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Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 139325 April 12, 2005

PRISCILLA C. MIJARES, LORETTA ANN P. ROSALES, HILDA B. NARCISO, SR. MARIANI


DIMARANAN, SFIC, and JOEL C. LAMANGAN in their behalf and on behalf of the Class
Plaintiffs in Class Action No. MDL 840, United States District Court of Hawaii, Petitioner,
vs.
HON. SANTIAGO JAVIER RANADA, in his capacity as Presiding Judge of Branch 137,
Regional Trial Court, Makati City, and the ESTATE OF FERDINAND E. MARCOS, through its
court appointed legal representatives in Class Action MDL 840, United States District Court of
Hawaii, namely: Imelda R. Marcos and Ferdinand Marcos, Jr., Respondents.

DECISION

TINGA, J.:

Our martial law experience bore strange unwanted fruits, and we have yet to finish weeding out its
bitter crop. While the restoration of freedom and the fundamental structures and processes of
democracy have been much lauded, according to a significant number, the changes, however, have
not sufficiently healed the colossal damage wrought under the oppressive conditions of the martial
law period. The cries of justice for the tortured, the murdered, and thedesaparecidos arouse outrage
and sympathy in the hearts of the fair-minded, yet the dispensation of the appropriate relief due them
cannot be extended through the same caprice or whim that characterized the ill-wind of martial rule.
The damage done was not merely personal but institutional, and the proper rebuke to the iniquitous
past has to involve the award of reparations due within the confines of the restored rule of law.

The petitioners in this case are prominent victims of human rights violations1 who, deprived of the
opportunity to directly confront the man who once held absolute rule over this country, have chosen
to do battle instead with the earthly representative, his estate. The clash has been for now
interrupted by a trial court ruling, seemingly comported to legal logic, that required the petitioners to
pay a whopping filing fee of over Four Hundred Seventy-Two Million Pesos (P472,000,000.00) in
order that they be able to enforce a judgment awarded them by a foreign court. There is an
understandable temptation to cast the struggle within the simplistic confines of a morality tale, and to
employ short-cuts to arrive at what might seem the desirable solution. But easy, reflexive resort to
the equity principle all too often leads to a result that may be morally correct, but legally wrong.

Nonetheless, the application of the legal principles involved in this case will comfort those who
maintain that our substantive and procedural laws, for all their perceived ambiguity and susceptibility
to myriad interpretations, are inherently fair and just. The relief sought by the petitioners is expressly
mandated by our laws and conforms to established legal principles. The granting of this petition for
certiorari is warranted in order to correct the legally infirm and unabashedly unjust ruling of the
respondent judge.
The essential facts bear little elaboration. On 9 May 1991, a complaint was filed with the United
States District Court (US District Court), District of Hawaii, against the Estate of former Philippine
President Ferdinand E. Marcos (Marcos Estate). The action was brought forth by ten Filipino
citizens2 who each alleged having suffered human rights abuses such as arbitrary detention, torture
and rape in the hands of police or military forces during the Marcos regime.3 The Alien Tort Act was
invoked as basis for the US District Court's jurisdiction over the complaint, as it involved a suit by
aliens for tortious violations of international law.4 These plaintiffs brought the action on their own
behalf and on behalf of a class of similarly situated individuals, particularly consisting of all current
civilian citizens of the Philippines, their heirs and beneficiaries, who between 1972 and 1987 were
tortured, summarily executed or had disappeared while in the custody of military or paramilitary
groups. Plaintiffs alleged that the class consisted of approximately ten thousand (10,000) members;
hence, joinder of all these persons was impracticable.

The institution of a class action suit was warranted under Rule 23(a) and (b)(1)(B) of the US Federal
Rules of Civil Procedure, the provisions of which were invoked by the plaintiffs. Subsequently, the
US District Court certified the case as a class action and created three (3) sub-classes of torture,
summary execution and disappearance victims.5Trial ensued, and subsequently a jury rendered a
verdict and an award of compensatory and exemplary damages in favor of the plaintiff class. Then,
on 3 February 1995, the US District Court, presided by Judge Manuel L. Real, rendered a Final
Judgment (Final Judgment) awarding the plaintiff class a total of One Billion Nine Hundred Sixty
Four Million Five Thousand Eight Hundred Fifty Nine Dollars and Ninety Cents ($1,964,005,859.90).
The Final Judgment was eventually affirmed by the US Court of Appeals for the Ninth Circuit, in a
decision rendered on 17 December 1996.6

On 20 May 1997, the present petitioners filed Complaint with the Regional Trial Court, City of Makati
(Makati RTC) for the enforcement of the Final Judgment. They alleged that they are members of the
plaintiff class in whose favor the US District Court awarded damages.7 They argued that since the
Marcos Estate failed to file a petition for certiorari with the US Supreme Court after the Ninth Circuit
Court of Appeals had affirmed the Final Judgment, the decision of the US District Court had become
final and executory, and hence should be recognized and enforced in the Philippines, pursuant to
Section 50, Rule 39 of the Rules of Court then in force.8

On 5 February 1998, the Marcos Estate filed a motion to dismiss, raising, among others, the non-
payment of the correct filing fees. It alleged that petitioners had only paid Four Hundred Ten Pesos
(P410.00) as docket and filing fees, notwithstanding the fact that they sought to enforce a monetary
amount of damages in the amount of over Two and a Quarter Billion US Dollars (US$2.25
Billion). The Marcos Estate cited Supreme Court Circular No. 7, pertaining to the proper
computation and payment of docket fees. In response, the petitioners claimed that an action for the
enforcement of a foreign judgment is not capable of pecuniary estimation; hence, a filing fee of only
Four Hundred Ten Pesos (P410.00) was proper, pursuant to Section 7(c) of Rule 141.9

On 9 September 1998, respondent Judge Santiago Javier Ranada10 of the Makati RTC issued the
subject Orderdismissing the complaint without prejudice. Respondent judge opined that contrary to
the petitioners' submission, the subject matter of the complaint was indeed capable of pecuniary
estimation, as it involved a judgment rendered by a foreign court ordering the payment of definite
sums of money, allowing for easy determination of the value of the foreign judgment. On that score,
Section 7(a) of Rule 141 of the Rules of Civil Procedure would find application, and the RTC
estimated the proper amount of filing fees was approximately Four Hundred Seventy Two Million
Pesos, which obviously had not been paid.

Not surprisingly, petitioners filed a Motion for Reconsideration, which Judge Ranada denied in
an Order dated 28 July 1999. From this denial, petitioners filed a Petition for Certiorari under Rule 65
assailing the twin orders of respondent judge.11 They prayed for the annulment of the questioned
orders, and an order directing the reinstatement of Civil Case No. 97-1052 and the conduct of
appropriate proceedings thereon.

Petitioners submit that their action is incapable of pecuniary estimation as the subject matter of the
suit is the enforcement of a foreign judgment, and not an action for the collection of a sum of money
or recovery of damages. They also point out that to require the class plaintiffs to pay Four Hundred
Seventy Two Million Pesos (P472,000,000.00) in filing fees would negate and render inutile the
liberal construction ordained by the Rules of Court, as required by Section 6, Rule 1 of the Rules of
Civil Procedure, particularly the inexpensive disposition of every action.

Petitioners invoke Section 11, Article III of the Bill of Rights of the Constitution, which provides that
"Free access to the courts and quasi-judicial bodies and adequate legal assistance shall not be
denied to any person by reason of poverty," a mandate which is essentially defeated by the required
exorbitant filing fee. The adjudicated amount of the filing fee, as arrived at by the RTC, was
characterized as indisputably unfair, inequitable, and unjust.

The Commission on Human Rights (CHR) was permitted to intervene in this case.12 It urged that the
petition be granted and a judgment rendered, ordering the enforcement and execution of the District
Court judgment in accordance with Section 48, Rule 39 of the 1997 Rules of Civil Procedure. For the
CHR, the Makati RTC erred in interpreting the action for the execution of a foreign judgment as a
new case, in violation of the principle that once a case has been decided between the same parties
in one country on the same issue with finality, it can no longer be relitigated again in another
country.13 The CHR likewise invokes the principle of comity, and of vested rights.

The Court's disposition on the issue of filing fees will prove a useful jurisprudential guidepost for
courts confronted with actions enforcing foreign judgments, particularly those lodged against an
estate. There is no basis for the issuance a limited pro hac vice ruling based on the special
circumstances of the petitioners as victims of martial law, or on the emotionally-charged allegation of
human rights abuses.

An examination of Rule 141 of the Rules of Court readily evinces that the respondent judge ignored
the clear letter of the law when he concluded that the filing fee be computed based on the total sum
claimed or the stated value of the property in litigation.

In dismissing the complaint, the respondent judge relied on Section 7(a), Rule 141 as basis for the
computation of the filing fee of over P472 Million. The provision states:

SEC. 7. Clerk of Regional Trial Court.-

(a) For filing an action or a permissive counterclaim or money claim against an


estate not based on judgment, or for filing with leave of court a third-party, fourth-
party, etc., complaint, or a complaint in intervention, and for all clerical services in the
same time, if the total sum claimed, exclusive of interest, or the started value of the
property in litigation, is:

1. Less than P 100,00.00 P 500.00


2. P 100,000.00 or more but less P 800.00
than P 150,000.00
3. P 150,000.00 or more but less P 1,000.00
than P 200,000.00
4. P 200,000.00 or more but less P 1,500.00
than P 250,000.00
5. P 250,000.00 or more but less P 1,750.00
than P 300,00.00
6. P 300,000.00 or more but not more P 2,000.00
than P 400,000.00
7. P 350,000.00 or more but not more than P 2,250.00
P400,000.00
8. For each P 1,000.00 in excess P 10.00
of P 400,000.00

(Emphasis supplied)

Obviously, the above-quoted provision covers, on one hand, ordinary actions, permissive
counterclaims, third-party, etc. complaints and complaints-in-interventions, and on the other, money
claims against estates which are not based on judgment. Thus, the relevant question for purposes
of the present petition is whether the action filed with the lower court is a "money claim against an
estate not based on judgment."

Petitioners' complaint may have been lodged against an estate, but it is clearly based on a judgment,
the Final Judgment of the US District Court. The provision does not make any distinction between a
local judgment and a foreign judgment, and where the law does not distinguish, we shall not
distinguish.

A reading of Section 7 in its entirety reveals several instances wherein the filing fee is computed on
the basis of the amount of the relief sought, or on the value of the property in litigation. The filing fee
for requests for extrajudicial foreclosure of mortgage is based on the amount of indebtedness or the
mortgagee's claim.14 In special proceedings involving properties such as for the allowance of wills,
the filing fee is again based on the value of the property.15The aforecited rules evidently have no
application to petitioners' complaint.

Petitioners rely on Section 7(b), particularly the proviso on actions where the value of the subject
matter cannot be estimated. The provision reads in full:

SEC. 7. Clerk of Regional Trial Court.-

(b) For filing

1. Actions where the value

of the subject matter

cannot be estimated --- P 600.00

2. Special civil actions except


judicial foreclosure which

shall be governed by

paragraph (a) above --- P 600.00

3. All other actions not

involving property --- P 600.00

In a real action, the assessed value of the property, or if there is none, the estimated value, thereof
shall be alleged by the claimant and shall be the basis in computing the fees.

It is worth noting that the provision also provides that in real actions, the assessed value or
estimated value of the property shall be alleged by the claimant and shall be the basis in computing
the fees. Yet again, this provision does not apply in the case at bar. A real action is one where the
plaintiff seeks the recovery of real property or an action affecting title to or recovery of possession of
real property.16 Neither the complaint nor the award of damages adjudicated by the US District Court
involves any real property of the Marcos Estate.

Thus, respondent judge was in clear and serious error when he concluded that the filing fees should
be computed on the basis of the schematic table of Section 7(a), as the action involved pertains to a
claim against an estate based on judgment. What provision, if any, then should apply in determining
the filing fees for an action to enforce a foreign judgment?

To resolve this question, a proper understanding is required on the nature and effects of a foreign
judgment in this jurisdiction.

The rules of comity, utility and convenience of nations have established a usage among civilized
states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected
and rendered efficacious under certain conditions that may vary in different countries.17 This principle
was prominently affirmed in the leading American case of Hilton v. Guyot18 and expressly recognized
in our jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.19 The conditions required by
the Philippines for recognition and enforcement of a foreign judgment were originally contained in
Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil
Procedure which, in turn, was derived from the California Act of March 11, 1872.20 Remarkably, the
procedural rule now outlined in Section 48, Rule 39 of the Rules of Civil Procedure has remained
unchanged down to the last word in nearly a century. Section 48 states:

SEC. 48. Effect of foreign judgments. The effect of a judgment of a tribunal of a


foreign country, having jurisdiction to pronounce the judgment is as follows:

(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the
title to the thing;

(b) In case of a judgment against a person, the judgment is presumptive evidence of


a right as between the parties and their successors in interest by a subsequent title;

In either case, the judgment or final order may be repelled by evidence of a want of
jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.
There is an evident distinction between a foreign judgment in an action in rem and one in personam.
For an action in rem, the foreign judgment is deemed conclusive upon the title to the thing, while in
an action in personam, the foreign judgment is presumptive, and not conclusive, of a right as
between the parties and their successors in interest by a subsequent title.21 However, in both cases,
the foreign judgment is susceptible to impeachment in our local courts on the grounds of want of
jurisdiction or notice to the party,22 collusion, fraud,23 or clear mistake of law or fact.24 Thus, the party
aggrieved by the foreign judgment is entitled to defend against the enforcement of such decision in
the local forum. It is essential that there should be an opportunity to challenge the foreign judgment,
in order for the court in this jurisdiction to properly determine its efficacy.25

It is clear then that it is usually necessary for an action to be filed in order to enforce a foreign
judgment26, even if such judgment has conclusive effect as in the case of in rem actions, if only for
the purpose of allowing the losing party an opportunity to challenge the foreign judgment, and in
order for the court to properly determine its efficacy.27Consequently, the party attacking a foreign
judgment has the burden of overcoming the presumption of its validity.28

The rules are silent as to what initiatory procedure must be undertaken in order to enforce a foreign
judgment in the Philippines. But there is no question that the filing of a civil complaint is an
appropriate measure for such purpose. A civil action is one by which a party sues another for the
enforcement or protection of a right,29 and clearly an action to enforce a foreign judgment is in
essence a vindication of a right prescinding either from a "conclusive judgment upon title" or the
"presumptive evidence of a right."30 Absent perhaps a statutory grant of jurisdiction to a quasi-judicial
body, the claim for enforcement of judgment must be brought before the regular courts.31

There are distinctions, nuanced but discernible, between the cause of action arising from the
enforcement of a foreign judgment, and that arising from the facts or allegations that occasioned the
foreign judgment. They may pertain to the same set of facts, but there is an essential difference in
the right-duty correlatives that are sought to be vindicated. For example, in a complaint for damages
against a tortfeasor, the cause of action emanates from the violation of the right of the complainant
through the act or omission of the respondent. On the other hand, in a complaint for the enforcement
of a foreign judgment awarding damages from the same tortfeasor, for the violation of the same right
through the same manner of action, the cause of action derives not from the tortious act but from the
foreign judgment itself.

More importantly, the matters for proof are different. Using the above example, the complainant will
have to establish before the court the tortious act or omission committed by the tortfeasor, who in
turn is allowed to rebut these factual allegations or prove extenuating circumstances. Extensive
litigation is thus conducted on the facts, and from there the right to and amount of damages are
assessed. On the other hand, in an action to enforce a foreign judgment, the matter left for proof is
the foreign judgment itself, and not the facts from which it prescinds.

As stated in Section 48, Rule 39, the actionable issues are generally restricted to a review of
jurisdiction of the foreign court, the service of personal notice, collusion, fraud, or mistake of fact or
law. The limitations on review is in consonance with a strong and pervasive policy in all legal
systems to limit repetitive litigation on claims and issues.32 Otherwise known as the policy of
preclusion, it seeks to protect party expectations resulting from previous litigation, to safeguard
against the harassment of defendants, to insure that the task of courts not be increased by never-
ending litigation of the same disputes, and in a larger sense to promote what Lord Coke in
the Ferrer's Case of 1599 stated to be the goal of all law: "rest and quietness."33 If every judgment of
a foreign court were reviewable on the merits, the plaintiff would be forced back on his/her original
cause of action, rendering immaterial the previously concluded litigation.34
Petitioners appreciate this distinction, and rely upon it to support the proposition that the subject
matter of the complaintthe enforcement of a foreign judgmentis incapable of pecuniary
estimation. Admittedly the proposition, as it applies in this case, is counter-intuitive, and thus
deserves strict scrutiny. For in all practical intents and purposes, the matter at hand is capable of
pecuniary estimation, down to the last cent. In the assailed Order, the respondent judge pounced
upon this point without equivocation:

The Rules use the term "where the value of the subject matter cannot be estimated." The
subject matter of the present case is the judgment rendered by the foreign court ordering
defendant to pay plaintiffs definite sums of money, as and for compensatory damages. The
Court finds that the value of the foreign judgment can be estimated; indeed, it can even be
easily determined. The Court is not minded to distinguish between the enforcement of a
judgment and the amount of said judgment, and separate the two, for purposes of
determining the correct filing fees. Similarly, a plaintiff suing on promissory note for P1 million
cannot be allowed to pay only P400 filing fees (sic), on the reasoning that the subject matter
of his suit is not the P1 million, but the enforcement of the promissory note, and that the
value of such "enforcement" cannot be estimated.35

The jurisprudential standard in gauging whether the subject matter of an action is capable of
pecuniary estimation is well-entrenched. The Marcos Estate cites Singsong v. Isabela Sawmill and
Raymundo v. Court of Appeals, which ruled:

[I]n determining whether an action is one the subject matter of which is not capable of
pecuniary estimation this Court has adopted the criterion of first ascertaining the nature of
the principal action or remedy sought. If it is primarily for the recovery of a sum of money,
the claim is considered capable of pecuniary estimation, and whether jurisdiction is in the
municipal courts or in the courts of first instance would depend on the amount of the
claim. However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal
relief sought, this Court has considered such actions as cases where the subject of the
litigation may not be estimated in terms of money, and are cognizable exclusively by courts
of first instance (now Regional Trial Courts).

On the other hand, petitioners cite the ponencia of Justice JBL Reyes in Lapitan v. Scandia,36 from
which the rule inSingsong and Raymundo actually derives, but which incorporates this additional
nuance omitted in the latter cases:

xxx However, where the basic issue is something other than the right to recover a sum of
money, where the money claim is purely incidental to, or a consequence of, the principal
relief sought, like in suits to have the defendant perform his part of the contract
(specific performance) and in actions for support, or for annulment of judgment or to
foreclose a mortgage, this Court has considered such actions as cases where the subject
of the litigation may not be estimated in terms of money, and are cognizable exclusively by
courts of first instance.37

Petitioners go on to add that among the actions the Court has recognized as being incapable of
pecuniary estimation include legality of conveyances and money deposits,38 validity of a
mortgage,39 the right to support,40validity of documents,41 rescission of contracts,42 specific
performance,43 and validity or annulment of judgments.44It is urged that an action for enforcement of
a foreign judgment belongs to the same class.
This is an intriguing argument, but ultimately it is self-evident that while the subject matter of the
action is undoubtedly the enforcement of a foreign judgment, the effect of a providential award would
be the adjudication of a sum of money. Perhaps in theory, such an action is primarily for "the
enforcement of the foreign judgment," but there is a certain obtuseness to that sort of argument
since there is no denying that the enforcement of the foreign judgment will necessarily result in the
award of a definite sum of money.

But before we insist upon this conclusion past beyond the point of reckoning, we must examine its
possible ramifications. Petitioners raise the point that a declaration that an action for enforcement of
foreign judgment may be capable of pecuniary estimation might lead to an instance wherein a first
level court such as the Municipal Trial Court would have jurisdiction to enforce a foreign judgment.
But under the statute defining the jurisdiction of first level courts, B.P. 129, such courts are not
vested with jurisdiction over actions for the enforcement of foreign judgments.

Sec. 33. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit
Trial Courts in civil cases. Metropolitan Trial Courts, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall exercise:

(1) Exclusive original jurisdiction over civil actions and probate proceedings, testate and
intestate, including the grant of provisional remedies in proper cases, where the value of the
personal property, estate, or amount of the demand does not exceed One hundred thousand
pesos (P100,000.00) or, in Metro Manila where such personal property, estate, or amount of
the demand does not exceed Two hundred thousand pesos (P200,000.00) exclusive of
interest damages of whatever kind, attorney's fees, litigation expenses, and costs, the
amount of which must be specifically alleged: Provided, That where there are several claims
or causes of action between the same or different parties, embodied in the same complaint,
the amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different transactions;

(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer: Provided,
That when, in such cases, the defendant raises the question of ownership in his pleadings
and the question of possession cannot be resolved without deciding the issue of ownership,
the issue of ownership shall be resolved only to determine the issue of possession.

(3) Exclusive original jurisdiction in all civil actions which involve title to, or possession of,
real property, or any interest therein where the assessed value of the property or interest
therein does not exceed Twenty thousand pesos (P20,000.00) or, in civil actions in Metro
Manila, where such assessed value does not exceed Fifty thousand pesos (P50,000.00)
exclusive of interest, damages of whatever kind, attorney's fees, litigation expenses and
costs: Provided, That value of such property shall be determined by the assessed value of
the adjacent lots.45

Section 33 of B.P. 129 refers to instances wherein the cause of action or subject matter pertains to
an assertion of rights and interests over property or a sum of money. But as earlier pointed out, the
subject matter of an action to enforce a foreign judgment is the foreign judgment itself, and the
cause of action arising from the adjudication of such judgment.

An examination of Section 19(6), B.P. 129 reveals that the instant complaint for enforcement of a
foreign judgment, even if capable of pecuniary estimation, would fall under the jurisdiction of the
Regional Trial Courts, thus negating the fears of the petitioners. Indeed, an examination of the
provision indicates that it can be relied upon as jurisdictional basis with respect to actions for
enforcement of foreign judgments, provided that no other court or office is vested jurisdiction over
such complaint:

Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise exclusive original
jurisdiction:

xxx

(6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-
judicial functions.

Thus, we are comfortable in asserting the obvious, that the complaint to enforce the US District
Court judgment is one capable of pecuniary estimation. But at the same time, it is also an action
based on judgment against an estate, thus placing it beyond the ambit of Section 7(a) of Rule 141.
What provision then governs the proper computation of the filing fees over the instant complaint? For
this case and other similarly situated instances, we find that it is covered by Section 7(b)(3),
involving as it does, "other actions not involving property."

Notably, the amount paid as docket fees by the petitioners on the premise that it was an action
incapable of pecuniary estimation corresponds to the same amount required for "other actions not
involving property." The petitioners thus paid the correct amount of filing fees, and it was a grave
abuse of discretion for respondent judge to have applied instead a clearly inapplicable rule and
dismissed the complaint.

There is another consideration of supreme relevance in this case, one which should disabuse the
notion that the doctrine affirmed in this decision is grounded solely on the letter of the procedural
rule. We earlier adverted to the the internationally recognized policy of preclusion,46 as well as the
principles of comity, utility and convenience of nations47 as the basis for the evolution of the rule
calling for the recognition and enforcement of foreign judgments. The US Supreme Court in Hilton v.
Guyot48 relied heavily on the concept of comity, as especially derived from the landmark treatise of
Justice Story in his Commentaries on the Conflict of Laws of 1834.49 Yet the notion of "comity" has
since been criticized as one "of dim contours"50 or suffering from a number of fallacies.51 Other
conceptual bases for the recognition of foreign judgments have evolved such as the vested rights
theory or the modern doctrine of obligation.52

There have been attempts to codify through treaties or multilateral agreements the standards for the
recognition and enforcement of foreign judgments, but these have not borne fruition. The members
of the European Common Market accede to the Judgments Convention, signed in 1978, which
eliminates as to participating countries all of such obstacles to recognition such as reciprocity
and rvision au fond.53 The most ambitious of these attempts is the Convention on the Recognition
and Enforcement of Foreign Judgments in Civil and Commercial Matters, prepared in 1966 by the
Hague Conference of International Law.54 While it has not received the ratifications needed to have it
take effect,55 it is recognized as representing current scholarly thought on the topic.56 Neither the
Philippines nor the United States are signatories to the Convention.

Yet even if there is no unanimity as to the applicable theory behind the recognition and enforcement
of foreign judgments or a universal treaty rendering it obligatory force, there is consensus that the
viability of such recognition and enforcement is essential. Steiner and Vagts note:

. . . The notion of unconnected bodies of national law on private international law, each
following a quite separate path, is not one conducive to the growth of a transnational
community encouraging travel and commerce among its members. There is a contemporary
resurgence of writing stressing the identity or similarity of the values that systems of public
and private international law seek to further a community interest in common, or at least
reasonable, rules on these matters in national legal systems. And such generic principles as
reciprocity play an important role in both fields.57

Salonga, whose treatise on private international law is of worldwide renown, points out:

Whatever be the theory as to the basis for recognizing foreign judgments, there can be little
dispute that the end is to protect the reasonable expectations and demands of the parties.
Where the parties have submitted a matter for adjudication in the court of one state, and
proceedings there are not tainted with irregularity, they may fairly be expected to submit,
within the state or elsewhere, to the enforcement of the judgment issued by the court.58

There is also consensus as to the requisites for recognition of a foreign judgment and the defenses
against the enforcement thereof. As earlier discussed, the exceptions enumerated in Section 48,
Rule 39 have remain unchanged since the time they were adapted in this jurisdiction from long
standing American rules. The requisites and exceptions as delineated under Section 48 are but a
restatement of generally accepted principles of international law. Section 98 of The Restatement,
Second, Conflict of Laws, states that "a valid judgment rendered in a foreign nation after a fair trial in
a contested proceeding will be recognized in the United States," and on its face, the term "valid"
brings into play requirements such notions as valid jurisdiction over the subject matter and
parties.59Similarly, the notion that fraud or collusion may preclude the enforcement of a foreign
judgment finds affirmation with foreign jurisprudence and commentators,60 as well as the doctrine
that the foreign judgment must not constitute "a clear mistake of law or fact."61 And finally, it has
been recognized that "public policy" as a defense to the recognition of judgments serves as an
umbrella for a variety of concerns in international practice which may lead to a denial of
recognition.62

The viability of the public policy defense against the enforcement of a foreign judgment has been
recognized in this jurisdiction.63 This defense allows for the application of local standards in
reviewing the foreign judgment, especially when such judgment creates only a presumptive right, as
it does in cases wherein the judgment is against a person.64 The defense is also recognized within
the international sphere, as many civil law nations adhere to a broad public policy exception which
may result in a denial of recognition when the foreign court, in the light of the choice-of-law rules of
the recognizing court, applied the wrong law to the case.65 The public policy defense can safeguard
against possible abuses to the easy resort to offshore litigation if it can be demonstrated that the
original claim is noxious to our constitutional values.

There is no obligatory rule derived from treaties or conventions that requires the Philippines to
recognize foreign judgments, or allow a procedure for the enforcement thereof. However, generally
accepted principles of international law, by virtue of the incorporation clause of the Constitution, form
part of the laws of the land even if they do not derive from treaty obligations.66 The classical
formulation in international law sees those customary rules accepted as binding result from the
combination two elements: the established, widespread, and consistent practice on the part of
States; and a psychological element known as the opinion juris sive necessitates (opinion as to law
or necessity). Implicit in the latter element is a belief that the practice in question is rendered
obligatory by the existence of a rule of law requiring it.67

While the definite conceptual parameters of the recognition and enforcement of foreign judgments
have not been authoritatively established, the Court can assert with certainty that such an
undertaking is among those generally accepted principles of international law.68 As earlier
demonstrated, there is a widespread practice among states accepting in principle the need for such
recognition and enforcement, albeit subject to limitations of varying degrees. The fact that there is no
binding universal treaty governing the practice is not indicative of a widespread rejection of the
principle, but only a disagreement as to the imposable specific rules governing the procedure for
recognition and enforcement.

Aside from the widespread practice, it is indubitable that the procedure for recognition and
enforcement is embodied in the rules of law, whether statutory or jurisprudential, adopted in various
foreign jurisdictions. In the Philippines, this is evidenced primarily by Section 48, Rule 39 of the
Rules of Court which has existed in its current form since the early 1900s. Certainly, the Philippine
legal system has long ago accepted into its jurisprudence and procedural rules the viability of an
action for enforcement of foreign judgment, as well as the requisites for such valid enforcement, as
derived from internationally accepted doctrines. Again, there may be distinctions as to the rules
adopted by each particular state,69 but they all prescind from the premise that there is a rule of law
obliging states to allow for, however generally, the recognition and enforcement of a foreign
judgment. The bare principle, to our mind, has attained the status of opinio juris in international
practice.

This is a significant proposition, as it acknowledges that the procedure and requisites outlined in
Section 48, Rule 39 derive their efficacy not merely from the procedural rule, but by virtue of the
incorporation clause of the Constitution. Rules of procedure are promulgated by the Supreme
Court,70 and could very well be abrogated or revised by the high court itself. Yet the Supreme Court
is obliged, as are all State components, to obey the laws of the land, including generally accepted
principles of international law which form part thereof, such as those ensuring the qualified
recognition and enforcement of foreign judgments.71

Thus, relative to the enforcement of foreign judgments in the Philippines, it emerges that there is a
general right recognized within our body of laws, and affirmed by the Constitution, to seek
recognition and enforcement of foreign judgments, as well as a right to defend against such
enforcement on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or
clear mistake of law or fact.

The preclusion of an action for enforcement of a foreign judgment in this country merely due to an
exhorbitant assessment of docket fees is alien to generally accepted practices and principles in
international law. Indeed, there are grave concerns in conditioning the amount of the filing fee on the
pecuniary award or the value of the property subject of the foreign decision. Such pecuniary award
will almost certainly be in foreign denomination, computed in accordance with the applicable laws
and standards of the forum.72 The vagaries of inflation, as well as the relative low-income capacity of
the Filipino, to date may very well translate into an award virtually unenforceable in this country,
despite its integral validity, if the docket fees for the enforcement thereof were predicated on the
amount of the award sought to be enforced. The theory adopted by respondent judge and the
Marcos Estate may even lead to absurdities, such as if applied to an award involving real property
situated in places such as the United States or Scandinavia where real property values are
inexorably high. We cannot very well require that the filing fee be computed based on the value of
the foreign property as determined by the standards of the country where it is located.

As crafted, Rule 141 of the Rules of Civil Procedure avoids unreasonableness, as it recognizes that
the subject matter of an action for enforcement of a foreign judgment is the foreign judgment itself,
and not the right-duty correlatives that resulted in the foreign judgment. In this particular
circumstance, given that the complaint is lodged against an estate and is based on the US District
Court's Final Judgment, this foreign judgment may, for purposes of classification under the
governing procedural rule, be deemed as subsumed under Section 7(b)(3) of Rule 141, i.e., within
the class of "all other actions not involving property." Thus, only the blanket filing fee of minimal
amount is required.

Finally, petitioners also invoke Section 11, Article III of the Constitution, which states that "[F]ree
access to the courts and quasi-judicial bodies and adequate legal assistance shall not be denied to
any person by reason of poverty." Since the provision is among the guarantees ensured by the Bill of
Rights, it certainly gives rise to a demandable right. However, now is not the occasion to elaborate
on the parameters of this constitutional right. Given our preceding discussion, it is not necessary to
utilize this provision in order to grant the relief sought by the petitioners. It is axiomatic that the
constitutionality of an act will not be resolved by the courts if the controversy can be settled on other
grounds73 or unless the resolution thereof is indispensable for the determination of the case.74

One more word. It bears noting that Section 48, Rule 39 acknowledges that the Final Judgment is
not conclusive yet, but presumptive evidence of a right of the petitioners against the Marcos Estate.
Moreover, the Marcos Estate is not precluded to present evidence, if any, of want of jurisdiction,
want of notice to the party, collusion, fraud, or clear mistake of law or fact. This ruling, decisive as it
is on the question of filing fees and no other, does not render verdict on the enforceability of
the Final Judgment before the courts under the jurisdiction of the Philippines, or for that matter any
other issue which may legitimately be presented before the trial court. Such issues are to be
litigated before the trial court, but within the confines of the matters for proof as laid down in Section
48, Rule 39. On the other hand, the speedy resolution of this claim by the trial court is encouraged,
and contumacious delay of the decision on the merits will not be brooked by this Court.

WHEREFORE, the petition is GRANTED. The assailed orders are NULLIFIED and SET ASIDE, and
a new order REINSTATING Civil Case No. 97-1052 is hereby issued. No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES,petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated from the rest of the world behind secret
walls, they are not separated from the constitutional protection of their basic rights. The constitution
is an overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty
and security in the first petition for a writ ofAmparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section
191 of the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact
and law, the Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001,
entitled "Raymond Manalo and Reynaldo Manalo, petitioners, versus The Secretary of National
Defense, the Chief of Staff, Armed Forces of the Philippines, respondents."

This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and agents from depriving them of their
right to liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal
and equitable reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section
6 of the Rules of Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the
Department of National Defense and the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens Armed Forces Geographical
Unit (CAFGU) to submit their Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or depriving them of their right to life, liberty,
and other basic rights as guaranteed under Article III, Section 14 of the 1987 Constitution.5

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on
October 24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2) the Court issue the writ commanding therein
respondents to make a verified return within the period provided by law and containing the specific
matter required by law; (3) they be granted the interim reliefs allowed by the Amparo Rule and all
other reliefs prayed for in the petition but not covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec. 187 of the Amparo Rule; and (5) all other just and
equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under
the Amparo Rule and further resolved, viz:

WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with
the CA (Court of Appeals) a verified written return within five (5) working days from service of
the writ. We REMAND the petition to the CA and designate the Division of Associate Justice
Lucas P. Bersamin to conduct the summary hearing on the petition on November 8, 2007 at
2:00 p.m. and decide the petition in accordance with the Rule on the Writ of Amparo.9

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are
hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from notice of this
decision all official and unofficial reports of the investigation undertaken in connection
with their case, except those already on file herein;

2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka
Rollie Castillo and Donald Caigas within five days from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and charts,
reports of any treatment given or recommended and medicines prescribed, if any, to
the petitioners, to include a list of medical and (sic) personnel (military and civilian)
who attended to them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.

The compliance with this decision shall be made under the signature and oath of respondent
AFP Chief of Staff or his duly authorized deputy, the latter's authority to be express and
made apparent on the face of the sworn compliance with this directive.

SO ORDERED.10

Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein
respondents:

Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006,
several uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the
residents of their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they
were not informed of the gathering, but Raymond saw some of the soldiers when he passed by
the barangay hall.11

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso,
Bulacan. At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the rear of his house, and forced to
the ground face down. He was kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him, but three soldiers stopped her and
told her to stay.12

Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning
de la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized
brothers Randy Mendoza and Rudy Mendoza, also members of the CAFGU. While he was being
forcibly taken, he also saw outside of his house two barangaycouncilors, Pablo Cunanan and
Bernardo Lingasa, with some soldiers and armed men.13

The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-skinned and about 30 years old.14

The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside
him as his brother Reynaldo's. The van stopped several times until they finally arrived at a house.
Raymond and Reynaldo were each brought to a different room. With the doors of their rooms left
open, Raymond saw several soldiers continuously hitting his brother Reynaldo on the head and
other parts of his body with the butt of their guns for about 15 minutes. After which, Reynaldo was
brought to his (Raymond's) room and it was his (Raymond's) turn to be beaten up in the other room.
The soldiers asked him if he was a member of the New People's Army. Each time he said he was
not, he was hit with the butt of their guns. He was questioned where his comrades were, how many
soldiers he had killed, and how many NPA members he had helped. Each time he answered none,
they hit him.15

In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him
up would salute them, call them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents' abduction.16 While these officials interrogated
him, Raymond was not manhandled. But once they had left, the soldier guards beat him up. When
the guards got drunk, they also manhandled respondents. During this time, Raymond was fed only
at night, usually with left-over and rotten food.17

On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat
him up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his
forehead twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a
burning wood. When he could no longer endure the torture and could hardly breathe, they stopped.
They then subjected Reynaldo to the same ordeal in another room. Before their torturers left, they
warned Raymond that they would come back the next day and kill him.18

The following night, Raymond attempted to escape. He waited for the guards to get drunk, then
made noise with the chains put on him to see if they were still awake. When none of them came to
check on him, he managed to free his hand from the chains and jumped through the window. He
passed through a helipad and firing range and stopped near a fishpond where he used stones to
break his chains. After walking through a forested area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing the laundry, asked where he was and the road to
Gapan. He was told that he was in Fort Magsaysay.19 He reached the highway, but some soldiers
spotted him, forcing him to run away. The soldiers chased him and caught up with him. They brought
him to another place near the entrance of what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his back bled. They poured gasoline on him. Then a so-
called "Mam" or "Madam" suddenly called, saying that she wanted to see Raymond before he was
killed. The soldiers ceased the torture and he was returned inside Fort Magsaysay where Reynaldo
was detained.20

For some weeks, the respondents had a respite from all the torture. Their wounds were treated.
When the wounds were almost healed, the torture resumed, particularly when respondents' guards
got drunk.21

Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by
steel bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything
there, including urinating, removing his bowels, bathing, eating and sleeping. He counted that
eighteen people22 had been detained in thatbartolina, including his brother Reynaldo and himself.23

For about three and a half months, the respondents were detained in Fort Magsaysay. They were
kept in a small house with two rooms and a kitchen. One room was made into the bartolina. The
house was near the firing range, helipad and mango trees. At dawn, soldiers marched by their
house. They were also sometimes detained in what he only knew as the "DTU."24

At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took
their urine samples and marked them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other pains in their body. The next
day, two ladies in white arrived. They also examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid. They brought with them the results of respondents'
urine test and advised them to drink plenty of water and take their medicine. The two ladies returned
a few more times. Thereafter, medicines were sent through the "master" of the DTU, "Master" Del
Rosario alias Carinyoso at Puti. Respondents were kept in the DTU for about two weeks. While
there, he met a soldier named Efren who said that Gen. Palparan ordered him to monitor and take
care of them.25

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey house. Hilario and Efren
stayed with them. While there, Raymond was beaten up by Hilario's men.26

From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the
Revo. They were detained in a big unfinished house inside the compound of "Kapitan" for about
three months. When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of
the house to a basketball court in the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms' length away from respondents. He began by asking
if respondents felt well already, to which Raymond replied in the affirmative. He asked Raymond if
he knew him. Raymond lied that he did not. He then asked Raymond if he would be scared if he
were made to face Gen. Palparan. Raymond responded that he would not be because he did not
believe that Gen. Palparan was an evil man.27

Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa
akin?"

Sumagot akong, "Siyempre po, natatakot din..."

Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't
sundin n'yo ang lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa
mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko lang kayo. Sabihin sa
magulang at lahat sa bahay na huwag paloko doon. Tulungan kami na kausapin si Bestre na
sumuko na sa gobyerno."28

Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them
- brought them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in
the Revo because he still could not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were afraid, Raymond's parents
acceded. Hilario threatened Raymond's parents that if they continued to join human rights rallies,
they would never see their children again. The respondents were then brought back to Sapang.29

When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with
the four "masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw
Raymond, he called for him. He was in a big white vehicle. Raymond stood outside the vehicle as
Gen. Palparan told him to gain back his strength and be healthy and to take the medicine he left for
him and Reynaldo. He said the medicine was expensive at Php35.00 each, and would make them
strong. He also said that they should prove that they are on the side of the military and warned that
they would not be given another chance.31 During his testimony, Raymond identified Gen. Palparan
by his picture.32

One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of
this medicine and instructed to take one capsule a day. Arman checked if they were getting their
dose of the medicine. The "Alive" made them sleep each time they took it, and they felt heavy upon
waking up.33

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who
abducted him from his house, and got acquainted with other military men and civilians.34

After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put
on him and he was kept in the barracks.35

The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It
was then he learned that he was in a detachment of the Rangers. There were many soldiers,
hundreds of them were training. He was also ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from Laguna. She told him that she was a student of the
University of the Philippines and was abducted in Hagonoy, Bulacan. She confided that she had
been subjected to severe torture and raped. She was crying and longing to go home and be with her
parents. During the day, her chains were removed and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other
captives, Karen Empeo and Manuel Merino, arrived. Karen and Manuel were put in the room with
"Allan" whose name they later came to know as Donald Caigas, called "master" or "commander" by
his men in the 24th Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at night. They were threatened that if they escaped,
their families would all be killed.37

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should
be thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to
Camp Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond
was instructed to continue using the name "Oscar" and holding himself out as a military trainee. He
got acquainted with soldiers of the 24th Infantry Battalion whose names and descriptions he stated in
his affidavit.38

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed
in that camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there,
battalion soldiers whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach
with their guns. Sherlyn and Karen also suffered enormous torture in the camp. They were all made
to clean, cook, and help in raising livestock.39

Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill all sympathizers of the NPA. They were brought
to Barangay Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin.
The soldiers said he was killed because he had a son who was a member of the NPA and he
coddled NPA members in his house.40 Another time, in another "Operation Lubog," Raymond was
brought to Barangay Orion in a house where NPA men stayed. When they arrived, only the old man
of the house who was sick was there. They spared him and killed only his son right before
Raymond's eyes.41

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five detainees were made to do errands and chores. They
stayed in Zambales from May 8 or 9, 2007 until June 2007.42

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed
and experienced in the camp,viz:

Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na
inaayos ang kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man
kaming makita o marinig, walang nangyari. Kinaumagahan, nakita naming ang bangkay ng
isa sa mga bihag na dinala sa kampo. Mayroong binuhos sa kanyang katawan at ito'y
sinunog. Masansang ang amoy.

Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo
mula sa 6 x 6 na trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang
hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng
kubo, piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at
binaril siya ng sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong
isang Ita malapit sa Post 3; sinilaban ang bangkay at ibinaon ito.

Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga
bangkay mula sa pick up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan
nakita kong mayroong sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa
akin na dinukot sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.

xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw
siya ni Gen. Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan.
Nilakasan ng mga sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig
ko ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig at nakita kong
sinisilaban si Manuel.

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw


pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.

Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni
Manuel sa amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si
Manuel, dahil magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay
magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa gabi, hindi na kami
kinakadena.43

On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise
poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he
would take care of the food of their family. They were also told that they could farm a small plot
adjoining his land and sell their produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as
cousins from Rizal, Laguna.44

Respondents started to plan their escape. They could see the highway from where they stayed.
They helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could
get a cellular phone as he wanted to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They earned some more until they had
saved Php1,400.00 between them.

There were four houses in the compound. Raymond and Reynaldo were housed in one of them
while their guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents' house did not have electricity. They used a lamp. There was no television, but
they had a radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the radio. When none of the guards awoke
and took notice, Raymond and Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound for Manila and were thus freed from
captivity.45
Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they
related to matters they witnessed together. Reynaldo added that when they were taken from their
house on February 14, 2006, he saw the faces of his abductors before he was blindfolded with his
shirt. He also named the soldiers he got acquainted with in the 18 months he was detained. When
Raymond attempted to escape from Fort Magsaysay, Reynaldo was severely beaten up and told
that they were indeed members of the NPA because Raymond escaped. With a .45 caliber pistol,
Reynaldo was hit on the back and punched in the face until he could no longer bear the pain.

At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of
Kapitan, a friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to
represent himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along
Reynaldo in his trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and
made to wait in the vehicle while Hilario was buying. He was also brought to Tondo, Manila where
Hilario delivered boxes of "Alive" in different houses. In these trips, Hilario drove a black and red
vehicle. Reynaldo was blindfolded while still in Bulacan, but allowed to remove the blindfold once
outside the province. In one of their trips, they passed by Fort Magsaysay and Camp Tecson where
Reynaldo saw the sign board, "Welcome to Camp Tecson."46

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo.
Dr. Molino specialized in forensic medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly cases where torture was
involved. He was requested by an NGO to conduct medical examinations on the respondents after
their escape. He first asked them about their ordeal, then proceeded with the physical examination.
His findings showed that the scars borne by respondents were consistent with their account of
physical injuries inflicted upon them. The examination was conducted on August 15, 2007, two days
after respondents' escape, and the results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul Protocol in conducting the
examination.47

Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with
the October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:

13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly
abducted, detained, held incommunicado, disappeared or under the custody by the military.
This is a settled issue laid to rest in the habeas corpus case filed in their behalf by
petitioners' parents before the Court of Appeals in C.A.-G.R. SP No. 94431 against M/Sgt.
Rizal Hilario aka Rollie Castillo, as head of the 24th Infantry Battalion; Maj. Gen. Jovito
Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes
Esperon, in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4, 2006, the Court of Appeals
dropped as party respondents Lt. Gen. Hermogenes C. Esperon, Jr., then Commanding
General of the Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S. Palparan,
then Commanding General, 7th Infantry Division, Philippine Army, stationed at Fort
Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced to
establish their personal involvement in the taking of the Manalo brothers. In a Decision dated
June 27, 2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence
establishing his involvement in any capacity in the disappearance of the Manalo brothers,
although it held that the remaining respondents were illegally detaining the Manalo brothers
and ordered them to release the latter.48
Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner)
Secretary of National Defense, which attested that he assumed office only on August 8, 2007 and
was thus unaware of the Manalo brothers' alleged abduction. He also claimed that:

7. The Secretary of National Defense does not engage in actual military directional
operations, neither does he undertake command directions of the AFP units in the field, nor
in any way micromanage the AFP operations. The principal responsibility of the Secretary of
National Defense is focused in providing strategic policy direction to the Department
(bureaus and agencies) including the Armed Forces of the Philippines;

8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this
case, I have directed the Chief of Staff, AFP to institute immediate action in compliance with
Section 9(d) of the Amparo Rule and to submit report of such compliance... Likewise, in a
Memorandum Directive also dated October 31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the AFP should adopt the following rules of action
in the event the Writ of Amparo is issued by a competent court against any members of the
AFP:

(1) to verify the identity of the aggrieved party;

(2) to recover and preserve evidence related to the death or disappearance of the
person identified in the petition which may aid in the prosecution of the person or
persons responsible;

(3) to identify witnesses and obtain statements from them concerning the death or
disappearance;

(4) to determine the cause, manner, location and time of death or disappearance as
well as any pattern or practice that may have brought about the death or
disappearance;

(5) to identify and apprehend the person or persons involved in the death or
disappearance; and

(6) to bring the suspected offenders before a competent court.49

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the
Writ, attesting that he received the above directive of therein respondent Secretary of National
Defense and that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have
caused to be issued directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent reappearance of the petitioners.

3.2. I have caused the immediate investigation and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05, 2007, addressed to the
Commanding General, Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB
PA). A Copy of the Radio Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparohas been sought for as soon as the same has been furnished
Higher headquarters.

3.4. A parallel investigation has been directed to the same units relative to another Petition
for the Writ ofAmparo (G.R. No. 179994) filed at the instance of relatives of a certain
Cadapan and Empeo pending before the Supreme Court.

3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish
the surrounding circumstances of the disappearances of the petitioners and to bring those
responsible, including any military personnel if shown to have participated or had complicity
in the commission of the complained acts, to the bar of justice, when warranted by the
findings and the competent evidence that may be gathered in the process.50

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeo and
Merino, which averred among others, viz:

10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion
detachment as detention area, I immediately went to the 24th IB detachment in Limay,
Bataan and found no untoward incidents in the area nor any detainees by the name of
Sherlyn Cadapan, Karen Empeo and Manuel Merino being held captive;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay,
Bataan;

12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine
National Police, Limay, Bataan regarding the alleged detentions or deaths and were
informed that none was reported to their good office;

13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged
beachhouse in Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan,
Karen Empeo and Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been used by armed men to
detain Cadapan, Empeo and Merino.51

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen
Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission of the Return and would be
subsequently submitted.52

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan,
Pampanga, Tarlac and a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54

On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry
Division, Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged
abduction of the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz;
CAA Roman de la Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA
Marcelo de la Cruz aka Madning; and a civilian named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news about the abduction of the
Manalo brothers on the television, and he was concerned about what was happening within his
territorial jurisdiction.58

Jimenez summoned all six implicated persons for the purpose of having them execute sworn
statements and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in
the morning and finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all six persons on that day. There were no other
sworn statements taken, not even of the Manalo family, nor were there other witnesses summoned
and investigated61 as according to Jimenez, the directive to him was only to investigate the six
persons.62

Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known
to Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single
question to the six persons.65

Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and
Rudy Mendoza had to come back the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that the two signed on May 30,
2006, but the jurats of their statements indicated that they were signed on May 29, 2006.66 When the
Sworn Statements were turned over to Jimenez, he personally wrote his investigation report. He
began writing it in the afternoon of May 30, 2006 and finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of Personnel.68

As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence,
the report is herein substantially quoted:

III. BACKGROUND OF THE CASE

4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who
were forcibly taken from their respective homes in Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on 14 February 2006 by unidentified armed men and thereafter were forcibly
disappeared. After the said incident, relatives of the victims filed a case for Abduction in the
civil court against the herein suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela
Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).

a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit
"B") states that he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan
doing the concrete building of a church located nearby his residence, together with some
neighbor thereat. He claims that on 15 February 2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the abduction of the brothers Raymond and Reynaldo
Manalo. As to the allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that those who abducted the
Manalo brothers are members of the Military and CAFGU. Subject vehemently denied any
participation or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member based at Biak na Bato Detachment, San Miguel,
Bulacan. He claims that Raymond and Reynaldo Manalo being his neighbors are active
members/sympathizers of the CPP/NPA and he also knows their elder Rolando Manalo @
KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he
claims that on February 14, 2006, he was one of those working at the concrete chapel being
constructed nearby his residence. He claims further that he just came only to know about the
incident on other day (15 Feb 06) when he was being informed by Kagawad Pablo Kunanan.
That subject CAA vehemently denied any participation about the incident and claimed that
they only implicated him because he is a member of the CAFGU.

c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member
of CAFGU based at Biak na Bato Detachment. That being a neighbor, he was very much
aware about the background of the two (2) brothers Raymond and Reynaldo as active
supporters of the CPP NPA in their Brgy. and he also knew their elder brother "KUMANDER
BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14 February
2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he
learned only about the incident when he arrived home in their place. He claims further that
the only reason why they implicated him was due to the fact that his mother has filed a
criminal charge against their brother Rolando Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for that reason they implicated him in support of their
brother. Subject CAA vehemently denied any involvement on the abduction of said Manalo
brothers.

d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states
that he is a resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and
Reynaldo Manalo are familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims that on 14 February
2006, he was at his residence in Brgy. Marungko, Angat, Bulacan. He claims that he was
being informed only about the incident lately and he was not aware of any reason why the
two (2) brothers were being abducted by alleged members of the military and CAFGU. The
only reason he knows why they implicated him was because there are those people who are
angry with their family particularly victims of summary execution (killing) done by their brother
@ KA Bestre Rolando Manalo who is an NPA leader. He claims further that it was their
brother @ KA BESTRE who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the abduction of the Manalo brothers.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a
farmer and a former CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio mate. He claims further
that they are active supporters of CPP/NPA and that their brother Rolando Manalo @ KA
BESTRE is an NPA leader. Being one of the accused, he claims that on 14 February 2006,
he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of the alleged abduction of the two (2) brothers
and learned only about the incident when rumors reached him by his barrio mates. He claims
that his implication is merely fabricated because of his relationship to Roman and Maximo
who are his brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan,
the Chief of Brgy. Tanod and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers Raymond and Reynaldo
Manalo in their barangay for having been the Tanod Chief for twenty (20) years. He alleged
further that they are active supporters or sympathizers of the CPP/NPA and whose elder
brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being
one of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their
concrete chapel in their place and he learned only about the incident which is the abduction
of Raymond and Reynaldo Manalo when one of the Brgy. Kagawad in the person of Pablo
Cunanan informed him about the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he considers everything fabricated
in order to destroy his name that remains loyal to his service to the government as a CAA
member.

IV. DISCUSSION

5. Based on the foregoing statements of respondents in this particular case, the proof of
linking them to the alleged abduction and disappearance of Raymond and Reynaldo Manalo
that transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, is unsubstantiated. Their alleged involvement theretofore to that incident is
considered doubtful, hence, no basis to indict them as charged in this investigation.

Though there are previous grudges between each families (sic) in the past to quote: the
killing of the father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo,
this will not suffice to establish a fact that they were the ones who did the abduction as a
form of revenge. As it was also stated in the testimony of other accused claiming that the
Manalos are active sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the abductors. Being their
neighbors and as members of CAFGU's, they ought to be vigilant in protecting their village
from any intervention by the leftist group, hence inside their village, they were fully aware of
the activities of Raymond and Reynaldo Manalo in so far as their connection with the
CPP/NPA is concerned.

V. CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction
committed by the above named respondents has not been established in this investigation.
Hence, it lacks merit to indict them for any administrative punishment and/or criminal liability.
It is therefore concluded that they are innocent of the charge.

VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated
from the case.

8. Upon approval, this case can be dropped and closed.69

In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision on the following grounds, viz:
I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND


GIVING FULL FAITH AND CREDIT TO THE INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-SERVING
AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING


RESPONDENTS (HEREIN PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL AND UNOFFICIAL
REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO THEM FROM
FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70

The case at bar is the first decision on the application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its beginning.

The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to
provide a broad and fact-based perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the political and social spectrum, as well
as all the stakeholders in the justice system"72 participated in mapping out ways to resolve the crisis.

On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in response to the Filipino experience of the martial law
regime.74 As the Amparo Rule was intended to address the intractable problem of "extralegal killings"
and "enforced disappearances," its coverage, in its present form, is confined to these two instances
or to threats thereof. "Extralegal killings" are "killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings."75 On the other hand, "enforced disappearances"
are "attended by the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose the fate or whereabouts of the
person concerned or a refusal to acknowledge the deprivation of liberty which places such persons
outside the protection of law."76

The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837,
de Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of
them, Manuel Crescencio Rejn, drafted a constitutional provision for his native state,
Yucatan,79 which granted judges the power to protect all persons in the enjoyment of their
constitutional and legal rights. This idea was incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the exercise and
preservation of those rights granted to him by this Constitution and by laws enacted pursuant
hereto, against attacks by the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the specific case in litigation,
making no general declaration concerning the statute or regulation that motivated the
violation.80

Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing,
the judge determines that a constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations on judicial power characteristic
of the civil law tradition which prevails in Mexico. It enables courts to enforce the constitution by
protecting individual rights in particular cases, but prevents them from using this power to make law
for the entire nation.82

The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of
the Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the
world's legal heritage that institution which, as a shield of human dignity, her own painful history
conceived."84 What began as a protection against acts or omissions of public authorities in violation
of constitutional rights later evolved for several purposes: (1) Amparo libertad for the protection of
personal freedom, equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial
review of the constitutionality of statutes; (3) Amparo casacion for the judicial review of the
constitutionality and legality of a judicial decision; (4) Amparo administrativo for the judicial review of
administrative actions; and (5)Amparo agrario for the protection of peasants' rights derived from the
agrarian reform process.85

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to
protect against human rights abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit the protection of the writ ofAmparo only to some
constitutional guarantees or fundamental rights.87

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo,
several of the aboveAmparo protections are guaranteed by our charter. The second paragraph of
Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial
power "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." The Clause
accords a similar general protection to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is comparable to the remedy of habeas
corpus found in several provisions of the 1987 Constitution.88 The Clause is an offspring of the U.S.
common law tradition of judicial review, which finds its roots in the 1803 case of Marbury v.
Madison.89

While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal
killings and enforced disappearances. However, with the swiftness required to resolve a petition for a
writ of Amparo through summary proceedings and the availability of appropriate interim and
permanent reliefs under the Amparo Rule, this hybrid writ of the common law and civil law traditions
- borne out of the Latin American and Philippine experience of human rights abuses - offers a better
remedy to extralegal killings and enforced disappearances and threats thereof. The remedy provides
rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to
make the appropriate reliefs available to the petitioner; it is not an action to determine criminal guilt
requiring proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require full and
exhaustive proceedings.91

The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in
the commission of these offenses; it is curative in that it facilitates the subsequent punishment of
perpetrators as it will inevitably yield leads to subsequent investigation and action. In the long run,
the goal of both the preventive and curative roles is to deter the further commission of extralegal
killings and enforced disappearances.

In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August 23, 2007,93 prior to the
promulgation of the Amparo Rule. They also sought ancillary remedies including Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the
Rules of Court. When the Amparo Rule came into effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it would be more effective and suitable to the
circumstances of the Manalo brothers' enforced disappearance. The Court granted their motion.

With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:

The Court of Appeals seriously and grievously erred in believing and giving full faith and
credit to the incredible uncorroborated, contradicted, and obviously scripted, rehearsed and
self-serving affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause
of action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person
whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof.
(emphasis supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish
their claims bysubstantial evidence.

xxx xxx xxx


Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.95

After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously detained until they escaped on
August 13, 2007. The abduction, detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His account is dotted with countless
candid details of respondents' harrowing experience and tenacious will to escape, captured through
his different senses and etched in his memory. A few examples are the following: "Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May
naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis
ang bakas."98 "Tumigil ako sa may palaisdaan kung saan ginamit ko ang bato para tanggalin ang
mga kadena."99 "Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng cell phone; sabi
ko gusto kong i-text ang isang babae na nakatira sa malapit na lugar."100

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's
affidavit and testimony, viz:

...the abduction was perpetrated by armed men who were sufficiently identified by the
petitioners (herein respondents) to be military personnel and CAFGU auxiliaries. Raymond
recalled that the six armed men who barged into his house through the rear door were
military men based on their attire of fatigue pants and army boots, and the CAFGU
auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la Cruz and Pula de la
Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and the
brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts
during the abduction. Raymond was sure that three of the six military men were Ganata, who
headed the abducting team, Hilario, who drove the van, and George. Subsequent incidents
of their long captivity, as narrated by the petitioners, validated their assertion of the
participation of the elements of the 7th Infantry Division, Philippine Army, and their CAFGU
auxiliaries.

We are convinced, too, that the reason for the abduction was the suspicion that the
petitioners were either members or sympathizers of the NPA, considering that the abductors
were looking for Ka Bestre, who turned out to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction were, at best, merely
superficial. The investigation of the Provost Marshall of the 7th Infantry Division focused on
the one-sided version of the CAFGU auxiliaries involved. This one-sidedness might be due
to the fact that the Provost Marshall could delve only into the participation of military
personnel, but even then the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated...

Gen. Palparan's participation in the abduction was also established. At the very least, he was
aware of the petitioners' captivity at the hands of men in uniform assigned to his command.
In fact, he or any other officer tendered no controversion to the firm claim of Raymond that
he (Gen. Palparan) met them in person in a safehouse in Bulacan and told them what he
wanted them and their parents to do or not to be doing. Gen. Palparan's direct and personal
role in the abduction might not have been shown but his knowledge of the dire situation of
the petitioners during their long captivity at the hands of military personnel under his
command bespoke of his indubitable command policy that unavoidably encouraged and not
merely tolerated the abduction of civilians without due process of law and without probable
cause.

In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices
Buzon, chairman; Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr.,
member/ponente.) found no clear and convincing evidence to establish that M/Sgt. Rizal
Hilario had anything to do with the abduction or the detention. Hilario's involvement could
not, indeed, be then established after Evangeline Francisco, who allegedly saw Hilario drive
the van in which the petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L-300 van in which the
petitioners were brought away from their houses on February 14, 2006. Raymond also
attested that Hilario participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort Magsaysay on board a
Revo and conveyed them to a detachment in Pinaud, San Ildefonso, Bulacan where they
were detained for at least a week in a house of strong materials (Exhibit D, rollo, p. 205) and
then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board the
Revo, to an unfinished house inside the compound of Kapitan where they were kept for more
or less three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to
face with Gen. Palparan. Hilario and Efren also brought the petitioners one early morning to
the house of the petitioners' parents, where only Raymond was presented to the parents to
relay the message from Gen. Palparan not to join anymore rallies. On that occasion, Hilario
warned the parents that they would not again see their sons should they join any rallies to
denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario was also among four
Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen. Palparan required Raymond to take the medicines for
his health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that
Hilario had a direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and forced
disappearance of the petitioners was established. The participation of other military
personnel like Arman, Ganata, Cabalse and Caigas, among others, was similarly
established.

xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the
abduction. We also do, for, indeed, the evidence of their participation is overwhelming.101

We reject the claim of petitioners that respondent Raymond Manalo's statements were not
corroborated by other independent and credible pieces of evidence.102 Raymond's affidavit and
testimony were corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also corroborate respondents' accounts of the torture
they endured while in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort
Magsaysay such as the "DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be
the "Division Training Unit,"104 firms up respondents' story that they were detained for some time in
said military facility.

In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November 1989. The Commission's findings of fact were mostly
based on the consistent and credible statements, written and oral, made by Sister Ortiz regarding
her ordeal.106 These statements were supported by her recognition of portions of the route they took
when she was being driven out of the military installation where she was detained.107 She was also
examined by a medical doctor whose findings showed that the 111 circular second degree burns on
her back and abrasions on her cheek coincided with her account of cigarette burning and torture she
suffered while in detention.108

With the secret nature of an enforced disappearance and the torture perpetrated on the victim during
detention, it logically holds that much of the information and evidence of the ordeal will come from
the victims themselves, and the veracity of their account will depend on their credibility and
candidness in their written and/or oral statements. Their statements can be corroborated by other
evidence such as physical evidence left by the torture they suffered or landmarks they can identify in
the places where they were detained. Where powerful military officers are implicated, the hesitation
of witnesses to surface and testify against them comes as no surprise.

We now come to the right of the respondents to the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity and surfaced. But while respondents admit that
they are no longer in detention and are physically free, they assert that they are not "free in every
sense of the word"109 as their "movements continue to be restricted for fear that people they have
named in their Judicial Affidavits and testified against (in the case of Raymond) are still at large and
have not been held accountable in any way. These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied) Respondents claim that they are under threat of being once
again abducted, kept captive or even killed, which constitute a direct violation of their right to
security of person.111

Elaborating on the "right to security, in general," respondents point out that this right is "often
associated with liberty;" it is also seen as an "expansion of rights based on the prohibition against
torture and cruel and unusual punishment." Conceding that there is no right to security expressly
mentioned in Article III of the 1987 Constitution, they submit that their rights "to be kept free from
torture and from incommunicado detention and solitary detention places112 fall under the general
coverage of the right to security of person under the writ of Amparo." They submit that the Court
ought to give an expansive recognition of the right to security of person in view of the State Policy
under Article II of the 1987 Constitution which enunciates that, "The State values the dignity of every
human person and guarantees full respect for human rights." Finally, to justify a liberal interpretation
of the right to security of person, respondents cite the teaching in Moncupa v. Enrile113 that "the
right to liberty may be made more meaningful only if there is no undue restraint by the State on the
exercise of that liberty"114 such as a requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty"115 or being put under "monitoring and surveillance."116

In sum, respondents assert that their cause of action consists in the threat to their right to life and
liberty, and aviolation of their right to security.
Let us put this right to security under the lens to determine if it has indeed been violated as
respondents assert. The right to security or the right to security of person finds a textual hook
in Article III, Section 2 of the 1987 Constitution which provides, viz:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge...

At the core of this guarantee is the immunity of one's person, including the extensions of his/her
person - houses, papers, and effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more importantly, protects the privacy and
sanctity of the person himself.117 The purpose of this provision was enunciated by the Court
in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118

The purpose of the constitutional guarantee against unreasonable searches and seizures is
to prevent violations of private security in person and property and unlawful invasion of the
security of the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpation when attempted. (Adams v. New York, 192 U.S. 858;
Alvero v. Dizon, 76 Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every individual, whether it be
of home or of persons and correspondence. (Taada and Carreon, Political Law of the
Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right
against unreasonable searches and seizures must be deemed absolute as nothing is
closer to a man's soul than the serenity of his privacy and the assurance of his
personal security. Any interference allowable can only be for the best causes and
reasons.119 (emphases supplied)

While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 -
upon which the enjoyment of all other rights is preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: "The life to which each person has a right is not a life
lived in fear that his person and property may be unreasonably violated by a powerful ruler. Rather, it
is a life lived with the assurance that the government he established and consented to, will protect
the security of his person and property. The ideal of security in life and property... pervades the
whole history of man. It touches every aspect of man's existence."122 In a broad sense, the right to
security of person "emanates in a person's legal and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. It includes the right to exist, and the right to enjoyment of life
while existing, and it is invaded not only by a deprivation of life but also of those things which are
necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the
individual."123

A closer look at the right to security of person would yield various permutations of the exercise of this
right.

First, the right to security of person is "freedom from fear." In its "whereas" clauses,
the Universal Declaration of Human Rights (UDHR) enunciates that "a world in which human
beings shall enjoy freedom of speech and belief and freedom from fear and want has been
proclaimed as the highest aspiration of the common people." (emphasis supplied) Some scholars
postulate that "freedom from fear" is not only an aspirational principle, but essentially an individual
international human right.124 It is the "right to security of person" as the word "security" itself means
"freedom from fear."125 Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126 (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil
and Political Rights (ICCPR) also provides for the right to security of person, viz:

1. Everyone has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds
and in accordance with such procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action. Fear caused by the same stimulus can range from
being baseless to well-founded as people react differently. The degree of fear can vary from one
person to another with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct to say that the
"right to security" is actually the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule is a form of violation of the right to
security mentioned in the earlier part of the provision.127

Second, the right to security of person is a guarantee of bodily and psychological integrity or
security. Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body
cannot be searched or invaded without a search warrant.128 Physical injuries inflicted in the context
of extralegal killings and enforced disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and painful physical intrusion. As the
degree of physical injury increases, the danger to life itself escalates. Notably, in criminal law,
physical injuries constitute a crime against persons because they are an affront to the bodily integrity
or security of a person.129

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as the dignity of the human person
includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:

(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free
will shall be used against him (any person under investigation for the commission of an
offense). Secret detention places, solitary, incommunicado or other similar forms of detention
are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation
for the commission of an offense. Victims of enforced disappearances who are not even under such
investigation should all the more be protected from these degradations.

An overture to an interpretation of the right to security of person as a right against torture was made
by the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this
case, the claimant, who was lawfully detained, alleged that the state authorities had physically
abused him in prison, thereby violating his right to security of person. Article 5(1) of the European
Convention on Human Rights provides, viz: "Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law ..." (emphases supplied) Article 3, on the other hand, provides that "(n)o
one shall be subjected to torture or to inhuman or degrading treatment or punishment." Although the
application failed on the facts as the alleged ill-treatment was found baseless, the ECHR relied
heavily on the concept of security in holding, viz:

...the applicant did not bring his allegations to the attention of domestic authorities at the time
when they could reasonably have been expected to take measures in order to ensure
his security and to investigate the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to comply with the procedural
obligation under Art.3 to conduct an effective investigation into his allegations.131 (emphasis
supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement
that the protection of the bodily integrity of women may also be related to the right to security and
liberty, viz:

...gender-based violence which impairs or nullifies the enjoyment by women of human rights
and fundamental freedoms under general international law or under specific human rights
conventions is discrimination within the meaning of article 1 of the Convention (on the
Elimination of All Forms of Discrimination Against Women). These rights and freedoms
include . . . the right to liberty and security of person.132

Third, the right to security of person is a guarantee of protection of one's rights by the
government. In the context of the writ of Amparo, this right is built into the guarantees of the right
to life and liberty under Article III, Section 1 of the 1987 Constitution and the right to security of
person (as freedom from threat and guarantee of bodily and psychological integrity) under Article III,
Section 2. The right to security of person in this third sense is a corollary of the policy that the State
"guarantees full respect for human rights" under Article II, Section 11 of the 1987 Constitution.133 As
the government is the chief guarantor of order and security, the Constitutional guarantee of the rights
to life, liberty and security of person is rendered ineffective if government does not afford protection
to these rights especially when they are under threat. Protection includes conducting effective
investigations, organization of the government apparatus to extend protection to victims of extralegal
killings or enforced disappearances (or threats thereof) and/or their families, and bringing offenders
to the bar of justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case,134viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and
be assumed by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government.135

This third sense of the right to security of person as a guarantee of government protection has been
interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of person appears in conjunction with the right to liberty
under Article 9, the Committee has ruled that the right to security of person can exist
independently of the right to liberty. In other words, there need not necessarily be a deprivation of
liberty for the right to security of person to be invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a secondary school in Leticia, Colombia, whose social
views differed from those of the Apostolic Prefect of Leticia, the Committee held, viz:

The first sentence of article 9 does not stand as a separate paragraph. Its location as a part
of paragraph one could lead to the view that the right to security arises only in the context of
arrest and detention. The travaux prparatoires indicate that the discussions of the first
sentence did indeed focus on matters dealt with in the other provisions of article 9. The
Universal Declaration of Human Rights, in article 3, refers to the right to life, the right
to liberty and the right to security of the person. These elements have been dealt with
in separate clauses in the Covenant. Although in the Covenant the only reference to
the right of security of person is to be found in article 9, there is no evidence that it
was intended to narrow the concept of the right to security only to situations of formal
deprivation of liberty. At the same time, States parties have undertaken to guarantee
the rights enshrined in the Covenant. It cannot be the case that, as a matter of law,
States can ignore known threats to the life of persons under their jurisdiction, just
because that he or she is not arrested or otherwise detained. States parties are under
an obligation to take reasonable and appropriate measures to protect them. An
interpretation of article 9 which would allow a State party to ignore threats to the
personal security of non-detained persons within its jurisdiction would render totally
ineffective the guarantees of the Covenant.139(emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and
prisoner of conscience who continued to be intimidated, harassed, and restricted in his movements
following his release from detention. In a catena of cases, the ruling of the Committee was of a
similar import: Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and
persecution of opponents of the ruling party in that state;Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a supporter of democratic reform in Zaire; Dias v.
Angola,143 involving the murder of the complainant's partner and the harassment he
(complainant) suffered because of his investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on the chairman of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.145 The ECHR interpreted the "right to security of
person" under Article 5(1) of the European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the claimant's son had been arrested by
state authorities and had not been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant suggested that this was a
violation of her son's right to security of person. The ECHR ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the very
purpose of Article 5, namely to protect the individual from arbitrariness... Having assumed
control over that individual it is incumbent on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to conduct a
prompt effective investigation into an arguable claim that a person has been taken
into custody and has not been seen since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to the case at bar, we now
determine whether there is a continuing violation of respondents' right to security.

First, the violation of the right to security as freedom from threat to respondents' life, liberty
and security.

While respondents were detained, they were threatened that if they escaped, their families, including
them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he
was caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam,"
who wanted to see him before he was killed, spared him.

This time, respondents have finally escaped. The condition of the threat to be killed has come to
pass. It should be stressed that they are now free from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in his affidavit, viz:

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw


pagkalipas. Sinabi sa amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng
mga sundalo kung papatayin kami o hindi.148

The possibility of respondents being executed stared them in the eye while they were in detention.
With their escape, this continuing threat to their life is apparent, moreso now that they have surfaced
and implicated specific officers in the military not only in their own abduction and torture, but also in
those of other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeo, and
Manuel Merino, among others.

Understandably, since their escape, respondents have been under concealment and protection by
private citizens because of the threat to their life, liberty and security. The threat vitiates their free will
as they are forced to limit their movements or activities.149 Precisely because respondents are being
shielded from the perpetrators of their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to their life, liberty and security.
Nonetheless, the circumstances of respondents' abduction, detention, torture and escape
reasonably support a conclusion that there is an apparent threat that they will again be abducted,
tortured, and this time, even executed. These constitute threats to their liberty, security, and life,
actionable through a petition for a writ of Amparo.

Next, the violation of the right to security as protection by the government. Apart from the
failure of military elements to provide protection to respondents by themselves perpetrating the
abduction, detention, and torture, they also miserably failed in conducting an effective investigation
of respondents' abduction as revealed by the testimony and investigation report of petitioners' own
witness, Lt. Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six implicated members of the CAFGU and civilians
whom he met in the investigation for the first time. He was present at the investigation when his
subordinate Lingad was taking the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did not call for other witnesses to test
the alibis given by the six implicated persons nor for the family or neighbors of the respondents.
In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the
AFP should adopt rules of action in the event the writ of Amparo is issued by a competent court
against any members of the AFP, which should essentially include verification of the identity of the
aggrieved party; recovery and preservation of relevant evidence; identification of witnesses and
securing statements from them; determination of the cause, manner, location and time of death or
disappearance; identification and apprehension of the person or persons involved in the death or
disappearance; and bringing of the suspected offenders before a competent court.150 Petitioner AFP
Chief of Staff also submitted his own affidavit attesting that he received the above directive of
respondent Secretary of National Defense and that acting on this directive, he immediately caused
to be issued a directive to the units of the AFP for the purpose of establishing the circumstances of
the alleged disappearance and the recent reappearance of the respondents, and undertook to
provide results of the investigations to respondents.151 To this day, however, almost a year after the
policy directive was issued by petitioner Secretary of National Defense on October 31, 2007,
respondents have not been furnished the results of the investigation which they now seek through
the instant petition for a writ of Amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.

In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on
the part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.

First, that petitioners furnish respondents all official and unofficial reports of the
investigation undertaken in connection with their case, except those already in file with the court.

Second, that petitioners confirm in writing the present places of official assignment of M/Sgt.
Hilario aka Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records
and charts, and reports of any treatment given or recommended and medicines prescribed, if
any, to the Manalo brothers, to include a list of medical personnel (military and civilian) who
attended to them from February 14, 2006 until August 12, 2007.

With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be complied with prior to the grant of the production order,
namely: (1) the application must be under oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and the things to be seized; (3) there exists probable
cause with one specific offense; and (4) the probable cause must be personally determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce.152 In the case at bar, however, petitioners point out that other than the bare, self-serving
and vague allegations made by respondent Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be produced are only mentioned generally by name,
with no other supporting details. They also argue that the relevancy of the documents to be
produced must be apparent, but this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order under the Amparo Rule should not
be confused with a search warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the people from the unreasonable
intrusion of the government, not a protection of the government from the demand of the people such
as respondents.

Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in which an action
is pending may (a) order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any designated documents,
papers, books of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any matter involved in the
action and which are in his possession, custody or control...

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of
Rule 27, issued a subpoena duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the
subpoena on the ground that it violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure that "cannot be identified or
confused with unreasonable searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as
soon as the same has been furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is irrelevant, improper, immaterial, and unnecessary in the
resolution of the petition for a writ of Amparo. They add that it will unnecessarily compromise and
jeopardize the exercise of official functions and duties of military officers and even unwittingly and
unnecessarily expose them to threat of personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, whom respondents both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also help ensure that these military officers can be
served with notices and court processes in relation to any investigation and action for violation of the
respondents' rights. The list of medical personnel is also relevant in securing information to create
the medical history of respondents and make appropriate medical interventions, when applicable
and necessary.

In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that
gives voice to preys of silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of
Appeals dated December 26, 2007 is affirmed.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 173034 October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES, petitioner,


vs.
HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.
ETHELYN P. NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR.
JADE F. DEL MUNDO; and ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR.
DAVID J. LOZADA, AND DR. NEMESIO T. GAKO,respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The Court and all parties involved are in agreement that the best nourishment for an infant is
mother's milk. There is nothing greater than for a mother to nurture her beloved child straight from
her bosom. The ideal is, of course, for each and every Filipino child to enjoy the unequaled benefits
of breastmilk. But how should this end be attained?

Before the Court is a petition for certiorari under Rule 65 of the Rules of Court, seeking to nullify
Administrative Order (A.O.) No. 2006-0012 entitled, Revised Implementing Rules and
Regulations of Executive Order No. 51, Otherwise Known as The "Milk Code," Relevant
International Agreements, Penalizing Violations Thereof, and for Other Purposes (RIRR).
Petitioner posits that the RIRR is not valid as it contains provisions that are not constitutional and go
beyond the law it is supposed to implement.

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

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on October 28, 1986
by virtue of the legislative powers granted to the president under the Freedom Constitution. One of
the preambular clauses of the Milk Code states that the law seeks to give effect to Article 112 of the
International Code of Marketing of Breastmilk Substitutes (ICMBS), a code adopted by the World
Health Assembly (WHA) in 1981. From 1982 to 2006, the WHA adopted several Resolutions to the
effect that breastfeeding should be supported, promoted and protected, hence, it should be ensured
that nutrition and health claims are not permitted for breastmilk substitutes.

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

On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are manufacturers of
breastmilk substitutes, filed the present Petition for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the DOH acted without or in
excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and in violation of the provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining respondents from
implementing the questioned RIRR.

After the Comment and Reply had been filed, the Court set the case for oral arguments on June 19,
2007. The Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to wit:

The Court hereby sets the following issues:

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

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing Rules and
Regulations (RIRR) issued by the Department of Health (DOH) is not constitutional;

2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51 (Milk Code);

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

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

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient standards.

_____________

1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and Unicef "2002
Global Strategy on Infant and Young Child Feeding;" and (3) various World Health Assembly
(WHA) Resolutions.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the real party-in-interest,
the Court adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to its members.
This view fuses the legal identity of an association with that of its members. An association
has standing to file suit for its workers despite its lack of direct interest if its members
are affected by the action. An organization has standing to assert the concerns of its
constituents.

xxxx

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

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

Herein petitioner's Amended Articles of Incorporation contains a similar provision just like in
Executive Secretary, that the association is formed "to represent directly or through approved
representatives the pharmaceutical and health care industry before the Philippine Government and
any of its agencies, the medical professions and the general public."8 Thus, as an organization,
petitioner definitely has an interest in fulfilling its avowed purpose of representing members who are
part of the pharmaceutical and health care industry. Petitioner is duly authorized9 to take the
appropriate course of action to bring to the attention of government agencies and the courts any
grievance suffered by its members which are directly affected by the RIRR. Petitioner, which is
mandated by its Amended Articles of Incorporation to represent the entire industry, would be remiss
in its duties if it fails to act on governmental action that would affect any of its industry members, no
matter how few or numerous they are. Hence, petitioner, whose legal identity is deemed fused with
its members, should be considered as a real party-in-interest which stands to be benefited or injured
by any judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted to by respondents are
part of the law of the land.

Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk Code, thereby
amending and expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk Code but also various international instruments10 regarding infant and
young child nutrition. It is respondents' position that said international instruments are deemed part
of the law of the land and therefore the DOH may implement them through the RIRR.

The Court notes that the following international instruments invoked by respondents, namely: (1) The
United Nations Convention on the Rights of the Child; (2) The International Covenant on Economic,
Social and Cultural Rights; and (3) the Convention on the Elimination of All Forms of Discrimination
Against Women, only provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and inform society of the advantages of breastfeeding, ensure the health
and well-being of families, and ensure that women are provided with services and nutrition in
connection with pregnancy and lactation. Said instruments do not contain specific provisions
regarding the use or marketing of breastmilk substitutes.
The international instruments that do have specific provisions regarding breastmilk substitutes are
the ICMBS and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere of domestic law either
bytransformation or incorporation.11 The transformation method requires that an international law
be transformed into a domestic law through a constitutional mechanism such as local legislation.
The incorporation method applies when, by mere constitutional declaration, international law is
deemed to have the force of domestic law.12

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

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

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

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

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

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

embodies the incorporation method.14

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

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


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

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

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

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

xxxx

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

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

xxxx

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

xxxx

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

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

WHA Resolutions have not been embodied in any local legislation. Have they attained the status of
customary law and should they then be deemed incorporated as part of the law of the land?
The World Health Organization (WHO) is one of the international specialized agencies allied with the
United Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN Charter. Under the
1946 WHO Constitution, it is the WHA which determines the policies of the WHO,26 and has the
power to adopt regulations concerning "advertising and labeling of biological, pharmaceutical and
similar products moving in international commerce,"27and to "make recommendations to members
with respect to any matter within the competence of the Organization."28 The legal effect of its
regulations, as opposed to recommendations, is quite different.

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

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

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

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

Article 22. Regulations adopted pursuant to Article 21 shall come into force for all
Members after due notice has been given of their adoption by the Health Assembly except
for such Members as may notify the Director-General of rejection or reservations within the
period stated in the notice. (Emphasis supplied)

On the other hand, under Article 23, recommendations of the WHA do not come into force for
members, in the same way that conventions or agreements under Article 19 and regulations under
Article 21 come into force. Article 23 of the WHO Constitution reads:

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

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

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

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

The Introduction to the ICMBS also reads as follows:

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

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

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

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

It is propounded that WHA Resolutions may constitute "soft law" or non-binding norms, principles
and practices that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth in Article 38, Chapter
III of the 1946 Statute of the International Court of Justice.32 It is, however, an expression of non-
binding norms, principles, and practices that influence state behavior.33 Certain declarations and
resolutions of the UN General Assembly fall under this category.34 The most notable is the UN
Declaration of Human Rights, which this Court has enforced in various cases,
specifically, Government of Hongkong Special Administrative Region v. Olalia,35 Mejoff v. Director of
Prisons,36 Mijares v. Raada37 and Shangri-la International Hotel Management, Ltd. v. Developers
Group of Companies, Inc..38

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

WHO has resorted to soft law. This was most evident at the time of the Severe Acute Respiratory
Syndrome (SARS) and Avian flu outbreaks.
Although the IHR Resolution does not create new international law binding on WHO
member states, it provides an excellent example of the power of "soft law" in
international relations. International lawyers typically distinguish binding rules of
international law-"hard law"-from non-binding norms, principles, and practices that
influence state behavior-"soft law." WHO has during its existence generated many
soft law norms, creating a "soft law regime" in international governance for public
health.

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

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

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

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

As previously discussed, for an international rule to be considered as customary law, it must be


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

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

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

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

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

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

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

The national policy of protection, promotion and support of breastfeeding cannot automatically be
equated with a total ban on advertising for breastmilk substitutes.

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

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

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

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

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

MILK CODE RIRR


WHEREAS, in order to ensure that Section 2. Purpose These
safe and adequate nutrition for Revised Rules and Regulations are
infants is provided, there is a need to hereby promulgated to ensure the
protect and promote breastfeeding provision of safe and adequate
and to inform the public about the nutrition for infants and young
proper use of breastmilk substitutes children by the promotion, protection
and supplements and related and support of breastfeeding and by
products through adequate, ensuring the proper use of breastmilk
consistent and objective information substitutes, breastmilk supplements
and appropriate regulation of the and related products when these are
marketing and distribution of the said medically indicated and only when
substitutes, supplements and related necessary, on the basis of adequate
products; information and through appropriate
marketing and distribution.
SECTION 4(e). "Infant" means a
person falling within the age bracket Section 5(ff). "Young Child" means a
of 0-12 months. person from the age of more than
twelve (12) months up to the age of
three (3) years (36 months).

2. The Milk Code recognizes that infant formula may be a proper and possible substitute for
breastmilk in certain instances; but the RIRR provides "exclusive breastfeeding for infants
from 0-6 months" and declares that "there is no substitute nor replacement for breastmilk":

MILK CODE RIRR


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

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

MILK CODE RIRR


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

Section 13. "Total Effect" -


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

Section 15. Content of Materials. -


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

a. Texts, pictures, illustrations or


information which discourage or tend
to undermine the benefits or
superiority of breastfeeding or which
idealize the use of breastmilk
substitutes and milk supplements. In
this connection, no pictures of babies
and children together with their
mothers, fathers, siblings,
grandparents, other relatives or
caregivers (or yayas) shall be used in
any advertisements for infant formula
and breastmilk supplements;

b. The term "humanized,"


"maternalized," "close to mother's
milk" or similar words in describing
breastmilk substitutes or milk
supplements;

c. Pictures or texts that idealize the


use of infant and milk formula.

Section 16. All health and nutrition


claims for products within the scope
of the Code are absolutely prohibited.
For this purpose, any phrase or
words that connotes to increase
emotional, intellectual abilities of the
infant and young child and other like
phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk Code:

MILK CODE RIRR


SECTION 10. Containers/Label. Section 26. Content Each
container/label shall contain such
(a) Containers and/or labels shall be message, in both Filipino and English
designed to provide the necessary languages, and which message
information about the appropriate use cannot be readily separated
of the products, and in such a way as therefrom, relative the following
not to discourage breastfeeding. points:

(b) Each container shall have a clear, (a) The words or phrase "Important
conspicuous and easily readable and Notice" or "Government Warning" or
understandable message in Pilipino their equivalent;
or English printed on it, or on a label,
which message can not readily (b) A statement of the superiority of
become separated from it, and which breastfeeding;
shall include the following points:
(c) A statement that there is no
(i) the words "Important Notice" or substitute for breastmilk;
their equivalent;
(d) A statement that the product shall
(ii) a statement of the superiority of be used only on the advice of a
breastfeeding; health worker as to the need for its
use and the proper methods of use;
(iii) a statement that the product shall
be used only on the advice of a (e) Instructions for appropriate
health worker as to the need for its prepara-tion, and a warning against
use and the proper methods of use; the health hazards of inappropriate
and preparation; and

(iv) instructions for appropriate (f) The health hazards of


preparation, and a warning against unnecessary or improper use of
the health hazards of inappropriate infant formula and other related
preparation. products including information that
powdered infant formula may contain
pathogenic microorganisms and must
be prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to health


professionals; the RIRR totally prohibits such activity:

MILK CODE RIRR


SECTION 7. Health Care System. Section 22. No manufacturer,
distributor, or representatives of
(b) No facility of the health care products covered by the Code shall
system shall be used for the purpose be allowed to conduct or be involved
of promoting infant formula or other in any activity on breastfeeding
products within the scope of this promotion, education and production
Code. This Code does not, however, of Information, Education and
preclude the dissemination of Communication (IEC) materials on
information to health professionals as breastfeeding, holding of or
provided in Section 8(b). participating as speakers in classes
or seminars for women and children
SECTION 8. Health Workers. - activities and to avoid the use of
these venues to market their brands
or company names.
(b) Information provided by
manufacturers and distributors to
health professionals regarding SECTION 16. All health and nutrition
products within the scope of this claims for products within the scope
Code shall be restricted to scientific of the Code are absolutely prohibited.
and factual matters and such For this purpose, any phrase or
information shall not imply or create a words that connotes to increase
belief that bottle-feeding is equivalent emotional, intellectual abilities of the
or superior to breastfeeding. It shall infant and young child and other like
also include the information specified phrases shall not be allowed.
in Section 5(b).

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

MILK CODE RIRR


SECTION 8. Health Workers Section 4. Declaration of
Principles
(e) Manufacturers and distributors of
products within the scope of this The following are the underlying
Code may assist in the research, principles from which the revised
scholarships and continuing rules and regulations are premised
education, of health professionals, in upon:
accordance with the rules and
regulations promulgated by the i. Milk companies, and their
Ministry of Health. representatives,should not form part
of any policymaking body or entity in
relation to the advancement of
breasfeeding.

SECTION 22. No manufacturer,


distributor, or representatives of
products covered by the Code shall
be allowed to conduct or be involved
in any activity on breastfeeding
promotion, education and production
of Information, Education and
Communication (IEC) materials on
breastfeeding, holding of or
participating as speakers in classes
or seminars for women and children
activities and to avoid the use of
these venues to market their brands
or company names.

SECTION 32. Primary


Responsibility of Health Workers -
It is the primary responsibility of the
health workers to promote, protect
and support breastfeeding and
appropriate infant and young child
feeding. Part of this responsibility is
to continuously update their
knowledge and skills on
breastfeeding. No assistance,
support, logistics or training from milk
companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR


SECTION 6. The General Public Section 51. Donations Within the
and Mothers. Scope of This Code - Donations of
products, materials, defined and
(f) Nothing herein contained shall covered under the Milk Code and
prevent donations from these implementing rules and
manufacturers and distributors of regulations, shall be strictly
products within the scope of this prohibited.
Code upon request by or with the
approval of the Ministry of Health. Section 52. Other Donations By
Milk Companies Not Covered by
this Code. - Donations of products,
equipments, and the like, not
otherwise falling within the scope of
this Code or these Rules, given by
milk companies and their agents,
representatives, whether in kind or in
cash, may only be coursed through
the Inter Agency Committee (IAC),
which shall determine whether such
donation be accepted or otherwise.

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

MILK CODE RIRR


Section 46. Administrative
Sanctions. The following
administrative sanctions shall be
imposed upon any person, juridical or
natural, found to have violated the
provisions of the Code and its
implementing Rules and Regulations:

a) 1st violation Warning;

b) 2nd violation Administrative fine


of a minimum of Ten Thousand
(P10,000.00) to Fifty Thousand
(P50,000.00) Pesos, depending on
the gravity and extent of the violation,
including the recall of the offending
product;

c) 3rd violation Administrative Fine


of a minimum of Sixty Thousand
(P60,000.00) to One Hundred Fifty
Thousand (P150,000.00) Pesos,
depending on the gravity and extent
of the violation, and in addition
thereto, the recall of the offending
product, and suspension of the
Certificate of Product Registration
(CPR);

d) 4th violation Administrative Fine of


a minimum of Two Hundred
Thousand (P200,000.00) to Five
Hundred (P500,000.00) Thousand
Pesos, depending on the gravity and
extent of the violation; and in addition
thereto, the recall of the product,
revocation of the CPR, suspension of
the License to Operate (LTO) for one
year;

e) 5th and succeeding repeated


violations Administrative Fine of
One Million (P1,000,000.00) Pesos,
the recall of the offending product,
cancellation of the CPR, revocation
of the License to Operate (LTO) of
the company concerned, including
the blacklisting of the company to be
furnished the Department of Budget
and Management (DBM) and the
Department of Trade and Industry
(DTI);

f) An additional penalty of Two Thou-


sand Five Hundred (P2,500.00)
Pesos per day shall be made for
every day the violation continues
after having received the order from
the IAC or other such appropriate
body, notifying and penalizing the
company for the infraction.

For purposes of determining whether


or not there is "repeated" violation,
each product violation belonging or
owned by a company, including those
of their subsidiaries, are deemed to
be violations of the concerned milk
company and shall not be based on
the specific violating product alone.

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

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

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

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

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

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute x x x to satisfy the
normal nutritional requirements of infants up to between four to six months of age, and adapted to
their physiological characteristics"; while under Section 4(b), bottle-fed complementary food refers to
"any food, whether manufactured or locally prepared, suitable as a complement to breastmilk or
infant formula, when either becomes insufficient to satisfy the nutritional requirements of the infant."
An infant under Section 4(e) is a person falling within the age bracket 0-12 months. It is the
nourishment of this group of infants or children aged 0-12 months that is sought to be promoted and
protected by the Milk Code.
But there is another target group. Breastmilk substitute is defined under Section 4(a) as "any food
being marketed or otherwise presented as a partial or total replacement for breastmilk, whether or
not suitable for that purpose." This section conspicuously lacks reference to any particular age-
group of children. Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months. In other words, breastmilk substitutes may also be intended for young
children more than 12 months of age. Therefore, by regulating breastmilk substitutes, the Milk Code
also intends to protect and promote the nourishment of children more than 12 months old.

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

There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the RIRR.

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

The entirety of the RIRR, not merely truncated portions thereof, must be considered and construed
together. As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in the Rule
should not be studied as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the meaning of any of its parts and in order to produce a harmonious
whole."

Section 7 of the RIRR provides that "when medically indicated and only when necessary, the use of
breastmilk substitutes is proper if based on complete and updated information." Section 8 of the
RIRR also states that information and educational materials should include information on the proper
use of infant formula when the use thereof is needed.

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

3. The Court shall ascertain the merits of allegations 345 and 446 together as they are interlinked with
each other.

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

Health is a legitimate subject matter for regulation by the DOH (and certain other administrative
agencies) in exercise of police powers delegated to it. The sheer span of jurisprudence on that
matter precludes the need to further discuss it..48 However, health information, particularly advertising
materials on apparently non-toxic products like breastmilk substitutes and supplements, is a
relatively new area for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50 health information was
already within the ambit of the regulatory powers of the predecessor of DOH.51 Section 938 thereof
charged it with the duty to protect the health of the people, and vested it with such powers as "(g) the
dissemination of hygienic information among the people and especially the inculcation of
knowledge as to the proper care of infants and the methods of preventing and combating
dangerous communicable diseases."
Seventy years later, the 1987 Administrative Code tasked respondent DOH to carry out the state
policy pronounced under Section 15, Article II of the 1987 Constitution, which is "to protect and
promote the right to health of the people and instill health consciousness among them."52 To that
end, it was granted under Section 3 of the Administrative Code the power to "(6) propagate health
information and educate the population on important health, medical and environmental matters
which have health implications."53

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

SECTION 12. Implementation and Monitoring

xxxx

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

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

xxxx

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

SECTION 5. Information and Education

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

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

SECTION 5. x x x

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

SECTION 8. Health Workers

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding


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

SECTION 10. Containers/Label

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

xxxx

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

The DOH is also authorized to control the purpose of the information and to whom such information
may be disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the information
that would reach pregnant women, mothers of infants, and health professionals and workers in the
health care system is restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent or superior to breastfeeding.

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

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

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

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

b) Section 3 which specifically states that the Code applies to the marketing of and practices
related to breastmilk substitutes, including infant formula, and to information concerning their
use;
c) Section 5(a) which provides that the government shall ensure that objective and consistent
information is provided on infant feeding;

d) Section 5(b) which provides that written, audio or visual informational and educational
materials shall not use any picture or text which may idealize the use of breastmilk
substitutes and should include information on the health hazards of unnecessary or improper
use of said product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC to review
and examine advertising, promotion, and other marketing materials;

f) Section 8(b) which states that milk companies may provide information to health
professionals but such information should be restricted to factual and scientific matters and
shall not imply or create a belief that bottlefeeding is equivalent or superior to breastfeeding;
and

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

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

Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some labeling requirements,
specifically: a) that there be a statement that there is no substitute to breastmilk; and b) that there be
a statement that powdered infant formula may contain pathogenic microorganisms and must be
prepared and used appropriately. Section 1657of the RIRR prohibits all health and nutrition claims for
products within the scope of the Milk Code, such as claims of increased emotional and intellectual
abilities of the infant and young child.

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

SECTION 8. Health workers -

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding


products within the scope of this Code shall be restricted to scientific and factual matters,
and such information shall notimply or create a belief that bottlefeeding
is equivalent or superior to breastfeeding. It shall also include the information specified in
Section 5.58 (Emphasis supplied)

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

These provisions of the Milk Code expressly forbid information that would imply or create a belief
that there is any milk product equivalent to breastmilk or which is humanized or maternalized, as
such information would be inconsistent with the superiority of breastfeeding.

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

Thus, Section 26(c) of the RIRR which requires containers and labels to state that the product
offered is not a substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of the Milk
Code and deterring circumvention of the protection and promotion of breastfeeding as embodied in
Section 260 of the Milk Code.

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

SECTION 5. x x x

xxxx

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

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

Petitioners counsel has admitted during the hearing on June 19, 2007 that formula milk is prone to
contaminations and there is as yet no technology that allows production of powdered infant formula
that eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to contain the message
regarding health hazards including the possibility of contamination with pathogenic microorganisms
is in accordance with Section 5(b) of the Milk Code.

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

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

SECTION 6. The General Public and Mothers.


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

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

SECTION 12. Implementation and Monitoring -

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

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


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

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

The Committee shall have the following powers and functions:

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

(2) To approve or disapprove, delete objectionable portions from and prohibit the
printing, publication, distribution, exhibition and broadcast of, all advertising
promotion or other marketing materials, whether written, audio or visual, on products
within the scope of this Code;

(3) To prescribe the internal and operational procedure for the exercise of its powers
and functions as well as the performance of its duties and responsibilities; and

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

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition No advertising, promotions, sponsorships, or marketing materials


and activities for breastmilk substitutes intended for infants and young children up to twenty-
four (24) months, shall be allowed, because they tend to convey or give subliminal messages
or impressions that undermine breastmilk and breastfeeding or otherwise exaggerate
breastmilk substitutes and/or replacements, as well as related products covered within the
scope of this Code.
prohibits advertising, promotions, sponsorships or marketing materials and activities for breastmilk
substitutes in line with the RIRRs declaration of principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

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


other related products are prohibited.

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

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

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

SOLICITOR GENERAL DEVANADERA:

xxxx

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

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

xxxx

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

xxxx

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

ASSOCIATE JUSTICE SANTIAGO:

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

SOLICITOR GENERAL DEVANADERA:

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

xxxx

ASSOCIATE JUSTICE SANTIAGO:

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

SOLICITOR GENERAL DEVANADERA:

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

xxxx

ASSOCIATE JUSTICE NAZARIO:

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

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

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

SOLICITOR GENERAL DEVANADERA:

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

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

ASSOCIATE JUSTICE NAZARIO:

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

SOLICITOR GENERAL DEVANADERA:

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

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

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

SECTION 5. Information and Education

xxxx

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

xxxx

SECTION 8. Health Workers.

xxxx

(b) Information provided by manufacturers and distributors to health professionals regarding


products within the scope of this Code shall be restricted to scientific and factual matters and
such information shall not imply or create a belief that bottle feeding is equivalent or superior
to breastfeeding. It shall also include the information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label

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

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

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

(ii) a statement of the superiority of breastfeeding;

(iii) a statement that the product shall be used only on the advice of a health worker
as to the need for its use and the proper methods of use; and

(iv) instructions for appropriate preparation, and a warning against the health hazards
of inappropriate preparation.

Section 12(b) of the Milk Code designates the DOH as the principal implementing agency for the
enforcement of the provisions of the Code. In relation to such responsibility of the DOH, Section 5(a)
of the Milk Code states that:

SECTION 5. Information and Education

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

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

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

SECTION 13. "Total Effect" - Promotion of products within the scope of this Code must be
objective and should not equate or make the product appear to be as good or equal to
breastmilk or breastfeeding in the advertising concept. It must not in any case undermine
breastmilk or breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would produce better individuals, or resulting in greater love,
intelligence, ability, harmony or in any manner bring better health to the baby or other such
exaggerated and unsubstantiated claim.
Such standards bind the IAC in formulating its rules and regulations on advertising, promotion, and
marketing. Through that single provision, the DOH exercises control over the information content of
advertising, promotional and marketing materials on breastmilk vis-a-vis breastmilk substitutes,
supplements and other related products. It also sets a viable standard against which the IAC may
screen such materials before they are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court held:

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

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

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

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

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

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

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk companies from
giving reasearch assistance and continuing education to health professionals. Section 2270 of the
RIRR does not pertain to research assistance to or the continuing education of health
professionals; rather, it deals with breastfeeding promotion and education for women and
children. Nothing in Section 22 of the RIRR prohibits milk companies from giving assistance for
research or continuing education to health professionals; hence, petitioner's argument against this
particular provision must be struck down.
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said sections of the RIRR
provide thatresearch assistance for health workers and researchers may be allowed upon
approval of an ethics committee, and with certain disclosure requirements imposed on the
milk company and on the recipient of the research award.

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

Petitioner complains that Section 3273 of the RIRR prohibits milk companies from giving assistance,
support, logistics or training to health workers. This provision is within the prerogative given to the
DOH under Section 8(e)74of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist in researches, scholarships and the continuing education, of health
professionals in accordance with the rules and regulations promulgated by the Ministry of Health,
now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent with the Milk Code.
Section 6(f) of the Milk Code provides that donations may be made by manufacturers and
distributors of breastmilk substitutesupon the request or with the approval of the DOH. The law
does not proscribe the refusal of donations. The Milk Code leaves it purely to the discretion of the
DOH whether to request or accept such donations. The DOH then appropriately exercised its
discretion through Section 5175 of the RIRR which sets forth its policy not to request or approve
donations from manufacturers and distributors of breastmilk substitutes.

It was within the discretion of the DOH when it provided in Section 52 of the RIRR that any donation
from milk companies not covered by the Code should be coursed through the IAC which shall
determine whether such donation should be accepted or refused. As reasoned out by respondents,
the DOH is not mandated by the Milk Code to accept donations. For that matter, no person or entity
can be forced to accept a donation. There is, therefore, no real inconsistency between the RIRR and
the law because the Milk Code does not prohibit the DOH from refusing donations.

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

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

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

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

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

SECTION 13. Sanctions

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

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

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

Section 57 reads:

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

Section 57 of the RIRR does not provide for the repeal of laws but only orders, issuances and rules
and regulations. Thus, said provision is valid as it is within the DOH's rule-making power.

An administrative agency like respondent possesses quasi-legislative or rule-making power or the


power to make rules and regulations which results in delegated legislation that is within the confines
of the granting statute and the Constitution, and subject to the doctrine of non-delegability and
separability of powers.78 Such express grant of rule-making power necessarily includes the power to
amend, revise, alter, or repeal the same.79 This is to allow administrative agencies flexibility in
formulating and adjusting the details and manner by which they are to implement the provisions of a
law,80 in order to make it more responsive to the times. Hence, it is a standard provision in
administrative rules that prior issuances of administrative agencies that are inconsistent therewith
are declared repealed or modified.

In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the DOH to promulgate
and in contravention of the Milk Code and, therefore, null and void. The rest of the provisions of the
RIRR are in consonance with the Milk Code.
Lastly, petitioner makes a "catch-all" allegation that:

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


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

Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88 and 5289 as the provisions that
suppress the trade of milk and, thus, violate the due process clause of the Constitution.

The framers of the constitution were well aware that trade must be subjected to some form of
regulation for the public good. Public interest must be upheld over business interests.90 In Pest
Management Association of the Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

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


Coconut Authority,despite the fact that "our present Constitution enshrines free
enterprise as a policy, it nonetheless reserves to the government the power to
intervene whenever necessary to promote the general welfare." There can be no
question that the unregulated use or proliferation of pesticides would be hazardous to our
environment. Thus, in the aforecited case, the Court declared that "free enterprise does not
call for removal of protective regulations." x x x It must be clearly explained and
proven by competent evidence just exactly how such protective regulation would
result in the restraint of trade. [Emphasis and underscoring supplied]

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

Petitioner also failed to convince the Court that Section 5(w) of the RIRR is unreasonable and
oppressive. Said section provides for the definition of the term "milk company," to wit:

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

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

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

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

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

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

The Court is not convinced that the definition of "milk company" provided in the RIRR would bring
about any change in the treatment or regulation of "distributors" and "manufacturers" of breastmilk
substitutes, as defined under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in consonance with the
objective, purpose and intent of the Milk Code, constituting reasonable regulation of an industry
which affects public health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of Administrative


Order No. 2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra vires. The
Department of Health and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar as the rest of the
provisions of Administrative Order No. 2006-0012 is concerned.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO


OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN
DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed
into focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction.
The petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR
Case No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

The case all started when a "Demolition Notice," dated 9 July 1990, signed by Carlos Quimpo (one
of the petitioners) in his capacity as an Executive Officer of the Quezon City Integrated Hawkers
Management Council under the Office of the City Mayor, was sent to, and received by, the private
respondents (being the officers and members of the North EDSA Vendors Association,
Incorporated). In said notice, the respondents were given a grace-period of three (3) days (up to 12
July 1990) within which to vacate the questioned premises of North EDSA. 1Prior to their receipt of the
demolition notice, the private respondents were informed by petitioner Quimpo that their stalls should be
removed to give way to the "People's Park". 2 On 12 July 1990, the group, led by their President Roque
Fermo, filed a letter-complaint (Pinag-samang Sinumpaang Salaysay) with the CHR against the
petitioners, asking the late CHR Chairman Mary Concepcion Bautista for a letter to be addressed to then
Mayor Brigido Simon, Jr., of Quezon City to stop the demolition of the private respondents' stalls, sari-
sari stores, and carinderia along North EDSA. The complaint was docketed as CHR Case No. 90-
1580. 3 On 23 July 1990, the CHR issued an Order, directing the petitioners "to desist from demolishing
the stalls and shanties at North EDSA pending resolution of the vendors/squatters' complaint before the
Commission" and ordering said petitioners to appear before the CHR. 4

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well
as CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia, 5 the CHR, in its resolution of
1 August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the Commission's supervision
and again directed the petitioners to "desist from further demolition, with the warning that violation of said
order would lead to a citation for contempt and arrest." 6
A motion to dismiss, 7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also
averred, among other things, that:

1. this case came about due to the alleged violation by the (petitioners) of the Inter-
Agency Memorandum of Agreement whereby Metro-Manila Mayors agreed on a
moratorium in the demolition of the dwellings of poor dwellers in Metro-Manila;

xxx xxx xxx

3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to


therein refers to moratorium in the demolition of the structures of poor dwellers;

4. that the complainants in this case (were) not poor dwellers but independent
business entrepreneurs even this Honorable Office admitted in its resolution of 1
August 1990 that the complainants are indeed, vendors;

5. that the complainants (were) occupying government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance. 8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the
motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise
manifested that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that
the Commission's authority should be understood as being confined only to the investigation of
violations of civil and political rights, and that "the rights allegedly violated in this case (were) not civil
and political rights, (but) their privilege to engage in business." 9

On 21 September 1990, the motion to dismiss was heard and submitted for resolution, along with
the contempt charge that had meantime been filed by the private respondents, albeit vigorously
objected to by petitioners (on the ground that the motion to dismiss was still then unresolved). 10

In an Order, 11 dated 25 September 1990, the CHR cited the petitioners in contempt for carrying out the
demolition of the stalls, sari-sari stores and carinderia despite the "order to desist", and it imposed a fine
of P500.00 on each of them.

On 1 March 1991, 12 the CHR issued an Order, denying petitioners' motion to dismiss and supplemental
motion to dismiss, in this wise:

Clearly, the Commission on Human Rights under its constitutional mandate had
jurisdiction over the complaint filed by the squatters-vendors who complained of the
gross violations of their human and constitutional rights. The motion to dismiss
should be and is hereby DENIED for lack of merit. 13

The CHR opined that "it was not the intention of the (Constitutional) Commission to create only a
paper tiger limited only to investigating civil and political rights, but it (should) be (considered) a
quasi-judicial body with the power to provide appropriate legal measures for the protection of human
rights of all persons within the Philippines . . . ." It added:

The right to earn a living is a right essential to one's right to development, to life and
to dignity. All these brazenly and violently ignored and trampled upon by respondents
with little regard at the same time for the basic rights of women and children, and
their health, safety and welfare. Their actions have psychologically scarred and
traumatized the children, who were witness and exposed to such a violent
demonstration of Man's inhumanity to man.

In an Order, 14 dated 25 April 1991, petitioners' motion for reconsideration was denied.

Hence, this recourse.

The petition was initially dismissed in our resolution 15 of 25 June 1991; it was subsequently reinstated,
however, in our resolution 16 of 18 June 1991, in which we also issued a temporary restraining order,
directing the CHR to "CEASE and DESIST from further hearing CHR No. 90-1580." 17

The petitioners pose the following:

Whether or not the public respondent has jurisdiction:

a) to investigate the alleged violations of the "business rights" of the private respondents whose
stalls were demolished by the petitioners at the instance and authority given by the Mayor of Quezon
City;

b) to impose the fine of P500.00 each on the petitioners; and

c) to disburse the amount of P200,000.00 as financial aid to the vendors affected by the demolition.

In the Court's resolution of 10 October 1991, the Solicitor-General was excused from filing his
comment for public respondent CHR. The latter thus filed its own comment, 18 through Hon. Samuel
Soriano, one of its Commissioners. The Court also resolved to dispense with the comment of private
respondent Roque Fermo, who had since failed to comply with the resolution, dated 18 July 1991,
requiring such comment.

The petition has merit.

The Commission on Human Rights was created by the 1987


Constitution. 19 It was formally constituted by then President Corazon Aquino via Executive Order No.
163, 20 issued on 5 May 1987, in the exercise of her legislative power at the time. It succeeded, but so
superseded as well, the Presidential Committee on Human Rights. 21

The powers and functions 22 of the Commission are defined by the 1987 Constitution, thus: to

(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;
(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to


enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty


obligations on human rights;

(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

In its Order of 1 March 1991, denying petitioners' motion to dismiss, the CHR theorizes that the
intention of the members of the Constitutional Commission is to make CHR a quasi-judicial
body. 23 This view, however, has not heretofore been shared by this Court. In Cario v. Commission on
Human Rights, 24 the Court, through then Associate Justice, now Chief Justice Andres Narvasa, has
observed that it is "only the first of the enumerated powers and functions that bears any resemblance to
adjudication or adjudgment," but that resemblance can in no way be synonymous to the adjudicatory
power itself. The Court explained:

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law
to be another court or quasi-judicial agency in this country, or duplicate much less
take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power
is that it may investigate, i.e., receive evidence and make findings of fact as regards
claimed human rights violations involving civil and political rights. But fact finding is
not adjudication, and cannot be likened to the judicial function of a court of justice, or
even a quasi-judicial agency or official. The function of receiving evidence and
ascertaining therefrom the facts of a controversy is not a judicial function, properly
speaking. To be considered such, the faculty of receiving evidence and making
factual conclusions in a controversy must be accompanied by the authority of
applying the law to those factual conclusions to the end that the controversy may be
decided or determined authoritatively, finally and definitively, subject to such appeals
or modes of review as may be provided by law. This function, to repeat, the
Commission does not have.
After thus laying down at the outset the above rule, we now proceed to the other kernel of this
controversy and, its is, to determine the extent of CHR's investigative power.

It can hardly be disputed that the phrase "human rights" is so generic a term that any attempt to
define it, albeit not a few have tried, could at best be described as inconclusive. Let us observe. In a
symposium on human rights in the Philippines, sponsored by the University of the Philippines in
1977, one of the questions that has been propounded is "(w)hat do you understand by "human
rights?" The participants, representing different sectors of the society, have given the following
varied answers:

Human rights are the basic rights which inhere in man by virtue of his humanity. They
are the same in all parts of the world, whether the Philippines or England, Kenya or
the Soviet Union, the United States or Japan, Kenya or Indonesia . . . .

Human rights include civil rights, such as the right to life, liberty, and property;
freedom of speech, of the press, of religion, academic freedom, and the rights of the
accused to due process of law; political rights, such as the right to elect public
officials, to be elected to public office, and to form political associations and engage
in politics; and social rights, such as the right to an education, employment, and
social services. 25

Human rights are the entitlement that inhere in the individual person from the sheer fact
of his humanity. . . . Because they are inherent, human rights are not granted by the
State but can only be recognized and protected by it. 26

(Human rights include all) the civil, political, economic, social, and cultural rights defined
in the Universal Declaration of Human Rights. 27

Human rights are rights that pertain to man simply because he is human. They are part of
his natural birth, right, innate and inalienable. 28

The Universal Declaration of Human Rights, as well as, or more specifically, the International
Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political
Rights, suggests that the scope of human rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing almost all aspects of life.

Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience under
the martial law regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of
the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the
Philippines," 29 observes:

But while the Constitution of 1935 and that of 1973 enshrined in their Bill of Rights
most of the human rights expressed in the International Covenant, these rights
became unavailable upon the proclamation of Martial Law on 21 September 1972.
Arbitrary action then became the rule. Individuals by the thousands became subject
to arrest upon suspicion, and were detained and held for indefinite periods,
sometimes for years, without charges, until ordered released by the Commander-in-
Chief or this representative. The right to petition for the redress of grievances
became useless, since group actions were forbidden. So were strikes. Press and
other mass media were subjected to censorship and short term licensing. Martial law
brought with it the suspension of the writ of habeas corpus, and judges lost
independence and security of tenure, except members of the Supreme Court. They
were required to submit letters of resignation and were dismissed upon the
acceptance thereof. Torture to extort confessions were practiced as declared by
international bodies like Amnesty International and the International Commission of
Jurists.

Converging our attention to the records of the Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:

MR. GARCIA . . . , the primacy of its (CHR) task must be made clear in view of the
importance of human rights and also because civil and political rights have been
determined by many international covenants and human rights legislations in the
Philippines, as well as the Constitution, specifically the Bill of Rights and subsequent
legislation. Otherwise, if we cover such a wide territory in area, we might diffuse its
impact and the precise nature of its task, hence, its effectivity would also be curtailed.

So, it is important to delienate the parameters of its tasks so that the commission can
be most effective.

MR. BENGZON. That is precisely my difficulty because civil and political rights are
very broad. The Article on the Bill of Rights covers civil and political rights. Every
single right of an individual involves his civil right or his political right. So, where do
we draw the line?

MR. GARCIA. Actually, these civil and political rights have been made clear in the
language of human rights advocates, as well as in the Universal Declaration of
Human Rights which addresses a number of articles on the right to life, the right
against torture, the right to fair and public hearing, and so on. These are very specific
rights that are considered enshrined in many international documents and legal
instruments as constituting civil and political rights, and these are precisely what we
want to defend here.

MR. BENGZON. So, would the commissioner say civil and political rights as defined
in the Universal Declaration of Human Rights?

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?

MR. GARCIA. Yes, because the other rights will encompass social and economic
rights, and there are other violations of rights of citizens which can be addressed to
the proper courts and authorities.

xxx xxx xxx


MR. BENGZON. So, we will authorize the commission to define its functions, and,
therefore, in doing that the commission will be authorized to take under its wings
cases which perhaps heretofore or at this moment are under the jurisdiction of the
ordinary investigative and prosecutorial agencies of the government. Am I correct?

MR. GARCIA. No. We have already mentioned earlier that we would like to define
the specific parameters which cover civil and political rights as covered by the
international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which we
would now like to safeguard.

MR. BENGZON. Then, I go back to that question that I had. Therefore, what we are
really trying to say is, perhaps, at the proper time we could specify all those rights
stated in the Universal Declaration of Human Rights and defined as human rights.
Those are the rights that we envision here?

MR. GARCIA. Yes. In fact, they are also enshrined in the Bill of Rights of our
Constitution. They are integral parts of that.

MR. BENGZON. Therefore, is the Gentleman saying that all the rights under the Bill
of Rights covered by human rights?

MR. GARCIA. No, only those that pertain to civil and political rights.

xxx xxx xxx

MR. RAMA. In connection with the discussion on the scope of human rights, I would
like to state that in the past regime, everytime we invoke the violation of human
rights, the Marcos regime came out with the defense that, as a matter of fact, they
had defended the rights of people to decent living, food, decent housing and a life
consistent with human dignity.

So, I think we should really limit the definition of human rights to political rights. Is
that the sense of the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.

There are actually six areas where this Commission on Human Rights could act
effectively: 1) protection of rights of political detainees; 2) treatment of prisoners and
the prevention of tortures; 3) fair and public trials; 4) cases of disappearances; 5)
salvagings and hamletting; and 6) other crimes committed against the religious.

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.


I would like to start by saying that I agree with Commissioner Garcia that we
should, in order to make the proposed Commission more effective, delimit as much
as possible, without prejudice to future expansion. The coverage of the concept and
jurisdictional area of the term "human rights". I was actually disturbed this morning
when the reference was made without qualification to the rights embodied in the
universal Declaration of Human Rights, although later on, this was qualified to refer
to civil and political rights contained therein.

If I remember correctly, Madam President, Commissioner Garcia, after mentioning


the Universal Declaration of Human Rights of 1948, mentioned or linked the concept
of human right with other human rights specified in other convention which I do not
remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of


1985?

MR. GUINGONA. I do not know, but the commissioner mentioned another.

MR. GARCIA. Madam President, the other one is the International Convention on
Civil and Political Rights of which we are signatory.

MR. GUINGONA. I see. The only problem is that, although I have a copy of the
Universal Declaration of Human Rights here, I do not have a copy of the other
covenant mentioned. It is quite possible that there are rights specified in that other
convention which may not be specified here. I was wondering whether it would be
wise to link our concept of human rights to general terms like "convention," rather
than specify the rights contained in the convention.

As far as the Universal Declaration of Human Rights is concerned, the Committee,


before the period of amendments, could specify to us which of these articles in the
Declaration will fall within the concept of civil and political rights, not for the purpose
of including these in the proposed constitutional article, but to give the sense of the
Commission as to what human rights would be included, without prejudice to
expansion later on, if the need arises. For example, there was no definite reply to the
question of Commissioner Regalado as to whether the right to marry would be
considered a civil or a social right. It is not a civil right?

MR. GARCIA. Madam President, I have to repeat the various specific civil and
political rights that we felt must be envisioned initially by this provision freedom
from political detention and arrest prevention of torture, right to fair and public trials,
as well as crimes involving disappearance, salvagings, hamlettings and collective
violations. So, it is limited to politically related crimes precisely to protect the civil and
political rights of a specific group of individuals, and therefore, we are not opening it
up to all of the definite areas.

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-
called civil or political rights as contained in the Universal Declaration of Human
Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.
MR. GUINGONA. I know.

MR. GARCIA. But it does not mean that we will refer to each and every specific
article therein, but only to those that pertain to the civil and politically related, as we
understand it in this Commission on Human Rights.

MR. GUINGONA. Madam President, I am not even clear as to the distinction


between civil and social rights.

MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of
labor to organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee
to those that the Gentlemen has specified.

MR. GARCIA. Yes, to civil and political rights.

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I
cannot stress more on how much we need a Commission on Human Rights. . . .

. . . human rights victims are usually penniless. They cannot pay and very few
lawyers will accept clients who do not pay. And so, they are the ones more abused
and oppressed. Another reason is, the cases involved are very delicate torture,
salvaging, picking up without any warrant of arrest, massacre and the persons
who are allegedly guilty are people in power like politicians, men in the military and
big shots. Therefore, this Human Rights Commission must be independent.

I would like very much to emphasize how much we need this commission, especially
for the little Filipino, the little individual who needs this kind of help and cannot get
it. And I think we should concentrate only on civil and political violations because if
we open this to land, housing and health, we will have no place to go again and we
will not receive any response. . . . 30 (emphasis supplied)

The final outcome, now written as Section 18, Article XIII, of the 1987 Constitution, is a provision
empowering the Commission on Human Rights to "investigate, on its own or on complaint by any
party, all forms of human rights violations involving civil and political rights" (Sec. 1).

The term "civil rights," 31 has been defined as referring

(t)o those (rights) that belong to every citizen of the state or country, or, in wider
sense, to all its inhabitants, and are not connected with the organization or
administration of the government. They include the rights of property, marriage,
equal protection of the laws, freedom of contract, etc. Or, as otherwise defined civil
rights are rights appertaining to a person by virtue of his citizenship in a state or
community. Such term may also refer, in its general sense, to rights capable of being
enforced or redressed in a civil action.

Also quite often mentioned are the guarantees against involuntary servitude, religious persecution,
unreasonable searches and seizures, and imprisonment for debt. 32

Political rights, 33 on the other hand, are said to refer to the right to participate, directly or indirectly, in the
establishment or administration of government, the right of suffrage, the right to hold public office, the
right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of
government. 34

Recalling the deliberations of the Constitutional Commission, aforequoted, it is readily apparent that
the delegates envisioned a Commission on Human Rights that would focus its attention to the more
severe cases of human rights violations. Delegate Garcia, for instance, mentioned such areas as the
"(1) protection of rights of political detainees, (2) treatment of prisoners and the prevention of
tortures, (3) fair and public trials, (4) cases of disappearances, (5) salvagings and hamletting, and (6)
other crimes committed against the religious." While the enumeration has not likely been meant to
have any preclusive effect, more than just expressing a statement of priority, it is, nonetheless,
significant for the tone it has set. In any event, the delegates did not apparently take comfort in
peremptorily making a conclusive delineation of the CHR's scope of investigatorial jurisdiction. They
have thus seen it fit to resolve, instead, that "Congress may provide for other cases of violations of
human rights that should fall within the authority of the Commission, taking into account its
recommendation." 35

In the particular case at hand, there is no cavil that what are sought to be demolished are the
stalls, sari-sari stores and carinderia, as well as temporary shanties, erected by private respondents
on a land which is planned to be developed into a "People's Park". More than that, the land adjoins
the North EDSA of Quezon City which, this Court can take judicial notice of, is a busy national
highway. The consequent danger to life and limb is not thus to be likewise simply ignored. It is
indeed paradoxical that a right which is claimed to have been violated is one that cannot, in the first
place, even be invoked, if it is, in fact, extant. Be that as it may, looking at the standards hereinabove
discoursed vis-a-vis the circumstances obtaining in this instance, we are not prepared to conclude
that the order for the demolition of the stalls, sari-sari stores and carinderia of the private
respondents can fall within the compartment of "human rights violations involving civil and political
rights" intended by the Constitution.

On its contempt powers, the CHR is constitutionally authorized to "adopt its operational guidelines
and rules of procedure, and cite for contempt for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR acted within its authority in providing in its revised rules, its power "to
cite or hold any person in direct or indirect contempt, and to impose the appropriate penalties in
accordance with the procedure and sanctions provided for in the Rules of Court." That power to cite
for contempt, however, should be understood to apply only to violations of its adopted operational
guidelines and rules of procedure essential to carry out its investigatorial powers. To exemplify, the
power to cite for contempt could be exercised against persons who refuse to cooperate with the said
body, or who unduly withhold relevant information, or who decline to honor summons, and the like, in
pursuing its investigative work. The "order to desist" (a semantic interplay for a restraining order) in
the instance before us, however, is not investigatorial in character but prescinds from an adjudicative
power that it does not possess. InExport Processing Zone Authority vs. Commission on Human
Rights, 36 the Court, speaking through Madame Justice Carolina Grio-Aquino, explained:

The constitutional provision directing the CHR to "provide for preventive measures
and legal aid services to the underprivileged whose human rights have been violated
or need protection" may not be construed to confer jurisdiction on the Commission to
issue a restraining order or writ of injunction for, it that were the intention, the
Constitution would have expressly said so. "Jurisdiction is conferred only by the
Constitution or by law". It is never derived by implication.

Evidently, the "preventive measures and legal aid services" mentioned in the
Constitution refer to extrajudicial and judicial remedies (including a writ of preliminary
injunction) which the CHR may seek from proper courts on behalf of the victims of
human rights violations. Not being a court of justice, the CHR itself has no jurisdiction
to issue the writ, for a writ of preliminary injunction may only be issued "by the judge
of any court in which the action is pending [within his district], or by a Justice of the
Court of Appeals, or of the Supreme Court. . . . A writ of preliminary injunction is an
ancillary remedy. It is available only in a pending principal action, for the preservation
or protection of the rights and interests of a party thereto, and for no other purpose."
(footnotes omitted).

The Commission does have legal standing to indorse, for appropriate action, its findings and
recommendations to any appropriate agency of government. 37

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to
the vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is
there lack of locus standi on the part of the petitioners to question the disbursement but, more
importantly, the matter lies with the appropriate administrative agencies concerned to initially
consider.

The public respondent explains that this petition for prohibition filed by the petitioners has become
moot and academic since the case before it (CHR Case No. 90-1580) has already been fully heard,
and that the matter is merely awaiting final resolution. It is true that prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished. 38 Here, however, said Commission admittedly has yet to promulgate its
resolution in CHR Case No. 90-1580. The instant petition has been intended, among other things, to also
prevent CHR from precisely doing that. 39

WHEREFORE, the writ prayed for in this petition is GRANTED. The Commission on Human Rights
is hereby prohibited from further proceeding with CHR Case No. 90-1580 and from implementing the
P500.00 fine for contempt. The temporary restraining order heretofore issued by this Court is made
permanent. No costs.

SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 96681 December 2, 1991

HON. ISIDRO CARIO, in his capacity as Secretary of the Department of Education, Culture &
Sports, DR. ERLINDA LOLARGA, in her capacity as Superintendent of City Schools of
Manila, petitioners,
vs.
THE COMMISSION ON HUMAN RIGHTS, GRACIANO BUDOY, JULIETA BABARAN, ELSA
IBABAO, HELEN LUPO, AMPARO GONZALES, LUZ DEL CASTILLO, ELSA REYES and
APOLINARIO ESBER, respondents.

NARVASA, J.:p

The issue raised in the special civil action of certiorari and prohibition at bar, instituted by the
Solicitor General, may be formulated as follows: where the relief sought from the Commission on
Human Rights by a party in a case consists of the review and reversal or modification of a decision
or order issued by a court of justice or government agency or official exercising quasi-judicial
functions, may the Commission take cognizance of the case and grant that relief? Stated otherwise,
where a particular subject-matter is placed by law within the jurisdiction of a court or other
government agency or official for purposes of trial and adjudgment, may the Commission on Human
Rights take cognizance of the same subject-matter for the same purposes of hearing and
adjudication?

The facts narrated in the petition are not denied by the respondents and are hence taken as
substantially correct for purposes of ruling on the legal questions posed in the present action. These
facts, 1 together with others involved in related cases recently resolved by this Court 2 or otherwise undisputed on the record, are
hereunder set forth.

1. On September 17, 1990, a Monday and a class day, some 800 public school teachers, among
them members of the Manila Public School Teachers Association (MPSTA) and Alliance of
Concerned Teachers (ACT) undertook what they described as "mass concerted actions" to
"dramatize and highlight" their plight resulting from the alleged failure of the public authorities to act
upon grievances that had time and again been brought to the latter's attention. According to them
they had decided to undertake said "mass concerted actions" after the protest rally staged at the
DECS premises on September 14, 1990 without disrupting classes as a last call for the government
to negotiate the granting of demands had elicited no response from the Secretary of Education. The
"mass actions" consisted in staying away from their classes, converging at the Liwasang Bonifacio,
gathering in peaceable assemblies, etc. Through their representatives, the teachers participating in
the mass actions were served with an order of the Secretary of Education to return to work in 24
hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate
dismissal proceedings against those who did not comply and to hire their replacements. Those
directives notwithstanding, the mass actions continued into the week, with more teachers joining in
the days that followed. 3
Among those who took part in the "concerted mass actions" were the eight (8) private respondents
herein, teachers at the Ramon Magsaysay High School, Manila, who had agreed to support the non-
political demands of the MPSTA.4

2. For failure to heed the return-to-work order, the CHR complainants (private respondents) were
administratively charged on the basis of the principal's report and given five (5) days to answer the
charges. They were also preventively suspended for ninety (90) days "pursuant to Section 41 of P.D.
807" and temporarily replaced (unmarked CHR Exhibits, Annexes F, G, H). An investigation
committee was consequently formed to hear the charges in accordance with P.D. 807. 5

3. In the administrative case docketed as Case No. DECS 90-082 in which CHR complainants
Graciano Budoy, Jr., Julieta Babaran, Luz del Castillo, Apolinario Esber were, among others, named
respondents, 6 the latter filed separate answers, opted for a formal investigation, and also moved "for suspension of the administrative
proceedings pending resolution by . . (the Supreme) Court of their application for issuance of an injunctive writ/temporary restraining order."
But when their motion for suspension was denied by Order dated November 8, 1990 of the Investigating Committee, which later also denied
their motion for reconsideration orally made at the hearing of November 14, 1990, "the respondents led by their counsel staged a walkout
signifying their intent to boycott the entire proceedings." 7 The case eventually resulted in a Decision of Secretary Cario dated December
17, 1990, rendered after evaluation of the evidence as well as the answers, affidavits and documents submitted by the respondents,
decreeing dismissal from the service of Apolinario Esber and the suspension for nine (9) months of Babaran, Budoy and del Castillo. 8

4. In the meantime, the "MPSTA filed a petition for certiorari before the Regional Trial Court of
Manila against petitioner (Cario), which was dismissed (unmarked CHR Exhibit, Annex I). Later, the
MPSTA went to the Supreme Court (on certiorari, in an attempt to nullify said dismissal, grounded on
the) alleged violation of the striking teachers" right to due process and peaceable assembly
docketed as G.R. No. 95445, supra. The ACT also filed a similar petition before the Supreme Court .
. . docketed as G.R. No. 95590." 9 Both petitions in this Court were filed in behalf of the teacher associations, a few named
individuals, and "other teacher-members so numerous similarly situated" or "other similarly situated public school teachers too numerous to
be impleaded."

5. In the meantime, too, the respondent teachers submitted sworn statements dated September 27,
1990 to the Commission on Human Rights to complain that while they were participating in peaceful
mass actions, they suddenly learned of their replacements as teachers, allegedly without notice and
consequently for reasons completely unknown to them. 10

6. Their complaints and those of other teachers also "ordered suspended by the . . . (DECS)," all
numbering forty-two (42) were docketed as "Striking Teachers CHR Case No. 90775." In
connection therewith the Commission scheduled a "dialogue" on October 11, 1990, and sent a
subpoena to Secretary Cario requiring his attendance therein. 11

On the day of the "dialogue," although it said that it was "not certain whether he (Sec. Cario)
received the subpoena which was served at his office, . . . (the) Commission, with the Chairman
presiding, and Commissioners Hesiquio R. Mallilin and Narciso C. Monteiro, proceeded to hear the
case;" it heard the complainants' counsel (a) explain that his clients had been "denied due process
and suspended without formal notice, and unjustly, since they did not join the mass leave," and (b)
expatiate on the grievances which were "the cause of the mass leave of MPSTA teachers, (and) with
which causes they (CHR complainants) sympathize." 12 The Commission thereafter issued an Order13 reciting these
facts and making the following disposition:

To be properly apprised of the real facts of the case and be accordingly guided in its
investigation and resolution of the matter, considering that these forty two teachers
are now suspended and deprived of their wages, which they need very badly,
Secretary Isidro Cario, of the Department of Education, Culture and Sports, Dr.
Erlinda Lolarga, school superintendent of Manila and the Principal of Ramon
Magsaysay High School, Manila, are hereby enjoined to appear and enlighten the
Commission en banc on October 19, 1990 at 11:00 A.M. and to bring with them any
and all documents relevant to the allegations aforestated herein to assist the
Commission in this matter. Otherwise, the Commission will resolve the complaint on
the basis of complainants' evidence.

xxx xxx xxx

7. Through the Office of the Solicitor General, Secretary Cario sought and was granted leave to file
a motion to dismiss the case. His motion to dismiss was submitted on November 14, 1990 alleging
as grounds therefor, "that the complaint states no cause of action and that the CHR has no
jurisdiction over the case." 14

8. Pending determination by the Commission of the motion to dismiss, judgments affecting the
"striking teachers" were promulgated in two (2) cases, as aforestated, viz.:

a) The Decision dated December l7, 1990 of Education Secretary Cario in Case No.
DECS 90-082, decreeing dismissal from the service of Apolinario Esber and the
suspension for nine (9) months of Babaran, Budoy and del Castillo; 15 and

b) The joint Resolution of this Court dated August 6, 1991 in G.R. Nos. 95445 and
95590 dismissing the petitions "without prejudice to any appeals, if still timely, that
the individual petitioners may take to the Civil Service Commission on the matters
complained of," 16 and inter alia "ruling that it was prima facie lawful for petitioner Cario to issue return-to-work
orders, file administrative charges against recalcitrants, preventively suspend them, and issue decision on those
charges." 17

9. In an Order dated December 28, 1990, respondent Commission denied Sec. Cario's motion to
dismiss and required him and Superintendent Lolarga "to submit their counter-affidavits within ten
(10) days . . . (after which) the Commission shall proceed to hear and resolve the case on the merits
with or without respondents counter affidavit."18 It held that the "striking teachers" "were denied due process of law; . . .
they should not have been replaced without a chance to reply to the administrative charges;" there had been a violation of their civil and
political rights which the Commission was empowered to investigate; and while expressing its "utmost respect to the Supreme Court . . . the
facts before . . . (it) are different from those in the case decided by the Supreme Court" (the reference being unmistakably to this Court's joint
Resolution of August 6, 1991 in G.R. Nos. 95445 and 95590, supra).

It is to invalidate and set aside this Order of December 28, 1990 that the Solicitor General, in behalf
of petitioner Cario, has commenced the present action of certiorari and prohibition.

The Commission on Human Rights has made clear its position that it does not feel bound by this
Court's joint Resolution in G.R. Nos. 95445 and 95590, supra. It has also made plain its intention "to
hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the merits." It intends,
in other words, to try and decide or hear and determine, i.e., exercise jurisdiction over the following
general issues:

1) whether or not the striking teachers were denied due process, and just cause exists for the
imposition of administrative disciplinary sanctions on them by their superiors; and

2) whether or not the grievances which were "the cause of the mass leave of MPSTA teachers, (and)
with which causes they (CHR complainants) sympathize," justify their mass action or strike.

The Commission evidently intends to itself adjudicate, that is to say, determine with character of
finality and definiteness, the same issues which have been passed upon and decided by the
Secretary of Education, Culture & Sports, subject to appeal to the Civil Service Commission, this
Court having in fact, as aforementioned, declared that the teachers affected may take appeals to the
Civil Service Commission on said matters, if still timely.

The threshold question is whether or not the Commission on Human Rights has the power under the
Constitution to do so; whether or not, like a court of justice, 19 or even a quasi-judicial agency, 20 it has jurisdiction or
adjudicatory powers over, or the power to try and decide, or hear and determine, certain specific type of cases, like alleged human rights
violations involving civil or political rights.

The Court declares the Commission on Human Rights to have no such power; and that it was not
meant by the fundamental law to be another court or quasi-judicial agency in this country, or
duplicate much less take over the functions of the latter.

The most that may be conceded to the Commission in the way of adjudicative power is that it
may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights
violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened
to the judicial function of a court of justice, or even a quasi-judicial agency or official. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a judicial function,
properly speaking. To be considered such, the faculty of receiving evidence and making factual
conclusions in a controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or determined authoritatively,
finally and definitively, subject to such appeals or modes of review as may be provided by law. 21 This
function, to repeat, the Commission does not have. 22

The proposition is made clear by the constitutional provisions specifying the powers of the
Commission on Human Rights.

The Commission was created by the 1987 Constitution as an independent office. 23 Upon its constitution, it
succeeded and superseded the Presidential Committee on Human Rights existing at the time of the effectivity of the Constitution. 24 Its
powers and functions are the following 25

(1) Investigate, on its own or on complaint by any party, all forms of human rights
violations involving civil and political rights;

(2) Adopt its operational guidelines and rules of procedure, and cite for contempt for
violations thereof in accordance with the Rules of Court;

(3) Provide appropriate legal measures for the protection of human rights of all
persons within the Philippines, as well as Filipinos residing abroad, and provide for
preventive measures and legal aid services to the underprivileged whose human
rights have been violated or need protection;

(4) Exercise visitorial powers over jails, prisons, or detention facilities;

(5) Establish a continuing program of research, education, and information to


enhance respect for the primacy of human rights;

(6) Recommend to the Congress effective measures to promote human rights and to
provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's compliance with international treaty


obligations on human rights;
(8) Grant immunity from prosecution to any person whose testimony or whose
possession of documents or other evidence is necessary or convenient to determine
the truth in any investigation conducted by it or under its authority;

(9) Request the assistance of any department, bureau, office, or agency in the
performance of its functions;

(10) Appoint its officers and employees in accordance with law; and

(11) Perform such other duties and functions as may be provided by law.

As should at once be observed, only the first of the enumerated powers and functions bears any
resemblance to adjudication or adjudgment. The Constitution clearly and categorically grants to the
Commission the power toinvestigate all forms of human rights violations involving civil and political
rights. It can exercise that power on its own initiative or on complaint of any person. It may exercise
that power pursuant to such rules of procedure as it may adopt and, in cases of violations of said
rules, cite for contempt in accordance with the Rules of Court. In the course of any investigation
conducted by it or under its authority, it may grant immunity from prosecution to any person whose
testimony or whose possession of documents or other evidence is necessary or convenient to
determine the truth. It may also request the assistance of any department, bureau, office, or agency
in the performance of its functions, in the conduct of its investigation or in extending such remedy as
may be required by its findings. 26

But it cannot try and decide cases (or hear and determine causes) as courts of justice, or even
quasi-judicial bodies do. To investigate is not to adjudicate or adjudge. Whether in the popular or the
technical sense, these terms have well understood and quite distinct meanings.

"Investigate," commonly understood, means to examine, explore, inquire or delve or probe into,
research on, study. The dictionary definition of "investigate" is "to observe or study closely: inquire
into systematically. "to search or inquire into: . . . to subject to an official probe . . .: to conduct an
official inquiry." 27 The purpose of investigation, of course, is to discover, to find out, to learn, obtain information. Nowhere included or
intimated is the notion of settling, deciding or resolving a controversy involved in the facts inquired into by application of the law to the facts
established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step by step by patient
inquiry or observation. To trace or track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking of evidence; a legal inquiry;" 28 "to
inquire; to make an investigation," "investigation" being in turn describe as "(a)n administrative function, the exercise of which ordinarily does
not require a hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry, judicial or otherwise, for the discovery and collection of facts concerning a
certain matter or matters." 29

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate, judge, decide,


determine, resolve, rule on, settle. The dictionary defines the term as "to settle finally (the rights and
duties of the parties to a court case) on the merits of issues raised: . . . to pass judgment on: settle
judicially: . . . act as judge." 30 And "adjudge" means "to decide or rule upon as a judge or with judicial or quasi-judicial powers: . .
. to award or grant judicially in a case of controversy . . . ." 31

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial authority. To determine
finally. Synonymous with adjudge in its strictest sense;" and "adjudge" means: "To pass on judicially,
to decide, settle or decree, or to sentence or condemn. . . . Implies a judicial determination of a fact,
and the entry of a judgment." 32
Hence it is that the Commission on Human Rights, having merely the power "to investigate," cannot
and should not "try and resolve on the merits" (adjudicate) the matters involved in Striking Teachers
HRC Case No. 90-775, as it has announced it means to do; and it cannot do so even if there be a
claim that in the administrative disciplinary proceedings against the teachers in question, initiated
and conducted by the DECS, their human rights, or civil or political rights had been transgressed.
More particularly, the Commission has no power to "resolve on the merits" the question of (a)
whether or not the mass concerted actions engaged in by the teachers constitute and are prohibited
or otherwise restricted by law; (b) whether or not the act of carrying on and taking part in those
actions, and the failure of the teachers to discontinue those actions, and return to their classes
despite the order to this effect by the Secretary of Education, constitute infractions of relevant rules
and regulations warranting administrative disciplinary sanctions, or are justified by the grievances
complained of by them; and (c) what where the particular acts done by each individual teacher and
what sanctions, if any, may properly be imposed for said acts or omissions.

These are matters undoubtedly and clearly within the original jurisdiction of the Secretary of
Education, being within the scope of the disciplinary powers granted to him under the Civil Service
Law, and also, within the appellate jurisdiction of the Civil Service Commission.

Indeed, the Secretary of Education has, as above narrated, already taken cognizance of the issues
and resolved them, 33 and it appears that appeals have been seasonably taken by the aggrieved parties to the Civil Service
Commission; and even this Court itself has had occasion to pass upon said issues. 34

Now, it is quite obvious that whether or not the conclusions reached by the Secretary of Education in
disciplinary cases are correct and are adequately based on substantial evidence; whether or not the
proceedings themselves are void or defective in not having accorded the respondents due process;
and whether or not the Secretary of Education had in truth committed "human rights violations
involving civil and political rights," are matters which may be passed upon and determined through a
motion for reconsideration addressed to the Secretary Education himself, and in the event of an
adverse verdict, may be reviewed by the Civil Service Commission and eventually the Supreme
Court.

The Commission on Human Rights simply has no place in this scheme of things. It has no business
intruding into the jurisdiction and functions of the Education Secretary or the Civil Service
Commission. It has no business going over the same ground traversed by the latter and making its
own judgment on the questions involved. This would accord success to what may well have been
the complaining teachers' strategy to abort, frustrate or negate the judgment of the Education
Secretary in the administrative cases against them which they anticipated would be adverse to them.

This cannot be done. It will not be permitted to be done.

In any event, the investigation by the Commission on Human Rights would serve no useful purpose.
If its investigation should result in conclusions contrary to those reached by Secretary Cario, it
would have no power anyway to reverse the Secretary's conclusions. Reversal thereof can only by
done by the Civil Service Commission and lastly by this Court. The only thing the Commission can
do, if it concludes that Secretary Cario was in error, is to refer the matter to the appropriate
Government agency or tribunal for assistance; that would be the Civil Service Commission. 35 It cannot
arrogate unto itself the appellate jurisdiction of the Civil Service Commission.

WHEREFORE, the petition is granted; the Order of December 29, 1990 is ANNULLED and SET
ASIDE, and the respondent Commission on Human Rights and the Chairman and Members thereof
are prohibited "to hear and resolve the case (i.e., Striking Teachers HRC Case No. 90-775) on the
merits."
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Baguio City

EN BANC

G.R. No. 190582 April 8, 2010

ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow
of freedom. The test of its substance is the right to differ as to things that touch the heart of the
existing order.

Justice Robert A. Jackson

West Virginia State Board of Education v. Barnette1

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

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

Factual Background

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of
preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated November 11, 20092 (the First
Assailed Resolution) and December 16, 20093 (the Second Assailed Resolution) in SPP No. 09-228
(PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs refusal to
accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.4

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians,
gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first
applied for registration with the COMELEC in 2006. The application for accreditation was denied on
the ground that the 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 disregardsdecency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may establish such
stipulations, clauses, terms and conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code
provides that Contracts whose cause, object or purpose is contrary to law, morals, good customs,
public order or public policy are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended,
penalizes Immoral doctrines, obscene publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The
penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the
editors publishing such literature; and the owners/operators of the establishment selling the
same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene
literature or indecent or immoral plays, scenes, acts or shows, whether live or in film,
which are prescribed by virtue hereof, shall include those which: (1) glorify criminals
or condone crimes; (2) serve no other purpose but to satisfy the market for
violence, lust or pornography; (3) offend any race or religion; (4) tend to abet traffic in
and use of prohibited drugs; and (5) are contrary to law, public order, morals, good
customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature
which are offensive to morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but
likewise for not being truthful when it said that it "or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations relating to the elections."

Furthermore, should this Commission grant the petition, we will be exposing our youth to an
environment that does not conform to the teachings of our faith. Lehman Strauss, a famous bible
teacher and writer in the U.S.A. said in one article that "older practicing homosexuals are a threat to
the youth." As an agency of the government, ours too is the States avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and spiritual degradation.8

When Ang Ladlad sought reconsideration,9 three commissioners voted to overturn the First Assailed
Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners
Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution,
stating that:

I. The Spirit of Republic Act No. 7941

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 Ladladspetition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on
Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18 which motion was
granted on February 2, 2010.19

The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using
religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as constituted violations of
the Philippines international obligations against discrimination based on sexual orientation.
The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying
petitioners application for registration since there was no basis for COMELECs allegations of
immorality. It also opined that LGBTs have their own special interests and concerns which should
have been recognized by the COMELEC as a separate classification. However, insofar as the
purported violations of petitioners freedom of speech, expression, and assembly were concerned,
the OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine
national political agenda to benefit the nation and that the petition was validly dismissed on moral
grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated
by the Constitution and RA 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

Arts Center of Cabanatuan City Nueva Ecija

Boys Legion Metro Manila

Cagayan de Oro People Like Us (CDO PLUS)

Cant Live in the Closet, Inc. (CLIC) Metro Manila

Cebu Pride Cebu City

Circle of Friends

Dipolog Gay Association Zamboanga del Norte

Gay, Bisexual, & Transgender Youth Association (GABAY)

Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila

Gay Mens Support Group (GMSG) Metro Manila

Gay United for Peace and Solidarity (GUPS) Lanao del Norte

Iloilo City Gay Association Iloilo City

Kabulig Writers Group Camarines Sur

Lesbian Advocates Philippines, Inc. (LEAP)

LUMINA Baguio City

Marikina Gay Association Metro Manila

Metropolitan Community Church (MCC) Metro Manila

Naga City Gay Association Naga City

ONE BACARDI

Order of St. Aelred (OSAe) Metro Manila


PUP LAKAN

RADAR PRIDEWEAR

Rainbow Rights Project (R-Rights), Inc. Metro Manila

San Jose del Monte Gay Association Bulacan

Sining Kayumanggi Royal Family Rizal

Society of Transexual Women of the Philippines (STRAP) Metro Manila

Soul Jive Antipolo, Rizal

The Link Davao City

Tayabas Gay Association Quezon

Womens Bisexual Network Metro Manila

Zamboanga Gay Association Zamboanga City23

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no
surprise that they found that petitioner had no presence in any of these regions. In fact, if
COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is
registered as Ang Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the
legal requirements for accreditation. Indeed, aside from COMELECs moral objection and the
belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled
that Ang Ladlad is not qualified to register as a party-list organization under any of the requisites
under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims, lies
in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof." At bottom, what our non-
establishment clause calls for is "government neutrality in religious matters."24 Clearly,
"governmental reliance on religious justification is inconsistent with this policy of neutrality."25 We
thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the
Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend,
instead, on whether the COMELEC is able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent
of Mr. Justice Carpio holds. "Religious teachings as expressed in public debate may influence the
civil public order but public moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity to what some might regard as
religious programs or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove contrary religious or 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.