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CASE NO.

G.R. No. 139465 October 17, 2000

SECRETARY OF JUSTICE, petitioner,


vs.
HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

RESOLUTION

PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner to furnish
private respondent copies of the extradition request and its supporting papers and to grant him a reasonable
period within which to file his comment with supporting evidence.1

On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the decision
on the following grounds:

"The majority decision failed to appreciate the following facts and points of substance and of value which, if
considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the filing of an


extradition petition in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a denial of
fundamental fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is
intended to prevent flight.

V. There is a need to balance the interest between the discretionary powers of government and the
rights of an individual.

VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing
may be dispensed with in this case results in a non sequitur conclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice
and hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has
encroached upon the constitutional boundaries separating it from the other two co-equal branches of
government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings." 2

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing
petitioner’s Urgent Motion for Reconsideration.

On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action and Filing
of Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached Note 327/00 from the
Embassy of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR Government
Secretariat. On August 15, 2000, private respondent filed a Manifestation and Motion for Leave to File
Rejoinder in the event that petitioner's April 5, 2000 Motion would be granted. Private respondent also filed on
August 18, 2000, a Motion to Expunge from the records petitioner's June 7, 2000 Manifestation with its
attached note verbales. Except for the Motion to Allow Continuation and Maintenance of Action, the Court
denies these pending motions and hereby resolves petitioner's Urgent Motion for Reconsideration.

The jugular issue is whether or not the private respondent is entitled to the due process right to notice and
hearing during the evaluation stage of the extradition process.

We now hold that private respondent is bereft of the right to notice and hearing during the evaluation
stage of the extradition process.

First. P.D. No. 10693 which implements the RP-US Extradition Treaty provides the time when an extraditee
shall be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the filing of
the petition for extradition in the extradition court, viz:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1) Immediately upon receipt
of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear
and to answer the petition on the day and hour fixed in the order . . . Upon receipt of the answer, or should the
accused after having received the summons fail to answer within the time fixed, the presiding judge shall
hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case."

It is of judicial notice that the summons includes the petition for extradition which will be answered by the
extraditee.

There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the
right to demand from the petitioner Secretary of Justice copies of the extradition request from the US
government and its supporting documents and to comment thereon while the request is still
undergoing evaluation. We cannot write a provision in the treaty giving private respondent that right where
there is none. It is well-settled that a "court cannot alter, amend, or add to a treaty by the insertion of any
clause, small or great, or dispense with any of its conditions and requirements or take away any qualification,
or integral part of any stipulation, upon any motion of equity, or general convenience, or substantial justice." 4

Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory
provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in light of its object and purpose."5 (emphasis supplied) The
preambular paragraphs of P.D. No. 1069 define its intent, viz:

"WHEREAS, under the Constitution[,] the Philippines 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;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of
any other state to which the criminal may have escaped, because it saps the foundation of social life and is an
outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go
unpunished;

WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty with the
Republic of Indonesia, and intends to conclude similar treaties with other interested countries;

x x x." (emphasis supplied)


It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic
rise of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the
assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty.
Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be
coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent
the escape of extraditees from the long arm of the law and expedite their trial. The submission of the private
respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be furnished a copy
of the US government request for his extradition and its supporting documents even while they are still under
evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner
Secretary of Justice that the demanded notice is equivalent to a notice to flee must be deeply rooted on the
experience of the executive branch of our government. As it comes from the branch of our government in
charge of the faithful execution of our laws, it deserves the careful consideration of this Court. In addition, it
cannot be gainsaid that private respondent’s demand for advance notice can delay the summary process of
executive evaluation of the extradition request and its accompanying papers. The foresight of Justice Oliver
Wendell Holmes did not miss this danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at
common law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form according
to our ideas, such reasonable ground to suppose him guilty as to make it proper that he should be tried, good
faith to the demanding government requires his surrender."6 (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is best
served when done without delay.

Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the issue in question by other countries with
similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly charged with their negotiation
and enforcement is accorded great weight.7 The reason for the rule is laid down in Santos III v. Northwest
Orient Airlines, et al.,8where we stressed that a treaty is a joint executive-legislative act which enjoys the
presumption that "it was first carefully studied and determined to be constitutional before it was adopted and
given the force of law in the country."

Our executive department of government, thru the Department of Foreign Affairs (DFA) and the Department of
Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D. No. 1069 do not grant
the private respondent a right to notice and hearing during the evaluation stage of an extradition
process.9 This understanding of the treaty is shared by the US government, the other party to the
treaty.10 This interpretation by the two governments cannot be given scant significance. It will be
presumptuous for the Court to assume that both governments did not understand the terms of the treaty they
concluded.

Yet, this is not all. Other countries with similar extradition treaties with the Philippines have expressed
the same interpretation adopted by the Philippine and US governments. Canadian11 and
Hongkong12 authorities, thru appropriate note verbales communicated to our Department of Foreign Affairs,
stated in unequivocal language that it is not an international practice to afford a potential extraditee with a copy
of the extradition papers during the evaluation stage of the extradition process. We cannot disregard such a
convergence of views unless it is manifestly erroneous.

Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to notice and
hearing as required by our Constitution. He buttresses his position by likening an extradition proceeding to a
criminal proceeding and the evaluation stage to a preliminary investigation.
We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will
call into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process
of extradition does not involve the determination of the guilt or innocence of an accused. 13 His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional
rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an
extraditee especially by one whose extradition papers are still undergoing evaluation. 14 As held by the US
Supreme Court in United States v. Galanis:

"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a
criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty." 15

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial.16 In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards.17 In terms of the quantum of evidence to be satisfied, a criminal case requires proof
beyond reasonable doubt for conviction18 while a fugitive may be ordered extradited "upon showing of the
existence of a prima facie case."19 Finally, unlike in a criminal case where judgment becomes executory upon
being rendered final, in an extradition proceeding, our courts may adjudge an individual extraditable but the
President has the final discretion to extradite him.20 The United States adheres to a similar practice whereby
the Secretary of State exercises wide discretion in balancing the equities of the case and the demands of the
nation's foreign relations before making the ultimate decision to extradite.21

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former. This we hold for the procedural due process required by a given set of
circumstances "must begin with a determination of the precise nature of the government function involved
as well as the private interest that has been affected by governmental action."22 The concept of due
process is flexible for "not all situations calling for procedural safeguards call for the same kind of procedure." 23

Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and hearing
considering the alleged threat to his liberty "which may be more priceless than life."24 The supposed threat to
private respondent’s liberty is perceived to come from several provisions of the RP-US Extradition Treaty and
P.D. No. 1069 which allow provisional arrest and temporary detention.

We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:

"PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person
sought pending presentation of the request for extradition. A request for provisional arrest may be
transmitted through the diplomatic channel or directly between the Philippine Department of Justice
and the United States Department of Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;

c) a brief statement of the facts of the case, including, if possible, the time and location of the
offense;

d) a description of the laws violated;


e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of
conviction against the person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the
reasons for any denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty
(60) days from the date of arrest pursuant to this Treaty if the executive authority of the Requested
State has not received the formal request for extradition and the supporting documents required in
Article 7." (emphasis supplied)

In relation to the above, Section 20 of P.D. No. 1069 provides:

"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may, pursuant to the relevant treaty
or convention and while the same remains in force, request for the provisional arrest of the accused, pending
receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation,
Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon
receipt of the request immediately secure a warrant for the provisional arrest of the accused from the
presiding judge of the Court of First Instance of the province or city having jurisdiction of the place,
who shall issue the warrant for the provisional arrest of the accused. The Director of the National
Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting state of the
result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not
received the request for extradition and the documents mentioned in Section 4 of this Decree, the
accused shall be released from custody." (emphasis supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be
provisionally arrested only pending receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to the DOJ. It is undisputed that until today,
the United States has not requested for private respondent’s provisional arrest. Therefore, the threat to private
respondent’s liberty has passed. It is more imagined than real.

Nor can the threat to private respondent’s liberty come from Section 6 of P.D. No. 1069, which provides:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt
of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear
and to answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the
immediate arrest of the accused which may be served anywhere within the Philippines if it appears to the
presiding judge that the immediate arrest and temporary detention of the accused will best serve the
ends of justice. . .

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each
upon the accused and the attorney having charge of the case." (emphasis supplied)

It is evident from the above provision that a warrant of arrest for the temporary detention of the accused
pending the extradition hearing may only be issued by the presiding judge of the extradition court upon filing
of the petition for extradition. As the extradition process is still in the evaluation stage of pertinent
documents and there is no certainty that a petition for extradition will be filed in the appropriate extradition
court, the threat to private respondent’s liberty is merely hypothetical.

Sixth. To be sure, private respondent’s plea for due process deserves serious consideration involving as it
does his primordial right to liberty. His plea to due process, however, collides with important state
interests which cannot also be ignored for they serve the interest of the greater majority. The clash of
rights demands a delicate balancing of interests approach which is a "fundamental postulate of constitutional
law."25 The approach requires that we "take conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation."26 These interests usually consist in the exercise by an
individual of his basic freedoms on the one hand, and the government’s promotion of fundamental public
interest or policy objectives on the other.27

In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process
predicated on Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life,
liberty, or property without due process of law . . ." Without a bubble of doubt, procedural due process of law
lies at the foundation of a civilized society which accords paramount importance to justice and fairness. It has
to be accorded the weight it deserves.

This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight
to our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States
of persons charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the
judgment of the Executive on matters relating to foreign affairs in order not to weaken if not violate the
principle of separation of powers.

Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the
nature of the right being claimed by the private respondent is nebulous and the degree of prejudice he
will allegedly suffer is weak, we accord greater weight to the interests espoused by the government
thru the petitioner Secretary of Justice. In Angara v. Electoral Commission, we held that the "Constitution
has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the
judicial departments of the government."28 Under our constitutional scheme, executive power is vested in the
President of the Philippines.29Executive power includes, among others, the power to contract or guarantee
foreign loans and the power to enter into treaties or international agreements.30 The task of safeguarding
that these treaties are duly honored devolves upon the executive department which has the competence and
authority to so act in the international arena. 31 It is traditionally held that the President has power and even
supremacy over the country’s foreign relations.32 The executive department is aptly accorded deference on
matters of foreign relations considering the President’s most comprehensive and most confidential information
about the international scene of which he is regularly briefed by our diplomatic and consular officials. His
access to ultra-sensitive military intelligence data is also unlimited.33 The deference we give to the executive
department is dictated by the principle of separation of powers. This principle is one of the cornerstones of our
democratic government. It cannot be eroded without endangering our government.

The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate
the extradition of persons covered by treaties duly entered by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime prevention are undergoing
universalization. One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal
whose activities threaten the peace and progress of civilized countries. It is to the great interest of the
Philippines to be part of this irreversible movement in light of its vulnerability to crimes, especially transnational
crimes.

In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all throughout the length and breadth of the
extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it
is due, and the degree of what is due. Stated otherwise, a prior determination should be made as to
whether procedural protections are at all due and when they are due, which in turn depends on the
extent to which an individual will be "condemned to suffer grievous loss."34 We have explained why an
extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As
aforesaid, P.D. No. 1069 which implements the RP-US Extradition Treaty affords an extraditee sufficient
opportunity to meet the evidence against him once the petition is filed in court. The time for the extraditee
to know the basis of the request for his extradition is merely moved to the filing in court of the formal petition
for extradition. The extraditee's right to know is momentarily withheld during the evaluation stage of the
extradition process to accommodate the more compelling interest of the State to prevent escape of potential
extraditees which can be precipitated by premature information of the basis of the request for his extradition.
No less compelling at that stage of the extradition proceedings is the need to be more deferential to the
judgment of a co-equal branch of the government, the Executive, which has been endowed by our Constitution
with greater power over matters involving our foreign relations. Needless to state, this balance of interests
is not a static but a moving balance which can be adjusted as the extradition process moves from the
administrative stage to the judicial stage and to the execution stage depending on factors that will come into
play. In sum, we rule that the temporary hold on private respondent's privilege of notice and hearing is a soft
restraint on his right to due process which will not deprive him of fundamental fairness should he decide to
resist the request for his extradition to the United States. There is no denial of due process as long as
fundamental fairness is assured a party.

We end where we began. A myopic interpretation of the due process clause would not suffice to resolve the
conflicting rights in the case at bar. With the global village shrinking at a rapid pace, propelled as it is by
technological leaps in transportation and communication, we need to push further back our horizons and work
with the rest of the civilized nations and move closer to the universal goals of "peace, equality, justice,
freedom, cooperation and amity with all nations."35 In the end, it is the individual who will reap the harvest of
peace and prosperity from these efforts.

WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar
promulgated on January18, 2000 is REVERSED. The assailed Order issued by the public respondent judge
on August 9, 1999 is SET ASIDE. The temporary restraining order issued by this Court on August 17, 1999 is
made PERMANENT. The Regional Trial Court of Manila, Branch 25 is enjoined from conducting further
proceedings in Civil Case No. 99-94684.

SO ORDERED.

Davide, Jr., C.J., Mendoza, Purisima, Pardo, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Bellosillo, and Kapunan, JJ., joined the dissent of J. Melo & J. Ynares-Santiago.
Melo, J., see dissent.
Vitug, J., I join in the dissent and reiterate my separate opinion in the original ponencia.
Quisumbing, J., in the result.
Buena, J., I join the dissent of Justice Consuelo Y-Santiago.
Ynares-Santiago, J., see separate dissent.

Footnotes

1 Rollo,
pp. 442-443; Decision, Secretary of Justice v. Hon. Ralph C. Lantion and Mark B. Jimenez,
G.R. No. 139465, January 18, 2000, pp. 39-40.

2 Rollo, p. 495; Urgent Motion for Reconsideration, p. 4.

3 "Prescribing
the Procedure for the Extradition of Persons Who Have Committed Crimes in a Foreign
Country" signed into law on January 13, 1977.
4 Note, The United States v. The Libelants and Claimants of the Schooner Amistad, 10 L. Ed. 826
(1841), citing The Amiable Isabella, 6 Wheat. 1.

5 Article 31(1), Vienna Convention on the Law of Treaties.

6 Glucksman v. Henkel, 221 U.S. 508, 511 (1911), citing Grin v. Shine, 187 US 181, 184, 47 L. Ed.
130, 133, 23 S. Ct. Rep. 98, 12 Am. Crim. Rep. 366. See Pierce v. Creecy, 210 U.S. 387, 405, 52 L.
Ed. 1113, 1122, 28 S. Ct. 714.

7 Kolovrat v. Oregon, 366 US 187, 192 (1961); Factor v. Laubenheimer, 290 U.S. 276, 295 (1933),
citing Nielsen v. Johnson, 279 U.S. 52, 73 L. Ed. 610, 49 S. Ct. 223; Charlton v. Kelly, 229 U.S. 447,
468, 57 L. Ed. 1274,1283, 33 S. Ct. 945, 46 L.R.A. (N.S.) 397.

8 210 SCRA 256, 261 (1992).

9 Rollo, p. 399.

10 See Original Records, pp. 467-482, Annex "B" of petitioner's Urgent Motion for Reconsideration
entitled "Observations of the United States In Support of the Urgent Motion for Reconsideration by the
Republic of the Philippines" signed by James K. Robinson, Asst. Attorney General and Bruce C.
Swartz, Deputy Asst. Attorney General, Criminal Division, US Department of Justice and Sara
Criscitelli, Asst. Director, Office of International Affairs, Criminal Division, Washington, D.C.

11 See
Original Records, pp. 506-507, Note 327/00 dated March 10, 2000 from the Embassy of
Canada.

12 SeeOriginal Records, p. 509, Note No. (34) in SBCR 1/27 16/80 Pt. 27 dated March 22, 2000 from
the Security Bureau of the Hongkong SAR Government Secretariat.

13 Defensor-Santiago, Procedural Aspects of the Political Offence Doctrine, 51 Philippine Law Journal
238, p. 258 (1976).

14 Elliot,
No Due Process Right to a Speedy Extradition, Martin v. Warden, Atlanta Pen., 993 F.2d 824
(11th Cir. 1993), 18 Suffolk Transnational Law Review 347, 353 (1995), citing Jhirad v. Ferrandina,
536 F.2d 478, 482 (2d Cir.).1

15 Wiehl, Extradition Law at the Crossroads: The Trend Toward Extending Greater Constitutional
Procedural Protections To Fugitives Fighting Extradition from the United States, 19 Michigan Journal
of International Law 729, 741 (1998), citing United States v. Galanis, 429 F. Supp. 1215 (D. Conn.
1977).

16 Section 9, P.D. No. 1069.

17 Ibid.

18 Section 2, Rule 133, Revised Rules of Court.

19 Section 10, P.D. No. 1069.

20 See Article III of the RP-US Extradition Treaty.

21 Note, Executive Discretion in Extradition, 62 Col. Law Rev., pp. 1314-1329.

22 Morriseyv. Brewer, 408 U.S. 471, 481 (1972), citing Cafeteria & Restaurant Workers Union v.
McElroy, 367 U.S. 886, 895 (1961), 6 L. Ed. 2d 1230, 1236, 81 S. Ct. 1743 (1961).

23 Morrisey v. Brewer, supra.


24 Comment on Petitioner’s Urgent Motion for Reconsideration, p. 37.

25 Malayan Insurance Co. v. Smith, Bell & Co. (Phil.) Inc., et al., 101 SCRA 61 (1980), citing Republic
v. Purisima, 78 SCRA 470 (1977).

26 Zaldivarv. Sandiganbayan, 170 SCRA 1, 9 (1989), citing Lagunzad v. Vda. de Gonzales, 92 SCRA
476 (1979), citing Separate Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, 27 SCRA 855, p. 899 (1960).

27 Blo Umpar Adiong v. Commission on Elections, 207 SCRA 712, 716 (1992).

28 63 Phil. 139, 157 (1936).

29 Section 1, Article VII, 1987 Constitution.

30 Id., sections 20-21.

31 Department of Foreign Affairs v. National Labor Relations Commission, 262 SCRA 39, 48 (1996),
citing International Catholic Migration Commission v. Calleja, 190 SCRA 130 (1990).

32 Marcos v. Manglapus, 177 SCRA 668 (1989). See also Salazar v. Achacoso, 183 SCRA 145 (1990).

33 U.S. v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936).

34 Morrisey
v. Brewer, supra note 22, p. 481, citing Joint Anti-Fascist Refugee Committee v. McGrath,
341 U.S. 123, 168, 95 L. Ed. 817, 852, 71 S. Ct. 624 (1951) (Frankfurter, J., Concurring), quoted in
Goldberg v. Kelly, 397 U.S. 254, 263, 25 L. Ed. 2d 287, 296, 90 S. Ct. 1011 (1970).

35 Section 2, Article II, 1987 Constitution.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

MELO, J.:

With all due respect, I dissent.

In his motion for reconsideration, petitioner posits that: (1) the evaluation process antecedent to the filing of an
extradition petition in court is substantially different from a preliminary investigation; the absence of notice and
hearing during such process will not result in a denial of fundamental fairness and satisfies no higher objective;
instituting another layer of notice and hearing, even when not contemplated in the treaty and in the
implementing law would result in excessive due process; (2) the deliberate omission of the notice and hearing
requirement in the Philippine Extradition Law is intended to prevent flight; (3) there is no need to balance the
interests between the discretionary powers of government and the rights of an individual; (4) the instances
cited in the majority opinion when the twin rights of notice and hearing may be dispensed with will result in
a non sequitur conclusion; (5) by instituting a proceeding not contemplated by Presidential Decree No. 1069,
the Court has encroached upon the constitutional boundaries separating it from the other two co-equal
branches of government; and lastly, (6) bail is not a matter of right in proceedings leading to extradition or in
extradition proceedings.
It need not be said that the issue of the case at bar touch on the very bonds of a democratic society which
value the power of one - the single individual. Basic principles on democracy are underpinned on the
individual. Popular control is hinged on the value that we give to people as self-determining agents who should
have a say on issues that effect their lives, particularly on making life-plans. Political equality is founded on the
assumption that everyone (or at least every adult) has an equal capacity for self-determination, and, therefore,
an equal right to influence collective decisions, and to have their interests considered when these decisions
are made (Saward, M., Democratic Theory an Indices of Democratization; in Defining and Measuring
Democracy, David Beetham, ed., Human Rights Centre, University of Essex, Colchester/Charter 88 Trust,
London, 1993, p. 7).

Affording due process to a single citizen is not contrary to the republican and democratic roots of our State,
and is in fact true to its nature. Although there can be excessive layers of appeals and remedies, no due
process rights may be deemed excessive. It is either the rights are given or not. The case at bar calls for the
grant. Be it remembered that this is the first time that respondent Jimenez has come to court to raise the
issues herein.

I am going to consider petitioner's arguments point by point.

Petitioner argues that the Court should have considered that preliminary investigation and the evaluation are
similar in the sense that the right to preliminary investigation and the right to notice and hearing during the
evaluation process are not fundamental rights guaranteed by the Constitution. In Go vs. Court of Appeals (206
SCRA 138 [1992]), we held that where there is a statutory grant of the right to preliminary investigation, denial
of the same is an infringement of the due process clause. Hence, if a citizen is deprived of a right granted by
statute, it still amounts to a violation of the due process clause. By analogy, the denial of the right to appeal
(which is not a natural right nor is part of due process) constitutes a violation of due process if the right is
granted by the Constitution or by statute.

The source of private respondent's basic due process rights is Section 1, Article III of the Constitution which is
a self-executory provision, meaning, it is by itself directly or immediately applicable without need of statutory
implementation, hence may be invoked by proper parties independently or even against legislative enactment.
In contrast, a non-self-executory provision is one that remains dormant unless it is given vitality by legislative
implementation. The latter gives the legislature the opportunity to determine when, or whether such provision
shall be effective thus making it subordinate to the will of the lawmaking body, which could make it entirely
meaningless by simply refusing to pass the needed implementing statute.

Section 1, Article III of the Constitution is a breathing, pulsating provision, so to speak. The sovereign itself has
given it life. It is properly invoked by respondent Jimenez particularly as a citizen of our country. The
Extradition Law need not expressly provide for its applicability.

Petitioner also posits that instituting another layer of notice and hearing, even when not contemplated in the
treaty and in the implementing law would result in excessive due process.

I disagree. As earlier stated, admittedly, there can be excessive layers of appeals and remedies. However, the
observance of due process can hardly be tagged as excessive. Either it is afforded the citizen or not. In the
first place, due process during the evaluation stage forms part of administrative due process. The notice and
hearing afforded when the petition for extradition is filed in court form part of judicial due process. Ultimately,
these requisites serve as restrictions on actions of judicial and quasi-judicial agencies of government
(Nachura, Outline/Reviewer in Political Law, 1996 ed., p. 48) and are collectively called requisites of
procedural due process. Moreover, it cannot be overemphasized that this is the first instance that respondent
Jimenez has invoked his basic due process rights, and it is petitioner who has elevated the issue to this Court.
There is thus nothing excessive in our act of heeding respondent now.

Petitioner also emphasizes that the technical assessment and review to determine sufficiency of documents
are matters that can be done without need of intervention by a third party and that the issues that may be
raised during the proceedings (whether the offense is a military offense or political offense or whether the
request is politically motivated) can be done through research without need of intervention by a party.
Petitioner, however, admits that the politically motivated request would pose some difficulties. Then he
proceeds to say that the determination of whether a request is politically motivated naturally puts at issue the
good faith of the other country making a request, and that to make this determination, one has to be fully
aware of the political surroundings upon which the request is made, an finally, that this function can only be
done by the Department of Foreign Affairs. But what actually happened in the instant case? The DFA
perfunctorily skimmed through the request an threw the same to the Department of Justice to exercise its
function. Now, petitioner would prohibit the prospective extraditee from being heard notwithstanding the fact
that the DFA forsook and deserted its bounded duty and responsibilities and, instead, converted itself into
what it calls a mere post office. Assuming arguendo that the request was indeed politically motivated, who
would then give an objective assessment thereof when all the interests of the DOJ is to prepare a petition for
extradition, and to complete the documents in support thereof? It is willing to assist the requesting state by
advising that the papers are not in proper order (thus resulting in delay because of the long wait for the proper
papers) but is not willing to afford the prospective extraditee, its own citizen, enjoyment of his basic rights to
preserve his liberty and freedom.

Petitioner also stresses that the paramount interest involved in the instant case is not delay but the danger of a
fugitive's flight. As mentioned above, immediacy is apparently not a primary concern. Petitioner has given the
requesting state time to complete its documents, particularly by practically affording the U.S. Government an
opportunity to submit the official English translation of Spanish documents and to have other documents
properly authenticated. He even had time to file the instant case. To be straightforward, petitioner himself
(particularly the former Secretary of Justice) has taken his time.

And as regards the apprehension of flight, petitioner is well versed in the use of a hold departure order which
could easily lay his fear of private respondent's flight to rest. In accordance with Department circular No. 17
issued on March 19, 1998 by then Secretary of Justice Silvestre H. Bello III, a hold departure order (HDO) may
be issued by the Secretary of Justice "upon the request of the Head of a Department of the Government; the
head of a constitutional body or a commission or agency performing quasi-judicial functions; the chief Justice
of the Supreme Court for the Judiciary; or by the President of the Senate or the Speaker of the House of
Representatives for the legislative body" when the interested party is the Government or any of its agencies or
intrumentalities, "in the interest of national security, public safety or public health, as may be provided by law"
(Paragraph 2 [d], Department Circular No. 17 [Prescribing Rules and Regulations Governing the Issuance of
Hold Departure Orders]). This provision can easily be utilized by petitioner to prevent private respondent's
flight.

Also in relation to flight, petitioner advances the applicability of the balance-of-interest test, which, as
discussed in American Communications Association vs. Douds (339 U.S. 282), refers to a situation where
particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, resulting in the duty of the courts to determine which of the
conflicting interests demand the greater protection under the particular circumstances presented. In other
words, if in a given situation it should appear that there is urgent necessity for protecting the national security
against improvident exercise of freedom, but the interests of the State are not especially threatened by its
exercise, the right must prevail.

The two other tests which evolved in the context of prosecution of crimes involving the overthrow of the
government also gain applicability on other substantive evils which the state has the right to prevent even if
these evils do not clearly undermine the safety of the Republic (Bernas, the 1987 Constitution of the Republic
of the Philippines, 1996 ed., p. 219). By analogy, let us consider the legislation subject of this controversy - the
Philippine Extradition Law. The substantive evil that the State would like to prevent is the flight of the
prospective extraditee. A lot lies in how we respond to the following considerations:
(1) If the prospective extraditee were given notice and hearing during the evaluation stage of the
extradition proceedings, would this result in his flight? Would there be a dangerous or natural
tendency that the prospective extraditee might flee from the country? Is flight the probable effect of
affording him his basic due process rights?

(2) If the prospective extraditee were afforded these basic due process rights, would this create a clear
and present danger that it will inevitably result in his flight?

(3) Should the Court balance the interest of the government (which refers to the prevention of the flight
of the prospective extraditee from the country and the breach of international commitments) and that
of the individual (referring to possible indefinite incarceration)? For whom do we tilt the balance?

Both the treaty and the Extradition Law clearly provide for the incarceration of the prospective extraditee.
Although the matter has been fully discussed in the then majority opinion of the Court now being reconsidered,
it is significant to survey such provisions, as follows:

(1) The prospective extraditee faces provisonal arrest pending the submission of the request for
extradition based on Paragraph (1), Article 9 of the RP-US Extradition Treaty which provides that a
contracting party may request the provisional arrest of the person sought pending presentation of the
request, but he shall be automatically discharged after 60 days if no request is submitted (paragraph
4). The Extradition Law provides for a shorter period of 20 days after which the arrested person could
be discharged (Section 20 [d]). And as observed in my ponencia, although the Extradition Law is silent
in this respect, the provisions mean that once a request for extradition is forwarded to the Requested
State, the prospective extraditee may be continuously detained, or if not, subsequently rearrested
(Paragraph [5], Article 9, RP-US Extradition Treaty), for he will only be discharged if no request is later
submitted.

(2) The prospective extraditee may also be subject to temporary arrest during the pendency of the
extradition petition in court (Section 6, Presidential Decree No. 1069). With the patent insistence of the
requesting state to have the RP-US Extradition Treaty strictly enforced, as well as the noticeable zeal
and attention of the Department of Justice on the extradition of respondent Jimenez, one cannot but
conclude that the filing of a petition for extradition by the Department of Justice is an absolute
certainty. This is especially obvious from the fact that the Department of Justice has even allowed the
requesting state to correct the deficiencies of the documents in support of the request.

Petitioner likens the evaluation procedure to the cancellation of passports held by persons facing criminal
prosecution. This situation is discussed in the vintage case of Suntay vs. People (101 Phil. 833 [1957]) where
an accused in a criminal case for seduction applied for and was granted a passport by the Department of
Foreign Affairs and later left the Philippines for the United States. We held that due to the accused's sudden
departure from the country in such a convenient time which could readily be interpreted to mean as a
deliberate attempt on his part to flee from justice, the Secretary of Foreign Affairs had the discretion to
withdraw or cancel the accused's passport even without a hearing, considering that such cancellation was
based upon an undisputed fact- the filing of a serious criminal charges against the passport holder.

The situation in the case at bar is different precisely because we are looking at a situation where we have a
Filipino countryman facing possible exile to a foreign land. Forget the personality and controversial nature
involved.

Imagine the inconvenience brought about by incarceration when, on the extreme, the prospective extraditee
could prevent it by pointing out that, for instance, the request is politically motivated. We are not only referring
to private respondent, who petitioner himself describes as one who luckily has access to media. The ruling in
the case at bar also affects the lives of ordinary Filipinos who are far from the limelight. Shall we allow them to
be subjected to incarceration just because they have no access to information about imminent dangers to their
liberty? What should stop us from protecting our own Filipino brethren?
In Lao Gi vs. Court of Appeals (180 SCRA 756 [1989]), we held that deportation proceedings do not partake of
the nature of a criminal action, however, considering that said proceedings are harsh and extraordinary
administrative matters affecting the freedom and liberty of a person, the constitutional right of such person to
due process should not be denied. Thus, the provisions of the Rules of Court particularly on criminal
procedure are applicable to deportation proceedings. And this protection was given to Lao Gi, a former Filipino
citizen whose citizenship was set aside on the ground that it was founded on fraud and misrepresentation,
resulting in a charge for deportation filed against him, his wife, and children. If an alien subject to the State's
power of deportation (which is incidentally a police measure against undesirable aliens whose presence in the
country is found to be injurious to the public good and domestic tranquility of the people) is entitled to basic
due process rights, why not a Filipino?

On the other hand, let us put the executive department's international commitments in perspective.

The very essence of a sovereign state is that it has no superior. Each sovereign state is supreme upon its own
limits. It is, therefore, fundamental in Private International Law that it is within the power of such state at any
time to exclude any or all foreign laws from operating within its borders to the extent that if it cannot do this, it
is not sovereign. Hence, when effect is given to a foreign law in any territory, it is only because the municipal
law of that state temporarily abdicates its supreme authority in favor of the foreign law, which for the time
being, with reference to that particular matter, becomes itself, by will of the state, its municipal law (Paras, Phil.
Conflict of Laws, 1996 ed., p. 5). However, to be precise, the instant case involves principles of public
international law which describe a sovereign state as independent and not a dependency of another state
(Salonga & Yap, Public International Law, 1992 ed., p. 7).

If this were a case before international tribunals, international obligations would undoubtedly reign supreme
over national law. However, in the municipal sphere, the relationship between international law and municipal
law is determined by the constitutional law of individual states (Ibid., pp. 11-12). In the Philippines, the doctrine
of incorporation is observed with respect to customary international law in accordance with Article II, Section 2
of the 1987 Constitution which in essence provides that the Philippines "adopts the generally accepted
principles of international law as part of the law of the land."

The Extradition Treaty on the other hand is not customary international law.1âwphi1 It is a treaty which may be
invalidated if it is in conflict with the Constitution. And any conflict therein is resolved by this Court, which is the
guardian of the fundamental law of the land. No foreign power can dictate our course of action, nor can the
observations of a handful of American lawyers have any legal bearing, as if they were law practitioners in this
country.

One last point. Petitioner argues that one can search the RP-US Extradition Treaty in vain for any provision
saying that notice and hearing should be had during the evaluation process. But it is also silent on other
points-on the period within which the evaluation procedure should be done; on the propriety of the act of the
Requested State advising the Requesting State what papers are proper to be submitted in support of the
extradition request (specifically on authentication and on translation); yet these matters are not in question.
And as regards the matter of bail, suffice it to state that the Court is not harboring the idea that bail should be
available in extradition proceedings. It merely rhetorically presented one of the legal implications of the
Extradition Law. This matter is not even in issue.

In closing, it is significant to reiterate that in the United States, extradition begins and ends with one entity-the
Department of State-which has the power to evaluate the request an the extradition documents in the
beginning, and in the person of the secretary of State, the power to act or not to act on the court's
determination of extraditability. Let us hope that after the extradition petition has been filed and heard by the
proper court, the executive department, represented in our country by the Department of Foreign Affairs, will
this time dutifully discharge its function, like its American counterpart, in making the final and ultimate
determination whether to surrender the prospective extraditee to the foreign government concerned. Anyway,
petitioner himself has argued that it is the entity knowledgeable of whether the request was politically
motivated in the first place. The possibility of the prospective extraditee's exile from our land lies in its hands.

WHEREFORE, I vote to DENY the instant motion for reconsideration.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

YNARES-SANTIAGO, J.:

On January 18, 2000, I was one of the nine (9) members of the Court who voted to dismiss the petition of the
secretary of Justice. My vote was intended to grant any Filipino citizen, not Mr. Mark Jimenez alone, a fair and
early opportunity to find out why he should be forcibly extradited from his homeland to face criminal trial in a
foreign country with all its unfamiliar and formidable consequences.

After going over the grounds given by the Government in support of the motion for reconsideration, I regret
that I cannot go along with the new ruling of the Court's recent majority. I am convinced that there is greater
reason to strike the balance in favor of a solitary beleaguered individual against the exertion of overwhelming
Government power by both the Philippines and the United States. To grant the respondent his right to know
will not, in any significant way, weaken or frustrate compliance with treaty objectives. But it will result in
jurisprudence which reasserts national dignity and gives meaningful protection to the rights of any citizen who
is presumed innocent until proven guilty.

The basic considerations behind my vote to deny the petition have not changed inspite of the detailed
explanations in the motion for reconsideration. On the contrary, I recognize the grant of the respondent's
request even more justified and compelling.

In the first place, I find nothing unreasonable, illegal or repugnant for a man about to be brought to trial to ask
for the charges raised against him. It is a perfectly natural and to be-expected request. There is also nothing
in the RP-US Extradition Treaty that expressly prohibits the giving of such information to an extraditee
before trial. On the other hand, its grant is in keeping with basic principles of fairness and even-handed
justice.

I find petitioner's reasons for rejecting the exercise of the right to know as more illusory than real. Delay is not
an issue. Delays were incurred in the United States before the request for extradition was finalized. Delays in
the Philippines are inevitable unless a skilled prosecutor and a competent Judge will ably control the course of
the trial in a court with clogged dockets. It is these delays that should be addressed. Why should a few days
given to an "accused" to study the charges against him be categorized as unwarranted and intolerable delay?

I reject the argument that public interest, international commitments and national dignity would be
compromised if Mr. Mark B. Jimenez is shown the extradition treaty so he can more adequately prepare his
defense. Merely raising insuperable grounds does not insure their validity. I find the above concerns totally
inapplicable under the circumstances of this case.

I beg the Court's indulgence as I discuss one by one the reasons for the Court's change of mind and the
grounds for the grant of the motion for reconsideration.
I dissent from the first ground which implies that a claim shall be rejected and a protection may not be allowed
if it is not found in the express provisions of the RP-US Extradition Treaty. It should be the other way
around. Any right not prohibited by the Treaty which arises from Philippine law, custom or traditions of
decency and fairness should be granted and not denied. The referral by the Department of Foreign Affairs
to the Department of Justice and the high profile collaboration between the two powerful Departments, found
in Presidential Decree No. 1069, is not also provided for in the Treaty. Does that mean it is prohibited?

There is no provision in the Treaty which mandates that an extraditee should be kept in the dark about the
charges against him until he is brought to trial. The Treaty deals only with the trial proper. It cannot possibly
cover everything. Our law and jurisprudence are not superseded by the mere absence of a specific provision
in a treaty. What is not prohibited should be allowed.

The respondent is not asking for any favor which interferes with the evaluation of an extradition request. While
two powerful institutions, the Department of Foreign Affairs and the Department of Justice, are plotting the
course of a citizen's life or liberty, I see no reason why the person involved should not be given an early
opportunity to prepare for trial. There is no alteration or amendment of any Treaty provision. Section 6 of
Presidential Decree No. 1069, which provides for service of the summons and the warrant of arrest once the
extradition court takes over, is a minimum requirement for the extraditee's protection. Why should it be used
against him? Why should it be treated as a prohibition against the enjoyment of rights to which a citizen may
be entitled under a liberal interpretation of our laws, treaties and procedures?

With all due respect, I find the second reason in the Court's Resolution, ostensibly based on the intent behind
the RP-US Extradition Treaty, to be inapplicable, exaggerated and unfair. Does the grant of an early
opportunity to prepare for one's defense really diminish our country's commitment to the suppression
of crime? How can a person's right to know what blows will strike him next be a State's coddling of a
perpetrator of a crime? Why should the odious crimes of terrorism and drug trafficking be used as
inflammatory arguments to decide cases of more subjective and problematical offenses like tax evasion or
illegal election campaign contributions? Terrorism and drug trafficking are capital offenses in the Philippines.
There should be no legal obstacles to speedily placing behind bars a Filipino terrorist or drug dealer or
summarily deporting a non-citizen as an undesirable alien. But this should in no way lessen a greater care and
more humane handling of an offense not as clear-cut or atrocious. The use of epithetical arguments is unfair.

In this particular case, it is not the respondent's request for copies of the charges which is delaying the
extradition process. Delay is caused by the cumbersome procedures coupled with ostentatious publicity
adopted by two big Departments --- the Department of Foreign Affairs and the Department of Justice --- to
evaluate what is really a simple question: whether or not to file extradition proceedings. But we are unfairly
laying the blame on Mark Jimenez and using it as an excuse to deny a basically reasonable request which is
to him of paramount importance.

I find this case not so much a violation of any international commitment as it is an unnecessary exertion of the
strong arm of the law and an unfortunate display of dominant Government power.

The third factor mentioned by the majority of the Court is based on a mistaken premise. It assumes that
furnishing a potential extraditee with a copy of the extradition request is prohibited by the Treaty. It is not. The
silence of the Treaty on the matter does not mean it cannot be done. To view silence as prohibition is
completely anathema to statutory construction of constitutional protections.

Canada, Hong Kong, an the United States may not furnish copies of the charges during the evaluation stage.
But this could be due to their use of an entirely different and abbreviated evaluation process. Absent clear
and specific prohibitions in a treaty, the procedure by which rights are enforced and wrongs redressed
is primarily one of national regulation and control. There is no universal uniform procedure required of
all countries. Every State has the prerogative of devising its own guidelines in securing essential justice. The
fact that certain countries do not follow the practice does not mean that we cannot adopt measures that are
fair, protective of private interests to life and liberty, and not really damaging to Philippine and American
governmental concerns. Is there anything in the request of Mark Jimenez which is offensive to the principles of
ordered liberty and justice treated as fundamental? It is the Government which is acting in an uncustomary,
frigid and unfeeling manner in this case.

Regarding the fourth reason for the majority decision, I agree that an extradition proceedings is sui generis. It
may not yet involve the determination of innocence or guilt. But certainly, such is the only result of
extradition. A person's good name, dignity, reputation and honor are at stake. In no way should these
values be treated lightly simply because proceedings have not yet reached the criminal trial proper. The
preliminary procedure request by the respondent may be different from preliminary investigations under our
law. But the right to some kind of proper notice is fundamental.

A proposed extraditee should not be denied a reasonable opportunity to prepare for trial. In an extradition trial,
there may be reasons for the exercise of special care and caution. It is not a casual occurrence to give up your
citizen to another country's criminal justice system. I do not want to sound unduly jingoistic but in certain
Western countries, especially those using the jury system, a second-class citizen or a colored non-citizen may
not always get equal justice inspite of protestations to the contrary. The prospective extraditee, therefore,
deserves every lawful consideration which his poor third-world country can give him. Instead of being
influenced by non-applicable doomsday pronouncements regarding terrorists, drug dealers, and internationally
syndicated criminals being pampered, all we need to apply is plain common-sense coupled with a
compassionate and humane approach.

The fifth factor influencing the Court regarding threats to respondent's liberty should not be dismissed as
fancied or imaginary. The insistent denial of a simple right to be informed is the best argument that the Treaty
is being interpreted in an unduly strict manner contrary to our established rules on transparency and
candidness. At this early stage, we are already interpreting the RP-US Extradition Treaty in a most restrictive
manner. The terms of any law or treaty can be interpreted strictly or liberally. What reasons do we have to
adopt a rigidly strict interpretation when what is involved is human liberty?

While extradition treaties should be faithfully observed and interpreted, with a view of fulfilling the nation's
obligations to other powers, this should be done without sacrificing the constitutional rights of the accused.1

I repeat that what Mark Jimenez requests is only an opportunity to know the charges against him. We
are not judging a game where the Government may spring a surprise on him only at the trial. I find nothing
revolting in the respondent's request. And this brings me to the sixth ground given by the latest Resolution of
the Court.

We have to be cautious in relying on the so-called balancing of the sovereign powers of the State against
private interests of a wretched solitary individual. What chance does any person have against this kind of
argument unless the Court approaches the problem in a libertarian manner?

I do not see any "important State interests" or any "government's promotion of fundamental public interests or
policy objectives" being prejudiced. The respondent's right to know the charges against him early does
not clash in any way with any paramount national interest. The invocation of State interests by the
Secretary of Justice is more illusive and rhetorical than real.

There is nothing nebulous in an extraditee's request to prepare for trial. Whether or not the degree of prejudice
to be suffered by the respondent is weak depends on the particular circumstance of each case. A blanket
denial in all cases cannot be based in an all-embracing invocation of public interest or sovereign power.
Neither should separation of powers be pleaded. Whether or not to extradite is a judicial function. The
protection of human rights has never been denied on grounds of comity among the three great
departments of Government. The power to enter into treaties is an executive function but its implementation
on whether or not certain protections may be accorded is judicial.
The invocation of executive prerogatives against a judicial interference has to be carefully studied. I admit that
the balancing of individual liberty and governmental authority is a delicate and formidable task. It should,
however, be accepted that the balance is an ever-shifting one. There should be no setting down of a
permanent rule of denial even under changed circumstances.

With all due respect, I disagree with the Court's majority as it uses principles which to me are not applicable
under the circumstances of this petition. Unless there are compelling reasons, which do not exist in this
case, the balance should not be tilted in favor of interference with a legitimate defense of life or liberty.

The considerations towards the end of the Court's Resolution about the national interest in suppressing crime,
the irreversible globalization of non-refuge to criminals, and, more specifically, the mention of transnational
crimes, are hardly relevant to the subject matter of this case.

Illegal campaign contributions and tax evasions are not transnational crimes. Mr. Mark B. Jimenez is not a
refugee criminal until he is proven guilty and then runs away. 2 The Court is prejudging his guilt when in fact
it is an American court that still has to try him.

The kind of protection advocated by the Court should not be directed towards hypothetical cases of terrorism
or international drug trafficking. There are more than enough valid measures to insure that criminals belonging
to international syndicates do not escape apprehension and trial. Hypothetical fears of non-applicable crimes
should not be conjured in this particular case for a blanket denial of the right to information under all
circumstances. To grant the respondent's request would have no truly dangerous consequences to the
administration of justice.

I respectfully urge the Court to rescue libertarian principles from the overzealous and sometimes inexplicable
efforts of executive officers to tread upon them. Let us not unnecessarily distance ourselves from the felt and
accepted needs of our citizens in this novel and, for us, uncharted field of extradition. The Court is tasked to
defend individual liberty in every major area of governance including international treaties, executive
agreements, and their attendant commitments.

In view of the foregoing, I vote to DENY the motion for reconsideration and to DISMISS the petition.
CASE NO. 2

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,


vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial Court of Makati,
Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court, Branch 61, Makati, Metro Manila in
Civil Case No. 90-183.

The Order dated June 20, 1991 denied the motion of petitioner to dismiss the complaint in Civil Case No. 90-
183, while the Order dated September 19, 1991 denied the motion for reconsideration of the June 20,1991
Order.

Petitioner is the Holy See who exercises sovereignty over the Vatican City in Rome, Italy, and is represented
in the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales Enterprises, Inc., is a domestic corporation engaged in the real estate
business.

This petition arose from a controversy over a parcel of land consisting of 6,000 square meters (Lot 5-A,
Transfer Certificate of Title No. 390440) located in the Municipality of Parañaque, Metro Manila and registered
in the name of petitioner.

Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer Certificates of Title Nos. 271108
and 265388 respectively and registered in the name of the Philippine Realty Corporation (PRC).

The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr., acting as agent to the sellers.
Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private respondent, a dispute arose as to who
of the parties has the responsibility of evicting and clearing the land of squatters. Complicating the relations of
the parties was the sale by petitioner of Lot 5-A to Tropicana Properties and Development Corporation
(Tropicana).

On January 23, 1990, private respondent filed a complaint with the Regional Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and specific performance and damages
against petitioner, represented by the Papal Nuncio, and three other defendants: namely, Msgr. Domingo A.
Cirilos, Jr., the PRC and Tropicana (Civil Case No.
90-183).

The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of petitioner and the PRC,
agreed to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per square meters; (2) the
agreement to sell was made on the condition that earnest money of P100,000.00 be paid by Licup to the
sellers, and that the sellers clear the said lots of squatters who were then occupying the same; (3) Licup paid
the earnest money to Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the property to
private respondent and informed the sellers of the said assignment; (5) thereafter, private respondent
demanded from Msgr. Cirilos that the sellers fulfill their undertaking and clear the property of squatters;
however, Msgr. Cirilos informed private respondent of the squatters' refusal to vacate the lots, proposing
instead either that private respondent undertake the eviction or that the earnest money be returned to the
latter; (6) private respondent counterproposed that if it would undertake the eviction of the squatters, the
purchase price of the lots should be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos
returned the earnest money of P100,000.00 and wrote private respondent giving it seven days from receipt of
the letter to pay the original purchase price in cash; (8) private respondent sent the earnest money back to the
sellers, but later discovered that on March 30, 1989, petitioner and the PRC, without notice to private
respondent, sold the lots to Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and
another over Lots 5-B and 5-D; and that the sellers' transfer certificate of title over the lots were cancelled,
transferred and registered in the name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the
lots to it and thus enriched itself at the expense of private respondent; (10) private respondent demanded the
rescission of the sale to Tropicana and the reconveyance of the lots, to no avail; and (11) private respondent is
willing and able to comply with the terms of the contract to sell and has actually made plans to develop the lots
into a townhouse project, but in view of the sellers' breach, it lost profits of not less than P30,000.000.00.

Private respondent thus prayed for: (1) the annulment of the Deeds of Sale between petitioner and the PRC on
the one hand, and Tropicana on the other; (2) the reconveyance of the lots in question; (3) specific
performance of the agreement to sell between it and the owners of the lots; and (4) damages.

On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the complaint — petitioner for lack
of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for being an improper party. An
opposition to the motion was filed by private respondent.

On June 20, 1991, the trial court issued an order denying, among others, petitioner's motion to dismiss after
finding that petitioner "shed off [its] sovereign immunity by entering into the business contract in question"
(Rollo, pp. 20-21).

On July 12, 1991, petitioner moved for reconsideration of the order. On August 30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation for claim of Immunity as a
Jurisdictional Defense." So as to facilitate the determination of its defense of sovereign immunity, petitioner
prayed that a hearing be conducted to allow it to establish certain facts upon which the said defense is based.
Private respondent opposed this motion as well as the motion for reconsideration.

On October 1, 1991, the trial court issued an order deferring the resolution on the motion for reconsideration
until after trial on the merits and directing petitioner to file its answer (Rollo, p. 22).

Petitioner forthwith elevated the matter to us. In its petition, petitioner invokes the privilege of sovereign
immunity only on its own behalf and on behalf of its official representative, the Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the Department of Foreign Affairs,
claiming that it has a legal interest in the outcome of the case as regards the diplomatic immunity of petitioner,
and that it "adopts by reference, the allegations contained in the petition of the Holy See insofar as they refer
to arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign Affairs. In compliance with the
resolution of this Court, both parties and the Department of Foreign Affairs submitted their respective
memoranda.
II

A preliminary matter to be threshed out is the procedural issue of whether the petition for certiorari under Rule
65 of the Revised Rules of Court can be availed of to question the order denying petitioner's motion to dismiss.
The general rule is that an order denying a motion to dismiss is not reviewable by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing before the trial court. But the
general rule admits of exceptions, and one of these is when it is very clear in the records that the trial court
has no alternative but to dismiss the complaint (Philippine National Bank v. Florendo, 206 SCRA 582 [1992];
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it would be a sheer waste of time
and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality or legal interest of the
Department of Foreign Affairs to intervene in the case in behalf of the Holy See (Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic
immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court
that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion," where the foreign state or the
international organization sued in an American court requests the Secretary of State to make a determination
as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit,
he, in turn, asks the Attorney General to submit to the court a "suggestion" that the defendant is entitled to
immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that
effect instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit
of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

In the Philippines, the practice is for the foreign government or the international organization to first secure an
executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office
conveys its endorsement to the courts varies. In International Catholic Migration Commission v. Calleja, 190
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and
Employment, informing the latter that the respondent-employer could not be sued because it enjoyed
diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1 (1974), the U.S. Embassy
asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of
the United States Naval Base at Olongapo City, Zambales, a "suggestion" to respondent Judge. The Solicitor
General embodied the "suggestion" in a Manifestation and Memorandum as amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this
Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its
memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50 [1945]; Miquiabas v. Philippine-
Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182 SCRA 644 [1990] and
companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the
facts and make their own determination as to the nature of the acts and transactions involved.

III

The burden of the petition is that respondent trial court has no jurisdiction over petitioner, being a foreign state
enjoying sovereign immunity. On the other hand, private respondent insists that the doctrine of non-suability is
not anymore absolute and that petitioner has divested itself of such a cloak when, of its own free will, it entered
into a commercial transaction for the sale of a parcel of land located in the Philippines.
A. The Holy See

Before we determine the issue of petitioner's non-suability, a brief look into its status as a sovereign state is in
order.

Before the annexation of the Papal States by Italy in 1870, the Pope was the monarch and he, as the Holy
See, was considered a subject of International Law. With the loss of the Papal States and the limitation of the
territory under the Holy See to an area of 108.7 acres, the position of the Holy See in International Law
became controversial (Salonga and Yap, Public International Law 36-37 [1992]).

In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy recognized the exclusive dominion
and sovereign jurisdiction of the Holy See over the Vatican City. It also recognized the right of the Holy See to
receive foreign diplomats, to send its own diplomats to foreign countries, and to enter into treaties according to
International Law (Garcia, Questions and Problems In International Law, Public and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the purpose of assuring to the Holy See
absolute and visible independence and of guaranteeing to it indisputable sovereignty also in the field of
international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine whether the statehood is vested in the
Holy See or in the Vatican City. Some writers even suggested that the treaty created two international persons
— the Holy See and Vatican City (Salonga and Yap, supra, 37).

The Vatican City fits into none of the established categories of states, and the attribution to it of "sovereignty"
must be made in a sense different from that in which it is applied to other states (Fenwick, International Law
124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national states, the Vatican City
represents an entity organized not for political but for ecclesiastical purposes and international objects. Despite
its size and object, the Vatican City has an independent government of its own, with the Pope, who is also
head of the Roman Catholic Church, as the Holy See or Head of State, in conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and activities of the Vatican City are such
as to make it in a sense an "international state" (Fenwick, supra., 125; Kelsen, Principles of International Law
160 [1956]).

One authority wrote that the recognition of the Vatican City as a state has significant implication — that it is
possible for any entity pursuing objects essentially different from those pursued by states to be invested with
international personality (Kunz, The Status of the Holy See in International Law, 46 The American Journal of
International Law 308 [1952]).

Inasmuch as the Pope prefers to conduct foreign relations and enter into transactions as the Holy See and not
in the name of the Vatican City, one can conclude that in the Pope's own view, it is the Holy See that is the
international person.

The Republic of the Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations with the Philippine government
since 1957 (Rollo, p. 87). This appears to be the universal practice in international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have adopted the generally accepted
principles of International Law. Even without this affirmation, such principles of International Law are deemed
incorporated as part of the law of the land as a condition and consequence of our admission in the society of
nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According
to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the courts
of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized
only with regard to public acts or acts jure imperii of a state, but not with regard to private acts or acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and Defensor-Santiago, Public International
Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or judicial determination when an act
may be considered as jure gestionis. The United States passed the Foreign Sovereign Immunities Act of 1976,
which defines a commercial activity as "either a regular course of commercial conduct or a particular
commercial transaction or act." Furthermore, the law declared that the "commercial character of the activity
shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather
than by reference to its purpose." The Canadian Parliament enacted in 1982 an Act to Provide For State
Immunity in Canadian Courts. The Act defines a "commercial activity" as any particular transaction, act or
conduct or any regular course of conduct that by reason of its nature, is of a "commercial character."

The restrictive theory, which is intended to be a solution to the host of problems involving the issue of
sovereign immunity, has created problems of its own. Legal treatises and the decisions in countries which
follow the restrictive theory have difficulty in characterizing whether a contract of a sovereign state with a
private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into purely commercial activities
remotely connected with the discharge of governmental functions. This is particularly true with respect to the
Communist states which took control of nationalized business activities and international trading.

This Court has considered the following transactions by a foreign state with private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its military officers (Syquia v. Lopez, 84
Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment status of base employees
(Sanders v. Veridiano, 162 SCRA 88 [1988]).

On the other hand, this Court has considered the following transactions by a foreign state with private parties
as acts jure gestionis: (1) the hiring of a cook in the recreation center, consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air Station in Baguio City, to cater to
American servicemen and the general public (United States of America v. Rodrigo, 182 SCRA 644 [1990]);
and (2) the bidding for the operation of barber shops in Clark Air Base in Angeles City (United States of
America v. Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other facilities open to the
general public is undoubtedly for profit as a commercial and not a governmental activity. By entering into the
employment contract with the cook in the discharge of its proprietary function, the United States government
impliedly divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be considered "commercial" and as
constituting acts jure gestionis, we have to come out with our own guidelines, tentative they may be.

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not engaged regularly in a business or
trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign
activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or
profit.

As held in United States of America v. Guinto, (supra):

There is no question that the United States of America, like any other state, will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its proprietary or
private capacity. It is only when the contract involves its sovereign or governmental capacity
that no such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary course of a real estate business,
surely the said transaction can be categorized as an act jure gestionis. However, petitioner has denied that the
acquisition and subsequent disposal of Lot 5-A were made for profit but claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the Philippines. Private respondent failed to dispute
said claim.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of Manila. The donation was made not
for commercial purpose, but for the use of petitioner to construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire property, real or personal, in a receiving state,
necessary for the creation and maintenance of its diplomatic mission, is recognized in the 1961 Vienna
Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in by the Philippine Senate and
entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action relating to private immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.

The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a
governmental character. Petitioner did not sell Lot
5-A for profit or gain. It merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The fact that squatters have occupied
and are still occupying the lot, and that they stubbornly refuse to leave the premises, has been admitted by
private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court without going to trial in the light of
the pleadings, particularly the admission of private respondent. Besides, the privilege of sovereign immunity in
this case was sufficiently established by the Memorandum and Certification of the Department of Foreign
Affairs. As the department tasked with the conduct of the Philippines' foreign relations (Administrative Code of
1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally intervened in this case and
officially certified that the Embassy of the Holy See is a duly accredited diplomatic mission to the Republic of
the Philippines exempt from local jurisdiction and entitled to all the rights, privileges and immunities of a
diplomatic mission or embassy in this country (Rollo, pp. 156-157). The determination of the executive arm of
government that a state or instrumentality is entitled to sovereign or diplomatic immunity is a political question
that is conclusive upon the courts (International Catholic Migration Commission v. Calleja, 190 SCRA 130
[1990]). Where the plea of immunity is recognized and affirmed by the executive branch, it is the duty of the
courts to accept this claim so as not to embarrass the executive arm of the government in conducting the
country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242 [1972]). As in International
Catholic Migration Commission and in World Health Organization, we abide by the certification of the
Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court to conduct a hearing to
establish the facts alleged by petitioner in its motion. In view of said certification, such procedure would
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v. Judge Tirso Velasco, G.R. No.
109645, July 25, 1994).
IV

Private respondent is not left without any legal remedy for the redress of its grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic channels.

Private respondent can ask the Philippine government, through the Foreign Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a determination of the impact of its espousal
on the relations between the Philippine government and the Holy See (Young, Remedies of Private Claimants
Against Foreign States, Selected Readings on Protection by Law of Private Foreign Investments 905, 919
[1964]). Once the Philippine government decides to espouse the claim, the latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights —
its right to ensure, in the person of its subjects, respect for the rules of international law (The
Mavrommatis Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil Case No. 90-183 against
petitioner is DISMISSED.

SO ORDERED.

Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan and Mendoza,
JJ., concur.

Padilla, J., took no part.

Feliciano, J., is on leave.


CASE NO. 3

PROF. MERLIN M. MAGALLONA, G.R No. 187167


AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. Present:
ROQUE, JR., AND UNIVERSITY OF
THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.
GIRLIE FERRER, RAOULLE OSEN
FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA
PINEDA, WILLIAM RAGAMAT,
MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,
Petitioners,

- versus -
HON. EDUARDO ERMITA, IN HIS
CAPACITY AS EXECUTIVE
SECRETARY, HON. ALBERTO
ROMULO, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON.
ROLANDO ANDAYA, IN HIS CAPACITY
AS SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT,
HON. DIONY VENTURA, IN HIS
CAPACITY AS ADMINISTRATOR OF
THE NATIONAL MAPPING &
RESOURCE INFORMATION
AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS
REPRESENTATIVE OF THE
PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:
TO THE UNITED NATIONS,
Respondents. July 16, 2011
x ----------------------------------------------------------------------------------------- x

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No.
95221 (RA 9522) adjusting the countrys archipelagic baselines and classifying the baseline regime of nearby
territories.

The Antecedents

In 1961, Congress passed Republic Act No. 3046 (RA 3046) 2 demarcating the maritime baselines of the
Philippines as an archipelagic State.3 This law followed the framing of the Convention on the Territorial Sea
and the Contiguous Zone in 1958 (UNCLOS I),4 codifying, among others, the sovereign right of States parties
over their territorial sea, the breadth of which, however, was left undetermined. Attempts to fill this void during
the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046
remained unchanged for nearly five decades, save for legislation passed in 1968 (Republic Act No. 5446 [RA
5446]) correcting typographical errors and reserving the drawing of baselines around Sabah in North Borneo.

In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the United Nations
Convention on the Law of the Sea (UNCLOS III),5 which the Philippines ratified on 27 February 1984.6 Among
others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like
the Philippines7 and sets the deadline for the filing of application for the extended continental shelf. 8 Complying
with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around
the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own applicable maritime zones.

Petitioners, professors of law, law students and a legislator, in their respective capacities as citizens,
taxpayers or x x x legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
states sovereign power, in violation of Article 1 of the 1987 Constitution, 10 embodying the terms of the Treaty
of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines to
maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the countrys nuclear-free policy, and damaging marine resources, in violation of relevant
constitutional provisions.13

In addition, petitioners contend that RA 9522s treatment of the KIG as regime of islands not only
results in the loss of a large maritime area but also prejudices the livelihood of subsistence fishermen. 14 To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for what it excluded and
included its failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs framework of
regime of islands to determine the maritime zones of the KIG and the Scarborough Shoal.

Commenting on the petition, respondent officials raised threshold issues questioning (1) the petitions
compliance with the case or controversy requirement for judicial review grounded on petitioners alleged lack
of locus standi and (2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of RA
9522. On the merits, respondents defended RA 9522 as the countrys compliance with the terms of UNCLOS
III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add that RA 9522 does not
undermine the countrys security, environment and economic interests or relinquish the Philippines claim over
Sabah.

Respondents also question the normative force, under international law, of petitioners assertion that
what Spain ceded to the United States under the Treaty of Paris were the islands and all the waters found
within the boundaries of the rectangular area drawn under the Treaty of Paris.

We left unacted petitioners prayer for an injunctive writ.

The Issues

The petition raises the following issues:

1. Preliminarily

1. Whether petitioners possess locus standi to bring this suit; and

2. Whether the writs of certiorari and prohibition are the proper remedies to assail the constitutionality of
RA 9522.

2. On the merits, whether RA 9522 is unconstitutional.


The Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (2)
the writs of certiorari and prohibition are proper remedies to test the constitutionality of RA 9522. On the
merits, we find no basis to declare RA 9522 unconstitutional.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens

Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the
petition alleges neither infringement of legislative prerogative 15 nor misuse of public funds,16 occasioned by the
passage and implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as citizens with
constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of
national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is
understandably difficult to find other litigants possessing a more direct and specific interest to bring the suit,
thus satisfying one of the requirements for granting citizenship standing. 17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the
offices of the writs of certiorari and prohibition, noting that the writs cannot issue absent any showing of grave
abuse of discretion in the exercise of judicial, quasi-judicial or ministerial powers on the part of respondents
and resulting prejudice on the part of petitioners.18

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional
power of judicial review, however, we have, by tradition, viewed the writs of certiorari and prohibition as proper
remedial vehicles to test the constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no
bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court
inevitably finds itself constrained to take cognizance of the case and pass upon the issues raised, non-
compliance with the letter of procedural rules notwithstanding. The statute sought to be reviewed here is one
such law.

RA 9522 is Not Unconstitutional


RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental

Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the
pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively
encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize
that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign
control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain
supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris technical description,
Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine
archipelago, embracing the rectangular area delineated in the Treaty of Paris.22

Petitioners theory fails to persuade us.

UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty
regulating, among others, sea-use rights over maritime zones (i.e., the territorial waters [12 nautical miles from
the baselines], contiguous zone [24 nautical miles from the baselines], exclusive economic zone [200 nautical
miles from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify norms regulating the
conduct of States in the worlds oceans and submarine areas, recognizing coastal and archipelagic States
graduated authority over a limited span of waters and submarine lands along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to
mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured,
to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf.
Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit
with precision the extent of their maritime zones and continental shelves. In turn, this gives notice to the rest of
the international community of the scope of the maritime space and submarine areas within which States
parties exercise treaty-based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous zone (Article 33), and
the right to exploit the living and non-living resources in the exclusive economic zone (Article 56) and
continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the islands and all the
waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still
have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity
with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago. 24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as
petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and prescription, 25 not by executing
multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to
delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and
are instead governed by the rules on general international law.26

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to draw the baselines,
and to measure the breadth of the applicable maritime zones of the KIG, weakens our territorial claim over that
area.27 Petitioners add that the KIGs (and Scarborough Shoals) exclusion from the Philippine archipelagic
baselines results in the loss of about 15,000 square nautical miles of territorial waters, prejudicing the
livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines drawn under RA
3046 and RA 9522 and the extent of maritime space encompassed by each law, coupled with a reading of the
text of RA 9522 and its congressional deliberations, vis--vis the Philippines obligations under UNCLOS III,
belie this view.

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed
the basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped to optimize the
location of basepoints and adjust the length of one baseline (and thus comply with UNCLOS IIIs limitation on
the maximum length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie
outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the
wind out of petitioners argument branding RA 9522 as a statutory renunciation of the Philippines claim over
the KIG, assuming that baselines are relevant for this purpose.

Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522 is
similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the location of
basepoints, increased the Philippines total maritime space (covering its internal waters, territorial sea and
exclusive economic zone) by 145,216 square nautical miles, as shown in the table below: 29

Extent of maritime area using Extent of maritime


RA 3046, as amended, taking area using RA 9522,
into account the Treaty of taking into account
Paris delimitation (in square UNCLOS III (in square
nautical miles) nautical miles)

Internal or
archipelagic
waters 166,858 171,435

Territorial 274,136 32,106


Sea

Exclusive
Economic
Zone 382,669

TOTAL 440,994 586,210

Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA 9522 even extends
way beyond the waters covered by the rectangular demarcation under the Treaty of Paris. Of course, where
there are overlapping exclusive economic zones of opposite or adjacent States, there will have to be a
delineation of maritime boundaries in accordance with UNCLOS III.30

Further, petitioners argument that the KIG now lies outside Philippine territory because the baselines that RA
9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as Regime of Islands under the
Republic of the Philippines consistent with Article 121 of the United Nations Convention on the
Law of the Sea (UNCLOS):

a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and

b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine
archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two
provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall
not depart to any appreciable extent from the general configuration of the archipelago. Second, Article 47 (2)
of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical miles, save for three per
cent (3%) of the total number of baselines which can reach up to 125 nautical miles. 31

Although the Philippines has consistently claimed sovereignty over the KIG 32 and the Scarborough
Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago,33 such that any straight baseline loped around them from the nearest
basepoint will inevitably depart to an appreciable extent from the general configuration of the archipelago.

The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago, took pains to
emphasize the foregoing during the Senate deliberations:

What we call the Kalayaan Island Group or what the rest of the world call[] the
Spratlys and the Scarborough Shoal are outside our archipelagic baseline because if we put
them inside our baselines we might be accused of violating the provision of international law
which states: The drawing of such baseline shall not depart to any appreciable extent from the
general configuration of the archipelago. So sa loob ng ating baseline, dapat magkalapit ang
mga islands. Dahil malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is
defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang
maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that is
Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa natin
ang dating archipelagic baselines para lamang masama itong dalawang circles, hindi na sila
magkalapit at baka hindi na tatanggapin ng United Nations because of the rule that it should
follow the natural configuration of the archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to
shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became
imperative as discussed by respondents:

[T]he amendment of the baselines law was necessary to enable the Philippines to
draw the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A.
5446, the baselines suffer from some technical deficiencies, to wit:

1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil Point)
is 140.06 nautical miles x x x. This exceeds the maximum length allowed under Article 47(2) of
the [UNCLOS III], which states that The length of such baselines shall not exceed 100 nautical
miles, except that up to 3 per cent of the total number of baselines enclosing any archipelago
may exceed that length, up to a maximum length of 125 nautical miles.

2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or deleted
from the baselines system. This will enclose an additional 2,195 nautical miles of water.

3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west coasts
of Luzon down to Palawan were later found to be located either inland or on water, not on low-
water line and drying reefs as prescribed by Article 47.35

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress
decision to classify the KIG and the Scarborough Shoal as Regime[s] of Islands under the Republic of the
Philippines consistent with Article 12136 of UNCLOS III manifests the Philippine States responsible observance
of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed
area of land, surrounded by water, which is above water at high tide, such as portions of the KIG, qualifies
under the category of regime of islands, whose islands generate their own applicable maritime zones. 37

Statutory Claim Over Sabah under

RA 5446 Retained

Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in
North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for
drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the baselines
of the territorial sea around the territory of Sabah, situated in North Borneo, over which
the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis
supplied)
UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally
converts internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and
sea lanes passage under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights
indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38

Whether referred to as Philippine internal waters under Article I of the Constitution 39 or as archipelagic waters
under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward
of the baselines, including the air space over it and the submarine areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic
waters and of their bed and subsoil.

1. The sovereignty of an archipelagic State extends to the waters enclosed


by the archipelagic baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their depth or distance from
the coast.

2. This sovereignty extends to the air space over the archipelagic waters,
as well as to their bed and subsoil, and the resources contained therein.

xxxx

4. The regime of archipelagic sea lanes passage established in this Part shall not in
other respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms
subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of
maintaining unimpeded, expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation designating routes within the
archipelagic waters to regulate innocent and sea lanes passage. 40 Indeed, bills drawing nautical highways for
sea lanes passage are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate
to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations
and conditions for their exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern State can validly invoke its
sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international
law without risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent
passage and sea lanes passage45 does not place them in lesser footing vis--vis continental coastal States
which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to claim all the waters
landward of their baselines, regardless of their depth or distance from the coast, as archipelagic waters subject
to their territorial sovereignty. More importantly, the recognition of archipelagic States archipelago and the
waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate
islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between
islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting these
waters to the rights of other States under UNCLOS III.47

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles


and State Policies)48 must also fail. Our present state of jurisprudence considers the provisions in Article II as
mere legislative guides, which, absent enabling legislation, do not embody judicially enforceable constitutional
rights x x x.49 Article II provisions serve as guides in formulating and interpreting implementing legislation, as
well as in interpreting executory provisions of the Constitution. Although Oposa v. Factoran50 treated the right
to a healthful and balanced ecology under Section 16 of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional violation. The other provisions petitioners cite, relating
to the protection of marine wealth (Article XII, Section 2, paragraph 2 51) and subsistence fishermen (Article
XIII, Section 752), are not violated by RA 9522.

In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic
zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone.
Such a maritime delineation binds the international community since the delineation is in strict observance of
UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course
reject it and will refuse to be bound by it.

UNCLOS III favors States with a long coastline like the Philippines. UNCLOS III creates a sui
generis maritime space the exclusive economic zone in waters previously part of the high seas. UNCLOS III
grants new rights to coastal States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other States that
attached to this zone beyond the territorial sea before UNCLOS III.

RA 9522 and the Philippines Maritime Zones


Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was not bound
to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III 55 and we find petitioners reading
plausible. Nevertheless, the prerogative of choosing this option belongs to Congress, not to this Court.
Moreover, the luxury of choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is measured. This is recipe for a
two-fronted disaster: first, it sends an open invitation to the seafaring powers to freely enter and exploit the
resources in the waters and submarine areas around our archipelago; and second, it weakens the countrys
case in any international dispute over Philippine maritime space. These are consequences Congress wisely
avoided.

The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent
areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the
Philippines maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the
Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

(Pls. see concurring opinion) TERESITA J. LEONARDO-


PRESBITERO J. VELASCO, JR. DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION DIOSDADO M. PERALTA

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

LUCAS P. BERSAMIN Associate Justice

Associate Justice

I certify that Mr. Justice Abad MARTIN S. VILLARAMA, JR.


left his concurring vote.
ROBERTO A. ABAD Associate Justice

Associate Justice

(on leave) JOSE C. MENDOZA


JOSE PORTUGAL PEREZ
Associate Justice
Associate Justice
MARIA LOURDES P. A. SERENO

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA

Chief Justice
CASE NO. 4

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC., LEONARD DE VERA,
DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO, JR., respondent.

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

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,


vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges that he
is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President. The warring
personalities are important enough but more transcendental are the constitutional issues embedded on the
parties' dispute. While the significant issues are many, the jugular issue involves the relationship between the
ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the petitioner
believing he would rescue them from life's adversity. Both petitioner and the respondent were to serve a six-
year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly but
surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur Governor,
Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the petitioner, his family and
friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto Guingona,
Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech entitled "I Accuse."
He accused the petitioner of receiving some P220 million in jueteng money from Governor Singson from
November 1998 to August 2000. He also charged that the petitioner took from Governor Singson P70 million
on excise tax on cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino Pimentel) and the
Committee on Justice (then headed by Senator Renato Cayetano) for joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security, then headed
by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the move to impeach
the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking petitioner to step
down from the presidency as he had lost the moral authority to govern. 3 Two days later or on October 13, the
Catholic Bishops Conference of the Philippines joined the cry for the resignation of the petitioner.4 Four days
later, or on October 17, former President Corazon C. Aquino also demanded that the petitioner take the
"supreme self-sacrifice" of resignation.5 Former President Fidel Ramos also joined the chorus. Early on, or on
October 12, respondent Arroyo resigned as Secretary of the Department of Social Welfare and Services 6 and
later asked for petitioner's resignation.7 However, petitioner strenuously held on to his office and refused to
resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar Virata,
former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II also
resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin Drilon, and
House Speaker Manuel Villar, together with some 47 representatives defected from the ruling coalition, Lapian
ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House Speaker
Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than 1/3 of all the
members of the House of Representatives to the Senate. This caused political convulsions in both houses of
Congress. Senator Drilon was replaced by Senator Pimentel as Senate President. Speaker Villar was
unseated by Representative Fuentebella.12 On November 20, the Senate formally opened the impeachment
trial of the petitioner. Twenty-one (21) senators took their oath as judges with Supreme Court Chief Justice
Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing as
prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker Arroyo,
Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar
Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led
by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo. Serving as defense
counsel were former Chief Justice Andres Narvasa, former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy Speaker of the House Raul Daza,
Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and
during its course enjoyed the highest viewing rating. Its high and low points were the constant conversational
piece of the chattering classes. The dramatic point of the December hearings was the testimony of Clarissa
Ocampo, senior vice president of Equitable-PCI Bank. She testified that she was one foot away from petitioner
Estrada when he affixed the signature "Jose Velarde" on documents involving a P500 million investment
agreement with their bank on February 4, 2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of insider
trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges ruled against
the opening of the second envelope which allegedly contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name "Jose Velarde." The public and private prosecutors walked out
in protest of the ruling. In disgust, Senator Pimentel resigned as Senate President. 18 The ruling made at 10:00
p.m. was met by a spontaneous outburst of anger that hit the streets of the metropolis. By midnight, thousands
had assembled at the EDSA Shrine and speeches full of sulphur were delivered against the petitioner and the
eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the impeachment proceedings
until the House of Representatives shall have resolved the issue of resignation of the public prosecutors. Chief
Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line of
people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's resignation.
Students and teachers walked out of their classes in Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more
people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election for President where
he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf of Your Armed Forces, the 130,000 strong members of
the Armed Forces, we wish to announce that we are withdrawing our support to this government." 23 A little
later, PNP Chief, Director General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries, undersecretaries, assistant secretaries, and bureau chiefs quickly
resigned from their posts.25 Rallies for the resignation of the petitioner exploded in various parts of the country.
To stem the tide of rage, petitioner announced he was ordering his lawyers to agree to the opening of the
highly controversial second envelope.26There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the peaceful and
orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political Adviser Angelito Banayo,
Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the Presidential Management Staff,
negotiated for the petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de
Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando Perez. 27 Outside the
palace, there was a brief encounter at Mendiola between pro and anti-Estrada protesters which resulted in
stone-throwing and caused minor injuries. The negotiations consumed all morning until the news broke out
that Chief Justice Davide would administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued the
following press statement:30

"20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President of
the Republic of the Philippines. While along with many other legal minds of our country, I have strong
and serious doubts about the legality and constitutionality of her proclamation as President, I do not
wish to be a factor that will prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in to promotion of a constructive national spirit of
reconciliation and solidarity.
May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA"

It also appears that on the same day, January 20, 2001, he signed the following letter:31

"Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20. 23 Another copy was
transmitted to Senate President Pimentel on the same day although it was received only at 9:00 p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers the
duties of the Presidency. On the same day, this Court issued the following Resolution in Administrative Matter
No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her Oath
of Office as President of the Republic of the Philippines before the Chief Justice — Acting on the
urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic
of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January
20, 2001, which request was treated as an administrative matter, the court Resolve unanimously to
confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice
on January 20, 2001 to administer the oath of office of Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps, Papal
Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of respondent
Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White House
conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of Representatives to
the assumption into office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing its support for her administration as a partner in the
attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act. 40 A few days later, she also
signed into law the Political Advertising ban and Fair Election Practices Act. 41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice President. 42 The
next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination of Senator Guingona,
Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena voted "yes" with reservations,
citing as reason therefor the pending challenge on the legitimacy of respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's nomination in Resolution No. 178. 45 Senator Guingona, Jr.
took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she voted
against the closure of the impeachment court on the grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the question of whether Estrada was still qualified to run
for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up from
16% on January 20, 2001 to 38% on January 26, 2001. 49 In another survey conducted by the ABS-CBN/SWS
from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted President Arroyo as
replacement of petitioner Estrada. The survey also revealed that President Arroyo is accepted by 60% in
Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust
rating increased to 52%. Her presidency is accepted by majorities in all social classes: 58% in the ABC or
middle-to-upper classes, 64% in the D or mass class, and 54% among the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several cases
previously filed against him in the Office of the Ombudsman were set in motion. These are: (1) OMB Case No.
0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and corruption; (2) OMB
Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on November 17, 2000 for plunder,
forfeiture, graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free Philippines Foundation, Inc.
on November 24, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct; (4)
OMB Case No. 0-00-1756 filed by Romeo Capulong, et al., on November 28, 2000 for malversation of public
funds, illegal use of public funds and property, plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de
Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46,
and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for
plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with the
following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de Jesus and
Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to file his counter-
affidavit and the affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No. 146710-15,
a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin the respondent
Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757
and 1758 or in any other criminal complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted." Thru another counsel, petitioner, on February 6, filed GR No.
146738 for Quo Warranto. He prayed for judgment "confirming petitioner to be the lawful and incumbent
President of the Republic of the Philippines temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be holding the Office of the President, only in an acting
capacity pursuant to the provisions of the Constitution." Acting on GR Nos. 146710-15, the Court, on the same
day, February 6, required the respondents "to comment thereon within a non-extendible period expiring on 12
February 2001." On February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No.
146738 and the filing of the respondents' comments "on or before 8:00 a.m. of February 15."
On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing, Chief
Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of petitioner's
counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag that they have
"compromised themselves by indicating that they have thrown their weight on one side" but nonetheless
inhibited themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and press statement for
"Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738, the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring the
office of the President vacant and that neither did the Chief Justice issue a press statement justifying
the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of being
cited for contempt to refrain from making any comment or discussing in public the merits of the cases
at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent Ombudsman
from resolving or deciding the criminal cases pending investigation in his office against petitioner,
Joseph E. Estrada and subject of the cases at bar, it appearing from news reports that the respondent
Ombudsman may immediately resolve the cases against petitioner Joseph E. Estrada seven (7) days
after the hearing held on February 15, 2001, which action will make the cases at bar moot and
academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a President
on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial publicity.

We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question


Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the cases at bar
assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo ascended the
presidency through people power; that she has already taken her oath as the 14 th President of the Republic;
that she has exercised the powers of the presidency and that she has been recognized by foreign
governments. They submit that these realities on ground constitute the political thicket, which the Court cannot
enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best of legal minds. Developed by the courts in the 20th
century, the political question doctrine which rests on the principle of separation of powers and on prudential
considerations, continue to be refined in the mills of constitutional law. 55 In the United States, the most
authoritative guidelines to determine whether a question is political were spelled out by Mr. Justice Brennan in
the 1962 case or Baker v. Carr,56 viz:

"x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from multifarious pronouncements by various
departments on question. Unless one of these formulations is inextricable from the case at bar, there
should be no dismissal for non justiciability on the ground of a political question's presence. The
doctrine of which we treat is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer delineation
of the inner and outer perimeters of a political question.57 Our leading case is Tanada v. Cuenco,58 where this
Court, through former Chief Justice Roberto Concepcion, held that political questions refer "to those questions
which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure." To
a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it
expanded the power of judicial review of this court not only to settle actual controversies involving rights which
are legally demandable and enforceable but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of the
Constitution directed against the exercise of its jurisdiction. 60With the new provision, however, courts are given
a greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new provision
did not just grant the Court power of doing nothing. In sync and symmetry with this intent are other
provisions of the 1987 Constitution trimming the so called political thicket. Prominent of these provisions is
section 18 of Article VII which empowers this Court in limpid language to "x x x review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the
suspension of the privilege of the writ (of habeas corpus) or the extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since the cases at bar
involve the legitimacy of the government of respondent Arroyo, ergo, they present a political question. A
more cerebral reading of the cited cases will show that they are inapplicable. In the cited cases, we held that
the government of former President Aquino was the result of a successful revolution by the sovereign
people, albeit a peaceful one. No less than the Freedom Constitution63 declared that the Aquino government
was installed through a direct exercise of the power of the Filipino people "in defiance of the provisions of
the 1973 Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically orbits out
of the constitutional loop. In checkered contrast, the government of respondent Arroyo is not
revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to preserve and defend the 1987 Constitution.
Indeed, she has stressed that she is discharging the powers of the presidency under the authority of the 1987
Constitution.1âwphi1.nêt

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA I involves
the exercise of the people power of revolution which overthrew the whole government. EDSA II is an
exercise of people power of freedom of speech and freedom of assembly to petition the government for
redress of grievances which only affected the office of the President. EDSA I is extra constitutional and
the legitimacy of the new government that resulted from it cannot be the subject of judicial review, but EDSA II
is intra constitutional and the resignation of the sitting President that it caused and the succession of the
Vice President as President are subject to judicial review. EDSA I presented a political question; EDSA II
involves legal questions. A brief discourse on freedom of speech and of the freedom of assembly to petition
the government for redress of grievance which are the cutting edge of EDSA People Power II is not
inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one of the
reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the work of the revolutionary Congress in 1898, provided in its Bill
of Rights that Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar means; (2) of the right of association for purposes of
human life and which are not contrary to public means; and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to the Second Philippine Commission of April 7, 1900
issued by President McKinley, it is specifically provided "that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to peaceably assemble and petition the Government for
redress of grievances." The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1,
1902 and the Jones Law, the Act of Congress of August 29, 1966. 66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution. These
rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the
right of the people peaceably to assemble and petition the government for redress of grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-evident. The
reasons are well put by Emerson: first, freedom of expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for advancing knowledge and discovering truth; third, it is
essential to provide for participation in decision-making by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus."69 In this sense, freedom of speech and of assembly
provides a framework in which the "conflict necessary to the progress of a society can take place
without destroying the society."70In Hague v. Committee for Industrial Organization,71 this function of
free speech and assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the
American Bar Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by all."72 In the
relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that "… it should be clear
even to those with intellectual deficits that when the sovereign people assemble to petition for redress of
grievances, all should listen. For in a democracy, it is the people who count; those who are deaf to their
grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for resolution
require the proper interpretation of certain provisions in the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of governmental powers under section 11 76 of Article VII.
The issues likewise call for a ruling on the scope of presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against prejudicial publicity. As early as the 1803 case of Marbury
v. Madison,77 the doctrine has been laid down that "it is emphatically the province and duty of the judicial
department to say what the law is . . ." Thus, respondent's in vocation of the doctrine of political question is
but a foray in the dark.

II

Whether or not the petitioner


Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political question.
Indeed, it involves a legal question whose factual ingredient is determinable from the records of the case and
by resort to judicial notice. Petitioner denies he resigned as President or that he suffers from a permanent
disability. Hence, he submits that the office of the President was not vacant when respondent Arroyo took her
oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which provides:

"Sec. 8. In case of death, permanent disability, removal from office or resignation of the President, the
Vice President shall become the President to serve the unexpired term. In case of death, permanent
disability, removal from office, or resignation of both the President and Vice President, the President of
the Senate or, in case of his inability, the Speaker of the House of Representatives, shall then act as
President until the President or Vice President shall have been elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of January
20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a high level
legal abstraction. It is a factual question and its elements are beyond quibble: there must be an intent to
resign and the intent must be coupled by acts of relinquishment. 78 The validity of a resignation is not
government by any formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and omissions
before, during and after January 20, 2001 or by the totality of prior, contemporaneous and posterior facts
and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow the
succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee investigated.
The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon investigation spiked
the hate against him. The Articles of Impeachment filed in the House of Representatives which initially was
given a near cipher chance of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon, petitioner's powerful political allies
began deserting him. Respondent Arroyo quit as Secretary of Social Welfare. Senate President Drilon and
former Speaker Villar defected with 47 representatives in tow. Then, his respected senior economic advisers
resigned together with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to open the
second envelope. It sent the people to paroxysms of outrage. Before the night of January 16 was over, the
EDSA Shrine was swarming with people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the morning
of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner pulled
Secretary Angara into his small office at the presidential residence and exclaimed: "Ed, seryoso na ito.
Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)" 80 An hour later or at 2:30 p.m., the
petitioner decided to call for a snap presidential election and stressed he would not be a candidate. The
proposal for a snap election for president in May where he would not be a candidate is an indicium
that petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General Reyes
joined the sea of EDSA demonstrators demanding the resignation of the petitioner and dramatically
announced the AFP's withdrawal of support from the petitioner and their pledge of support to respondent
Arroyo. The seismic shift of support left petitioner weak as a president. According to Secretary Angara, he
asked Senator Pimentel to advise petitioner to consider the option of "dignified exit or
resignation."81 Petitioner did not disagree but listened intently. 82 The sky was falling fast on the petitioner.
At 9:30 p.m., Senator Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit.
He gave the proposal a sweetener by saying that petitioner would be allowed to go abroad with enough funds
to support him and his family.83 Significantly, the petitioner expressed no objection to the suggestion for
a graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m., petitioner
revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a week in the
palace."85 This is proof that petitioner had reconciled himself to the reality that he had to resign. His
mind was already concerned with the five-day grace period he could stay in the palace. It was a matter
of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful and
orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily agreed. Again,
we note that at this stage, the problem was already about a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition period of
five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and his family, and
(3) the agreement to open the second envelope to vindicate the name of the petitioner. 87 Again, we note that
the resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of this
fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three points and the
following entry in the Angara Diary shows the reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately stresses
that he just wants the five-day period promised by Reyes, as well as to open the second envelope to
clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.


The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na ako
sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of this – it's too painful.
I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear when he
said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona. For
this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled "Negotiating Points." It reads:

'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.

2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various positions
and offices of the government shall start their orientation activities in coordination with the incumbent
officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function under the Vice
President as national military and police authority effective immediately.

4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of the
President and his family as approved by the national military and police authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the Senate,
pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:

'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time President
Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria Macapagal-Arroyo.

'2. In return, President Estrada and his families are guaranteed security and safety of their person and
property throughout their natural lifetimes. Likewise, President Estrada and his families are guarantee
freedom from persecution or retaliation from government and the private sector throughout their
natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the Chief
of Staff, as approved by the national military and police authorities – Vice President (Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.

'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and observance
thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor provided
for in "Annex A" heretofore attached to this agreement."89

The second round of negotiation cements the reading that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation of the petitioner was again treated as a given fact. The
only unsettled points at that time were the measures to be undertaken by the parties during and after the
transition period.

According to Secretary Angara, the draft agreement, which was premised on the resignation of the petitioner
was further refined. It was then, signed by their side and he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition. However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary narrates the fateful events, viz;90

"xxx

11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to effect
a peaceful transition. I can hear the general clearing all these points with a group he is with. I hear
voices in the background.

Agreement.

The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation shall
be effective on 24 January 2001, on which day the Vice President will assume the presidency of the
Republic of the Philippines.

xxx

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on 20 January
2001, wherein persons designated by the Vice President to various government positions shall start
orientation activities with incumbent officials.

'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the national
military and police authority – Vice President.

'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the impeachment trial,
the contents of which shall be offered as proof that the subject savings account does not belong to the
President.

The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.

11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our side
and awaiting the signature of the United opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that Gloria
Macapagal-Arroyo is President and will be sworn in at 12 noon.

'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What about
the agreement)?' I asked.

Reyes answered: 'Wala na, sir (it's over, sir).'

I ask him: Di yung transition period, moot and academic na?'

And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this matter is already
moot and academic. Within moments, Macel erases the first provision and faxes the documents, which
have been signed by myself, Dondon and Macel, to Nene Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the other
side, as it is important that the provisions on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will administer
the oath to Gloria at 12 noon.

The President is too stunned for words:

Final meal

12 noon – Gloria takes her oath as president of the Republic of the Philippines.

12:20 p.m. – The PSG distributes firearms to some people inside the compound.

The president is having his final meal at the presidential Residence with the few friends and Cabinet
members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola. Only the
PSG is there to protect the Palace, since the police and military have already withdrawn their support
for the President.

1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's personal
possessions as they can.

During lunch, Ronnie Puno mentions that the president needs to release a final statement before
leaving Malacañang.

The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her
oath as President of the Republic of the Philippines. While along with many other legal minds of our
country, I have strong and serious doubts about the legality and constitutionality of her proclamation
as President, I do not wish to be a factor that will prevent the restoration of unity and order in our civil
society.

It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this country, for
the sake of peace and in order to begin the healing process of our nation. I leave the Palace of our
people with gratitude for the opportunities given to me for service to our people. I will not shirk from
any future challenges that may come ahead in the same service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive national spirit of
reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of peace and in order to begin the healing process
of our nation. He did not say he was leaving the Palace due to any kind inability and that he was going to re-
assume the presidency as soon as the disability disappears: (3) he expressed his gratitude to the people for
the opportunity to serve them. Without doubt, he was referring to the past opportunity given him to serve the
people as President (4) he assured that he will not shirk from any future challenge that may come ahead in the
same service of our country. Petitioner's reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to join him in the promotion of a
constructive national spirit of reconciliation and solidarity. Certainly, the national spirit of reconciliation and
solidarity could not be attained if he did not give up the presidency. The press release was petitioner's
valedictory, his final act of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January 20, 2001
of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we refer to the
said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting this
declaration that I am unable to exercise the powers and duties of my office. By operation of law and
the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery. 91 The pleadings filed by the petitioner in the cases at
bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither did the counsel of
the petitioner reveal to the Court these circumstances during the oral argument. It strikes the Court as strange
that the letter, despite its legal value, was never referred to by the petitioner during the week-long crisis. To be
sure, there was not the slightest hint of its existence when he issued his final press release. It was all too easy
for him to tell the Filipino people in his press release that he was temporarily unable to govern and that he was
leaving the reins of government to respondent Arroyo for the time bearing. Under any circumstance, however,
the mysterious letter cannot negate the resignation of the petitioner. If it was prepared before the press release
of the petitioner clearly as a later act. If, however, it was prepared after the press released, still, it commands
scant legal significance. Petitioner's resignation from the presidency cannot be the subject of a changing
caprice nor of a whimsical will especially if the resignation is the result of his reputation by the people. There is
another reason why this Court cannot given any legal significance to petitioner's letter and this shall be
discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not resign as
a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and Corrupt
Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals or
administrative, or pending a prosecution against him, for any offense under this Act or under the
provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA No.
3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the Senate, did
not contain a provision similar to section 12 of the law as it now stands. However, in his sponsorship speech,
Senator Arturo Tolentino, the author of the bill, "reserved to propose during the period of amendments the
inclusion of a provision to the effect that no public official who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall be allowed to voluntarily resign or retire." 92 During the
period of amendments, the following provision was inserted as section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense under
the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution under
this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second paragraph of
the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section 15
above became section 13 under the new bill, but the deliberations on this particular provision mainly focused
on the immunity of the President, which was one of the reasons for the veto of the original bill. There was
hardly any debate on the prohibition against the resignation or retirement of a public official with pending
criminal and administrative cases against him. Be that as it may, the intent of the law ought to be obvious. It is
to prevent the act of resignation or retirement from being used by a public official as a protective shield to stop
the investigation of a pending criminal or administrative case against him and to prevent his prosecution under
the Anti-Graft Law or prosecution for bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his constitutional right. 94 A public official has the
right not to serve if he really wants to retire or resign. Nevertheless, if at the time he resigns or retires, a public
official is facing administrative or criminal investigation or prosecution, such resignation or retirement will not
cause the dismissal of the criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records show
that when petitioner resigned on January 20, 2001, the cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While these cases have been
filed, the respondent Ombudsman refrained from conducting the preliminary investigation of the petitioner for
the reason that as the sitting President then, petitioner was immune from suit. Technically, the said cases
cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them. Section 12 of RA No.
3019 cannot therefore be invoked by the petitioner for it contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under section 12
of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an administrative proceeding, it can not be considered
pending at the time petitioner resigned because the process already broke down when a majority of the
senator-judges voted against the opening of the second envelope, the public and private prosecutors walked
out, the public prosecutors filed their Manifestation of Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no impeachment case pending against petitioner when he
resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the powers
and duties of the presidency, and hence is a President on leave. As aforestated, the inability claim is contained
in the January 20, 2001 letter of petitioner sent on the same day to Senate President Pimentel and Speaker
Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the presidency. His significant submittal is that "Congress has
the ultimate authority under the Constitution to determine whether the President is incapable of performing his
functions in the manner provided for in section 11 of article VII." 95 This contention is the centerpiece of
petitioner's stance that he is a President on leave and respondent Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of the
House of Representatives his written declaration that he is unable to discharge the powers and duties
of his office, and until he transmits to them a written declaration to the contrary, such powers and
duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate and to
the Speaker of the House of Representatives their written declaration that the President is unable to
discharge the powers and duties of his office, the Vice-President shall immediately assume the powers
and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of the
House of Representatives his written declaration that no inability exists, he shall reassume the powers
and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within
five days to the President of the Senate and to the Speaker of the House of Representatives their
written declaration that the President is unable to discharge the powers and duties of his office, the
Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session,
within forty-eight hours, in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within
twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting
separately, that the President is unable to discharge the powers and duties of his office, the Vice-
President shall act as President; otherwise, the President shall continue exercising the powers and
duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;

2. Unaware of the letter, respondent Arroyo took her oath of office as President on January 20,
2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001 House
Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE


ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE NATION'S GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief
Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose of national unity and development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is divided,
thus by reason of the constitutional duty of the House of Representatives as an institution and that of
the individual members thereof of fealty to the supreme will of the people, the House of
Representatives must ensure to the people a stable, continuing government and therefore must
remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify the
nation, to eliminate fractious tension, to heal social and political wounds, and to be an instrument of
national reconciliation and solidarity as it is a direct representative of the various segments of the
whole nation;

WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing, for
the House of Representatives to extend its support and collaboration to the administration of Her
Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-building, the
national interest demanding no less: Now, therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to extend its
congratulations and to express its support for her administration as a partner in the attainment of the
Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.


Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"

On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF


SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity, competence
and courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator
of the Philippines – qualities which merit his nomination to the position of Vice President of the
Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of


Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice President of
the Republic of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.


Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO


Secretary General"

(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the
Senate signed the following:

"RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for meaningful change
and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity of
purpose and resolve cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99

On February 7, the Senate also passed Senate Resolution No. 82100 which states:

"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF


SEM. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of such
vacancy shall nominate a Vice President from among the members of the Senate and the House of
Representatives who shall assume office upon confirmation by a majority vote of all members of both
Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the Philippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence and
courage; who has served the Filipino people with dedicated responsibility and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship, having
served the government in various capacities, among others, as Delegate to the Constitutional
Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary of Justice, Senator
of the land - which qualities merit his nomination to the position of Vice President of the Republic:
Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.


President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which
states:

"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is functus
officioand has been terminated.

Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the "second envelope" be
transferred to the Archives of the Senate for proper safekeeping and preservation in accordance with
the Rules of the Senate. Disposition and retrieval thereof shall be made only upon written approval of
the Senate president.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.


President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO


Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in the
Senate and calling on the COMELEC to fill up such vacancy through election to be held simultaneously with
the regular election on May 14, 2001 and the Senatorial candidate garnering the thirteenth (13 th) highest
number of votes shall serve only for the unexpired term of Senator Teofisto T. Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any sector
of government, and without any support from the Armed Forces of the Philippines and the Philippine National
Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear in that recognition is the premise that the inability
of petitioner Estrada. Is no longer temporary. Congress has clearly rejected petitioner's claim of
inability.

The question is whether this Court has jurisdiction to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision of both Houses of Congress recognizing respondent
Arroyo as president of the Philippines. Following Tañada v. Cuenco,102 we hold that this Court cannot
exercise its judicial power or this is an issue "in regard to which full discretionary authority has been delegated
to the Legislative xxx branch of the government." Or to use the language in Baker vs. Carr,103 there is a
"textually demonstrable or a lack of judicially discoverable and manageable standards for resolving it." Clearly,
the Court cannot pass upon petitioner's claim of inability to discharge the power and duties of the
presidency. The question is political in nature and addressed solely to Congress by constitutional fiat.
It is a political issue, which cannot be decided by this Court without transgressing the principle of separation of
powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that respondent Arroyo is the de jure, president made
by a co-equal branch of government cannot be reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity


Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese citizen,
sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and C.R.
Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for damages for
allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:

" The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority
to touch the acts of the Governor-General; that he may, under cover of his office, do what he will,
unimpeded and unrestrained. Such a construction would mean that tyranny, under the guise of the
execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly
free from interference of courts or legislatures. This does not mean, either that a person injured by the
executive authority by an act unjustifiable under the law has n remedy, but must submit in silence. On
the contrary, it means, simply, that the governors-general, like the judges if the courts and the
members of the Legislature, may not be personally mulcted in civil damages for the consequences of
an act executed in the performance of his official duties. The judiciary has full power to, and will, when
the mater is properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy is assured to every person, however
humble or of whatever country, when his personal or property rights have been invaded, even by the
highest authority of the state. The thing which the judiciary can not do is mulct the Governor-General
personally in damages which result from the performance of his official duty, any more than it can a
member of the Philippine Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally sued at
all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears
from the discussion heretofore had, particularly that portion which touched the liability of judges and
drew an analogy between such liability and that of the Governor-General, that the latter is liable when
he acts in a case so plainly outside of his power and authority that he can not be said to have
exercised discretion in determining whether or not he had the right to act. What is held here is that he
will be protected from personal liability for damages not only when he acts within his authority, but also
when he is without authority, provided he actually used discretion and judgement, that is, the judicial
faculty, in determining whether he had authority to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he is still protected provided the question of his
authority was one over which two men, reasonably qualified for that position, might honestly differ; but
he s not protected if the lack of authority to act is so plain that two such men could not honestly differ
over its determination. In such case, be acts, not as Governor-General but as a private individual, and
as such must answer for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity from
suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the state
and for the office he occupies; a tendency to unrest and disorder resulting in a way, in distrust as to the
integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity. Then
came the tumult of the martial law years under the late President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one of the amendments involved executive immunity.
Section 17, Article VII stated:

"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.

The immunities herein provided shall apply to the incumbent President referred to in Article XVII of this
Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The King's
Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel, former
Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by this
constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying the
absolute immunity concept. First, we extended it to shield the President not only form civil claims but
also from criminal cases and other claims. Second, we enlarged its scope so that it would cover even
acts of the President outside the scope of official duties. And third, we broadened its coverage so as to
include not only the President but also other persons, be they government officials or private
individuals, who acted upon orders of the President. It can be said that at that point most of us were
suffering from AIDS (or absolute immunity defense syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the executive immunity
provision of the 1973 Constitution. The following explanation was given by delegate J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out second sentence, at the very least, of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigation's, as the
President-in-exile in Hawaii is now facing litigation's almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present jurisprudence that
during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."


We shall now rule on the contentions of petitioner in the light of this history. We reject his argument that he
cannot be prosecuted for the reason that he must first be convicted in the impeachment proceedings. The
impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors and by the events that
led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus Officio."109 Since, the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a perpetual bar against his prosecution. Such a submission
has nothing to commend itself for it will place him in a better situation than a non-sitting President who has not
been subjected to impeachment proceedings and yet can be the object of a criminal prosecution. To be sure,
the debates in the Constitutional Commission make it clear that when impeachment proceedings have become
moot due to the resignation of the President, the proper criminal and civil cases may already be filed against
him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the President, for
example, and the President resigns before judgement of conviction has been rendered by the
impeachment court or by the body, how does it affect the impeachment proceeding? Will it be
necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his resignation
would render the case moot and academic. However, as the provision says, the criminal and civil
aspects of it may continue in the ordinary courts."

This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune from suit
or from being brought to court during the period of their incumbency and tenure" but not beyond. Considering
the peculiar circumstance that the impeachment process against the petitioner has been aborted and
thereafter he lost the presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment proceedings. His reliance on the
case of Lecaroz vs. Sandiganbayan112 and related cases113 are inapropos for they have a different factual
milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The cases
filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from liability for unlawful acts
and conditions. The rule is that unlawful acts of public officials are not acts of the State and the officer who
acts illegally is not acting as such but stands in the same footing as any trespasser. 114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to expand
the privilege especially when it impedes the search for truth or impairs the vindication of a right. In the 1974
case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to produce certain
recordings and documents relating to his conversations with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National Headquarters in Washington's Watergate Hotel during the
972 presidential campaign. President Nixon himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that the President was not subject to judicial
process and that he should first be impeached and removed from office before he could be made amenable to
judicial proceedings. The claim was rejected by the US Supreme Court. It concluded that "when the ground for
asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in
the fair administration of criminal justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court
further held that the immunity of the president from civil damages covers only "official acts." Recently, the US
Supreme Court had the occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that
the US President's immunity from suits for money damages arising out of their official acts is inapplicable to
unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public trust. 118 It
declared as a state policy that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruptio."119 it ordained that "public officers and employees
must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency act with patriotism and justice, and lead modest lives."120 It set the rule that 'the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, latches or estoppel." 121 It maintained the Sandiganbayan as an
anti-graft court.122 It created the office of the Ombudsman and endowed it with enormous powers, among
which is to "investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also given fiscal autonomy. 124 These constitutional policies
will be devalued if we sustain petitioner's claim that a non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the investigation
of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He submits that the
respondent Ombudsman has developed bias and is all set file the criminal cases violation of his right to due
process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases. 125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and stop
criminal trials when the right of an accused to fair trial suffers a threat. 126 The American approach is different.
US courts assume a skeptical approach about the potential effect of pervasive publicity on the right of an
accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e., substantial;
probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a
fair trial is not incompatible to a free press. To be sure, responsible reporting enhances accused's right
to a fair trial for, as well pointed out, a responsible press has always been regarded as the criminal
field xxx. The press does not simply publish information about trials but guards against the miscarriage
of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and
criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as they happen straight
to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the
facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is
out of touch with the world. We have not installed the jury system whose members are overly
protected from publicity lest they lose there impartially. xxx xxx xxx. Our judges are learned in the law
and trained to disregard off-court evidence and on-camera performances of parties to litigation. Their
mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at a bar, the records do not show that the trial judge developed actual bias
against appellants as a consequence of the extensive media coverage of the pre-trial and trial of his
case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed
opinion as a result of prejudicial publicity, which is incapable of change even by evidence presented
during the trial. Appellant has the burden to prove this actual bias and he has not discharged the
burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon, etc. 130 and its
companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity of
publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction
about the case continues unabated even today. Commentators still bombard the public with views not
too many of which are sober and sublime. Indeed, even the principal actors in the case – the NBI, the
respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility
of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely
closed to the press and public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance that
the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized when a shocking crime
occurs a community reaction of outrage and public protest often follows, and thereafter the
open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility and emotion. To work effectively, it is important that society's
criminal process satisfy the appearance of justice,' Offutt v. United States, 348 US 11, 14, 99
L ED 11, 75 S Ct 11, which can best be provided by allowing people to observe such process.
From this unbroken, uncontradicted history, supported by reasons as valid today as in
centuries past, it must be concluded that a presumption of openness inheres in the very
nature of a criminal trial under this Nation's system of justice, Cf., e,g., Levine v. United
States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

b. The freedoms of speech. Press and assembly, expressly guaranteed by the First Amendment,
share a common core purpose of assuring freedom of communication on matters relating to
the functioning of government. In guaranteeing freedom such as those of speech and press,
the First Amendment can be read as protecting the right of everyone to attend trials so as give
meaning to those explicit guarantees; the First Amendment right to receive information and
ideas means, in the context of trials, that the guarantees of speech and press, standing alone,
prohibit government from summarily closing courtroom doors which had long been open to the
public at the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a catalyst to
augment the free exercise of the other First Amendment rights with which the draftsmen
deliberately linked it. A trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their presence historically
has been thought to enhance the integrity and quality of what takes place.

c. Even though the Constitution contains no provision which be its terms guarantees to the public
the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have
been recognized as indispensable to the enjoyment of enumerated rights. The right to attend
criminal trial is implicit in the guarantees of the First Amendment: without the freedom to
attend such trials, which people have exercised for centuries, important aspects of freedom of
speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances
can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et
al., we held that to warrant a finding of prejudicial publicity there must be allegation and proof that
the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In
the case at bar, we find nothing in the records that will prove that the tone and content of the publicity
that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ
Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience
in criminal investigation is a factor to consider in determining whether they can easily be blinded by the
klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it
does not appear that they considered any extra-record evidence except evidence properly adduced by
the parties. The length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity." (emphasis
supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the respondent Ombudsman. Petitioner needs to offer more
than hostile headlines to discharge his burden of proof. 131 He needs to show more weighty social science
evidence to successfully prove the impaired capacity of a judge to render a bias-free decision. Well to note,
the cases against the petitioner are still undergoing preliminary investigation by a special panel of
prosecutors in the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by bias because of
the pervasive prejudicial publicity against him. Indeed, the special panel has yet to come out with its findings
and the Court cannot second guess whether its recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures directed at him by the mobs."132 News reports have
also been quoted to establish that the respondent Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors investigating the petitioner will be influenced by this bias
of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially in light of
the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of good faith and
regularity in the performance of official duty to which he is entitled. Nor can we adopt the theory of
derivative prejudice of petitioner, i.e., that the prejudice of respondent Ombudsman flows to his
subordinates. In truth, our Revised Rules of Criminal Procedure, give investigation prosecutors the
independence to make their own findings and recommendations albeit they are reviewable by their
superiors.134 They can be reversed but they can not be compelled cases which they believe deserve dismissal.
In other words, investigating prosecutors should not be treated like unthinking slot machines. Moreover, if the
respondent Ombudsman resolves to file the cases against the petitioner and the latter believes that the
findings of probable cause against him is the result of bias, he still has the remedy of assailing it before the
proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State to prosecute
the guilty and the right of an accused to a fair investigation and trial which has been categorized as the "most
fundamental of all freedoms."135To be sure, the duty of a prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the preliminary investigation of the petitioner shall have a circus-
free atmosphere. He has to provide the restraint against what Lord Bryce calls "the impatient vehemence of
the majority." Rights in a democracy are not decided by the mob whose judgment is dictated by rage and not
by reason. Nor are rights necessarily resolved by the power of number for in a democracy, the dogmatism of
the majority is not and should never be the definition of the rule of law. If democracy has proved to be the best
form of government, it is because it has respected the right of the minority to convince the majority that it is
wrong. Tolerance of multiformity of thoughts, however offensive they may be, is the key to man's progress
from the cave to civilization. Let us not throw away that key just to pander to some people's prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria Macapagal-
Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.
CASE NO. 5

[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the Philippine Senate and
as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the House of
Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R. MORALES, both as
taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM ASSOCIATION,
CENTER FOR ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG KAUNLARAN
FOUNDATION, INC., PHILIPPINE RURAL RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT INSTITUTE, in
representation of various taxpayers and as non-governmental organizations, petitioners,
vs. EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON
ALVAREZ, AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA,
JOSE LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN
OSMEA, SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and
FREDDIE WEBB, in their respective capacities as members of the Philippine Senate who
concurred in the ratification by the President of the Philippines of the Agreement Establishing
the World Trade Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget
and Management; CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO
NAVARRO, in his capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his
capacity as Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of
Finance; ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive Secretary, respondents.

DECISION

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by the membership thereto
of the vast majority of countries has revolutionized international business and economic relations amongst
states. It has irreversibly propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and privatization, the third-millennium buzz words, are
ushering in a new borderless world of business by sweeping away as mere historical relics the heretofore
traditional modes of promoting and protecting national economies like tariffs, export subsidies, import quotas,
quantitative restrictions,tax exemptions and currency controls. Finding market niches and becoming the best in
specific industries in a market-driven and export-oriented global scenario are replacing age-old beggar-thy-
neighbor policies that unilaterally protect weak and inefficient domestic producers of goods and services. In
the words of Peter Drucker, the well-known management guru, Increased participation in the world economy
has become the key to domestic economic growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second World War, plans for the
establishment of three multilateral institutions -- inspired by that grand political body, the United Nations --
were discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and later developing countries; the second, the
International Monetary Fund (IMF) which was to deal with currency problems; and the third, the International
Trade Organization (ITO), which was to foster order and predictability in world trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from other states. However, for a variety of
reasons, including its non-ratification by the United States, the ITO, unlike the IMF and WB, never took
off. What remained was only GATT -- the General Agreement on Tariffs and Trade. GATT was a collection of
treaties governing access to the economies of treaty adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations, principally the Kennedy Round, the
Tokyo Round and the Uruguay Round, the world finally gave birth to that administering body -- the World
Trade Organization -- with the signing of the Final Act in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members.[1]

Like many other developing countries, the Philippines joined WTO as a founding member with the goal,
as articulated by President Fidel V. Ramos in two letters to the Senate (infra), of improving Philippine access
to foreign markets, especially its major trading partners, through the reduction of tariffs on its exports,
particularly agricultural and industrial products. The President also saw in the WTO the opening of new
opportunities for the services sector x x x, (the reduction of) costs and uncertainty associated with exporting x
x x, and (the attraction of) more investments into the country. Although the Chief Executive did not expressly
mention it in his letter, the Philippines - - and this is of special interest to the legal profession - - will benefit
from the WTO system of dispute settlement by judicial adjudication through the independent WTO settlement
bodies called (1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade disputes were
settled mainly through negotiations where solutions were arrived at frequently on the basis of relative
bargaining strengths, and where naturally, weak and underdeveloped countries were at a disadvantage.

The Petition in Brief

Arguing mainly (1) that the WTO requires the Philippines to place nationals and products of member-
countries on the same footing as Filipinos and local products and (2) that the WTO intrudes, limits and/or
impairs the constitutional powers of both Congress and the Supreme Court, the instant petition before this
Court assails the WTO Agreement for violating the mandate of the 1987 Constitution to develop a self-reliant
and independent national economy effectively controlled by Filipinos x x x (to) give preference to qualified
Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.

Simply stated, does the Philippine Constitution prohibit Philippine participation in worldwide trade
liberalization and economic globalization? Does it prescribe Philippine integration into a global economy that is
liberalized, deregulated and privatized? These are the main questions raised in this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for the nullification, on
constitutional grounds, of the concurrence of the Philippine Senate in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade Organization (WTO Agreement, for brevity) and (2)
for the prohibition of its implementation and enforcement through the release and utilization of public funds, the
assignment of public officials and employees, as well as the use of government properties and resources by
respondent-heads of various executive offices concerned therewith. This concurrence is embodied in Senate
Resolution No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the Department of Trade and Industry
(Secretary Navarro, for brevity), representing the Government of the Republic of the Philippines, signed in
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay Round of Multilateral Negotiations
(Final Act, for brevity).

By signing the Final Act,[2] Secretary Navarro on behalf of the Republic of the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities, with a view to seeking approval of the Agreement in accordance with their procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

On August 12, 1994, the members of the Philippine Senate received a letter dated August 11, 1994 from
the President of the Philippines,[3] stating among others that the Uruguay Round Final Act is hereby submitted
to the Senate for its concurrence pursuant to Section 21, Article VII of the Constitution.
On August 13, 1994, the members of the Philippine Senate received another letter from the President of
the Philippines[4] likewise dated August 11, 1994, which stated among others that the Uruguay Round Final
Act, the Agreement Establishing the World Trade Organization, the Ministerial Declarations and Decisions,
and the Understanding on Commitments in Financial Services are hereby submitted to the Senate for its
concurrence pursuant to Section 21, Article VII of the Constitution.

On December 9, 1994, the President of the Philippines certified the necessity of the immediate adoption
of P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement Establishing the World Trade
Organization.[5]

On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the President of the Philippines
ofthe Agreement Establishing the World Trade Organization.[6] The text of the WTO Agreement is written on
pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments (identified in the said Agreement as Annexes 1,
2 and 3 thereto and collectively referred to as Multilateral Trade Agreements, for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General Agreement on Tariffs and


Trade 1994

Agreement on Implementation of Article VII of the General on Tariffs and Trade 1994

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement of Disputes


ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed[7] the Instrument of Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the Republic of the Philippines, after
having seen and considered the aforementioned Agreement Establishing the World Trade Organization and
the agreements and associated legal instruments included in Annexes one (1), two (2) and three (3) of that
Agreement which are integral parts thereof, signed at Marrakesh, Morocco on 15 April 1994, do hereby ratify
and confirm the same and every Article and Clause thereof.

To emphasize, the WTO Agreement ratified by the President of the Philippines is composed of the
Agreement Proper and the associated legal instruments included in Annexes one (1), two (2) and three (3) of
that Agreement which are integral parts thereof.

On the other hand, the Final Act signed by Secretary Navarro embodies not only the WTO Agreement
(and its integral annexes aforementioned) but also (1) the Ministerial Declarations and Decisions and (2) the
Understanding on Commitments in Financial Services. In his Memorandum dated May 13, 1996,[8] the Solicitor
General describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and decisions on a wide range of
matters, such as measures in favor of least developed countries, notification procedures, relationship of WTO
with the International Monetary Fund (IMF), and agreements on technical barriers to trade and on dispute
settlement.

The Understanding on Commitments in Financial Services dwell on, among other things, standstill or
limitations and qualifications of commitments to existing non-conforming measures, market access, national
treatment, and definitions of non-resident supplier of financial services, commercial presence and new
financial service.

On December 29, 1994, the present petition was filed. After careful deliberation on respondents comment
and petitioners reply thereto, the Court resolved on December 12, 1995, to give due course to the petition, and
the parties thereafter filed their respective memoranda. The Court also requested the Honorable Lilia R.
Bautista, the Philippine Ambassador to the United Nations stationed in Geneva, Switzerland, to submit a
paper, hereafter referred to as Bautista Paper,[9] for brevity, (1) providing a historical background of and (2)
summarizing the said agreements.

During the Oral Argument held on August 27, 1996, the Court directed:

(a) the petitioners to submit the (1) Senate Committee Report on the matter in controversy and (2) the
transcript of proceedings/hearings in the Senate; and

(b) the Solicitor General, as counsel for respondents, to file (1) a list of Philippine treaties signed prior to the
Philippine adherence to the WTO Agreement, which derogate from Philippine sovereignty and (2) copies of the
multi-volume WTO Agreement and other documents mentioned in the Final Act, as soon as possible.

After receipt of the foregoing documents, the Court said it would consider the case submitted for
resolution. In a Compliance dated September 16, 1996, the Solicitor General submitted a printed copy of the
36-volume Uruguay Round of Multilateral Trade Negotiations, and in another Compliance dated October 24,
1996, he listed the various bilateral or multilateral treaties or international instruments involving derogation of
Philippine sovereignty. Petitioners, on the other hand, submitted their Compliance dated January 28, 1997, on
January 30, 1997.

The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues as follows:

A. Whether the petition presents a political question or is otherwise not justiciable.

B. Whether the petitioner members of the Senate who participated in the deliberations and voting leading
to the concurrence are estopped from impugning the validity of the Agreement Establishing the World
Trade Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade Organization contravene the
provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the 1987 Philippine
Constitution.

D. Whether provisions of the Agreement Establishing the World Trade Organization unduly limit, restrict
and impair Philippine sovereignty specifically the legislative power which, under Sec. 2, Article VI,
1987 Philippine Constitution is vested in the Congress of the Philippines;

E. Whether provisions of the Agreement Establishing the World Trade Organization interfere with the
exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack
or excess of jurisdiction when they voted for concurrence in the ratification of the constitutionally-
infirm Agreement Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of discretion amounting to lack
or excess of jurisdiction when they concurred only in the ratification of the Agreement Establishing
the World Trade Organization, and not with the Presidential submission which included the Final Act,
Ministerial Declaration and Decisions, and the Understanding on Commitments in Financial Services.

On the other hand, the Solicitor General as counsel for respondents synthesized the several issues
raised by petitioners into the following:[10]

1. Whether or not the provisions of the Agreement Establishing the World Trade Organization and the
Agreements and Associated Legal Instruments included in Annexes one (1), two (2) and three (3) of that
agreement cited by petitioners directly contravene or undermine the letter, spirit and intent of Section 19,
Article II and Sections 10 and 12, Article XII of the 1987 Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or impair the exercise of legislative
power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of judicial power by this Honorable
Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by the President of the Philippines of the
Agreement establishing the World Trade Organization implied rejection of the treaty embodied in the Final Act.

By raising and arguing only four issues against the seven presented by petitioners, the Solicitor General
has effectively ignored three, namely: (1) whether the petition presents a political question or is otherwise not
justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada and Anna Dominique Coseteng)
are estopped from joining this suit; and (3) whether the respondent-members of the Senate acted in grave
abuse of discretion when they voted for concurrence in the ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:

(1) The political question issue -- being very fundamental and vital, and being a matter that probes into the
very jurisdiction of this Court to hear and decide this case -- was deliberated upon by the Court and will thus
be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is waivable and the respondents have
effectively waived it by not pursuing it in any of their pleadings; in any event, this issue, even if ruled in
respondents favor, will not cause the petitions dismissal as there are petitioners other than the two senators,
who are not vulnerable to the defense of estoppel; and

(3) The issue of alleged grave abuse of discretion on the part of the respondent senators will be taken up as
an integral part of the disposition of the four issues raised by the Solicitor General.

During its deliberations on the case, the Court noted that the respondents did not question the locus
standi of petitioners. Hence, they are also deemed to have waived the benefit of such issue. They probably
realized that grave constitutional issues, expenditures of public funds and serious international commitments
of the nation are involved here, and that transcendental public interest requires that the substantive issues be
met head on and decided on the merits, rather than skirted or deflected by procedural matters. [11]

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE STATED,


DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT HAS
NO JURISDICTION?

(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT, RESTRICT, OR
IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF


JUDICIAL POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?

(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL ACT,
MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON
COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the
petition no doubt raises a justiciable controversy. Where an action of the legislative branch is seriously alleged
to have infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than political. The duty (to adjudicate) remains to assure
that the supremacy of the Constitution is upheld.[12] Once a controversy as to the application or interpretation
of a constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue which
the Court is bound by constitutional mandate to decide.[13]

The jurisdiction of this Court to adjudicate the matters [14] raised in the petition is clearly set out in the 1987
Constitution,[15] as follows:

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

The foregoing text emphasizes the judicial departments duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an innovation in
our political law.[16] As explained by former Chief Justice Roberto Concepcion,[17] the judiciary is the final arbiter
on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or
in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of
jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.

As this Court has repeatedly and firmly emphasized in many cases, [18] it will not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of
discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or
department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain, speedy or adequate
remedy in the ordinary course of law, we have no hesitation at all in holding that this petition should be given
due course and the vital questions raised therein ruled upon under Rule 65 of the Rules of
Court. Indeed, certiorari, prohibition and mandamus are appropriate remedies to raise constitutional issues
and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials. On this, we have
no equivocation.

We should stress that, in deciding to take jurisdiction over this petition, this Court will not review
the wisdom of the decision of the President and the Senate in enlisting the country into the WTO, or pass upon
the meritsof trade liberalization as a policy espoused by said international body. Neither will it rule on
the propriety of the governments economic policy of reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only exercise its constitutional duty to determine
whether or not there had been a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the Senate in ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

This is the lis mota, the main issue, raised by the petition.

Petitioners vigorously argue that the letter, spirit and intent of the Constitution mandating economic
nationalism are violated by the so-called parity provisions and national treatment clauses scattered in various
parts not only of the WTO Agreement and its annexes but also in the Ministerial Decisions and Declarations
and in the Understanding on Commitments in Financial Services.

Specifically, the flagship constitutional provisions referred to are Sec. 19, Article II, and Secs. 10 and 12,
Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

xx xx xx xx

Sec. 19. The State shall develop a self-reliant and independent national economy effectively controlled by
Filipinos.

xx xx xx xx

Article XII

NATIONAL ECONOMY AND PATRIMONY

xx xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the formation and operation of
enterprises whose capital is wholly owned by Filipinos.
In the grant of rights, privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos.

xx xx xx xx

Sec. 12. The State shall promote the preferential use of Filipino labor, domestic materials and locally produced
goods, and adopt measures that help make them competitive.

Petitioners aver that these sacred constitutional principles are desecrated by the following WTO
provisions quoted in their memorandum:[19]

a) In the area of investment measures related to trade in goods (TRIMS, for brevity):

Article 2

National Treatment and Quantitative Restrictions.

1. Without prejudice to other rights and obligations under GATT 1994. no Member shall apply any
TRIM that is inconsistent with the provisions of Article III or Article XI of GATT 1994.

2. An Illustrative list of TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph I of Article XI of GATT 1994 is contained in the
Annex to this Agreement.(Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Round, Legal Instruments, p.22121, emphasis supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment provided for in paragraph
4 of Article III of GATT 1994 include those which are mandatory or enforceable under domestic
law or under administrative rulings, or compliance with which is necessary to obtain an
advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from any domestic source,
whether specified in terms of particular products, in terms of volume or value of products, or in
terms of proportion of volume or value of its local production; or

(b) that an enterprises purchases or use of imported products be limited to an amount related to the
volume or value of local products that it exports.

2. TRIMS that are inconsistent with the obligations of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT 1994 include those which are mandatory or
enforceable under domestic laws or under administrative rulings, or compliance with which is
necessary to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local production that it
exports;

(b) the importation by an enterprise of products used in or related to its local production by restricting
its access to foreign exchange inflows attributable to the enterprise; or

(c) the exportation or sale for export specified in terms of particular products, in terms of volume or
value of products, or in terms of a preparation of volume or value of its local production. (Annex
to the Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay Round Legal
Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

The products of the territory of any contracting party imported into the territory of any other contracting
party shall be accorded treatment no less favorable than that accorded to like products of national
origin in respect of laws, regulations and requirements affecting their internal sale, offering for sale, purchase,
transportation, distribution or use. the provisions of this paragraph shall not prevent the application of
differential internal transportation charges which are based exclusively on the economic operation of the
means of transport and not on the nationality of the product. (Article III, GATT 1947, as amended by the
Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62 UMTS 82-84 in relation to
paragraph 1(a) of the General Agreement on Tariffs and Trade 1994, Vol. 1, Uruguay Round, Legal
Instruments p.177, emphasis supplied).

b) In the area of trade related aspects of intellectual property rights (TRIPS, for brevity):

Each Member shall accord to the nationals of other Members treatment no less favourable than that it
accords to its own nationals with regard to the protection of intellectual property... (par. 1, Article 3,
Agreement on Trade-Related Aspect of Intellectual Property rights, Vol. 31, Uruguay Round, Legal
Instruments, p.25432 (emphasis supplied)

(c) In the area of the General Agreement on Trade in Services:

National Treatment

1. In the sectors inscribed in its schedule, and subject to any conditions and qualifications set out
therein, each Member shall accord to services and service suppliers of any other Member, in
respect of all measures affecting the supply of services, treatment no less favourable than it
accords to its own like services and service suppliers.

2. A Member may meet the requirement of paragraph I by according to services and service
suppliers of any other Member, either formally identical treatment or formally different treatment to
that it accords to its own like services and service suppliers.

3. Formally identical or formally different treatment shall be considered to be less favourable if it


modifies the conditions of completion in favour of services or service suppliers of the Member
compared to like services or service suppliers of any other Member. (Article XVII, General
Agreement on Trade in Services, Vol. 28, Uruguay Round Legal Instruments, p.22610 emphasis
supplied).

It is petitioners position that the foregoing national treatment and parity provisions of the WTO Agreement
place nationals and products of member countries on the same footing as Filipinos and local products, in
contravention of the Filipino First policy of the Constitution. They allegedly render meaningless the phrase
effectively controlled by Filipinos. The constitutional conflict becomes more manifest when viewed in the
context of the clear duty imposed on the Philippines as a WTO member to ensure the conformity of its laws,
regulations and administrative procedures with its obligations as provided in the annexed
agreements.[20] Petitioners further argue that these provisions contravene constitutional limitations on the role
exports play in national development and negate the preferential treatment accorded to Filipino labor,
domestic materials and locally produced goods.

On the other hand, respondents through the Solicitor General counter (1) that such Charter provisions are
not self-executing and merely set out general policies; (2) that these nationalistic portions of the Constitution
invoked by petitioners should not be read in isolation but should be related to other relevant provisions of Art.
XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO clauses do not conflict with the
Constitution; and (4) that the WTO Agreement contains sufficient provisions to protect developing countries
like the Philippines from the harshness of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles and state policies. The
counterpart of this article in the 1935 Constitution[21] is called the basic political creed of the nation by Dean
Vicente Sinco.[22] These principles in Article II are not intended to be self-executing principles ready for
enforcement through the courts.[23] They are used by the judiciary as aids or as guides in the exercise of its
power of judicial review, and by the legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato,[24] the principles and state policies enumerated in Article II and some
sections of Article XII are not self-executing provisions, the disregard of which can give rise to a cause of
action in the courts. They do not embody judicially enforceable constitutional rights but guidelines for
legislation.

In the same light, we held in Basco vs. Pagcor[25] that broad constitutional principles need legislative
enactments to implement them, thus:

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity) 12 (Family) and 13 (Role of
Youth) of Article II; Section 13 (Social Justice) of Article XIII and Section 2 (Educational Values) of Article XIV
of the 1987 Constitution, suffice it to state also that these are merely statements of principles and policies. As
such, they are basically not self-executing, meaning a law should be passed by Congress to clearly define and
effectuate such principles.

In general, therefore, the 1935 provisions were not intended to be self-executing principles ready for
enforcement through the courts. They were rather directives addressed to the executive and to the
legislature. If the executive and the legislature failed to heed the directives of the article, the available remedy
was not judicial but political. The electorate could express their displeasure with the failure of the executive
and the legislature through the language of the ballot.(Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of broad constitutional principles are
sourced from basic considerations of due process and the lack of judicial authority to wade into the uncharted
ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano in his concurring opinion
in Oposa vs. Factoran, Jr.,[26] explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a more specific legal right -- a right
cast in language of a significantly lower order of generality than Article II (15) of the Constitution -- that is or
may be violated by the actions, or failures to act, imputed to the public respondent by petitioners so that the
trial court can validly render judgment granting all or part of the relief prayed for. To my mind, the court should
be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of
law, considering the general policy principles found in the Constitution and the existence of the Philippine
Environment Code, and that the trial court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of action be a
specific, operable legal right, rather than a constitutional or statutory policy, for at least two (2) reasons. One is
that unless the legal right claimed to have been violated or disregarded is given specification in operational
terms, defendants may well be unable to defend themselves intelligently and effectively; in other words, there
are due process dimensions to this matter.
The second is a broader-gauge consideration -- where a specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back on the expanded conception of judicial power in the
second paragraph of Section 1 of Article VIII of the Constitution which reads:

Section 1. x x x

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

When substantive standards as general as the right to a balanced and healthy ecology and the right to health
are combined with remedial standards as broad ranging as a grave abuse of discretion amounting to lack or
excess of jurisdiction, the result will be, it is respectfully submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and professional
qualification. Where no specific, operable norms and standards are shown to exist, then the policy making
departments -- the legislative and executive departments -- must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and to implement them before the courts should
intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates to Attain Balanced
Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying down general principles
relating to the national economy and patrimony, should be read and understood in relation to the other
sections in said article, especially Secs. 1 and 13 thereof which read:

Section 1. The goals of the national economy are a more equitable distribution of opportunities, income, and
wealth; a sustained increase in the amount of goods and services produced by the nation for the benefit of the
people; and an expanding productivity as the key to raising the quality of life for all, especially the
underprivileged.

The State shall promote industrialization and full employment based on sound agricultural development and
agrarian reform, through industries that make full and efficient use of human and natural resources, and which
are competitive in both domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum
opportunity to develop. x x x

xxxxxxxxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of national economic
development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the nation for the benefit of the
people; and

3. An expanding productivity as the key to raising the quality of life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of economic nationalism (1) by
expressing preference in favor of qualified Filipinos in the grant of rights, privileges and concessions covering
the national economy and patrimony[27] and in the use of Filipino labor, domestic materials and locally-
produced goods; (2) by mandating the State to adopt measures that help make them competitive;[28] and (3) by
requiring the State to develop a self-reliant and independent national economy effectively controlled by
Filipinos.[29] In similar language, the Constitution takes into account the realities of the outside world as it
requires the pursuit of a trade policy that serves the general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity;[30] and speaks of industries which are competitive in both
domestic and foreign markets as well as of the protection of Filipino enterprises against unfair foreign
competition and trade practices.

It is true that in the recent case of Manila Prince Hotel vs. Government Service Insurance System, et
al.,[31] this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution is a mandatory, positive
command which is complete in itself and which needs no further guidelines or implementing laws or rules for
its enforcement. From its very words the provision does not require any legislation to put it in operation. It
is per se judicially enforceable. However, as the constitutional provision itself states, it is enforceable only in
regard to the grants of rights, privileges and concessions covering national economy and patrimony and not to
every aspect of trade and commerce. It refers to exceptions rather than the rule. The issue here is not whether
this paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is whether, as a rule, there are
enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the
WTO Agreement. And we hold that there are.

All told, while the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the
bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition
and trade practices that are unfair.[32] In other words, the Constitution did not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of
equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

Upon the other hand, respondents maintain that the WTO itself has some built-in advantages to protect
weak and developing economies, which comprise the vast majority of its members. Unlike in the UN where
major states have permanent seats and veto powers in the Security Council, in the WTO, decisions are made
on the basis of sovereign equality, with each members vote equal in weight to that of any other. There is no
WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the Ministerial Conference and the
General Council shall be taken by the majority of the votes cast, except in cases of interpretation of the
Agreement or waiver of the obligation of a member which would require three fourths vote. Amendments
would require two thirds vote in general. Amendments to MFN provisions and the Amendments provision will
require assent of all members. Any member may withdraw from the Agreement upon the expiration of six
months from the date of notice of withdrawals.[33]

Hence, poor countries can protect their common interests more effectively through the WTO than through
one-on-one negotiations with developed countries. Within the WTO, developing countries can form powerful
blocs to push their economic agenda more decisively than outside the Organization. This is not merely a
matter of practical alliances but a negotiating strategy rooted in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing countries like the Philippines to share in the growth in
international trade commensurate with the needs of their economic development. These basic principles are
found in the preamble[34] of the WTO Agreement as follows:
The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view
to raising standards of living, ensuring full employment and a large and steadily growing volume of real income
and effective demand, and expanding the production of and trade in goods and services, while allowing for the
optimal use of the worlds resources in accordance with the objective of sustainable development, seeking both
to protect and preserve the environment and to enhance the means for doing so in a manner consistent with
their respective needs and concerns at different levels of economic development,

Recognizing further that there is need for positive efforts designed to ensure that developing countries, and
especially the least developed among them, secure a share in the growth in international trade commensurate
with the needs of their economic development,

Being desirous of contributing to these objectives by entering into reciprocal and mutually advantageous
arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of
discriminatory treatment in international trade relations,

Resolved, therefore, to develop an integrated, more viable and durable multilateral trading system
encompassing the General Agreement on Tariffs and Trade, the results of past trade liberalization efforts, and
all of the results of the Uruguay Round of Multilateral Trade Negotiations,

Determined to preserve the basic principles and to further the objectives underlying this multilateral trading
system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with the foregoing basic principles,
the WTO Agreement grants developing countries a more lenient treatment, giving their domestic industries
some protection from the rush of foreign competition. Thus, with respect to tariffs in general, preferential
treatment is given to developing countries in terms of the amount of tariff reduction and the period within which
the reduction is to be spread out. Specifically, GATT requires an average tariff reduction rate of 36% for
developed countries to be effected within a period of six (6) years while developing countries -- including the
Philippines -- are required to effect an average tariff reduction of only 24% within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce domestic support to
agricultural products by 20% over six (6) years, as compared to only 13% for developing countries to be
effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed countries to reduce their
budgetary outlays for export subsidy by 36% and export volumes receiving export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within which to effect such reduction.

Moreover, GATT itself has provided built-in protection from unfair foreign competition and trade practices
including anti-dumping measures, countervailing measures and safeguards against import surges. Where local
businesses are jeopardized by unfair foreign competition, the Philippines can avail of these measures. There
is hardly therefore any basis for the statement that under the WTO, local industries and enterprises will all be
wiped out and that Filipinos will be deprived of control of the economy. Quite the contrary, the weaker
situations of developing nations like the Philippines have been taken into account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely abused their discretion. True, they have
made a bold decision to steer the ship of state into the yet uncharted sea of economic liberalization. But such
decision cannot be set aside on the ground of grave abuse of discretion, simply because we disagree with it or
simply because we believe only in other economic policies. As earlier stated, the Court in taking jurisdiction of
this case will not pass upon the advantages and disadvantages of trade liberalization as an economic policy. It
will only perform its constitutional duty of determining whether the Senate committed grave abuse of
discretion.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent national economy[35] does not
necessarily rule out the entry of foreign investments, goods and services. It contemplates neither economic
seclusion nor mendicancy in the international community. As explained by Constitutional Commissioner
Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence
on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather,
it means avoiding mendicancy in the international community. Independence refers to the freedom from undue
foreign control of the national economy, especially in such strategic industries as in the development of natural
resources and public utilities.[36]

The WTO reliance on most favored nation, national treatment, and trade without discrimination cannot be
struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO
members. Aside from envisioning a trade policy based on equality and reciprocity, [37] the fundamental law
encourages industries that are competitive in both domestic and foreign markets, thereby demonstrating a
clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of
robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino
enterprises have shown capability and tenacity to compete internationally. And given a free trade environment,
Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to
prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor
does it contain any specific pronouncement that Filipino companies should be pampered with a total
proscription offoreign competition. On the other hand, respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most
reasonable prices.Consequently, the question boils down to whether WTO/GATT will favor the general welfare
of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos general welfare because it will -- as promised by its
promoters -- expand the countrys exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality products at the most reasonable
rates to the Filipino public?

The responses to these questions involve judgment calls by our policy makers, for which they are
answerable to our people during appropriate electoral exercises. Such questions and the answers thereto are
not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet Future Events and Contingencies

No doubt, the WTO Agreement was not yet in existence when the Constitution was drafted and ratified in
1987. That does not mean however that the Charter is necessarily flawed in the sense that its framers might
not have anticipated the advent of a borderless world of business. By the same token, the United Nations was
not yet in existence when the 1935 Constitution became effective. Did that necessarily mean that the then
Constitution might not have contemplated a diminution of the absoluteness of sovereignty when the
Philippines signed the UN Charter, thereby effectively surrendering part of its control over its foreign relations
to the decisions of various UN organs like the Security Council?

It is not difficult to answer this question. Constitutions are designed to meet not only the vagaries of
contemporary events. They should be interpreted to cover even future and unknown circumstances. It is to the
credit of its drafters that a Constitution can withstand the assaults of bigots and infidels but at the same time
bend with the refreshing winds of change necessitated by unfolding events. As one eminent political law writer
and respected jurist[38] explains:

The Constitution must be quintessential rather than superficial, the root and not the blossom, the base and
framework only of the edifice that is yet to rise. It is but the core of the dream that must take shape, not in a
twinkling by mandate of our delegates, but slowly in the crucible of Filipino minds and hearts, where it will in
time develop its sinews and gradually gather its strength and finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise full-grown from the brow of the Constitutional Convention,
nor can it conjure by mere fiat an instant Utopia. It must grow with the society it seeks to re-structure and
march apace with the progress of the race, drawing from the vicissitudes of history the dynamism and vitality
that will keep it, far from becoming a petrified rule, a pulsing, living law attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity of its laws, regulations
and administrative procedures with its obligations as provided in the annexed Agreements. [39] Petitioners
maintain that this undertaking unduly limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in the Congress of
the Philippines.It is an assault on the sovereign powers of the Philippines because this means that Congress
could not pass legislation that will be good for our national interest and general welfare if such legislation will
not conform with the WTO Agreement, which not only relates to the trade in goods x x x but also to the flow of
investments and money x x x as well as to a whole slew of agreements on socio-cultural matters x x x.[40]

More specifically, petitioners claim that said WTO proviso derogates from the power to tax, which is
lodged in the Congress.[41] And while the Constitution allows Congress to authorize the President to fix tariff
rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts, such authority is
subject to specified limits and x x x such limitations and restrictions as Congress may provide,[42] as in fact it
did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments
on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on
the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines,
expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision
a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State
Policies, the Constitution 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."[43] By the doctrine of incorporation, the country is bound by generally accepted principles of
international law, which are considered to be automatically part of our own laws.[44] One of the oldest and most
fundamental rules in international law is pacta sunt servanda -- international agreements must be performed in
good faith. A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the
parties x x x. A state which has contracted valid international obligations is bound to make in its legislations
such modifications as may be necessary to ensure the fulfillment of the obligations undertaken.[45]

By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary
act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of
mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise
absolute rights. Thus, treaties have been used to record agreements between States concerning such widely
diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of
war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations,
the settling of claims, the laying down of rules governing conduct in peace and the establishment of
international organizations.[46] The sovereignty of a state therefore cannot in fact and in reality be considered
absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in
the family of nations and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy,
Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of
interdependence is here.[47]

UN Charter and Other Treaties Limit Sovereignty

Thus, when the Philippines joined the United Nations as one of its 51 charter members, it consented to
restrict its sovereign rights under the concept of sovereignty as auto-limitation.47-A Under Article 2 of the UN
Charter, (a)ll members shall give the United Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any state against which the United Nations is
taking preventive or enforcement action. Such assistance includes payment of its corresponding share not
merely in administrative expenses but also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of Justice held that money used
by the United Nations Emergency Force in the Middle East and in the Congo were expenses of the United
Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its members must bear their
corresponding share in such expenses. In this sense, the Philippine Congress is restricted in its power to
appropriate. It is compelled to appropriate funds whether it agrees with such peace-keeping expenses or
not. So too, under Article 105 of the said Charter, the UN and its representatives enjoy diplomatic privileges
and immunities, thereby limiting again the exercise of sovereignty of members within their own
territory. Another example: although sovereign equality and domestic jurisdiction of all members are set forth
as underlying principles in the UN Charter, such provisos are however subject to enforcement measures
decided by the Security Council for the maintenance of international peace and security under Chapter VII of
the Charter. A final example: under Article 103, (i)n the event of a conflict between the obligations of the
Members of the United Nations under the present Charter and their obligations under any other international
agreement, their obligation under the present charter shall prevail, thus unquestionably denying the Philippines
-- as a member -- the sovereign power to make a choice as to which of conflicting obligations, if any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other international pacts -- both bilateral
and multilateral -- that involve limitations on Philippine sovereignty. These are enumerated by the Solicitor
General in his Compliance dated October 24, 1996, as follows:

(a) Bilateral convention with the United States regarding taxes on income, where the Philippines agreed,
among others, to exempt from tax, income received in the Philippines by, among others, the Federal
Reserve Bank of the United States, the Export/Import Bank of the United States, the Overseas
Private Investment Corporation of the United States. Likewise, in said convention, wages, salaries
and similar remunerations paid by the United States to its citizens for labor and personal services
performed by them as employees or officials of the United States are exempt from income tax by the
Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the avoidance of double taxation with
respect to taxes on income.

(c) Bilateral convention with the Kingdom of Sweden for the avoidance of double taxation.

(d) Bilateral convention with the French Republic for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed to exempt from all customs
duties, inspection fees and other duties or taxes aircrafts of South Korea and the regular equipment,
spare parts and supplies arriving with said aircrafts.

(f) Bilateral air service agreement with Japan, where the Philippines agreed to exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges fuel, lubricating oils,
spare parts, regular equipment, stores on board Japanese aircrafts while on Philippine soil.

(g) Bilateral air service agreement with Belgium where the Philippines granted Belgian air carriers the
same privileges as those granted to Japanese and Korean air carriers under separate air service
agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where the Philippines exempted
Israeli nationals from the requirement of obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the requirement of obtaining transit
and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed that premises of Special
Missions in the Philippines are inviolable and its agents can not enter said premises without consent
of the Head of Mission concerned.Special Missions are also exempted from customs duties, taxes
and related charges.

(k) Multilateral Convention on the Law of Treaties. In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory jurisdiction of the International
Court of Justice. The International Court of Justice has jurisdiction in all legal disputes concerning the
interpretation of a treaty, any question of international law, the existence of any fact which, if
established, would constitute a breach of international obligation.

In the foregoing treaties, the Philippines has effectively agreed to limit the exercise of its sovereign
powers of taxation, eminent domain and police power. The underlying consideration in this partial surrender of
sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine
commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights, the environment, the law of the
sea, or trade, constrain domestic political sovereignty through the assumption of external obligations. But
unless anarchy in international relations is preferred as an alternative, in most cases we accept that the
benefits of the reciprocal obligations involved outweigh the costs associated with any loss of political
sovereignty. (T)rade treaties that structure relations by reference to durable, well-defined substantive norms
and objective dispute resolution procedures reduce the risks of larger countries exploiting raw economic power
to bully smaller countries, by subjecting power relations to some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately from trade liberalization. This is due to the simple fact that
liberalization will provide access to a larger set of potential new trading relationship than in case of the larger
country gaining enhanced success to the smaller countrys market.[48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty may be waived without
violating the Constitution, based on the rationale that the Philippines adopts the generally accepted principles
of international law as part of the law of the land and adheres to the policy of x x x cooperation and amity with
all nations.

Fourth Issue: The WTO Agreement and Judicial Power


Petitioners aver that paragraph 1, Article 34 of the General Provisions and Basic Principles of the
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) [49] intrudes on the power of the
Supreme Court to promulgate rules concerning pleading, practice and procedures. [50]

To understand the scope and meaning of Article 34, TRIPS,[51] it will be fruitful to restate its full text as
follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred
to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the
judicial authorities shall have the authority to order the defendant to prove that the process to obtain an
identical product is different from the patented process. Therefore, Members shall provide, in at least one
of the following circumstances, that any identical product when produced without the consent of the
patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the
patented process:

(a) if the product obtained by the patented process is new;

(b) if there is a substantial likelihood that the identical product was made by the process and the
owner of the patent has been unable through reasonable efforts to determine the process
actually used.

2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the
alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition
referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their
manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable (note the words in the
absence of proof to the contrary) presumption that a product shown to be identical to one produced with the
use of a patented process shall be deemed to have been obtained by the (illegal) use of the said patented
process, (1) where such product obtained by the patented product is new, or (2) where there is substantial
likelihood that the identical product was made with the use of the said patented process but the owner of the
patent could not determine the exact process used in obtaining such identical product. Hence, the burden of
proof contemplated by Article 34 should actually be understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood, actually refers to the burden of
evidence (burden of going forward) placed on the producer of the identical (or fake) product to show that his
product was produced without the use of the patented process.

The foregoing notwithstanding, the patent owner still has the burden of proof since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to introduce evidence of the
existence of the alleged identical product, the fact that it is identical to the genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of substantial likelihood that the
identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of evidence as the present law on
the subject, Republic Act No. 165, as amended, otherwise known as the Patent Law, provides a similar
presumption in cases of infringement of patented design or utility model, thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for utility model shall consist in
unauthorized copying of the patented design or utility model for the purpose of trade or industry in the article or
product and in the making, using or selling of the article or product copying the patented design or utility
model. Identity or substantial identity with the patented design or utility model shall constitute evidence of
copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a disputable presumption
applies only if (1) the product obtained by the patented process is NEW or (2) there is a substantial likelihood
that the identical product was made by the process and the process owner has not been able through
reasonable effort to determine the process used. Where either of these two provisos does not obtain,
members shall be free to determine the appropriate method of implementing the provisions of TRIPS within
their own internal systems and processes.

By and large, the arguments adduced in connection with our disposition of the third issue -- derogation of
legislative power - will apply to this fourth issue also. Suffice it to say that the reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not contain an unreasonable burden,
consistent as it is with due process and the concept of adversarial dispute settlement inherent in our judicial
system.

So too, since the Philippine is a signatory to most international conventions on patents, trademarks and
copyrights, the adjustment in legislation and rules of procedure will not be substantial. [52]

Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other Documents Contained in the
Final Act

Petitioners allege that the Senate concurrence in the WTO Agreement and its annexes -- but not in the
other documents referred to in the Final Act, namely the Ministerial Declaration and Decisions and the
Understanding on Commitments in Financial Services -- is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the WTO Agreement alone is flawed because it is in
effect a rejection of the Final Act, which in turn was the document signed by Secretary Navarro, in
representation of the Republic upon authority of the President. They contend that the second letter of the
President to the Senate[53] which enumerated what constitutes the Final Act should have been the subject of
concurrence of the Senate.

A final act, sometimes called protocol de clture, is an instrument which records the winding up of the
proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties,
conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the
conference.[54] It is not the treaty itself. It is rather a summary of the proceedings of a protracted conference
which may have taken place over several years. The text of the Final Act Embodying the Results of the
Uruguay Round of Multilateral Trade Negotiations is contained in just one page [55] in Vol. I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act, Secretary Navarro as
representative of the Republic of the Philippines undertook:

"(a) to submit, as appropriate, the WTO Agreement for the consideration of their respective competent
authorities with a view to seeking approval of the Agreement in accordance with their procedures;
and

(b) to adopt the Ministerial Declarations and Decisions."

The assailed Senate Resolution No. 97 expressed concurrence in exactly what the Final Act required
from its signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need for ratification. They were
approved by the ministers by virtue of Article XXV: 1 of GATT which provides that representatives of the
members can meet to give effect to those provisions of this Agreement which invoke joint action, and generally
with a view to facilitating the operation and furthering the objectives of this Agreement.[56]
The Understanding on Commitments in Financial Services also approved in Marrakesh does not apply to
the Philippines. It applies only to those 27 Members which have indicated in their respective schedules of
commitments on standstill, elimination of monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and processing of information, and national treatment
with respect to access to payment, clearing systems and refinancing available in the normal course of
business.[57]

On the other hand, the WTO Agreement itself expresses what multilateral agreements are deemed
included as its integral parts,[58] as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional framework for the conduct of trade relations among its
Members in matters to the agreements and associated legal instruments included in the Annexes to this
Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2, and 3 (hereinafter referred
to as Multilateral Agreements) are integral parts of this Agreement, binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4 (hereinafter referred to as
Plurilateral Trade Agreements) are also part of this Agreement for those Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do not create either
obligation or rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A (hereinafter referred to as
GATT 1994) is legally distinct from the General Agreement on Tariffs and Trade, dated 30 October 1947,
annexed to the Final Act adopted at the conclusion of the Second Session of the Preparatory Committee
of the United Nations Conference on Trade and Employment, as subsequently rectified, amended or
modified (hereinafter referred to as GATT 1947).

It should be added that the Senate was well-aware of what it was concurring in as shown by the members
deliberation on August 25, 1994. After reading the letter of President Ramos dated August 11, 1994, [59] the
senators of the Republic minutely dissected what the Senate was concurring in, as follows: [60]

THE CHAIRMAN: Yes. Now, the question of the validity of the submission came up in the first day hearing of
this Committee yesterday. Was the observation made by Senator Taada that what was submitted to the
Senate was not the agreement on establishing the World Trade Organization by the final act of the Uruguay
Round which is not the same as the agreement establishing the World Trade Organization? And on that basis,
Senator Tolentino raised a point of order which, however, he agreed to withdraw upon understanding that his
suggestion for an alternative solution at that time was acceptable. That suggestion was to treat the
proceedings of the Committee as being in the nature of briefings for Senators until the question of the
submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new... is he making a new submission which
improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should be no misunderstanding, it
was his intention to clarify all matters by giving this letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino since they were the ones that
raised this question yesterday?
Senator Taada, please.

SEN. TAADA: Thank you, Mr. Chairman.

Based on what Secretary Romulo has read, it would now clearly appear that what is being submitted to the
Senate for ratification is not the Final Act of the Uruguay Round, but rather the Agreement on the World Trade
Organization as well as the Ministerial Declarations and Decisions, and the Understanding and Commitments
in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator Tolentino? And after him Senator
Neptali Gonzales and Senator Lina.

SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually transmitted to us but I saw the
draft of his earlier, and I think it now complies with the provisions of the Constitution, and with the Final Act
itself. The Constitution does not require us to ratify the Final Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies what is going to be submitted to with the governments of
the participants.

In paragraph 2 of the Final Act, we read and I quote:

By signing the present Final Act, the representatives agree: (a) to submit as appropriate the WTO Agreement
for the consideration of the respective competent authorities with a view to seeking approval of the Agreement
in accordance with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the governments for ratification or
acceptance as whatever their constitutional procedures may provide but it is the World Trade Organization
Agreement. And if that is the one that is being submitted now, I think it satisfies both the Constitution and the
Final Act itself.

Thank you, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.

SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of record. And they had been
adequately reflected in the journal of yesterdays session and I dont see any need for repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to make any comment on this?

SEN. LINA. Mr. President, I agree with the observation just made by Senator Gonzales out of the abundance
of question. Then the new submission is, I believe, stating the obvious and therefore I have no further
comment to make.

Epilogue

In praying for the nullification of the Philippine ratification of the WTO Agreement, petitioners are invoking
this Courts constitutionally imposed duty to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the Senate in giving its concurrence therein via
Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave abuse of discretion may be
issued by the Court under Rule 65 of the Rules of Court when it is amply shown that petitioners have no other
plain, speedy and adequate remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction.[61] Mere abuse of discretion is not enough. It must be grave abuse of
discretion as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of law. [62] Failure on the part of the
petitioner to show grave abuse of discretion will result in the dismissal of the petition. [63]

In rendering this Decision, this Court never forgets that the Senate, whose act is under review, is one of
two sovereign houses of Congress and is thus entitled to great respect in its actions. It is itself a constitutional
body independent and coordinate, and thus its actions are presumed regular and done in good faith. Unless
convincing proof and persuasive arguments are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-accepted definition of grave abuse of discretion and
the presumption of regularity in the Senates processes, this Court cannot find any cogent reason to impute
grave abuse of discretion to the Senates exercise of its power of concurrence in the WTO Agreement granted
it by Sec. 21 of Article VII of the Constitution.[64]

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an
independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor,
products, domestic materials and locally produced goods. But it is equally true that such principles -- while
serving as judicial and legislative guides -- are not in themselves sources of causes of action. Moreover, there
are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of
a trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the
basis of equality and reciprocity and the promotion of industries which are competitive in both domestic and
foreign markets, thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty
in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted
principles of international law as part of the law of the land and the adherence of the Constitution to the policy
of cooperationand amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the
WTO Agreement thereby making it a part of the law of the land is a legitimate exercise of its sovereign duty
and power. We find no patent and gross arbitrariness or despotism by reason of passion or personal hostility
in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even
agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution
No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its
decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludably,
what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or
viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers
and the people. As to whether the nation should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should determine in electing their policy makers. After all,
the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

The eminent futurist John Naisbitt, author of the best seller Megatrends, predicts an Asian
Renaissance[65] where the East will become the dominant region of the world economically, politically and
culturally in the next century. He refers to the free market espoused by WTO as the catalyst in this coming
Asian ascendancy. There are at present about 31 countries including China, Russia and Saudi Arabia
negotiating for membership in the WTO. Notwithstanding objections against possible limitations on national
sovereignty, the WTO remains as the only viable structure for multilateral trading and the veritable forum for
the development of international trade law. The alternative to WTO is isolation, stagnation, if not economic
self-destruction. Duly enriched with original membership, keenly aware of the advantages and disadvantages
of globalization with its on-line experience, and endowed with a vision of the future, the Philippines now
straddles the crossroads of an international strategy for economic prosperity and stability in the new
millennium. Let the people, through their duly authorized elected officers, make their free choice.
WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza, Francisco,
Hermosisima, Jr., and Torres, Jr., JJ., concur.

Padilla, and Vitug, JJ., in the result.