may be made impliedly (as by past
but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by
the present Congress), just as said appropriation may be made in general as well as in specific terms.
The Congressional authorization may be embodied in annual laws, such as a general appropriations act
or in special provisions of laws of general or special application which appropriate public funds for
specific public purposes, such as the questioned decrees. An appropriation measure is sufficient if the
legislative intention clearly and certainly appears from the language employed (In re Continuing
Appropriations, 32 P. 272), whether in the past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave: 242

To constitute an appropriation there must be money placed in a fund applicable to the designated
purpose. The word appropriate means to allot, assign, set apart or apply to a particular use or purpose.
An appropriation in the sense of the constitution means the setting apart a portion of the public funds
for a public purpose. No particular form of words is necessary for the purpose, if the intention to
appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be
the "primary and specific" purpose of the law in order for a valid appropriation law to exist. To reiterate,
if a legal provision designates a determinate or determinable amount of money and allocates the same
for a particular public purpose, then the legislative intent to appropriate becomes apparent and, hence,
already sufficient to satisfy the requirement of an "appropriation made by law" under contemplation of
the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service
contracts and agreements such as application and processing fees, signature bonus, discovery bonus,
production bonus; all money collected from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as the government share representing
royalties, rentals, production share on service contracts and similar payments on the exploration,
development and exploitation of energy resources, shall form part of a Special Fund to be used to
finance energy resource development and exploitation programs and projects of the government and
for such other purposes as may be hereafter directed by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the Fifty
(50%) percent share of the Government in the aggregate gross earnings of the Corporation from this
Franchise, or 60% if the aggregate gross earnings be less than P150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority infrastructure development projects and to
finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and
authorized by the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a)
Section 8 of PD 910, which creates a Special Fund comprised of "all fees, revenues, and receipts of the
Energy Development Board from any and all sources" (a determinable amount) "to be used to finance
energy resource development and exploitation programs and projects of the government and for such
other purposes as may be hereafter directed by the President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%)
percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross
earnings of PAGCOR, or 60%, if the aggregate gross earnings be less than P150,000,000.00" (also a
determinable amount) "to finance the priority infrastructure development projects and x x x the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines" (also a specified public purpose), are legal appropriations
under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal
appropriation under the said constitutional provision precisely because, as earlier stated, it contains
post-enactment measures which effectively create a system of intermediate appropriations. These
intermediate appropriations are the actual appropriations meant for enforcement and since they are
made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court
observes that the real appropriation made under the 2013 PDAF Article is not the P24.79 Billion
allocated for the entire PDAF, but rather the post-enactment determinations made by the individual
legislators which are, to repeat, occurrences outside of the law. Irrefragably, the 2013 PDAF Article does
not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of
legislative power since the phrase "and for such other purposes as may be hereafter directed by the
President" gives the President "unbridled discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to apply the principle of ejusdem generis to
the same section and thus, construe the phrase "and for such other purposes as may be hereafter
directed by the President" to refer only to other purposes related "to energy resource development and
exploitation programs and projects of the government."244

The Court agrees with petitioners submissions.


While the designation of a determinate or determinable amount for a particular public purpose is
sufficient for a legal appropriation to exist, the appropriation law must contain adequate legislative
guidelines if the same law delegates rule-making authority to the Executive 245 either for the purpose of
(a) filling up the details of the law for its enforcement, known as supplementary rule-making, or (b)
ascertaining facts to bring the law into actual operation, referred to as contingent rule-making. 246 There
are two (2) fundamental tests to ensure that the legislative guidelines for delegated rule-making are
indeed adequate. The first test is called the "completeness test." Case law states that a law is complete
when it sets forth therein the policy to be executed, carried out, or implemented by the delegate. On
the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a law
lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map
out the boundaries of the delegates authority and prevent the delegation from running riot. 247To be
sufficient, the standard must specify the limits of the delegates authority, announce the legislative
policy, and identify the conditions under which it is to be implemented. 248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes
as may be hereafter directed by the President" under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a sufficient standard to adequately
determine the limits of the Presidents authority with respect to the purpose for which the Malampaya
Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya
Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public
funds beyond the purview of the law. That the subject phrase may be confined only to "energy resource
development and exploitation programs and projects of the government" under the principle of
ejusdem generis, meaning that the general word or phrase is to be construed to include or be
restricted to things akin to, resembling, or of the same kind or class as those specifically
mentioned,249 is belied by three (3) reasons: first, the phrase "energy resource development and
exploitation programs and projects of the government" states a singular and general class and hence,
cannot be treated as a statutory reference of specific things from which the general phrase "for such
other purposes" may be limited; second, the said phrase also exhausts the class it represents, namely
energy development programs of the government; 250 and, third, the Executive department has, in fact,
used the Malampaya Funds for non-energy related purposes under the subject phrase, thereby
contradicting respondents own position that it is limited only to "energy resource development and
exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910 may have
passed the completeness test since the policy of energy development is clearly deducible from its text,
the phrase "and for such other purposes as may be hereafter directed by the President" under the
same provision of law should nonetheless be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be
underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya Funds "to
finance energy resource development and exploitation programs and projects of the government,"
remains legally effective and subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya Funds would be used as it should be
used only in accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869
has already been amended by PD 1993 which thus moots the parties submissions on the
same.252 Nevertheless, since the amendatory provision may be readily examined under the current
parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund
may be used "to first, finance the priority infrastructure development projects and second, to finance
the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized
by the Office of the President of the Philippines." The Court finds that while the second indicated
purpose adequately curtails the authority of the President to spend the Presidential Social Fund only for
restoration purposes which arise from calamities, the first indicated purpose, however, gives him carte
blanche authority to use the same fund for any infrastructure project he may so determine as a
"priority". Verily, the law does not supply a definition of "priority in frastructure development projects"
and hence, leaves the President without any guideline to construe the same. To note, the delimitation of
a project as one of "infrastructure" is too broad of a classification since the said term could pertain to
any kind of facility. This may be deduced from its lexicographic definition as follows: "the underlying
framework of a system, especially public services and facilities (such as highways, schools, bridges,
sewers, and water-systems) needed to support commerce as well as economic and residential
development."253In fine, the phrase "to finance the priority infrastructure development projects" must
be stricken down as unconstitutional since similar to the above-assailed provision under Section 8 of
PD 910 it lies independently unfettered by any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as amended by PD 1993, remains legally
effective and subsisting.
D. Ancillary Prayers. 1.

Petitioners Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did so in
the context of its pronouncements made in this Decision petitioners equally pray that the Executive
Secretary and/or the DBM be ordered to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013,
specifying the use of the funds, the project or activity and the recipient entities or individuals, and all
pertinent data thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executives lump-sum,
discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or
individuals, and all pertinent data thereto" 255 (Presidential Pork Use Report). Petitioners prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as
follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy
of full public disclosure of all its transactions involving public interest.

ARTICLE III 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 Court denies petitioners submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for
mandamus. As explained in the case of Legaspi v. Civil Service Commission: 256

While the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its performance may be compelled by a writ
of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced
and the concomitant duty of the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether
the information sought by the petitioner is within the ambit of the constitutional guarantee. (Emphases
supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to
information does not include the right to compel the preparation of "lists, abstracts, summaries and the
like." In the same case, it was stressed that it is essential that the "applicant has a well -defined, clear
and certain legal right to the thing demanded and that it is the imperative duty of defendant to perform
the act required." Hence, without the foregoing substantiations, the Court cannot grant a particular
request for information. The pertinent portions of Valmonte are hereunder quoted: 258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to
official records," the Constitution does not accord them a right to compel custodians of official records
to prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of
public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of the respondent to perform the
required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of respondent
to prepare the list requested. (Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions,
the Court finds that petitioners have failed to establish a "a well-defined, clear and certain legal right"
to be furnished by the Executive Secretary and/or the DBM of their requested PDAF Use Schedule/List
and Presidential Pork Use Report. Neither did petitioners assert any law or administrative issuance
which would form the bases of the latters duty to furnish them with the documents requested. While
petitioners pray that said information be equally released to the CoA, it must be pointed out that the
CoA has not been impleaded as a party to these cases nor has it filed any petition before the Court to
be allowed access to or to compel the release of any official document relevant to the conduct of its
audit investigations. While the Court recognizes that the information requested is a matter of significant
public concern, however, if only to ensure that the parameters of disclosure are properly foisted and so
as not to unduly hamper the equally important interests of the government, it is constrained to deny
petitioners prayer on this score, without prejudice to a proper mandamus case which they, or even the
CoA, may choose to pursue through a separate petition.

It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished
with such schedule/list and report and not in any way deny them, or the general public, access to
official documents which are already existing and of public record. Subject to reasonable regulation and
absent any valid statutory prohibition, access to these documents should not be proscribed. Thus, in
Valmonte, while the Court denied the application for mandamus towards the preparation of the list
requested by petitioners therein, it nonetheless allowed access to the documents sought for by the
latter, subject, however, to the custodians reasonable regulations,viz.: 259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS,
subject to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the right of other persons
entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the
UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 election
thru the intercession/marginal note of the then First Lady Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress
of all presently, off-budget, lump sum, discretionary funds including but not limited to, proceeds from
the x x x Malampaya Fund, remittances from the PAGCOR and the PCSO or the Executives Social
Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally
left to the prerogative of the political branches of government. Hence, lest the Court itself overreach, it
must equally deny their prayer on this score.

3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of
released funds. In response to the Courts September 10, 2013 TRO that enjoined the release of the
remaining PDAF allocated for the year 2013, the DBM issued Circular Letter No. 2013-8 dated
September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release
Order (SARO) has been issued by the DBM and such SARO has been obligated by the implementing
agencies prior to the issuance of the TRO, may continually be implemented and disbursements thereto
effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and
disbursement of PDAF funds as long as they are: first, covered by a SARO; and, second, that said SARO
had been obligated by the implementing agency concerned prior to the issuance of the Courts
September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet
involve the release of funds under the PDAF, as release is only triggered by the issuance of a Notice of
Cash Allocation [(NCA)]."261 As such, PDAF disbursements, even if covered by an obligated SARO, should
remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated
allotments." They explain that once a SARO has been issued and obligated by the implementing agency
concerned, the PDAF funds covered by the same are already "beyond the reach of the TRO because
they cannot be considered as remaining PDAF." They conclude that this is a reasonable interpretation
of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013 TRO
should be lifted is a matter rendered moot by the present Decision. The unconstitutionality of the 2013
PDAF Article as declared herein has the consequential effect of converting the temporary injunction into
a permanent one. Hence, from the promulgation of this Decision, the release of the remaining PDAF
funds for 2013, among others, is now permanently enjoined.

The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved as
it has a practical impact on the execution of the current Decision. In particular, the Court must resolve
the issue of whether or not PDAF funds covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBMs interpretation in DBM Circular 2013-8.

On this score, the Court agrees with petitioners posturing for the fundamental reason that funds
covered by an obligated SARO are yet to be "released" under legal contemplation. A SARO, as defined
by the DBM itself in its website, is "aspecific authority issued to identified agencies to incur obligations
not exceeding a given amount during a specified period for the purpose indicated. It shall cover
expenditures the release of which is subject to compliance with specific laws or regulations, or is
subject to separate approval or clearance by competent authority." 263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and
not the directive to pay. Practically speaking, the SARO does not have the direct and immediate effect
of placing public funds beyond the control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the actual release of funds. On the other
hand, the actual release of funds is brought about by the issuance of the NCA, 264 which is subsequent to
the issuance of a SARO. As may be determined from the statements of the DBM representative during
the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to
enter into commitments. The NCA, Your Honor, is already the go signal to the treasury for us to be able
to pay or to liquidate the amounts obligated in the SARO; so it comes after. x x x The NCA, Your Honor,
is the go signal for the MDS for the authorized government-disbursing banks to, therefore, pay the
payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are
withdrawn by the DBM.
Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been
"released." In this respect, therefore, the disbursement of 2013 PDAF funds which are only covered by
obligated SAROs, and without any corresponding NCAs issued, must, at the time of this Decisions
promulgation, be enjoined and consequently reverted to the unappropriated surplus of the general
fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated
pursuant thereto cannot be disbursed even though already obligated, else the Court sanctions the
dealing of funds coming from an unconstitutional source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been
obligated but not released meaning, those merely covered by a SARO under the phrase "and for
such other purposes as may be hereafter directed by the President" pursuant to Section 8 of PD 910;
and (b) funds sourced from the Presidential Social Fund under the phrase "to finance the priority
infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993,
which were altogether declared by the Court as unconstitutional. However, these funds should not be
reverted to the general fund as afore-stated but instead, respectively remain under the Malampaya
Funds and the Presidential Social Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of (a)
the 2013 PDAF Article and its Special Provisions, (b) all other Congressional Pork Barrel provisions
similar thereto, and (c) the phrases (1) "and for such other purposes as may be hereafter directed by
the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure development
projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in
effect in view of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate
case, declares the invalidity of a certain legislative or executive act, such act is presumed constitutional
and thus, entitled to obedience and respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal Revenue v. San Roque Power
Corporation,266 the doctrine merely "reflects awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or not a legislative or executive measure is
valid, a period of time may have elapsed before it can exercise the power of judicial review that may
lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice then, if
there be no recognition of what had transpired prior to such adjudication." 267 "In the language of an
American Supreme Court decision: The actual existence of a statute, prior to such a determination of
unconstitutionality, is an operative fact and may have consequences which cannot justly be
ignored."268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In
the final analysis, the Court must strike down the Pork Barrel System as unconstitutional in view of the
inherent defects in the rules within which it operates. To recount, insofar as it has allowed legislators to
wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget
execution, the system has violated the principle of separation of powers; insofar as it has conferred
unto legislators the power of appropriation by giving them personal, discretionary funds from which
they are able to fund specific projects which they themselves determine, it has similarly violated the
principle of non-delegability of legislative power ; insofar as it has created a system of budgeting
wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items ; insofar as it has diluted
the effectiveness of congressional oversight by giving legislators a stake in the affairs of budget
execution, an aspect of governance which they may be called to monitor and scrutinize, the system has
equally impaired public accountability ; insofar as it has authorized legislators, who are national
officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions,
it has likewise subverted genuine local autonomy ; and again, insofar as it has conferred to the
President the power to appropriate funds intended by law for energy-related purposes only to other
purposes he may deem fit as well as other public funds under the broad classification of "priority
infrastructure development projects," it has once more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods
and mechanisms the Court has herein pointed out should never again be adopted in any system of
governance, by any name or form, by any semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally unsound has monumentally endured, the
Court urges the people and its co-stewards in government to look forward with the optimism of change
and the awareness of the past. At a time of great civic unrest and vociferous public debate, the Court
fervently hopes that its Decision today, while it may not purge all the wrongs of society nor bring back
what has been lost, guides this nation to the path forged by the Constitution so that no one may
heretofore detract from its cause nor stray from its course. After all, this is the Courts bounden duty
and no others.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in
this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all
legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF
Articles and the various Congressional Insertions, which authorize/d legislators whether individually or
collectively organized into committees to intervene, assume or participate in any of the various post-
enactment stages of the budget execution, such as but not limited to the areas of project identification,
modification and revision of project identification, fund release and/or fund realignment, unrelated to
the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork
Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions,
which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific
projects which they themselves determine; (d) all informal practices of similar import and effect, which
the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes as may be hereafter directed by the
President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority infrastructure
development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-
delegability of legislative power.

Accordingly, the Courts temporary injunction dated September 10, 2013 is hereby declared to be
PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013,
as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase
"and for such other purposes as may be hereafter directed by the President" pursuant to Section 8 of
Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance the
priority infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as
amended by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not
covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs),
whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent
injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the
general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain
therein to be utilized for their respective special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby
DENIES petitioners prayer seeking that the Executive Secretary and/or the Department of Budget and
Management be ordered to provide the public and the Commission on Audit complete lists/schedules or
detailed reports related to the availments and utilization of the funds subject of these cases.
Petitioners access to official documents already available and of public record which are related to
these funds must, however, not be prohibited but merely subjected to the custodians reasonable
regulations or any valid statutory prohibition on the same. This denial is without prejudice to a proper
mandamus case which they or the Commission on Audit may choose to pursue through a separate
petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in
the budgetary deliberations of Congress as the same is a matter left to the prerogative of the political
branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of
reasonable dispatch, investigate and accordingly prosecute all government officials and/or private
individuals for possible criminal offenses related to the irregular, improper and/or unlawful
disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

SPECIAL THIRD DIVISION

G.R. No. 183891 October 19, 2011

ROMARICO J. MENDOZA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

R E SO L U T I O N

BRION, J.:

We resolve the motion for reconsideration filed by petitioner Romarico J. Mendoza seeking the reversal
of our Decision dated August 3, 2010. The Decision affirmed the petitioners conviction for his failure to
remit the Social Security Service (SSS) contributions of his employees. The petitioner anchors the
present motion on his supposed inclusion within the coverage of Republic Act (RA) No. 9903 or the
Social Security Condonation Law of 2009, whose passage the petitioner claims to be a supervening
event in his case. He further invokes the equal protection clause in support of his motion.

In our Decision dated August 3, 2010, we AFFIRMED, with modification, the decree of conviction
issued by both the trial and appellate courts for the petitioners violation of Section 22(a) and (d), in
relation to Section 28 of RA No. 8282 or the Social Security Act of 1997. To recall its highlights,
our Decision emphasized that the petitioner readily admitted during trial that he did not remit the SSS
premium contributions of his employees at Summa Alta Tierra Industries, Inc. from August 1998 to July
1999, in the amount of P239,756.80; inclusive of penalties, this unremitted amount totaled
to P421,151.09. The petitioners explanation for his failure to remit, which the trial court disbelieved,
was that during this period, Summa Alta Tierra Industries, Inc. shut down as a result of the general
decline in the economy. The petitioner pleaded good faith and lack of criminal intent as his defenses.

We ruled that the decree of conviction was founded on proof beyond reasonable doubt, based on the
following considerations: first, the remittance of employee contributions to the SSS is mandatory under
RA No. 8282; and second, the failure to comply with a special law being malum prohibitum, the
defenses of good faith and lack of criminal intent are immaterial.

The petitioner further argued that since he was designated in the Information as a "proprietor," he was
without criminal liability since "proprietors" are not among the corporate officers specifically
enumerated in Section 28(f) of RA No. 8282 to be criminally liable for the violation of its provisions. We
rejected this argument based on our ruling in Garcia v. Social Security Commission Legal and
Collection.1 We ruled that to sustain the petitioners argument would be to allow the unscrupulous to
conveniently escape liability merely through the creative use of managerial titles.

After taking into account the Indeterminate Penalty Law and Article 315 of the Revised Penal Code,
we MODIFIED the penalty originally imposed by the trial court2 and, instead, decreed the penalty of
four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of reclusion
temporal, as maximum.

In the present motion for reconsideration, the petitioner points out that pending his appeal with the
Court of Appeals (CA), he voluntarily paid the SSS the amount of P239,756.80 to settle his
delinquency.3 Note that the petitioner also gave notice of this payment to the CA via a Motion for
Reconsideration and a Motion for New Trial.Although the People did not contest the fact of voluntary
payment, the CA nevertheless denied the said motions.

The present motion for reconsideration rests on the following points:

First. On January 7, 2010, during the pendency of the petitioners case before the Court, then
President Gloria Macapagal-Arroyo signed RA No. 9903 into law. RA No. 9903 mandates the
effective withdrawal of all pending cases against employers who would remit their delinquent
contributions to the SSS within a specified period, viz., within six months after the laws
effectivity.4 The petitioner claims that in view of RA No. 9903 and its implementing rules, the
settlement of his delinquent contributions in 2007 entitles him to an acquittal. He invokes the
equal protection clause in support of his plea.

Second. The petitioner alternatively prays that should the Court find his above argument
wanting, he should still be acquitted since the prosecution failed to prove all the elements of the
crime charged.

Third. The petitioner prays that a fine be imposed, not imprisonment, should he be found guilty.

The Solicitor General filed a Manifestation In Lieu of Comment and claims that the passage of RA No.
9903 constituted a supervening event in the petitioners case that supports the petitioners
acquittal "[a]fter a conscientious review of the case."5

THE COURTS RULING

The petitioners arguments supporting his prayer for acquittal fail to convince us. However, we find
basis to allow waiver of the petitioners liability for accrued penalties.

The petitioners liability for the crime is a settled matter

Upfront, we reject the petitioners claim that the prosecution failed to prove all the elements of the
crime charged. This is a matter that has been resolved in our Decision, and the petitioner did not raise
anything substantial to merit the reversal of our finding of guilt. To reiterate, the petitioners conviction
was based on his admission that he failed to remit his employees contribution to the SSS.

The petitioner cannot benefit from the terms of RA No. 9903, which condone only employers who pay
their delinquencies within six months from the laws effectivity

We note that the petitioner does not ask for the reversal of his conviction based on the authority of RA
No. 9903; he avoids making a straightforward claim because this law plainly does not apply to him or to
others in the same situation. The clear intent of the law is to grant condonation only to employers with
delinquent contributions or pending cases for their delinquencies and who pay their delinquencies
within the six (6)-month period set by the law. Mere payment of unpaid contributions does not suffice; it
is payment within, and only within, the six (6)-month availment period that triggers the applicability of
RA No. 9903.

True, the petitioners case was pending with us when RA No. 9903 was passed. Unfortunately for him,
he paid his delinquent SSS contributions in 2007. By paying outside of the availment period, the
petitioner effectively placed himself outside the benevolent sphere of RA No. 9903. This is how the law
is written: it condones employers and only those employers with unpaid SSS contributions or with
pending cases who pay within the six (6)-month period following the laws date of effectivity. Dura lex,
sed lex.

The petitioners awareness that RA No. 9903 operates as discussed above is apparent in his plea for
equal protection. In his motion, he states that

[he] is entitled under the equal protection clause to the dismissal of the case against him since he had
already paid the subject delinquent contributions due to the SSS which accepted the payment as borne
by the official receipt it issued (please see Annex "A"). The equal protection clause requires that similar
subjects, [sic] should not be treated differently, so as to give undue favor to some and unjustly
discriminate against others. The petitioner is no more no less in the same situation as the employer
who would enjoy freedom from criminal prosecution upon payment in full of the delinquent
contributions due and payable to the SSS within six months from the effectivity of Republic Act No.
9903.6

The Court cannot amplify the scope of RA No. 9903 on the ground of equal protection, and acquit the
petitioner and other delinquent employers like him; it would in essence be an amendment of RA No.
9903, an act of judicial legislation abjured by the trias politica principle.7

RA No. 9903 creates two classifications of employers delinquent in remitting the SSS contributions of
their employees: (1) those delinquent employers who pay within the six (6)-month period (the former
group), and (2) those delinquent employers who pay outside of this availment period (the latter group).
The creation of these two classes is obvious and unavoidable when Section 2 and the last proviso of
Section 48 of the law are read together. The same provisions show the laws intent to limit the benefit of
condonation to the former group only; had RA No. 9903 likewise intended to benefit the latter group,
which includes the petitioner, it would have expressly declared so. Laws granting condonation
constitute an act of benevolence on the governments part, similar to tax amnesty laws; their terms are
strictly construed against the applicants. Since the law itself excludes the class of employers to which
the petitioner belongs, no ground exists to justify his acquittal. An implementing rule or regulation must
conform to and be consistent with the provisions of the enabling statute; it cannot amend the law
either by abridging or expanding its scope.9

For the same reason, we cannot grant the petitioners prayer to impose a fine in lieu of imprisonment;
neither RA No. 8282 nor RA No. 9903 authorizes the Court to exercise this option.

On the matter of equal protection, we stated in Tolentino v. Board of Accountancy, et al.10 that the
guarantee simply means "that no person or class of persons shall be denied the same protection of the
laws which is enjoyed by other persons or other classes in the same place and in like circumstances."
In People v. Cayat,11 we further summarized the jurisprudence on equal protection in this wise:

It is an established principle of constitutional law that the guaranty of the equal protection of the laws is
not violated by a legislation based on reasonable classification. And the classification, to be reasonable,
(1) must rest on substantial distinctions; (2) must be germane to the purposes of the law; (3) must not
be limited to existing conditions only; and (4) must apply equally to all members of the same class.

The difference in the dates of payment of delinquent contributions provides a substantial distinction
between the two classes of employers. In limiting the benefits of RA No. 9903 to delinquent employers
who pay within the six (6)-month period, the legislature refused to allow a sweeping, non-discriminatory
condonation to all delinquent employers, lest the policy behind RA No. 8282 be undermined.1avvphi1

The petitioner is entitled to a waiver of his accrued penalties

Despite our discussion above, the petitioners move to have our Decision reconsidered is not entirely
futile. The one benefit the petitioner can obtain from RA No. 9903 is the waiver of his accrued penalties,
which remain unpaid in the amount of P181,394.29. This waiver is derived from the last proviso of
Section 4 of RA No. 9903:

Provided, further, That for reason of equity, employers who settled arrears in contributions before the
effectivity of this Act shall likewise have their accrued penalties waived.

This proviso is applicable to the petitioner who settled his contributions long before the passage of the
law. Applied to the petitioner, therefore, RA No. 9903 only works to allow a waiver of his accrued
penalties, but not the reversal of his conviction.1avvphi1

Referral to the Chief Executive for possible exercise of executive clemency

We realize that with the affirmation of the petitioners conviction for violation of RA No. 8282, he stands
to suffer imprisonment for four (4) years and two (2) months of prision correccional, as minimum, to
twenty (20) years of reclusion temporal, as maximum, notwithstanding the payment of his delinquent
contribution.

Under Article 5 of the Revised Penal Code,12 the courts are bound to apply the law as it is and impose
the proper penalty, no matter how harsh it might be. The same provision, however, gives the Court the
discretion to recommend to the President actions it deems appropriate but are beyond its power when
it considers the penalty imposed as excessive. Although the petitioner was convicted under a special
penal law, the Court is not precluded from giving the Revised Penal Code suppletory application in light
of Article 1013 of the same Code and our ruling in People v. Simon. 14

WHEREFORE, the Court PARTIALLY GRANTS petitioner Romarico J. Mendozas motion for reconsideration.
The Court AFFIRMS the petitioners conviction for violation of Section 22(a) and (d), in relation to
Section 28 of Republic Act No. 8282, and the petitioner is thus sentenced to an indeterminate prison
term of four (4) years and two (2) months of prision correccional, as minimum, to twenty (20) years of
reclusion temporal, as maximum. In light of Section 4 of Republic Act No. 9903, the petitioners liability
for accrued penalties is considered WAIVED. Considering the circumstances of the case, the Court
transmits the case to the Chief Executive, through the Department of Justice, and RECOMMENDS the
grant of executive clemency to the petitioner.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 177597 July 16, 2008

BAI SANDRA S. A. SEMA, Petitioner, vs. COMMISSION ON ELECTIONS and DIDAGEN P.


DILANGALEN, Respondents.

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

G.R. No. 178628

PERFECTO F. MARQUEZ, Petitioner, vs. COMMISSION ON ELECTIONS, Respondent.

CARPIO, J.:

The Case

These consolidated petitions1 seek to annul Resolution No. 7902, dated 10 May 2007, of the
Commission on Elections (COMELEC) treating Cotabato City as part of the legislative district of the
Province of Shariff Kabunsuan.2

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province
of Maguindanao. The first legislative district consists of Cotabato City and eight
municipalities.3 Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM),
created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054
(RA 9054).4 Although under the Ordinance, Cotabato City forms part of Maguindanaos first legislative
district, it is not part of the ARMM but of Region XII, having voted against its inclusion in the ARMM in
the plebiscite held in November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to
create provinces under Section 19, Article VI of RA 9054, 5 enacted Muslim Mindanao Autonomy Act No.
201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of the eight municipalities in
the first district of Maguindanao. MMA Act 201 provides:

Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan
Kudarat, Sultan Mastura, and Upi are hereby separated from the Province of Maguindanao and
constituted into a distinct and independent province, which is hereby created, to be known as the
Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional
Governor or election of the governor and majority of the regular members of the Sangguniang
Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their
unexpired terms in the province that they will choose or where they are residents: Provided, that where
an elective position in both provinces becomes vacant as a consequence of the creation of the Province
of Shariff Kabunsuan, all incumbent elective provincial officials shall have preference for appointment to
a higher elective vacant position and for the time being be appointed by the Regional Governor, and
shall hold office until their successors shall have been elected and qualified in the next local elections;
Provided, further, that they shall continue to receive the salaries they are receiving at the time of the
approval of this Act until the new readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the members of the Sangguniang
Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative district, which includes Cotabato as
a part thereof, shall remain.

Later, three new municipalities6 were carved out of the original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities to 11. Thus, what was left of Maguindanao were
the municipalities constituting its second legislative district. Cotabato City, although part of
Maguindanaos first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on 29 October
2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999
requesting the COMELEC to "clarify the status of Cotabato City in view of the conversion of the First
District of Maguindanao into a regular province" under MMA Act 201.

In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007
"maintaining the status quo with Cotabato City as part of Shariff Kabunsuan in the First Legislative
District of Maguindanao." Resolution No. 07-0407, which adopted the recommendation of the
COMELECs Law Department under a Memorandum dated 27 February 2007, 7 provides in pertinent
parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department that pending the enactment of the appropriate law by
Congress, to maintain the status quo with Cotabato City as part of Shariff Kabunsuan in the First
Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007
Resolution No. 7845 stating that Maguindanaos first legislative district is composed only of Cotabato
City because of the enactment of MMA Act 201.8

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending
Resolution No. 07-0407 by renaming the legislative district in question as "Shariff Kabunsuan Province
with Cotabato City (formerly First District of Maguindanao with Cotabato City)." 91avvphi1

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of
"Shariff Kabunsuan with Cotabato City," prayed for the nullification of COMELEC Resolution No. 7902
and the exclusion from canvassing of the votes cast in Cotabato City for that office. Sema contended
that Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of
the Constitution10 and Section 3 of the Ordinance appended to the Constitution.11 Thus, Sema asserted
that the COMELEC acted without or in excess of its jurisdiction in issuing Resolution No. 7902 which
maintained the status quo in Maguindanaos first legislative district despite the COMELECs earlier
directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanaos
reapportioned first legislative district.12 Sema further claimed that in issuing Resolution No. 7902, the
COMELEC usurped Congress power to create or reapportion legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the
merits of the case and merely contended that (1) Sema wrongly availed of the writ of certiorari to
nullify COMELEC Resolution No. 7902 because the COMELEC issued the same in the exercise of its
administrative, not quasi-judicial, power and (2) Semas prayer for the writ of prohibition in G.R. No.
177597 became moot with the proclamation of respondent Didagen P. Dilangalen (respondent
Dilangalen) on 1 June 2007 as representative of the legislative district of Shariff Kabunsuan Province
with Cotabato City.

In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC
Resolution No. 7902 because in her certificate of candidacy filed on 29 March 2007, Sema indicated
that she was seeking election as representative of "Shariff Kabunsuan including Cotabato City."
Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not
apportion a legislative district for Shariff Kabunsuan or reapportion the legislative districts in
Maguindanao but merely renamed Maguindanaos first legislative district. Respondent Dilangalen
further claimed that the COMELEC could not reapportion Maguindanaos first legislative district to make
Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively
with Congress, not to mention that Cotabato City does not meet the minimum population requirement
under Section 5 (3), Article VI of the Constitution for the creation of a legislative district within a city. 13
Sema filed a Consolidated Reply controverting the matters raised in respondents Comments and
reiterating her claim that the COMELEC acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment
on the issue of whether a province created by the ARMM Regional Assembly under Section 19, Article VI
of RA 9054 is entitled to one representative in the House of Representatives without need of a national
law creating a legislative district for such new province. The parties submitted their compliance as
follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa
v. Salas14stated that "when a province is created by statute, the corresponding representative
district comes into existence neither by authority of that statute which cannot provide
otherwise nor by apportionment, but by operation of the Constitution, without a
reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the
apportionment of a legislative district incident to the creation of a province; and (c) Section 5
(3), Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution
mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on
the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema,
contending that Section 5 (3), Article VI of the Constitution is "self-executing." Thus, every new
province created by the ARMM Regional Assembly is ipso facto entitled to one representative in
the House of Representatives even in the absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the
"province" contemplated in Section 5 (3), Article VI of the Constitution is one that is created by
an act of Congress taking into account the provisions in RA 7160 on the creation of provinces;
(b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to
enact measures relating to national elections, which encompasses the apportionment of
legislative districts for members of the House of Representatives; (c) recognizing a legislative
district in every province the ARMM Regional Assembly creates will lead to the disproportionate
representation of the ARMM in the House of Representatives as the Regional Assembly can
create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato
City, which has a population of less than 250,000, is not entitled to a representative in the
House of Representatives.

On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the
following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a
province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House
of Representatives without need of a national law creating a legislative district for such new province. 15

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their
respective Memoranda on the issues raised in the oral arguments.16 On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the
following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid
delegation by Congress to the ARMM of the power to create provinces under Section 20 (9),
Article X of the Constitution granting to the autonomous regions, through their organic acts,
legislative powers over "other matters as may be authorized by law for the promotion of the
general welfare of the people of the region" and (b) as an amendment to Section 6 of RA
7160.17 However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA
9054 to the ARMM Regional Assembly of the power to "prescribe standards lower than those
mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X of the
Constitution.18 Thus, Sema proposed that Section 19 "should be construed as prohibiting the
Regional Assembly from prescribing standards x x x that do not comply with the minimum
criteria" under RA 7160.19

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional
on the following grounds: (a) the power to create provinces was not among those granted to the
autonomous regions under Section 20, Article X of the Constitution and (b) the grant under
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe
standards lower than those mandated in Section 461 of RA 7160 on the creation of provinces
contravenes Section 10, Article X of the Constitution and the Equal Protection Clause; and

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively
abandoning the position the COMELEC adopted in its Compliance with the Resolution of 4
September 2007) and contended that Section 19, Article VI of RA 9054 is unconstitutional
because (a) it contravenes Section 10 and Section 6,20 Article X of the Constitution and (b) the
power to create provinces was withheld from the autonomous regions under Section 20, Article
X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law creating a legislative
district for such new province, Sema and respondent Dilangalen reiterated in their Memoranda the
positions they adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC
deemed it unnecessary to submit its position on this issue considering its stance that Section 19, Article
VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27
November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628
consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that the
COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a
representative in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the
COMELEC, through the OSG, maintained the validity of COMELEC Resolution No. 7902 as a temporary
measure pending the enactment by Congress of the "appropriate law."

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and

(2) whether the proclamation of respondent Dilangalen as representative of Shariff


Kabunsuan Province with Cotabato City mooted the petition in G.R. No. 177597.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly
the power to create provinces, cities, municipalities and barangays, is constitutional; and

(2) if in the affirmative, whether a province created by the ARMM Regional Assembly
under MMA Act 201 pursuant to Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without need of a national law creating a
legislative district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for
maintaining the status quo in the first legislative district of Maguindanao (as "Shariff Kabunsuan
Province with Cotabato City [formerly First District of Maguindanao with Cotabato City]"), despite