G.R. No.
L-45081 July 15, 1936 (5) That on December 8, 1935, the herein respondent Pedro Ynsua filed
JOSE A. ANGARA, petitioner, vs. THE ELECTORAL COMMISSION,
PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,
respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner, Jose A.
Angara, for the issuance of a writ of prohibition to restrain and prohibit the
Electoral Commission, one of the respondents, from taking further
cognizance of the protest filed by Pedro Ynsua, another respondent, against
the election of said petitioner as member of the National Assembly for the
first assembly district of the Province of Tayabas.
The facts of this case as they appear in the petition and as admitted by the
respondents are as follows:
(1) That in the elections of September 17, 1935, the petitioner, Jose A.
Angara, and the respondents, Pedro Ynsua, Miguel Castillo and Dionisio
Mayor, were candidates voted for the position of member of the National
Assembly for the first district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board of canvassers, proclaimed
the petitioner as member-elect of the National Assembly for the said district,
for having received the most number of votes;
(3) That on November 15, 1935, the petitioner took his oath of office;
(4) That on December 3, 1935, the National Assembly in session assembled,
passed the following resolution:
[No. 8]
RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de los Diputados contra quienes no
se hubiere presentado debidamente una protesta antes de la adopcion de la
presente resolucion sean, como por la presente, son aprobadas y
confirmadas.
Adoptada, 3 de diciembre, 1935.
before the Electoral Commission a "Motion of Protest" against the election of
the herein petitioner, Jose A. Angara, being the only protest filed after the
passage of Resolutions No. 8 aforequoted, and praying, among other-things,
that said respondent be declared elected member of the National Assembly
for the first district of Tayabas, or that the election of said position be nullified;
(6) That on December 9, 1935, the Electoral Commission adopted a
resolution, paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta que no se haya presentado
en o antes de este dia.
(7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of
the respondents in the aforesaid protest, filed before the Electoral
Commission a "Motion to Dismiss the Protest", alleging (a) that Resolution
No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the
National Assembly was adopted in the legitimate exercise of its constitutional
prerogative to prescribe the period during which protests against the election
of its members should be presented; (b) that the aforesaid resolution has for
its object, and is the accepted formula for, the limitation of said period; and
(c) that the protest in question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed
an "Answer to the Motion of Dismissal" alleging that there is no legal or
constitutional provision barring the presentation of a protest against the
election of a member of the National Assembly after confirmation;
(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a
"Reply" to the aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision, the Electoral Commission
promulgated a resolution on January 23, 1936, denying herein petitioner's
"Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for the
issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction upon the electoral
Commission solely as regards the merits of contested elections to the
National Assembly;
(b) That the Constitution excludes from said jurisdiction the power to regulate
the proceedings of said election contests, which power has been reserved to
the Legislative Department of the Government or the National Assembly;
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(c) That like the Supreme Court and other courts created in pursuance of the
Constitution, whose exclusive jurisdiction relates solely to deciding the merits
of controversies submitted to them for decision and to matters involving their
internal organization, the Electoral Commission can regulate its proceedings
only if the National Assembly has not availed of its primary power to so
regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is, therefore, valid and
should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance appended to the
Constitution and paragraph 6 of article 7 of the Tydings-McDuffie Law (No.
127 of the 73rd Congress of the United States) as well as under section 1
and 3 (should be sections 1 and 2) of article VIII of the Constitution, this
Supreme Court has jurisdiction to pass upon the fundamental question
herein raised because it involves an interpretation of the Constitution of the
Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an answer in
behalf of the respondent Electoral Commission interposing the following
special defenses:
(a) That the Electoral Commission has been created by the Constitution as
an instrumentality of the Legislative Department invested with the jurisdiction
to decide "all contests relating to the election, returns, and qualifications of
the members of the National Assembly"; that in adopting its resolution of
December 9, 1935, fixing this date as the last day for the presentation of
protests against the election of any member of the National Assembly, it
acted within its jurisdiction and in the legitimate exercise of the implied
powers granted it by the Constitution to adopt the rules and regulations
essential to carry out the power and functions conferred upon the same by
the fundamental law; that in adopting its resolution of January 23, 1936,
overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said
protest, it acted in the legitimate exercise of its quasi-judicial functions a an
instrumentality of the Legislative Department of the Commonwealth
Government, and hence said act is beyond the judicial cognizance or control
of the Supreme Court;
(b) That the resolution of the National Assembly of December 3, 1935,
confirming the election of the members of the National Assembly against
whom no protest had thus far been filed, could not and did not deprive the
electoral Commission of its jurisdiction to take cognizance of election
protests filed within the time that might be set by its own rules:
(c) That the Electoral Commission is a body invested with quasi-judicial
functions, created by the Constitution as an instrumentality of the Legislative
Department, and is not an "inferior tribunal, or corporation, or board, or
person" within the purview of section 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an answer in
his own behalf on March 2, 1936, setting forth the following as his special
defense:
(a) That at the time of the approval of the rules of the Electoral Commission
on December 9, 1935, there was no existing law fixing the period within
which protests against the election of members of the National Assembly
should be filed; that in fixing December 9, 1935, as the last day for the filing
of protests against the election of members of the National Assembly, the
Electoral Commission was exercising a power impliedly conferred upon it by
the Constitution, by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of protest before the Electoral
Commission on December 9, 1935, the last day fixed by paragraph 6 of the
rules of the said Electoral Commission;
(c) That therefore the Electoral Commission acquired jurisdiction over the
protest filed by said respondent and over the parties thereto, and the
resolution of the Electoral Commission of January 23, 1936, denying
petitioner's motion to dismiss said protest was an act within the jurisdiction of
the said commission, and is not reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution requires confirmation by the
National Assembly of the election of its members, and that such confirmation
does not operate to limit the period within which protests should be filed as to
deprive the Electoral Commission of jurisdiction over protest filed subsequent
thereto;
(e) That the Electoral Commission is an independent entity created by the
Constitution, endowed with quasi-judicial functions, whose decision are final
and unappealable;
(f) That the electoral Commission, as a constitutional creation, is not an
inferior tribunal, corporation, board or person, within the terms of sections
226 and 516 of the Code of Civil Procedure; and that neither under the
provisions of sections 1 and 2 of article II (should be article VIII) of the
Constitution and paragraph 13 of section 1 of the Ordinance appended
thereto could it be subject in the exercise of its quasi-judicial functions to a
writ of prohibition from the Supreme Court;
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(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the
73rd Congress of the united States) has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was submitted
for decision, the petitioner prayed for the issuance of a preliminary writ of
injunction against the respondent Electoral Commission which petition was
denied "without passing upon the merits of the case" by resolution of this
court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be reduced to the following
two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral Commission and the
subject matter of the controversy upon the foregoing related facts, and in the
affirmative,
2. Has the said Electoral Commission acted without or in excess of its
jurisdiction in assuming to the cognizance of the protest filed the election of
the herein petitioner notwithstanding the previous confirmation of such
election by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon the merits of
the controversy. However, the question of jurisdiction having been presented,
we do not feel justified in evading the issue. Being a case primæ
impressionis, it would hardly be consistent with our sense of duty to overlook
the broader aspect of the question and leave it undecided. Neither would we
be doing justice to the industry and vehemence of counsel were we not to
pass upon the question of jurisdiction squarely presented to our
consideration.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.
For example, the Chief Executive under our Constitution is so far made a
check on the legislative power that this assent is required in the enactment of
laws. This, however, is subject to the further check that a bill may become a
law notwithstanding the refusal of the President to approve it, by a vote of
two-thirds or three-fourths, as the case may be, of the National Assembly.
The President has also the right to convene the Assembly in special session
whenever he chooses. On the other hand, the National Assembly operates
as a check on the Executive in the sense that its consent through its
Commission on Appointments is necessary in the appointments of certain
officers; and the concurrence of a majority of all its members is essential to
the conclusion of treaties. Furthermore, in its power to determine what courts
other than the Supreme Court shall be established, to define their jurisdiction
and to appropriate funds for their support, the National Assembly controls the
judicial department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. And the judiciary in turn, with the
Supreme Court as the final arbiter, effectively checks the other departments
in the exercise of its power to determine the law, and hence to declare
executive and legislative acts void if violative of the Constitution.
But in the main, 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. The overlapping and interlacing of functions
and duties between the several departments, however, sometimes makes it
hard to say just where the one leaves off and the other begins. In times of
social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In
cases of conflict, the judicial department is the only constitutional organ
which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units
thereof.
As any human production, our Constitution is of course lacking perfection
and perfectibility, but as much as it was within the power of our people,
acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under
a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitation and restrictions embodied in our
Constitution are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of its
historical origin and development there, has been set at rest by popular
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acquiescence for a period of more than one and a half centuries. In our case,
this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of our constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments,
not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of
the governments of the government.
But much as we might postulate on the internal checks of power provided in
our Constitution, it ought not the less to be remembered that, in the language
of James Madison, the system itself is not "the chief palladium of
constitutional liberty . . . the people who are authors of this blessing must
also be its guardians . . . their eyes must be ever ready to mark, their voice to
pronounce . . . aggression on the authority of their constitution." In the Last
and ultimate analysis, then, must the success of our government in the
unfolding years to come be tested in the crucible of Filipino minds and hearts
than in consultation rooms and court chambers.
In the case at bar, the national Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to the said
body. On the other hand, the Electoral Commission has by resolution
adopted on December 9, 1935, fixed said date as the last day for the filing of
protests against the election, returns and qualifications of members of the
National Assembly, notwithstanding the previous confirmation made by the
National Assembly as aforesaid. If, as contended by the petitioner, the
resolution of the National Assembly has the effect of cutting off the power of
the Electoral Commission to entertain protests against the election, returns
and qualifications of members of the National Assembly, submitted after
December 3, 1935, then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if, as
contended by the respondents, the Electoral Commission has the sole power
of regulating its proceedings to the exclusion of the National Assembly, then
the resolution of December 9, 1935, by which the Electoral Commission fixed
said date as the last day for filing protests against the election, returns and
qualifications of members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a conflict of
a grave constitutional nature between the National Assembly on the one
hand, and the Electoral Commission on the other. From the very nature of
the republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the
solemn and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries. The Electoral Commission, as we shall
have occasion to refer hereafter, is a constitutional organ, created for a
specific purpose, namely to determine all contests relating to the election,
returns and qualifications of the members of the National Assembly. Although
the Electoral Commission may not be interfered with, when and while acting
within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not subject
to constitutional restrictions. The Electoral Commission is not a separate
department of the government, and even if it were, conflicting claims of
authority under the fundamental law between department powers and
agencies of the government are necessarily determined by the judiciary in
justifiable and appropriate cases. Discarding the English type and other
European types of constitutional government, the framers of our constitution
adopted the American type where the written constitution is interpreted and
given effect by the judicial department. In some countries which have
declined to follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the power to interpret
the fundamental law. This is taken as a recognition of what otherwise would
be the rule that in the absence of direct prohibition courts are bound to
assume what is logically their function. For instance, the Constitution of
Poland of 1921, expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose constitutions
are silent in this respect, courts have assumed this power. This is true in
Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to constitutional Charter of the Czechoslovak
Republic, February 29, 1920) and Spain (arts. 121-123, Title IX,
4
Constitutional of the Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In our case, the nature
of the present controversy shows the necessity of a final constitutional arbiter
to determine the conflict of authority between two agencies created by the
Constitution. Were we to decline to take cognizance of the controversy, who
will determine the conflict? And if the conflict were left undecided and
undetermined, would not a void be thus created in our constitutional system
which may be in the long run prove destructive of the entire framework? To
ask these questions is to answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon principle, reason and
authority, we are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral Commission and
the subject mater of the present controversy for the purpose of determining
the character, scope and extent of the constitutional grant to the Electoral
Commission as "the sole judge of all contests relating to the election, returns
and qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed to pass
upon the second proposition and determine whether the Electoral
Commission has acted without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take cognizance of the
protest filed against the election of the herein petitioner notwithstanding the
previous confirmation thereof by the National Assembly on December 3,
1935. As able counsel for the petitioner has pointed out, the issue hinges on
the interpretation of section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of three Justice
of the Supreme Court designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall be nominated by the
party having the largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral Commission shall be the
sole judge of all contests relating to the election, returns and qualifications of
the members of the National Assembly." It is imperative, therefore, that we
delve into the origin and history of this constitutional provision and inquire
into the intention of its framers and the people who adopted it so that we may
properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of July 1,
1902 (sec. 7, par. 5) laying down the rule that "the assembly shall be the
judge of the elections, returns, and qualifications of its members", was taken
from clause 1 of section 5, Article I of the Constitution of the United States
providing that "Each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of Congress of August 29,
1916 (sec. 18, par. 1) modified this provision by the insertion of the word
"sole" as follows: "That the Senate and House of Representatives,
respectively, shall be the sole judges of the elections, returns, and
qualifications of their elective members . . ." apparently in order to emphasize
the exclusive the Legislative over the particular case s therein specified. This
court has had occasion to characterize this grant of power to the Philippine
Senate and House of Representatives, respectively, as "full, clear and
complete" (Veloso vs. Boards of Canvassers of Leyte and Samar [1919], 39
Phil., 886, 888.)
The first step towards the creation of an independent tribunal for the purpose
of deciding contested elections to the legislature was taken by the sub-
committee of five appointed by the Committee on Constitutional Guarantees
of the Constitutional Convention, which sub-committee submitted a report on
August 30, 1934, recommending the creation of a Tribunal of Constitutional
Security empowered to hear legislature but also against the election of
executive officers for whose election the vote of the whole nation is required,
as well as to initiate impeachment proceedings against specified executive
and judicial officer. For the purpose of hearing legislative protests, the
tribunal was to be composed of three justices designated by the Supreme
Court and six members of the house of the legislature to which the contest
corresponds, three members to be designed by the majority party and three
by the minority, to be presided over by the Senior Justice unless the Chief
Justice is also a member in which case the latter shall preside. The foregoing
proposal was submitted by the Committee on Constitutional Guarantees to
the Convention on September 15, 1934, with slight modifications consisting
in the reduction of the legislative representation to four members, that is, two
senators to be designated one each from the two major parties in the Senate
and two representatives to be designated one each from the two major
parties in the House of Representatives, and in awarding representation to
the executive department in the persons of two representatives to be
designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing its
report. As submitted to the Convention on September 24, 1934 subsection 5,
section 5, of the proposed Article on the Legislative Department, reads as
follows:
The elections, returns and qualifications of the members of either house and
all cases contesting the election of any of their members shall be judged by
an Electoral Commission, constituted, as to each House, by three members
elected by the members of the party having the largest number of votes
therein, three elected by the members of the party having the second largest
number of votes, and as to its Chairman, one Justice of the Supreme Court
designated by the Chief Justice.
5
The idea of creating a Tribunal of Constitutional Security with comprehensive
jurisdiction as proposed by the Committee on Constitutional Guarantees
which was probably inspired by the Spanish plan (art. 121, Constitution of the
Spanish Republic of 1931), was soon abandoned in favor of the proposition
of the Committee on Legislative Power to create a similar body with reduced
powers and with specific and limited jurisdiction, to be designated as a
Electoral Commission. The Sponsorship Committee modified the proposal of
the Committee on Legislative Power with respect to the composition of the
Electoral Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral legislature. The draft
as finally submitted to the Convention on October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the Members of the National
Assembly and all cases contesting the election of any of its Members shall
be judged by an Electoral Commission, composed of three members elected
by the party having the largest number of votes in the National Assembly,
three elected by the members of the party having the second largest number
of votes, and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices.
During the discussion of the amendment introduced by Delegates Labrador,
Abordo, and others, proposing to strike out the whole subsection of the
foregoing draft and inserting in lieu thereof the following: "The National
Assembly shall be the soled and exclusive judge of the elections, returns,
and qualifications of the Members", the following illuminating remarks were
made on the floor of the Convention in its session of December 4, 1934, as
to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the
meaning of the first four lines, paragraph 6, page 11 of the draft, reading:
"The elections, returns and qualifications of the Members of the National
Assembly and all cases contesting the election of any of its Members shall
be judged by an Electoral Commission, . . ." I should like to ask from the
gentleman from Capiz whether the election and qualification of the member
whose elections is not contested shall also be judged by the Electoral
Commission.
Mr. ROXAS. If there is no question about the election of the members, there
is nothing to be judged; that is why the word "judge" is used to indicate a
controversy. If there is no question about the election of a member, there is
nothing to be submitted to the Electoral Commission and there is nothing to
be determined.
Mr. VENTURA. But does that carry the idea also that the Electoral
Commission shall confirm also the election of those whose election is not
contested?
Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the
action of the House of Representatives confirming the election of its
members is just a matter of the rules of the assembly. It is not constitutional.
It is not necessary. After a man files his credentials that he has been elected,
that is sufficient, unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient, as we have
observed that for purposes of the auditor, in the matter of election of a
member to a legislative body, because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the municipal president
who is elected? What happens with regards to the councilors of a
municipality? Does anybody confirm their election? The municipal council
does this: it makes a canvass and proclaims — in this case the municipal
council proclaims who has been elected, and it ends there, unless there is a
contest. It is the same case; there is no need on the part of the Electoral
Commission unless there is a contest. The first clause refers to the case
referred to by the gentleman from Cavite where one person tries to be
elected in place of another who was declared elected. From example, in a
case when the residence of the man who has been elected is in question, or
in case the citizenship of the man who has been elected is in question.
However, if the assembly desires to annul the power of the commission, it
may do so by certain maneuvers upon its first meeting when the returns are
submitted to the assembly. The purpose is to give to the Electoral
Commission all the powers exercised by the assembly referring to the
elections, returns and qualifications of the members. When there is no
contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar question as that propounded by
the gentleman from Ilocos Norte when I arose a while ago. However I want to
ask more questions from the delegate from Capiz. This paragraph 6 on page
11 of the draft cites cases contesting the election as separate from the first
part of the sections which refers to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of
contested elections are already included in the phrase "the elections, returns
6
and qualifications." This phrase "and contested elections" was inserted
merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its
own instance, refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest.
Mr. LABRADOR. Mr. President, will the gentleman yield?
THE PRESIDENT. The gentleman may yield, if he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this
power is granted to the assembly, the assembly on its own motion does not
have the right to contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is
retained as it is, even if two-thirds of the assembly believe that a member has
not the qualifications provided by law, they cannot remove him for that
reason.
Mr. LABRADOR. So that the right to remove shall only be retained by the
Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of the assembly has
the right to question the eligibility of its members?
Mr. ROXAS. Before a member can question the eligibility, he must go to the
Electoral Commission and make the question before the Electoral
Commission.
Mr. LABRADOR. So that the Electoral Commission shall decide whether the
election is contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if the Electoral
Commission has power and authority to pass upon the qualifications of the
members of the National Assembly even though that question has not been
raised.
Mr. ROXAS. I have just said that they have no power, because they can only
judge.
In the same session, the first clause of the aforesaid draft reading "The
election, returns and qualifications of the members of the National Assembly
and" was eliminated by the Sponsorship Committee in response to an
amendment introduced by Delegates Francisco, Ventura, Vinzons, Rafols,
Lim, Mumar and others. In explaining the difference between the original
draft and the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste solamente en obviar la
objecion apuntada por varios Delegados al efecto de que la primera clausula
del draft que dice: "The elections, returns and qualifications of the members
of the National Assembly" parece que da a la Comision Electoral la facultad
de determinar tambien la eleccion de los miembros que no ha sido
protestados y para obviar esa dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal modo que se lea como sigue:
"All cases contesting the election", de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido protesta
contra las actas." Before the amendment of Delegate Labrador was voted
upon the following interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la
mayoria, y otros tres a la minoria y tres a la Corte Suprema, ¿no cree Su
Señoria que esto equivale practicamente a dejar el asunto a los miembros
del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la Commission esta
constituido en esa forma, tanto los miembros de la mayoria como los de la
minoria asi como los miembros de la Corte Suprema consideraran la
cuestion sobre la base de sus meritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.
7
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso como ese, podriamos
hacer que tanto los de la mayoria como los de la minoria prescindieran del
partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador, Abordo and others
seeking to restore the power to decide contests relating to the election,
returns and qualifications of members of the National Assembly to the
National Assembly itself, was defeated by a vote of ninety-eight (98) against
fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought to
amend the draft by reducing the representation of the minority party and the
Supreme Court in the Electoral Commission to two members each, so as to
accord more representation to the majority party. The Convention rejected
this amendment by a vote of seventy-six (76) against forty-six (46), thus
maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as follows:
(6) All cases contesting the elections, returns and qualifications of the
Members of the National Assembly shall be judged by an Electoral
Commission, composed of three members elected by the party having the
largest number of votes in the National Assembly, three elected by the
members of the party having the second largest number of votes, and three
justices of the Supreme Court designated by the Chief Justice, the
Commission to be presided over by one of said justices.
The Style Committee to which the draft was submitted revised it as follows:
SEC. 4. There shall be an Electoral Commission composed of three Justices
of the Supreme Court designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall be nominated by the
party having the largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral Commission shall be the
sole judge of the election, returns, and qualifications of the Members of the
National Assembly.
When the foregoing draft was submitted for approval on February 8, 1935,
the Style Committee, through President Recto, to effectuate the original
intention of the Convention, agreed to insert the phrase "All contests relating
to" between the phrase "judge of" and the words "the elections", which was
accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and
qualifications of the members of the legislature long lodged in the legislative
body, to an independent, impartial and non-partisan tribunal, is by no means
a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth edition,
chapter VI, pages 57, 58), gives a vivid account of the "scandalously
notorious" canvassing of votes by political parties in the disposition of
contests by the House of Commons in the following passages which are
partly quoted by the petitioner in his printed memorandum of March 14, 1936:
153. From the time when the commons established their right to be the
exclusive judges of the elections, returns, and qualifications of their
members, until the year 1770, two modes of proceeding prevailed, in the
determination of controverted elections, and rights of membership. One of
the standing committees appointed at the commencement of each session,
was denominated the committee of privileges and elections, whose functions
was to hear and investigate all questions of this description which might be
referred to them, and to report their proceedings, with their opinion
thereupon, to the house, from time to time. When an election petition was
referred to this committee they heard the parties and their witnesses and
other evidence, and made a report of all the evidence, together with their
opinion thereupon, in the form of resolutions, which were considered and
agreed or disagreed to by the house. The other mode of proceeding was by
a hearing at the bar of the house itself. When this court was adopted, the
case was heard and decided by the house, in substantially the same manner
as by a committee. The committee of privileges and elections although a
select committee. The committee of privileges and elections although a
select committee was usually what is called an open one; that is to say, in
order to constitute the committee, a quorum of the members named was
required to be present, but all the members of the house were at liberty to
attend the committee and vote if they pleased.
154. With the growth of political parties in parliament questions relating to the
right of membership gradually assumed a political character; so that for many
years previous to the year 1770, controverted elections had been tried and
determined by the house of commons, as mere party questions, upon which
the strength of contending factions might be tested. Thus, for Example, in
1741, Sir Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the Chippenham
election. Mr. Hatsell remarks, of the trial of election cases, as conducted
under this system, that "Every principle of decency and justice were
8
notoriously and openly prostituted, from whence the younger part of the
house were insensibly, but too successfully, induced to adopt the same
licentious conduct in more serious matters, and in questions of higher
importance to the public welfare." Mr. George Grenville, a distinguished
member of the house of commons, undertook to propose a remedy for the
evil, and, on the 7th of March, 1770, obtained the unanimous leave of the
house to bring in a bill, "to regulate the trial of controverted elections, or
returns of members to serve in parliament." In his speech to explain his plan,
on the motion for leave, Mr. Grenville alluded to the existing practice in the
following terms: "Instead of trusting to the merits of their respective causes,
the principal dependence of both parties is their private interest among us;
and it is scandalously notorious that we are as earnestly canvassed to attend
in favor of the opposite sides, as if we were wholly self-elective, and not
bound to act by the principles of justice, but by the discretionary impulse of
our own inclinations; nay, it is well known, that in every contested election,
many members of this house, who are ultimately to judge in a kind of judicial
capacity between the competitors, enlist themselves as parties in the
contention, and take upon themselves the partial management of the very
business, upon which they should determine with the strictest impartiality."
155. It was to put an end to the practices thus described, that Mr. Grenville
brought in a bill which met with the approbation of both houses, and received
the royal assent on the 12th of April, 1770. This was the celebrated law since
known by the name of the Grenville Act; of which Mr. Hatsell declares, that it
"was one of the nobles works, for the honor of the house of commons, and
the security of the constitution, that was ever devised by any minister or
statesman." It is probable, that the magnitude of the evil, or the apparent
success of the remedy, may have led many of the contemporaries of the
measure to the information of a judgement, which was not acquiesced in by
some of the leading statesmen of the day, and has not been entirely
confirmed by subsequent experience. The bill was objected to by Lord North,
Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr.
Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly
on the ground, that the introduction of the new system was an essential
alteration of the constitution of parliament, and a total abrogation of one of
the most important rights and jurisdictions of the house of commons.
As early as 1868, the House of Commons in England solved the problem of
insuring the non-partisan settlement of the controverted elections of its
members by abdicating its prerogative to two judges of the King's Bench of
the High Court of Justice selected from a rota in accordance with rules of
court made for the purpose. Having proved successful, the practice has
become imbedded in English jurisprudence (Parliamentary Elections Act,
1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and
Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal
Practices Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p.
408, vol. XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of Commons, are since
1922 tried in the courts. Likewise, in the Commonwealth of Australia, election
contests which were originally determined by each house, are since 1922
tried in the High Court. In Hungary, the organic law provides that all protests
against the election of members of the Upper House of the Diet are to be
resolved by the Supreme Administrative Court (Law 22 of 1916, chap. 2, art.
37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19) and the
Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the
authority to decide contested elections to the Diet or National Assembly in
the Supreme Court. For the purpose of deciding legislative contests, the
Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of
the Czechoslovak Republic of February 29, 1920 (art. 19) and the
Constitution of the Grecian Republic of June 2, 1927 (art. 43), all provide for
an Electoral Commission.
The creation of an Electoral Commission whose membership is recruited
both from the legislature and the judiciary is by no means unknown in the
United States. In the presidential elections of 1876 there was a dispute as to
the number of electoral votes received by each of the two opposing
candidates. As the Constitution made no adequate provision for such a
contingency, Congress passed a law on January 29, 1877 (United States
Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special
Electoral Commission composed of five members elected by the Senate, five
members elected by the House of Representatives, and five justices of the
Supreme Court, the fifth justice to be selected by the four designated in the
Act. The decision of the commission was to be binding unless rejected by the
two houses voting separately. Although there is not much of a moral lesson
to be derived from the experience of America in this regard, judging from the
observations of Justice Field, who was a member of that body on the part of
the Supreme Court (Countryman, the Supreme Court of the United States
and its Appellate Power under the Constitution [Albany, 1913] — Relentless
Partisanship of Electoral Commission, p. 25 et seq.), the experiment has at
least abiding historical interest.
The members of the Constitutional Convention who framed our fundamental
law were in their majority men mature in years and experience. To be sure,
many of them were familiar with the history and political development of other
countries of the world. When , therefore, they deemed it wise to create an
Electoral Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election, returns and
qualifications of the members of the National Assembly, they must have done
so not only in the light of their own experience but also having in view the
9
experience of other enlightened peoples of the world. The creation of the
Electoral Commission was designed to remedy certain evils of which the
framers of our Constitution were cognizant. Notwithstanding the vigorous
opposition of some members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a vote of 98 against 58.
All that can be said now is that, upon the approval of the constitutional the
creation of the Electoral Commission is the expression of the wisdom and
"ultimate justice of the people". (Abraham Lincoln, First Inaugural Address,
March 4, 1861.)
From the deliberations of our Constitutional Convention it is evident that the
purpose was to transfer in its totality all the powers previously exercised by
the legislature in matters pertaining to contested elections of its members, to
an independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary constitutional precedents, however, as the
long-felt need of determining legislative contests devoid of partisan
considerations which prompted the people, acting through their delegates to
the Convention, to provide for this body known as the Electoral Commission.
With this end in view, a composite body in which both the majority and
minority parties are equally represented to off-set partisan influence in its
deliberations was created, and further endowed with judicial temper by
including in its membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with the
necessary authority in the performance and execution of the limited and
specific function assigned to it by the Constitution. Although it is not a power
in our tripartite scheme of government, it is, to all intents and purposes, when
acting within the limits of its authority, an independent organ. It is, to be sure,
closer to the legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under Article VI
entitled "Legislative Department" of our Constitution is very indicative. Its
compositions is also significant in that it is constituted by a majority of
members of the legislature. But it is a body separate from and independent of
the legislature.
The grant of power to the Electoral Commission to judge all contests relating
to the election, returns and qualifications of members of the National
Assembly, is intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express lodging of that power in
the Electoral Commission is an implied denial of the exercise of that power
by the National Assembly. And this is as effective a restriction upon the
legislative power as an express prohibition in the Constitution (Ex parte
Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A.,
1917B, 1). If we concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings of the Electoral
Commission and cut off the power of the commission to lay down the period
within which protests should be filed, the grant of power to the commission
would be ineffective. The Electoral Commission in such case would be
invested with the power to determine contested cases involving the election,
returns and qualifications of the members of the National Assembly but
subject at all times to the regulative power of the National Assembly. Not only
would the purpose of the framers of our Constitution of totally transferring this
authority from the legislative body be frustrated, but a dual authority would be
created with the resultant inevitable clash of powers from time to time. A sad
spectacle would then be presented of the Electoral Commission retaining the
bare authority of taking cognizance of cases referred to, but in reality without
the necessary means to render that authority effective whenever and
whenever the National Assembly has chosen to act, a situation worse than
that intended to be remedied by the framers of our Constitution. The power to
regulate on the part of the National Assembly in procedural matters will
inevitably lead to the ultimate control by the Assembly of the entire
proceedings of the Electoral Commission, and, by indirection, to the entire
abrogation of the constitutional grant. It is obvious that this result should not
be permitted.
We are not insensible to the impassioned argument or the learned counsel
for the petitioner regarding the importance and necessity of respecting the
dignity and independence of the national Assembly as a coordinate
department of the government and of according validity to its acts, to avoid
what he characterized would be practically an unlimited power of the
commission in the admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the creation of the
Electoral Commission carried with it ex necesitate rei the power regulative in
character to limit the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that where a general power
is conferred or duty enjoined, every particular power necessary for the
exercise of the one or the performance of the other is also conferred (Cooley,
Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of
any further constitutional provision relating to the procedure to be followed in
filing protests before the Electoral Commission, therefore, the incidental
power to promulgate such rules necessary for the proper exercise of its
exclusive power to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be deemed by
necessary implication to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner, the
Electoral Commission may abuse its regulative authority by admitting
protests beyond any reasonable time, to the disturbance of the tranquillity
and peace of mind of the members of the National Assembly. But the
possibility of abuse is not argument against the concession of the power as
10
there is no power that is not susceptible of abuse. In the second place, if any
mistake has been committed in the creation of an Electoral Commission and
in investing it with exclusive jurisdiction in all cases relating to the election,
returns, and qualifications of members of the National Assembly, the remedy
is political, not judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not intended to be
corrected by the judiciary. We believe, however, that the people in creating
the Electoral Commission reposed as much confidence in this body in the
exclusive determination of the specified cases assigned to it, as they have
given to the Supreme Court in the proper cases entrusted to it for decision.
All the agencies of the government were designed by the Constitution to
achieve specific purposes, and each constitutional organ working within its
own particular sphere of discretionary action must be deemed to be animated
with the same zeal and honesty in accomplishing the great ends for which
they were created by the sovereign will. That the actuations of these
constitutional agencies might leave much to be desired in given instances, is
inherent in the perfection of human institutions. In the third place, from the
fact that the Electoral Commission may not be interfered with in the exercise
of its legitimate power, it does not follow that its acts, however illegal or
unconstitutional, may not be challenge in appropriate cases over which the
courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the present case,
there are considerations of equitable character that should not be overlooked
in the appreciation of the intrinsic merits of the controversy. The
Commonwealth Government was inaugurated on November 15, 1935, on
which date the Constitution, except as to the provisions mentioned in section
6 of Article XV thereof, went into effect. The new National Assembly
convened on November 25th of that year, and the resolution confirming the
election of the petitioner, Jose A. Angara was approved by that body on
December 3, 1935. The protest by the herein respondent Pedro Ynsua
against the election of the petitioner was filed on December 9 of the same
year. The pleadings do not show when the Electoral Commission was
formally organized but it does appear that on December 9, 1935, the
Electoral Commission met for the first time and approved a resolution fixing
said date as the last day for the filing of election protest. When, therefore, the
National Assembly passed its resolution of December 3, 1935, confirming the
election of the petitioner to the National Assembly, the Electoral Commission
had not yet met; neither does it appear that said body had actually been
organized. As a mater of fact, according to certified copies of official records
on file in the archives division of the National Assembly attached to the
record of this case upon the petition of the petitioner, the three justices of the
Supreme Court the six members of the National Assembly constituting the
Electoral Commission were respectively designated only on December 4 and
6, 1935. If Resolution No. 8 of the National Assembly confirming non-
protested elections of members of the National Assembly had the effect of
limiting or tolling the time for the presentation of protests, the result would be
that the National Assembly — on the hypothesis that it still retained the
incidental power of regulation in such cases — had already barred the
presentation of protests before the Electoral Commission had had time to
organize itself and deliberate on the mode and method to be followed in a
matter entrusted to its exclusive jurisdiction by the Constitution. This result
was not and could not have been contemplated, and should be avoided.
From another angle, Resolution No. 8 of the National Assembly confirming
the election of members against whom no protests had been filed at the time
of its passage on December 3, 1935, can not be construed as a limitation
upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of
members of the legislature at the time when the power to decide election
contests was still lodged in the legislature, confirmation alone by the
legislature cannot be construed as depriving the Electoral Commission of the
authority incidental to its constitutional power to be "the sole judge of all
contest relating to the election, returns, and qualifications of the members of
the National Assembly", to fix the time for the filing of said election protests.
Confirmation by the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal purposes,
unnecessary. As contended by the Electoral Commission in its resolution of
January 23, 1936, overruling the motion of the herein petitioner to dismiss
the protest filed by the respondent Pedro Ynsua, confirmation of the election
of any member is not required by the Constitution before he can discharge
his duties as such member. As a matter of fact, certification by the proper
provincial board of canvassers is sufficient to entitle a member-elect to a seat
in the national Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons and in
the Congress of the United States, confirmation is neither necessary in order
to entitle a member-elect to take his seat. The return of the proper election
officers is sufficient, and the member-elect presenting such return begins to
enjoy the privileges of a member from the time that he takes his oath of office
(Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A.,
Title 2, secs. 21, 25, 26). Confirmation is in order only in cases of contested
elections where the decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted elections is certified to
the Speaker of the House of Commons, and the House, upon being informed
of such certificate or report by the Speaker, is required to enter the same
upon the Journals, and to give such directions for confirming or altering the
return, or for the issue of a writ for a new election, or for carrying into
execution the determination as circumstances may require (31 & 32 Vict., c.
11
125, sec. 13). In the United States, it is believed, the order or decision of the
particular house itself is generally regarded as sufficient, without any actual
alternation or amendment of the return (Cushing, Law and Practice of
Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in force, each
house of the Philippine Legislature fixed the time when protests against the
election of any of its members should be filed. This was expressly authorized
by section 18 of the Jones Law making each house the sole judge of the
election, return and qualifications of its members, as well as by a law (sec.
478, Act No. 3387) empowering each house to respectively prescribe by
resolution the time and manner of filing contest in the election of member of
said bodies. As a matter of formality, after the time fixed by its rules for the
filing of protests had already expired, each house passed a resolution
confirming or approving the returns of such members against whose election
no protests had been filed within the prescribed time. This was interpreted as
cutting off the filing of further protests against the election of those members
not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine
Legislature, Record — First Period, p. 89; Urguello vs. Rama [Third District,
Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin [Romblon], Sixth
Philippine Legislature, Record — First Period, pp. 637-640; Kintanar vs.
Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, Record — First
Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth Philippine
Legislature, Record — First Period, vol. III, No. 56, pp. 892, 893). The
Constitution has repealed section 18 of the Jones Law. Act No. 3387, section
478, must be deemed to have been impliedly abrogated also, for the reason
that with the power to determine all contest relating to the election, returns
and qualifications of members of the National Assembly, is inseparably linked
the authority to prescribe regulations for the exercise of that power. There
was thus no law nor constitutional provisions which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935, the time
for the filing of contests against the election of its members. And what the
National Assembly could not do directly, it could not do by indirection through
the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution follows
fundamentally the theory of separation of power into the legislative, the
executive and the judicial.
(b) That the system of checks and balances and the overlapping of functions
and duties often makes difficult the delimitation of the powers granted.
(c) That in cases of conflict between the several departments and among the
agencies thereof, the judiciary, with the Supreme Court as the final arbiter, is
the only constitutional mechanism devised finally to resolve the conflict and
allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial review in actual and
appropriate cases and controversies, and is the power and duty to see that
no one branch or agency of the government transcends the Constitution,
which is the source of all authority.
(e) That the Electoral Commission is an independent constitutional creation
with specific powers and functions to execute and perform, closer for
purposes of classification to the legislative than to any of the other two
departments of the governments.
(f ) That the Electoral Commission is the sole judge of all contests relating to
the election, returns and qualifications of members of the National Assembly.
(g) That under the organic law prevailing before the present Constitution
went into effect, each house of the legislature was respectively the sole judge
of the elections, returns, and qualifications of their elective members.
(h) That the present Constitution has transferred all the powers previously
exercised by the legislature with respect to contests relating to the elections,
returns and qualifications of its members, to the Electoral Commission.
(i) That such transfer of power from the legislature to the Electoral
Commission was full, clear and complete, and carried with it ex necesitate rei
the implied power inter alia to prescribe the rules and regulations as to the
time and manner of filing protests.
( j) That the avowed purpose in creating the Electoral Commission was to
have an independent constitutional organ pass upon all contests relating to
the election, returns and qualifications of members of the National Assembly,
devoid of partisan influence or consideration, which object would be
frustrated if the National Assembly were to retain the power to prescribe rules
and regulations regarding the manner of conducting said contests.
(k) That section 4 of article VI of the Constitution repealed not only section 18
of the Jones Law making each house of the Philippine Legislature
respectively the sole judge of the elections, returns and qualifications of its
elective members, but also section 478 of Act No. 3387 empowering each
house to prescribe by resolution the time and manner of filing contests
against the election of its members, the time and manner of notifying the
12
adverse party, and bond or bonds, to be required, if any, and to fix the costs
and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or

not, is not essential before such member-elect may discharge the duties and
enjoy the privileges of a member of the National Assembly.

(m) That confirmation by the National Assembly of the election of any

member against whom no protest had been filed prior to said confirmation,
does not and cannot deprive the Electoral Commission of its incidental power
to prescribe the time within which protests against the election of any
member of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the
legitimate exercise of its constitutional prerogative in assuming to take
cognizance of the protest filed by the respondent Pedro Ynsua against the
election of the herein petitioner Jose A. Angara, and that the resolution of the
National Assembly of December 3, 1935 can not in any manner toll the time
for filing protests against the elections, returns and qualifications of members
of the National Assembly, nor prevent the filing of a protest within such time
as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the

Electoral Commission as a constitutional creation and as to the scope and
extent of its authority under the facts of the present controversy, we deem it
unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and
516 of the Code of Civil Procedure.

The petition for a writ of prohibition against the Electoral Commission is

hereby denied, with costs against the petitioner. So ordered.

13
G.R. No. 192935 December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner, vs. THE PHILIPPINE TRUTH
COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR., REP.
SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA, SR.,
Petitioners, vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an actual
controversy the rights which that instrument secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the
several departments.2 The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.3 Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be simply
made to sway and accommodate the call of situations and much more tailor
itself to the whims and caprices of government and the people who run it.4
For consideration before the Court are two consolidated cases5 both of
which essentially assail the validity and constitutionality of Executive Order
No. 1, dated July 30, 2010, entitled "Creating the Philippine Truth
Commission of 2010."
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen
and taxpayer. Biraogo assails Executive Order No. 1 for being violative of the
legislative power of Congress under Section 1, Article VI of the Constitution6
as it usurps the constitutional authority of the legislature to create a public
office and to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr.,
Simeon A. Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as
incumbent members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the
historic May 2010 elections, when then Senator Benigno Simeon Aquino III
declared his staunch condemnation of graft and corruption with his slogan,
"Kung walang corrupt, walang mahirap." The Filipino people, convinced of
his sincerity and of his ability to carry out this noble objective, catapulted the
good senator to the presidency.
To transform his campaign slogan into reality, President Aquino found a need
for a special body to investigate reported cases of graft and corruption
allegedly committed during the previous administration.
Thus, at the dawn of his administration, the President on July 30, 2010,
signed Executive Order No. 1 establishing the Philippine Truth Commission
of 2010 (Truth Commission). Pertinent provisions of said executive order
read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the Philippines
solemnly enshrines the principle that a public office is a public trust and
mandates that public officers and employees, who are servants of the
people, must at all times be accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with patriotism and justice,
and lead modest lives;
WHEREAS, corruption is among the most despicable acts of defiance of this
principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously affects the
political, economic, and social life of a nation; in a very special way it inflicts
untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming levels,
and undermined the people’s trust and confidence in the Government and its
institutions;
14
WHEREAS, there is an urgent call for the determination of the truth regarding
certain reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against those
involved, if warranted, and to deter others from committing the evil, restore
the people’s faith and confidence in the Government and in their public
servants;
WHEREAS, the President’s battlecry during his campaign for the Presidency
in the last elections "kung walang corrupt, walang mahirap" expresses a
solemn pledge that if elected, he would end corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of graft
and corruption during the previous administration, and which will recommend
the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the
Republic of the Philippines, by virtue of the powers vested in me by law, do
hereby order:
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the
people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall have all
the powers of an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987, is primarily tasked to conduct a thorough
fact-finding investigation of reported cases of graft and corruption referred to
in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and corruption
which it will investigate;
b) Collect, receive, review and evaluate evidence related to or regarding the
cases of large scale corruption which it has chosen to investigate, and to this
end require any agency, official or employee of the Executive Branch,
including government-owned or controlled corporations, to produce
documents, books, records and other papers;
c) Upon proper request or representation, obtain information and documents
from the Senate and the House of Representatives records of investigations
conducted by committees thereof relating to matters or subjects being
investigated by the Commission;
d) Upon proper request and representation, obtain information from the
courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases filed
with the Sandiganbayan or the regular courts, as the case may be;
e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person as a
state witness to ensure that the ends of justice be fully served, that such
person who qualifies as a state witness under the Revised Rules of Court of
the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the appropriate
prosecutorial authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public officers and employees
and their private sector co-principals, accomplices or accessories, if any,
when in the course of its investigation the Commission finds that there is
reasonable ground to believe that they are liable for graft and corruption
under pertinent applicable laws;
h) Call upon any government investigative or prosecutorial agency such as
the Department of Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such assistance and cooperation as
it may require in the discharge of its functions and duties;
15
i) Engage or contract the services of resource persons, professionals and
other personnel determined by it as necessary to carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems
necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of evidence;
k) Exercise such other acts incident to or are appropriate and necessary in
connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give Testimony. –
Any government official or personnel who, without lawful excuse, fails to
appear upon subpoena issued by the Commission or who, appearing before
the Commission refuses to take oath or affirmation, give testimony or
produce documents for inspection, when required, shall be subject to
administrative disciplinary action. Any private person who does the same
may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x x.
SECTION 11. Budget for the Commission. – The Office of the President shall
provide the necessary funds for the Commission to ensure that it can
exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall accomplish
its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission. – x x x.
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is declared
unconstitutional, the same shall not affect the validity and effectivity of the
other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission
As can be gleaned from the above-quoted provisions, the Philippine Truth
Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and corruption
committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and
thereafter to submit its finding and recommendations to the President,
Congress and the Ombudsman. Though it has been described as an
"independent collegial body," it is essentially an entity within the Office of the
President Proper and subject to his control. Doubtless, it constitutes a public
office, as an ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the Administrative Code of
1987. It is not, however, a quasi-judicial body as it cannot adjudicate,
arbitrate, resolve, settle, or render awards in disputes between contending
parties. All it can do is gather, collect and assess evidence of graft and
corruption and make recommendations. It may have subpoena powers but it
has no power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts if
probable cause exists as to warrant the filing of an information in our courts
of law. Needless to state, it cannot impose criminal, civil or administrative
penalties or sanctions.
16
The PTC is different from the truth commissions in other countries which
have been created as official, transitory and non-judicial fact-finding bodies
"to establish the facts and context of serious violations of human rights or of
international humanitarian law in a country’s past."9 They are usually
established by states emerging from periods of internal unrest, civil strife or
authoritarianism to serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the following
characteristics: (1) they examine only past events; (2) they investigate
patterns of abuse committed over a period of time, as opposed to a particular
event; (3) they are temporary bodies that finish their work with the
submission of a report containing conclusions and recommendations; and (4)
they are officially sanctioned, authorized or empowered by the State.10
"Commission’s members are usually empowered to conduct research,
support victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to discover
and learn more about past abuses, or formally acknowledge them. They may
aim to prepare the way for prosecutions and recommend institutional
reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation
Commission of South Africa, the principal function of which was to heal the
wounds of past violence and to prevent future conflict by providing a cathartic
experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed more
emphasis on reconciliation than on judicial retribution, while the marching
order of the PTC is the identification and punishment of perpetrators. As one
writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code spelled
out by Aquino in his inaugural speech: "To those who talk about
reconciliation, if they mean that they would like us to simply forget about the
wrongs that they have committed in the past, we have this to say: There can
be no reconciliation without justice. When we allow crimes to go unpunished,
we give consent to their occurring over and over again."
The Thrusts of the Petitions
Barely a month after the issuance of Executive Order No. 1, the petitioners
asked the Court to declare it unconstitutional and to enjoin the PTC from
performing its functions. A perusal of the arguments of the petitioners in both
cases shows that they are essentially the same. The petitioners-legislators
summarized them in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the power of
the Congress to create a public office and appropriate funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the Administrative
Code of 1987 cannot legitimize E.O. No. 1 because the delegated authority
of the President to structurally reorganize the Office of the President to
achieve economy, simplicity and efficiency does not include the power to
create an entirely new public office which was hitherto inexistent like the
"Truth Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent statutes when
it vested the "Truth Commission" with quasi-judicial powers duplicating, if not
superseding, those of the Office of the Ombudsman created under the 1987
Constitution and the Department of Justice created under the Administrative
Code of 1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively targets for
investigation and prosecution officials and personnel of the previous
administration as if corruption is their peculiar species even as it excludes
those of the other administrations, past and present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010" violates the
consistent and general international practice of four decades wherein States
constitute truth commissions to exclusively investigate human rights
violations, which customary practice forms part of the generally accepted
principles of international law which the Philippines is mandated to adhere to
pursuant to the Declaration of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility, an
adventure in partisan hostility, a launching pad for trial/conviction by publicity
and a mere populist propaganda to mistakenly impress the people that
widespread poverty will altogether vanish if corruption is eliminated without
even addressing the other major causes of poverty.
(g) The mere fact that previous commissions were not constitutionally
challenged is of no moment because neither laches nor estoppel can bar an
eventual question on the constitutionality and validity of an executive
issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the Office of the
Solicitor General (OSG), essentially questioned the legal standing of
17
petitioners and defended the assailed executive order with the following
arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a public
office because the President’s executive power and power of control
necessarily include the inherent power to conduct investigations to ensure
that laws are faithfully executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No. 292), 15 Presidential Decree
(P.D.) No. 141616 (as amended by P.D. No. 1772), R.A. No. 9970,17 and
settled jurisprudence that authorize the President to create or form such
bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate funds
because there is no appropriation but a mere allocation of funds already
appropriated by Congress.
3] The Truth Commission does not duplicate or supersede the functions of
the Office of the Ombudsman (Ombudsman) and the Department of Justice
(DOJ), because it is a fact-finding body and not a quasi-judicial body and its
functions do not duplicate, supplant or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection clause
because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify
the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by President
Carlos P. Garcia and Presidential Agency on Reform and Government
Operations (PARGO) by President Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the following are
the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their
respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of separation
of powers by usurping the powers of Congress to create and to appropriate
funds for public offices, agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the powers of the
Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal protection clause;
and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of Executive
Order No. 1, the Court needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners has
been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators to file
their petition for failure to demonstrate their personal stake in the outcome of
the case. It argues that the petitioners have not shown that they have
sustained or are in danger of sustaining any personal injury attributable to the
creation of the PTC. Not claiming to be the subject of the commission’s
investigations, petitioners will not sustain injury in its creation or as a result of
its proceedings.
The Court disagrees with the OSG in questioning the legal standing of the
petitioners-legislators to assail Executive Order No. 1. Evidently, their petition
primarily invokes usurpation of the power of the Congress as a body to which
they belong as members. This certainly justifies their resolve to take the
cudgels for Congress as an institution and present the complaints on the
usurpation of their power and rights as members of the legislature before the
Court. As held in Philippine Constitution Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power of each
member thereof, since his office confers a right to participate in the exercise
of the powers of that institution.
18
An act of the Executive which injures the institution of Congress causes a
derivative but nonetheless substantial injury, which can be questioned by a
member of Congress. In such a case, any member of Congress can have a
resort to the courts.
Indeed, legislators have a legal standing to see to it that the prerogative,
powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official action
which, to their mind, infringes on their prerogatives as legislators.
With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.23 It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds
for the commission will not entail congressional action but will simply be an
exercise of the President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his
petition is an assertion of a clear right that may justify his clamor for the Court
to exercise judicial power and to wield the axe over presidential issuances in
defense of the Constitution. The case of David v. Arroyo explained the deep-
seated rules on locus standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice on a
given question." In private suits, standing is governed by the "real-parties-in
interest" rule as contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that "every action must be prosecuted or
defended in the name of the real party in interest." Accordingly, the "real-
party-in interest" is "the party who stands to be benefited or injured by the
judgment in the suit or the party entitled to the avails of the suit." Succinctly
put, the plaintiff’s standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the
plaintiff who asserts a "public right" in assailing an allegedly illegal official
action, does so as a representative of the general public. He may be a
person who is affected no differently from any other person. He could be
suing as a "stranger," or in the category of a "citizen," or ‘taxpayer." In either
case, he has to adequately show that he is entitled to seek judicial protection.
In other words, he has to make out a sufficient interest in the vindication of
the public order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and "taxpayer"
standing in public actions. The distinction was first laid down in Beauchamp
v. Silk, where it was held that the plaintiff in a taxpayer’s suit is in a different
category from the plaintiff in a citizen’s suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the latter, he is but the
mere instrument of the public concern. As held by the New York Supreme
Court in People ex rel Case v. Collins: "In matter of mere public right,
however…the people are the real parties…It is at least the right, if not the
duty, of every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied." With
respect to taxpayer’s suits, Terr v. Jordan held that "the right of a citizen and
a taxpayer to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference
in any official policy or act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent "direct injury" test in Ex
Parte Levitt, later reaffirmed in Tileston v. Ullman. The same Court ruled that
for a private individual to invoke the judicial power to determine the validity of
an executive or legislative action, he must show that he has sustained a
direct injury as a result of that action, and it is not sufficient that he has a
general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v.
Vera, it held that the person who impugns the validity of a statute must have
"a personal and substantial interest in the case such that he has sustained,
or will sustain direct injury as a result." The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v. Felix. [Emphases
included. Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on standing is
a matter of procedure, hence, can be relaxed for nontraditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the Court held
that in cases of paramount importance where serious constitutional questions
are involved, the standing requirements may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,27 ordinary
citizens and taxpayers were allowed to question the constitutionality of
19
several executive orders although they had only an indirect and general
interest shared in common with the public.
The OSG claims that the determinants of transcendental importance28 laid
down in CREBA v. ERC and Meralco29 are non-existent in this case. The
Court, however, finds reason in Biraogo’s assertion that the petition covers
matters of transcendental importance to justify the exercise of jurisdiction by
the Court. There are constitutional issues in the petition which deserve the
attention of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, they
should be resolved for the guidance of all.30 Undoubtedly, the Filipino people
are more than interested to know the status of the President’s first effort to
bring about a promised change to the country. The Court takes cognizance
of the petition not due to overwhelming political undertones that clothe the
issue in the eyes of the public, but because the Court stands firm in its oath
to perform its constitutional duty to settle legal controversies with
overreaching significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the Truth
Commission is a public office and not merely an adjunct body of the Office of
the President.31 Thus, in order that the President may create a public office
he must be empowered by the Constitution, a statute or an authorization
vested in him by law. According to petitioner, such power cannot be
presumed32 since there is no provision in the Constitution or any specific law
that authorizes the President to create a truth commission.33 He adds that
Section 31 of the Administrative Code of 1987, granting the President the
continuing authority to reorganize his office, cannot serve as basis for the
creation of a truth commission considering the aforesaid provision merely
uses verbs such as "reorganize," "transfer," "consolidate," "merge," and
"abolish." Insofar as it vests in the President the plenary power to reorganize
the Office of the President to the extent of creating a public office, Section 31
is inconsistent with the principle of separation of powers enshrined in the
Constitution and must be deemed repealed upon the effectivity thereof.
Similarly, in G.R. No. 193036, petitioners-legislators argue that the creation
of a public office lies within the province of Congress and not with the
executive branch of government. They maintain that the delegated authority
of the President to reorganize under Section 31 of the Revised Administrative
Code: 1) does not permit the President to create a public office, much less a
truth commission; 2) is limited to the reorganization of the administrative
structure of the Office of the President; 3) is limited to the restructuring of the
internal organs of the Office of the President Proper, transfer of functions and
transfer of agencies; and 4) only to achieve simplicity, economy and
efficiency.36 Such continuing authority of the President to reorganize his
office is limited, and by issuing Executive Order No. 1, the President
overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about the
creation by the President of a fact-finding body such as a truth commission.
Pointing to numerous offices created by past presidents, it argues that the
authority of the President to create public offices within the Office of the
President Proper has long been recognized.37 According to the OSG, the
Executive, just like the other two branches of government, possesses the
inherent authority to create fact-finding committees to assist it in the
performance of its constitutionally mandated functions and in the exercise of
its administrative functions. This power, as the OSG explains it, is but an
adjunct of the plenary powers wielded by the President under Section 1 and
his power of control under Section 17, both of Article VII of the Constitution.
It contends that the President is necessarily vested with the power to conduct
fact-finding investigations, pursuant to his duty to ensure that all laws are
enforced by public officials and employees of his department and in the
exercise of his authority to assume directly the functions of the executive
department, bureau and office, or interfere with the discretion of his officials.
The power of the President to investigate is not limited to the exercise of his
power of control over his subordinates in the executive branch, but extends
further in the exercise of his other powers, such as his power to discipline
subordinates, his power for rule making, adjudication and licensing
purposes42 and in order to be informed on matters which he is entitled to
know.
The OSG also cites the recent case of Banda v. Ermita,44 where it was held
that the President has the power to reorganize the offices and agencies in
the executive department in line with his constitutionally granted power of
control and by virtue of a valid delegation of the legislative power to
reorganize executive offices under existing statutes.
Thus, the OSG concludes that the power of control necessarily includes the
power to create offices. For the OSG, the President may create the PTC in
order to, among others, put a closure to the reported large scale graft and
corruption in the government.
The question, therefore, before the Court is this: Does the creation of the
PTC fall within the ambit of the power to reorganize as expressed in Section
31 of the Revised Administrative Code? Section 31 contemplates
"reorganization" as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper by
20
abolishing, consolidating or merging units thereof or transferring functions
from one unit to another; (2) transferring any function under the Office of the
President to any other Department/Agency or vice versa; or (3) transferring
any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy
or redundancy of functions. These point to situations where a body or an
office is already existent but a modification or alteration thereof has to be
effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in the
negative.
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest
meaning attributable to the term "restructure"– an "alteration of an existing
structure." Evidently, the PTC was not part of the structure of the Office of the
President prior to the enactment of Executive Order No. 1. As held in Buklod
ng Kawaning EIIB v. Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to reorganize
any department or agency in the executive branch does not have to end
here. We must not lose sight of the very source of the power – that which
constitutes an express grant of power. Under Section 31, Book III of
Executive Order No. 292 (otherwise known as the Administrative Code of
1987), "the President, subject to the policy in the Executive Office and in
order to achieve simplicity, economy and efficiency, shall have the continuing
authority to reorganize the administrative structure of the Office of the
President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In Canonizado v.
Aguirre [323 SCRA 312 (2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or abolition thereof by reason
of economy or redundancy of functions." It takes place when there is an
alteration of the existing structure of government offices or units therein,
including the lines of control, authority and responsibility between them. The
EIIB is a bureau attached to the Department of Finance. It falls under the
Office of the President. Hence, it is subject to the President’s continuing
authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the President’s
power of control. Control is essentially the power to alter or modify or nullify
or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former with that of the latter.47
Clearly, the power of control is entirely different from the power to create
public offices. The former is inherent in the Executive, while the latter finds
basis from either a valid delegation from Congress, or his inherent duty to
faithfully execute the laws.
The question is this, is there a valid delegation of power from Congress,
empowering the President to create a public office?
According to the OSG, the power to create a truth commission pursuant to
the above provision finds statutory basis under P.D. 1416, as amended by
P.D. No. 1772.48 The said law granted the President the continuing authority
to reorganize the national government, including the power to group,
consolidate bureaus and agencies, to abolish offices, to transfer functions, to
create and classify functions, services and activities, transfer appropriations,
and to standardize salaries and materials. This decree, in relation to Section
20, Title I, Book III of E.O. 292 has been invoked in several cases such as
Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a justification for
the President to create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure of
the national government including the power to create offices and transfer
appropriations pursuant to one of the purposes of the decree, embodied in its
last "Whereas" clause:
WHEREAS, the transition towards the parliamentary form of government will
necessitate flexibility in the organization of the national government.
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772,
became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In fact,
even the Solicitor General agrees with this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted was the
last whereas clause of P.D. 1416 says "it was enacted to prepare the
transition from presidential to parliamentary. Now, in a parliamentary form of
government, the legislative and executive powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was issued.
Now would you agree with me that P.D. 1416 should not be considered
effective anymore upon the promulgation, adoption, ratification of the 1987
Constitution.
21
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416, Your
Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to reorganize
the entire National Government is deemed repealed, at least, upon the
adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be faithfully
executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power in the
three principal branches of government is a grant of all powers inherent in
them. The President’s power to conduct investigations to aid him in ensuring
the faithful execution of laws – in this case, fundamental laws on public
accountability and transparency – is inherent in the President’s powers as
the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does not mean that he is bereft of
such authority. As explained in the landmark case of Marcos v. Manglapus:
x x x. The 1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive and
judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated.
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. x x x.
Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution. One of the
recognized powers of the President granted pursuant to this constitutionally-
mandated duty is the power to create ad hoc committees. This flows from the
obvious need to ascertain facts and determine if laws have been faithfully
executed. Thus, in Department of Health v. Camposano, the authority of the
President to issue Administrative Order No. 298, creating an investigative
committee to look into the administrative charges filed against the employees
of the Department of Health for the anomalous purchase of medicines was
upheld. In said case, it was ruled:
The Chief Executive’s power to create the Ad hoc Investigating Committee
cannot be doubted. Having been constitutionally granted full control of the
Executive Department, to which respondents belong, the President has the
obligation to ensure that all executive officials and employees faithfully
comply with the law. With AO 298 as mandate, the legality of the
investigation is sustained. Such validity is not affected by the fact that the
investigating team and the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in conducting the inquiry.
[Emphasis supplied]
It should be stressed that the purpose of allowing ad hoc investigating bodies
to exist is to allow an inquiry into matters which the President is entitled to
know so that he can be properly advised and guided in the performance of
his duties relative to the execution and enforcement of the laws of the land.
And if history is to be revisited, this was also the objective of the investigative
bodies created in the past like the PCAC, PCAPE, PARGO, the Feliciano
Commission, the Melo Commission and the Zenarosa Commission. There
being no changes in the government structure, the Court is not inclined to
declare such executive power as non-existent just because the direction of
the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office, suffice it to
say that there will be no appropriation but only an allotment or allocations of
22
existing funds already appropriated. Accordingly, there is no usurpation on
the part of the Executive of the power of Congress to appropriate funds.
Further, there is no need to specify the amount to be earmarked for the
operation of the commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the President
will be the very source of the funds for the commission."55 Moreover, since
the amount that would be allocated to the PTC shall be subject to existing
auditing rules and regulations, there is no impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws are
faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof. As the Chief
Executive, the president represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his department.
He has the authority to directly assume the functions of the executive
department.
Invoking this authority, the President constituted the PTC to primarily
investigate reports of graft and corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial powers have been vested in
the said body as it cannot adjudicate rights of persons who come before it. It
has been said that "Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing
and administering the same law." In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.
The distinction between the power to investigate and the power to adjudicate
was delineated by the Court in Cariño v. Commission on Human Rights.59
Thus:
"Investigate," commonly understood, means to examine, explore, inquire or
delve or probe into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x: to conduct an
official inquiry." The purpose of investigation, of course, is to discover, to find
out, to learn, obtain information. Nowhere included or intimated is the notion
of settling, deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o follow up
step by step by patient inquiry or observation. To trace or track; to search
into; to examine and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a legal inquiry;" "to
inquire; to make an investigation," "investigation" being in turn described as
"(a)n administrative function, the exercise of which ordinarily does not require
a hearing. 2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for
the discovery and collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The dictionary
defines the term as "to settle finally (the rights and duties of the parties to a
court case) on the merits of issues raised: x x to pass judgment on: settle
judicially: x x act as judge." And "adjudge" means "to decide or rule upon as
a judge or with judicial or quasi-judicial powers: x x to award or grant
judicially in a case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest
sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial determination of a
fact, and the entry of a judgment." [Italics included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function. To be considered as such, the act of
receiving evidence and arriving at factual conclusions in a controversy must
be accompanied by the authority of applying the law to the factual
conclusions to the end that the controversy may be decided or resolved
authoritatively, finally and definitively, subject to appeals or modes of review
as may be provided by law.60 Even respondents themselves admit that the
commission is bereft of any quasi-judicial power.61
Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation."62 The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against
them,63 is certainly not a function given to the commission. The phrase,
"when in the course of its investigation," under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the
23
appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No. 6770 is
not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies such as the PCGG and
judges of municipal trial courts and municipal circuit trial courts. The power to
conduct preliminary investigation on charges against public employees and
officials is likewise concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the Office of the President
and the local Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No.
6770, which states:
(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of its primary jurisdiction, it may take over, at any stage, from
any investigatory agency of government, the investigation of such cases.
[Emphases supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the determination
of the existence of probable cause. This is categorically out of the PTC’s
sphere of functions. Its power to investigate is limited to obtaining facts so
that it can advise and guide the President in the performance of his duties
relative to the execution and enforcement of the laws of the land. In this
regard, the PTC commits no act of usurpation of the Ombudsman’s
primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3
(2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by no
means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings
of the PTC are to be accorded conclusiveness. Much like its predecessors,
the Davide Commission, the Feliciano Commission and the Zenarosa
Commission, its findings would, at best, be recommendatory in nature. And
being so, the Ombudsman and the DOJ have a wider degree of latitude to
decide whether or not to reject the recommendation. These offices, therefore,
are not deprived of their mandated duties but will instead be aided by the
reports of the PTC for possible indictments for violations of graft laws.
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the investigative
power of the President, the Court finds difficulty in upholding the
constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article III
(Bill of Rights) of the 1987 Constitution. Section 1 reads:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
The petitioners assail Executive Order No. 1 because it is violative of this
constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the "previous
administration" as its sole object makes the PTC an "adventure in partisan
hostility." Thus, in order to be accorded with validity, the commission must
also cover reports of graft and corruption in virtually all administrations
previous to that of former President Arroyo.
The petitioners argue that the search for truth behind the reported cases of
graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior
administrations where the "same magnitude of controversies and
anomalies"68 were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, "there is no
substantial distinction between the group of officials targeted for investigation
by Executive Order No. 1 and other groups or persons who abused their
public office for personal gain; and second, the selective classification is not
germane to the purpose of Executive Order No. 1 to end corruption."69 In
order to attain constitutional permission, the petitioners advocate that the
commission should deal with "graft and grafters prior and subsequent to the
Arroyo administration with the strong arm of the law with equal force."70
Position of respondents
24
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation, following
Section 17 thereof, the PTC will not confine itself to cases of large scale graft
and corruption solely during the said administration.71 Assuming arguendo
that the commission would confine its proceedings to officials of the previous
administration, the petitioners argue that no offense is committed against the
equal protection clause for "the segregation of the transactions of public
officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial distinctions and is
germane to the evils which the Executive Order seeks to correct."72 To
distinguish the Arroyo administration from past administrations, it recited the
following:
First. E.O. No. 1 was issued in view of widespread reports of large scale graft
and corruption in the previous administration which have eroded public
confidence in public institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter others
from committing the evil, restore the people’s faith and confidence in the
Government and in their public servants.
Second. The segregation of the preceding administration as the object of
fact-finding is warranted by the reality that unlike with administrations long
gone, the current administration will most likely bear the immediate
consequence of the policies of the previous administration.
Third. The classification of the previous administration as a separate class for
investigation lies in the reality that the evidence of possible criminal activity,
the evidence that could lead to recovery of public monies illegally dissipated,
the policy lessons to be learned to ensure that anti-corruption laws are
faithfully executed, are more easily established in the regime that
immediately precede the current administration.
Fourth. Many administrations subject the transactions of their predecessors
to investigations to provide closure to issues that are pivotal to national life or
even as a routine measure of due diligence and good housekeeping by a
nascent administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C. Aquino
under Executive Order No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and his cronies, and the
Saguisag Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent citizens’
committee to investigate all the facts and circumstances surrounding
"Philippine Centennial projects" of his predecessor, former President Fidel V.
Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and
institutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a
state’s jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution
through the state’s duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those
of the legislature.79 Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken. 80
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions
only; and
(4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
25
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class.83 "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the
sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."84
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. As elucidated in
Victoriano v. Elizalde Rope Workers' Union and reiterated in a long line of
cases,
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality,
that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated
in law as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of knowledge
or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines
the matter of constitutionality. All that is required of a valid classification is
that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be
germane to the purpose of the law; that it must not be limited to existing
conditions only; and that it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis and is not
palpably arbitrary. [Citations omitted]
Applying these precepts to this case, Executive Order No. 1 should be struck
down as violative of the equal protection clause. The clear mandate of the
envisioned truth commission is to investigate and find out the truth
"concerning the reported cases of graft and corruption during the previous
administration"87 only. The intent to single out the previous administration is
plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases of graft
and corruption during the previous administration, and which will recommend
the prosecution of the offenders and secure justice for all;
SECTION 1. Creation of a Commission. – There is hereby created the
PHILIPPINE TRUTH COMMISSION, hereinafter referred to as the
"COMMISSION," which shall primarily seek and find the truth on, and toward
this end, investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical sensibilities of the
people, committed by public officers and employees, their co-principals,
accomplices and accessories from the private sector, if any, during the
previous administration; and thereafter recommend the appropriate action or
measure to be taken thereon to ensure that the full measure of justice shall
be served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall have all
the powers of an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987, is primarily tasked to conduct a thorough
fact-finding investigation of reported cases of graft and corruption referred to
in Section 1, involving third level public officers and higher, their co-
principals, accomplices and accessories from the private sector, if any,
during the previous administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration is but
just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot sanction.
Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.
26
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the "previous
administration" only. The reports of widespread corruption in the Arroyo
administration cannot be taken as basis for distinguishing said administration
from earlier administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure solely to,
the Arroyo administration. As Justice Isagani Cruz put it, "Superficial
differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1 chooses to
limit the scope of the intended investigation to the previous administration
only. The OSG ventures to opine that "to include other past administrations,
at this point, may unnecessarily overburden the commission and lead it to
lose its effectiveness." The reason given is specious. It is without doubt
irrelevant to the legitimate and noble objective of the PTC to stamp out or
"end corruption and the evil it breeds."
The probability that there would be difficulty in unearthing evidence or that
the earlier reports involving the earlier administrations were already inquired
into is beside the point. Obviously, deceased presidents and cases which
have already prescribed can no longer be the subjects of inquiry by the PTC.
Neither is the PTC expected to conduct simultaneous investigations of
previous administrations, given the body’s limited time and resources. "The
law does not require the impossible" (Lex non cogit ad impossibilia).
Given the foregoing physical and legal impossibility, the Court logically
recognizes the unfeasibility of investigating almost a century’s worth of graft
cases. However, the fact remains that Executive Order No. 1 suffers from
arbitrary classification. The PTC, to be true to its mandate of searching for
the truth, must not exclude the other past administrations. The PTC must, at
least, have the authority to investigate all past administrations. While
reasonable prioritization is permitted, it should not be arbitrary lest it be
struck down for being unconstitutional. In the often quoted language of Yick
Wo v. Hopkins,
Though the law itself be fair on its face and impartial in appearance, yet, if
applied and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the denial of equal
justice is still within the prohibition of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body, its scope
is limited. The Court, however, is of the considered view that although its
focus is restricted, the constitutional guarantee of equal protection under the
laws should not in any way be circumvented. The Constitution is the
fundamental and paramount law of the nation to which all other laws must
conform and in accordance with which all private rights determined and all
public authority administered.93 Laws that do not conform to the Constitution
should be stricken down for being unconstitutional.94 While the thrust of the
PTC is specific, that is, for investigation of acts of graft and corruption,
Executive Order No. 1, to survive, must be read together with the provisions
of the Constitution. To exclude the earlier administrations in the guise of
"substantial distinctions" would only confirm the petitioners’ lament that the
subject executive order is only an "adventure in partisan hostility." In the case
of US v. Cyprian,95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be arbitrary; those
include: race, national origin, gender, political activity or membership in a
political party, union activity or membership in a labor union, or more
generally the exercise of first amendment rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally belong
to the class.96 "Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. Furthermore,
all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and
treated by it in the same way as are the members of the class."97
The Court is not unaware that "mere underinclusiveness is not fatal to the
validity of a law under the equal protection clause." "Legislation is not
unconstitutional merely because it is not all-embracing and does not include
all the evils within its reach." It has been written that a regulation challenged
under the equal protection clause is not devoid of a rational predicate simply
because it happens to be incomplete.100 In several instances, the
underinclusiveness was not considered a valid reason to strike down a law or
regulation where the purpose can be attained in future legislations or
regulations. These cases refer to the "step by step" process. "With regard to
equal protection claims, a legislature does not run the risk of losing the entire
remedial scheme simply because it fails, through inadvertence or otherwise,
to cover every evil that might conceivably have been attacked."
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as can
be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does
not even mention any particular act, event or report to be focused on unlike
27
the investigative commissions created in the past. "The equal protection
clause is violated by purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate discrimination, the
OSG clarifies that the commission does not only confine itself to cases of
large scale graft and corruption committed during the previous
administration.104 The OSG points to Section 17 of Executive Order No. 1,
which provides:
SECTION 17. Special Provision Concerning Mandate. If and when in the
judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior administrations,
such mandate may be so extended accordingly by way of a supplemental
Executive Order.
The Court is not convinced. Although Section 17 allows the President the
discretion to expand the scope of investigations of the PTC so as to include
the acts of graft and corruption committed in other past administrations, it
does not guarantee that they would be covered in the future. Such expanded
mandate of the commission will still depend on the whim and caprice of the
President. If he would decide not to include them, the section would then be
meaningless. This will only fortify the fears of the petitioners that the
Executive Order No. 1 was "crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration."
The Court tried to seek guidance from the pronouncement in the case of
Virata v. Sandiganbayan, that the "PCGG Charter (composed of Executive
Orders Nos. 1, 2 and 14) does not violate the equal protection clause." The
decision, however, was devoid of any discussion on how such conclusory
statement was arrived at, the principal issue in said case being only the
sufficiency of a cause of action.
A final word
The issue that seems to take center stage at present is - whether or not the
Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself guilty
of violating fundamental tenets like the doctrine of separation of powers?
Time and again, this issue has been addressed by the Court, but it seems
that the present political situation calls for it to once again explain the legal
basis of its action lest it continually be accused of being a hindrance to the
nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1 of the
1987 Constitution, is vested with Judicial Power that "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 of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government."
Furthermore, in Section 4(2) thereof, it is vested with the power of judicial
review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation unconstitutional. This power also includes the duty to
rule on the constitutionality of the application, or operation of presidential
decrees, proclamations, orders, instructions, ordinances, and other
regulations. These provisions, however, have been fertile grounds of conflict
between the Supreme Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court has been accused of
asserting superiority over the other departments.
To answer this accusation, the words of Justice Laurel would be a good
source of enlightenment, to wit: "And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them."
Thus, the Court, in exercising its power of judicial review, is not imposing its
own will upon a co-equal body but rather simply making sure that any act of
government is done in consonance with the authorities and rights allocated to
it by the Constitution. And, if after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.
It cannot be denied that most government actions are inspired with noble
intentions, all geared towards the betterment of the nation and its people. But
then again, it is important to remember this ethical principle: "The end does
not justify the means." No matter how noble and worthy of admiration the
purpose of an act, but if the means to be employed in accomplishing it is
simply irreconcilable with constitutional parameters, then it cannot still be
allowed.108 The Court cannot just turn a blind eye and simply let it pass. It
will continue to uphold the Constitution and its enshrined principles.
28
"The Constitution must ever remain supreme. All must bow to the mandate of
this law. Expediency must not be allowed to sap its strength nor greed for
power debase its rectitude."109

Lest it be misunderstood, this is not the death knell for a truth commission as
nobly envisioned by the present administration. Perhaps a revision of the
executive issuance so as to include the earlier past administrations would
allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is
the most interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be emphasized that
the search for the truth must be within constitutional bounds for "ours is still a
government of laws and not of men."110

WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is hereby

declared UNCONSTITUTIONAL insofar as it is violative of the equal
protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and desist
from carrying out the provisions of Executive Order No. 1.

SO ORDERED.

29
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R.
MARCOS, JR., IRENE M. ARANETA, IMEE MANOTOC, TOMAS
MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), represented by its President, CONRADO F. ESTRELLA,
petitioners, vs. HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR SANTIAGO,
FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration
Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.
CORTES, J.:
Before the Court is a contreversy of grave national importance. While
ostensibly only legal issues are involved, the Court's decision in this case
would undeniably have a profound effect on the political, economic and other
aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the
presidency via the non-violent "people power" revolution and forced into
exile. In his stead, Corazon C. Aquino was declared President of the
Republic under a revolutionary government. Her ascension to and
consilidation of power have not been unchallenged. The failed Manila Hotel
coup in 1986 led by political leaders of Mr. Marcos, the takeover of television
station Channel 7 by rebel troops led by Col. Canlas with the support of
"Marcos loyalists" and the unseccessful plot of the Marcos spouses to
surreptitiously return from Hawii with mercenaries aboard an aircraft
chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from
afar and to the fanaticism and blind loyalty of their followers in the country.
The ratification of the 1987 Constitution enshrined the victory of "people
power" and also clearly reinforced the constitutional moorings of Mrs.
Aquino's presidency. This did not, however, stop bloody challenges to the
government. On August 28, 1987, Col. Gregorio Honasan, one of the major
players in the February Revolution, led a failed coup that left scores of
people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was the
same — a split in the ranks of the military establishment that thraetened
civilian supremacy over military and brought to the fore the realization that
civilian government could be at the mercy of a fractious military.
But the armed threats to the Government were not only found in misguided
elements and among rabid followers of Mr. Marcos. There are also the
communist insurgency and the seccessionist movement in Mindanao which
gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas they
effectively control while the separatist are virtually free to move about in
armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also to
through the use of propaganda have they been successful in dreating chaos
and destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign
debt and the plunder of the nation attributed to Mr. Marcos and his cronies
left the economy devastated. The efforts at economic recovery, three years
after Mrs. Aquino assumed office, have yet to show concrete results in
alleviating the poverty of the masses, while the recovery of the ill-gotten
wealth of the Marcoses has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the
Philipppines to die. But Mrs. Aquino, considering the dire consequences to
the nation of his return at a time when the stability of government is
threatened from various directions and the economy is just beginning to rise
and move forward, has stood firmly on the decision to bar the return of Mr.
Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a
dictator forced out of office and into exile after causing twenty years of
political, economic and social havoc in the country and who within the short
space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the
respondents to issue travel documents to Mr. Marcos and the immediate
members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines.
The Issue
The issue is basically one of power: whether or not, in the exercise of the
powers granted by the Constitution, the President may prohibit the Marcoses
from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the
resolution of the following issues:
30
1. Does the President have the power to bar the return of former President
Marcos and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President
Marcos and his family from returning to the Philippines, in the interest of
"national security, public safety or public health
a. Has the President made a finding that the return of former President
Marcos and his family to the Philippines is a clear and present danger to
national security, public safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in making
such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based, been
made known to petitioners so that they may controvert the same?
c. Is the President's determination that the return of former President Marcos
and his family to the Philippines is a clear and present danger to national
security, public safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former
President Marcos and his family is a clear and present danger to national
security, public safety, or public health, have respondents established such
fact?
3. Have the respondents, therefore, in implementing the President's decision
to bar the return of former President Marcos and his family, acted and would
be acting without jurisdiction, or in excess of jurisdiction, or with grave abuse
of discretion, in performing any act which would effectively bar the return of
former President Marcos and his family to the Philippines? [Memorandum for
Petitioners, pp. 5-7; Rollo, pp. 234-236.1
The case for petitioners is founded on the assertion that the right of the
Marcoses to return to the Philippines is guaranteed under the following
provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.
The petitioners contend that the President is without power to impair the
liberty of abode of the Marcoses because only a court may do so "within the
limits prescribed by law." Nor may the President impair their right to travel
because no law has authorized her to do so. They advance the view that
before the right to travel may be impaired by any authority or agency of the
government, there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr.
Marcos and his family to return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence
within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to
return to his country.
Likewise, the International Covenant on Civil and Political Rights, which had
been ratified by the Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory,
have the right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except
those which are provided by law, are necessary to protect national security,
public order (order public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized in the present
Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
31
On the other hand, the respondents' principal argument is that the issue in
this case involves a political question which is non-justiciable. According to
the Solicitor General:
As petitioners couch it, the question involved is simply whether or not
petitioners Ferdinand E. Marcos and his family have the right to travel and
liberty of abode. Petitioners invoke these constitutional rights in vacuo
without reference to attendant circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reside here at this time in the face of the determination by the
President that such return and residence will endanger national security and
public safety.
It may be conceded that as formulated by petitioners, the question is not a
political question as it involves merely a determination of what the law
provides on the matter and application thereof to petitioners Ferdinand E.
Marcos and family. But when the question is whether the two rights claimed
by petitioners Ferdinand E. Marcos and family impinge on or collide with the
more primordial and transcendental right of the State to security and safety of
its nationals, the question becomes political and this Honorable Court can not
consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable
question which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to
the Philippines and reestablish their residence here even if their return and
residence here will endanger national security and public safety? this is still a
justiciable question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand
E. Marcos and family shall return to the Philippines and establish their
residence here? This is now a political question which this Honorable Court
can not decide for it falls within the exclusive authority and competence of
the President of the Philippines. [Memorandum for Respondents, pp. 9-11;
Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national
security over individual rights. In support thereof, they cite Article II of the
Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State and,
in the fulfillment thereof, all citizens may be required, under conditions
provided by law, to render personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty,
and property, and the promotion of the general welfare are essential for the
enjoyment by all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family
from returning to the Philippines for reasons of national security and public
safety has international precedents. Rafael Trujillo of the Dominican
Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez
Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were
among the deposed dictators whose return to their homelands was
prevented by their governments. [See Statement of Foreign Affairs Secretary
Raul S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32;
Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of
presidential power and its limits. We, however, view this issue in a different
light. Although we give due weight to the parties' formulation of the issues,
we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the
confines of the right to travel and the import of the decisions of the U.S.
Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt
1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L
Ed. 2d 640) which affirmed the right to travel and recognized exceptions to
the exercise thereof, respectively.
It must be emphasized that the individual right involved is not the right to
travel from the Philippines to other countries or within the Philippines. These
are what the right to travel would normally connote. Essentially, the right
involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel.
Thus, the Universal Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right to freedom of movement
and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration
speaks of the "right to freedom of movement and residence within the
borders of each state" [Art. 13(l)] separately from the "right to leave any
country, including his own, and to return to his country." [Art. 13(2).] On the
32
other hand, the Covenant guarantees the "right to liberty of movement and
freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave
any country, including his own." [Art. 12(2)] which rights may be restricted by
such laws as "are necessary to protect national security, public order, public
health or morals or enter qqqs own country" of which one cannot be
"arbitrarily deprived." [Art. 12(4).] It would therefore be inappropriate to
construe the limitations to the right to return to one's country in the same
context as those pertaining to the liberty of abode and the right to travel.
The right to return to one's country is not among the rights specifically
guaranteed in the Bill of Rights, which treats only of the liberty of abode and
the right to travel, but it is our well-considered view that the right to return
may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the
Constitution.] However, it is distinct and separate from the right to travel and
enjoys a different protection under the International Covenant of Civil and
Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of
passports for the purpose of effectively exercising the right to travel are not
determinative of this case and are only tangentially material insofar as they
relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine,
and even in American jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or
not there can be limitations on the right to travel in the absence of legislation
to that effect is rendered unnecessary. An appropriate case for its resolution
will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to
explain the methodology for its resolution. Our resolution of the issue will
involve a two-tiered approach. We shall first resolve whether or not the
President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the
express power of the Court under the Constitution in Article VIII, Section 1,
whether or not the President acted arbitrarily or with grave abuse of
discretion amounting to lack or excess of jurisdiction when she determined
that the return of the Marcose's to the Philippines poses a serious threat to
national interest and welfare and decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the
three great branches of government. To recall the words of Justice Laurel in
Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has
blocked but with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the government." [At
157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative
power shall be vested in the Congress of the Philippines" Art VI, Sec. 11,
"[t]he executive power shall bevested in the President of the Philippines" [Art.
VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law" [Art. VIII, Sec. 1.]
These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative,
executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626
(1910)] pointed out "a grant of the legislative power means a grant of all
legislative power; and a grant of the judicial power means a grant of all the
judicial power which may be exercised under the government." [At 631-632.1
If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can
equally be said of the executive power which is vested in one official the
President.
As stated above, the Constitution provides that "[t]he executive power shall
be vested in the President of the Philippines." [Art. VII, Sec. 1]. However, it
does not define what is meant by executive power" although in the same
article it touches on the exercise of certain powers by the President, i.e., the
power of control over all executive departments, bureaus and offices, the
power to execute the laws, the appointing power, the powers under the
commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the
power to contract or guarantee foreign loans, the power to enter into treaties
or international agreements, the power to submit the budget to Congress,
and the power to address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the
President did the framers of the Constitution intend that the President shall
exercise those specific powers and no other? Are these se enumerated
powers the breadth and scope of "executive power"? Petitioners advance the
view that the President's powers are limited to those specifically enumerated
in the 1987 Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied to her. Inclusion
unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1
This argument brings to mind the institution of the U.S. Presidency after
which ours is legally patterned.**
33
Corwin, in his monumental volume on the President of the United States
grappled with the same problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who
think that a constitution ought to settle everything beforehand it should be a
nightmare; by the same token, to those who think that constitution makers
ought to leave considerable leeway for the future play of political forces, it
should be a vision realized.
We encounter this characteristic of Article 11 in its opening words: "The
executive power shall be vested in a President of the United States of
America." . . .. [The President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the
different persons who held the office from Washington to the early 1900's,
and the swing from the presidency by commission to Lincoln's dictatorship,
he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it
remained of course, an agency of government subject to unvarying demands
and duties no remained, of cas President. But, more than most agencies of
government, it changed shape, intensity and ethos according to the man in
charge. Each President's distinctive temperament and character, his values,
standards, style, his habits, expectations, Idiosyncrasies, compulsions,
phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of the office, its
impact on the constitutional order, therefore altered from President to
President. Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened the constitutional
order. [At 212- 213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she
does but, rather, that the consideration of tradition and the development of
presidential power under the different constitutions are essential for a
complete understanding of the extent of and limitations to the President's
powers under the 1987 Constitution. The 1935 Constitution created a strong
President with explicitly broader powers than the U.S. President. The 1973
Constitution attempted to modify the system of government into the
parliamentary type, with the President as a mere figurehead, but through
numerous amendments, the President became even more powerful, to the
point that he was also the de facto Legislature. The 1987 Constitution,
however, brought back the presidential system of government and restored
the separation of legislative, executive and judicial powers by their actual
distribution among three distinct branches of government with provision for
checks and balances.
It would not be accurate, however, to state that "executive power" is the
power to enforce the laws, for the President is head of state as well as head
of government and whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the
President. It also grants the President other powers that do not involve the
execution of any provision of law, e.g., his power over the country's foreign
relations.
On these premises, we hold the view that although the 1987 Constitution
imposes limitations on the exercise of specific powers of the President, it
maintains intact what is traditionally considered as within the scope of
"executive power." Corollarily, the powers of the President cannot be said to
be limited only to the specific powers enumerated in the Constitution. In other
words, executive power is more than the sum of specific powers so
enumerated,
It has been advanced that whatever power inherent in the government that is
neither legislative nor judicial has to be executive. Thus, in the landmark
decision of Springer v. Government of the Philippine Islands, 277 U.S. 189
(1928), on the issue of who between the Governor-General of the Philippines
and the Legislature may vote the shares of stock held by the Government to
elect directors in the National Coal Company and the Philippine National
Bank, the U.S. Supreme Court, in upholding the power of the Governor-
General to do so, said:
...Here the members of the legislature who constitute a majority of the
"board" and "committee" respectively, are not charged with the performance
of any legislative functions or with the doing of anything which is in aid of
performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are
vested by the Organic Act in the Governor-General, it is clear that they are
not legislative in character, and still more clear that they are not judicial. The
fact that they do not fall within the authority of either of these two constitutes
logical ground for concluding that they do fall within that of the remaining one
among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
34
We are not unmindful of Justice Holmes' strong dissent. But in his enduring
words of dissent we find reinforcement for the view that it would indeed be a
folly to construe the powers of a branch of government to embrace only what
are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it
by veiling words we do not and cannot carry out the distinction between
legislative and executive action with mathematical precision and divide the
branches into watertight compartments, were it ever so desirable to do so,
which I am far from believing that it is, or that the Constitution requires. [At
210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty
of theGovernment is to serve and protect the people" and that "[t]he
maintenance of peace and order,the protection of life, liberty, and property,
and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace
and order, the protection of life, liberty and property, and the promotion of the
general welfare are essentially ideals to guide governmental action. But such
does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing
implementing action for these plans, or from another point of view, in making
any decision as President of the Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the
Marcoses to return to the Philippines, the President is, under the
Constitution, constrained to consider these basic principles in arriving at a
decision. More than that, having sworn to defend and uphold the
Constitution, the President has the obligation under the Constitution to
protect the people, promote their welfare and advance the national interest. It
must be borne in mind that the Constitution, aside from being an allocation of
power is also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest the officers
of the Government exercising the powers delegated by the people forget and
the servants of the people become rulers, the Constitution reminds everyone
that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who
seek to return to the country are the deposed dictator and his family at whose
door the travails of the country are laid and from whom billions of dollars
believed to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of
even the preferred freedoms of speech and ofexpression, although couched
in absolute terms, admits of limits and must be adjusted to the requirements
of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the
common good against the exercise of rights of certain individuals. The power
involved is the President's residual power to protect the general welfare of
the people. It is founded on the duty of the President, as steward of the
people. To paraphrase Theodore Roosevelt, it is not only the power of the
President but also his duty to do anything not forbidden by the Constitution or
the laws that the needs of the nation demand [See Corwin, supra, at 153]. It
is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty
to take care that the laws are faithfully executed [see Hyman, The American
President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in
the President].
More particularly, this case calls for the exercise of the President's powers as
protector of the peace. Rossiter The American Presidency].The power of the
President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President's exercising as
Commander-in- Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law,
in order to keep the peace, and maintain public order and security.
35
That the President has the power under the Constitution to bar the Marcose's
from returning has been recognized by memembers of the Legislature, and is
manifested by the Resolution proposed in the House of Representatives and
signed by 103 of its members urging the President to allow Mr. Marcos to
return to the Philippines "as a genuine unselfish gesture for true national
reconciliation and as irrevocable proof of our collective adherence to
uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the
Philippines, rather, it appeals to the President's sense of compassion to allow
a man to come home to die in his country.
What we are saying in effect is that the request or demand of the Marcoses
to be allowed to return to the Philippines cannot be considered in the light
solely of the constitutional provisions guaranteeing liberty of abode and the
right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It
must be treated as a matter that is appropriately addressed to those residual
unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general
welfare. In that context, such request or demand should submit to the
exercise of a broader discretion on the part of the President to determine
whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty 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." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is
beyond the jurisdiction of the Court to decide.
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for
Congress or for the people themselves through a plebiscite or referendum.
We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to
us that the beneficiary is totally undeserving of the grant. Nor can we amend
the Constitution under the guise of resolving a dispute brought before us
because the power is reserved to the people.
There is nothing in the case before us that precludes our determination
thereof on the political question doctrine. The deliberations of the
Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts
of justice to settle all actual controversies before them. When political
questions are involved, the Constitution limits the determination to whether or
not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If
grave abuse is not established, the Court will not substitute its judgment for
that of the official concerned and decide a matter which by its nature or by
law is for the latter alone to decide. In this light, it would appear clear that the
second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine
whether or not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the government, incorporates in the fundamental
law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to
suspend the privilege of the writ of habeas corpus under specified conditions.
Pursuant to the principle of separation of powers underlying our system of
government, the Executive is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not absolute. What is more, it
goes hand in hand with the system of checks and balances, under which the
Executive is supreme, as regards the suspension of the privilege, but only if
and when he acts within the sphere alloted to him by the Basic Law, and the
authority to determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely
to check — not to supplant the Executive, or to ascertain merely whether he
has gone beyond the constitutional limits of his jurisdiction, not to exercise
the power vested in him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there
exist factual bases for the President to conclude that it was in the national
interest to bar the return of the Marcoses to the Philippines. If such
postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or
that she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral
arguments, and the facts revealed during the briefing in chambers by the
Chief of Staff of the Armed Forces of the Philippines and the National
Security Adviser, wherein petitioners and respondents were represented,
there exist factual bases for the President's decision..
36
The Court cannot close its eyes to present realities and pretend that the
country is not besieged from within by a well-organized communist
insurgency, a separatist movement in Mindanao, rightist conspiracies to grab
power, urban terrorism, the murder with impunity of military men, police
officers and civilian officials, to mention only a few. The documented history
of the efforts of the Marcose's and their followers to destabilize the country,
as earlier narrated in this ponencia bolsters the conclusion that the return of
the Marcoses at this time would only exacerbate and intensify the violence
directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be
contained. The military establishment has given assurances that it could
handle the threats posed by particular groups. But it is the catalytic effect of
the return of the Marcoses that may prove to be the proverbial final straw that
would break the camel's back. With these before her, the President cannot
be said to have acted arbitrarily and capriciously and whimsically in
determining that the return of the Marcoses poses a serious threat to the
national interest and welfare and in prohibiting their return.
The President has determined that the destabilization caused by the return of
the Marcoses would wipe away the gains achieved during the past few years
and lead to total economic collapse. Given what is within our individual and
common knowledge of the state of the economy, we cannot argue with that
determination.
WHEREFORE, and it being our well-considered opinion that the President
did not act arbitrarily or with grave abuse of discretion in determining that the
return of former President Marcos and his family at the present time and
under present circumstances poses a serious threat to national interest and
welfare and in prohibiting their return to the Philippines, the instant petition is
hereby DISMISSED.
SO ORDERED.

It will not do to argue that if the return of the Marcoses to the Philippines will
cause the escalation of violence against the State, that would be the time for
the President to step in and exercise the commander-in-chief powers granted
her by the Constitution to suppress or stamp out such violence. The State,
acting through the Government, is not precluded from taking pre- emptive
action against threats to its existence if, though still nascent they are
perceived as apt to become serious and direct. Protection of the people is
the essence of the duty of government. The preservation of the State the
fruition of th+e people's sovereignty is an obligation in the highest order. The
President, sworn to preserve and defend the Constitution and to see the
faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to
recover from the hardships brought about by the plunder of the economy
attributed to the Marcoses and their close associates and relatives, many of
whom are still here in the Philippines in a position to destabilize the country,
while the Government has barely scratched the surface, so to speak, in its
efforts to recover the enormous wealth stashed away by the Marcoses in
foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during
the Marcos regime, which stifles and stagnates development and is one of
the root causes of widespread poverty and all its attendant ills. The resulting
precarious state of our economy is of common knowledge and is easily within
the ambit of judicial notice.

37
G.R. No. 160261 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND MEMBERS,
petitioner-in-intervention, WORLD WAR II VETERANS LEGIONARIES
OF THE PHILIPPINES, INC., petitioner-in-intervention, vs. THE HOUSE
OF REPRESENTATIVES, REPRESENTED BY SPEAKER JOSE G. DE
VENECIA, THE SENATE, REPRESENTED BY SENATE PRESIDENT
FRANKLIN M. DRILON, REPRESENTATIVE GILBERTO C. TEODORO,
JR. AND REPRESENTATIVE FELIX WILLIAM B. FUENTEBELLA,
respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no matter how
passionate and seemingly irreconcilable it may appear to be, over the
determination by the independent branches of government of the nature,
scope and extent of their respective constitutional powers where the
Constitution itself provides for the means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often frictional, at
times turbulent, dynamics of the relationship among these co-equal
branches. This Court is confronted with one such today involving the
legislature and the judiciary which has drawn legal luminaries to chart
antipodal courses and not a few of our countrymen to vent cacophonous
sentiments thereon.
There may indeed be some legitimacy to the characterization that the
present controversy subject of the instant petitions – whether the filing of the
second impeachment complaint against Chief Justice Hilario G. Davide, Jr.
with the House of Representatives falls within the one year bar provided in
the Constitution, and whether the resolution thereof is a political question –
has resulted in a political crisis. Perhaps even more truth to the view that it
was brought upon by a political crisis of conscience.
In any event, it is with the absolute certainty that our Constitution is sufficient
to address all the issues which this controversy spawns that this Court
unequivocally pronounces, at the first instance, that the feared resort to
extra-constitutional methods of resolving it is neither necessary nor legally
permissible. Both its resolution and protection of the public interest lie in
adherence to, not departure from, the Constitution.
In passing over the complex issues arising from the controversy, this Court is
ever mindful of the essential truth that the inviolate doctrine of separation of
powers among the legislative, executive or judicial branches of government
by no means prescribes for absolute autonomy in the discharge by each of
that part of the governmental power assigned to it by the sovereign people.
At the same time, the corollary doctrine of checks and balances which has
been carefully calibrated by the Constitution to temper the official acts of
each of these three branches must be given effect without destroying their
indispensable co-equality.
Taken together, these two fundamental doctrines of republican government,
intended as they are to insure that governmental power is wielded only for
the good of the people, mandate a relationship of interdependence and
coordination among these branches where the delicate functions of enacting,
interpreting and enforcing laws are harmonized to achieve a unity of
governance, guided only by what is in the greater interest and well-being of
the people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. 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.
SECTION 2. The President, the Vice-President, the Members of the
Supreme Court, the Members of the Constitutional Commissions, and the
Ombudsman may be removed from office, on impeachment for, and
conviction of, culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust. All other public
officers and employees may be removed from office as provided by law, but
not by impeachment.
SECTION 3. (1) The House of Representatives shall have the exclusive
power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three
session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding resolution.
38
The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary either to affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The vote
of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide all cases of
impeachment. When sitting for that purpose, the Senators shall be on oath or
affirmation. When the President of the Philippines is on trial, the Chief Justice
of the Supreme Court shall preside, but shall not vote. No person shall be
convicted without the concurrence of two-thirds of all the Members of the
Senate.
(7) Judgment in cases of impeachment shall not extend further than removal
from office and disqualification to hold any office under the Republic of the
Philippines, but the party convicted shall nevertheless be liable and subject
to prosecution, trial, and punishment according to law.
(8) The Congress shall promulgate its rules on impeachment to effectively
carry out the purpose of this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the Constitution, the
12th Congress of the House of Representatives adopted and approved the
Rules of Procedure in Impeachment Proceedings (House Impeachment
Rules) on November 28, 2001, superseding the previous House
Impeachment Rules1 approved by the 11th Congress. The relevant
distinctions between these two Congresses' House Impeachment Rules are
shown in the following tabulation:
11TH CONGRESS RULES
12TH CONGRESS NEW RULES
RULE II
INITIATING IMPEACHMENT
Section 2. Mode of Initiating Impeachment. – Impeachment shall be initiated
only by a verified complaint for impeachment filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof or by a verified complaint or resolution of
impeachment filed by at least one-third (1/3) of all the Members of the
House.
RULE V
BAR AGAINST INITIATION OF IMPEACHMENT PROCEEDINGS AGAINST
THE SAME OFFICIAL
Section 16. – Impeachment Proceedings Deemed Initiated. – In cases where
a Member of the House files a verified complaint of impeachment or a citizen
files a verified complaint that is endorsed by a Member of the House through
a resolution of endorsement against an impeachable officer, impeachment
proceedings against such official are deemed initiated on the day the
Committee on Justice finds that the verified complaint and/or resolution
against such official, as the case may be, is sufficient in substance, or on the
date the House votes to overturn or affirm the finding of the said Committee
that the verified complaint and/or resolution, as the case may be, is not
sufficient in substance.
In cases where a verified complaint or a resolution of impeachment is filed or
endorsed, as the case may be, by at least one-third (1/3) of the Members of
the House, impeachment proceedings are deemed initiated at the time of the
filing of such verified complaint or resolution of impeachment with the
Secretary General.
RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No impeachment proceedings shall be initiated
against the same official more than once within the period of one (1) year.
Section 17. Bar Against Initiation Of Impeachment Proceedings. – Within a
period of one (1) year from the date impeachment proceedings are deemed
initiated as provided in Section 16 hereof, no impeachment proceedings, as
such, can be initiated against the same official. (Italics in the original;
emphasis and underscoring supplied)
On July 22, 2002, the House of Representatives adopted a Resolution,2
sponsored by Representative Felix William D. Fuentebella, which directed
the Committee on Justice "to conduct an investigation, in aid of legislation, on
the manner of disbursements and expenditures by the Chief Justice of the
Supreme Court of the Judiciary Development Fund (JDF)."3
On June 2, 2003, former President Joseph E. Estrada filed an impeachment
complaint4 (first impeachment complaint) against Chief Justice Hilario G.
Davide Jr. and seven Associate Justices5 of this Court for "culpable violation
39
of the Constitution, betrayal of the public trust and other high crimes."6 The
complaint was endorsed by Representatives Rolex T. Suplico, Ronaldo B.
Zamora and Didagen Piang Dilangalen,7 and was referred to the House
Committee on Justice on August 5, 20038 in accordance with Section 3(2) of
Article XI of the Constitution which reads:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which shall be included in the Order
of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
The House Committee on Justice ruled on October 13, 2003 that the first
impeachment complaint was "sufficient in form,"9 but voted to dismiss the
same on October 22, 2003 for being insufficient in substance.10 To date, the
Committee Report to this effect has not yet been sent to the House in plenary
in accordance with the said Section 3(2) of Article XI of the Constitution.
Four months and three weeks since the filing on June 2, 2003 of the first
complaint or on October 23, 2003, a day after the House Committee on
Justice voted to dismiss it, the second impeachment complaint11 was filed
with the Secretary General of the House12 by Representatives Gilberto C.
Teodoro, Jr. (First District, Tarlac) and Felix William B. Fuentebella (Third
District, Camarines Sur) against Chief Justice Hilario G. Davide, Jr., founded
on the alleged results of the legislative inquiry initiated by above-mentioned
House Resolution. This second impeachment complaint was accompanied
by a "Resolution of Endorsement/Impeachment" signed by at least one-third
(1/3) of all the Members of the House of Representatives.13
Thus arose the instant petitions against the House of Representatives, et. al.,
most of which petitions contend that the filing of the second impeachment
complaint is unconstitutional as it violates the provision of Section 5 of Article
XI of the Constitution that "[n]o impeachment proceedings shall be initiated
against the same official more than once within a period of one year."
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr., alleging that he
has a duty as a member of the Integrated Bar of the Philippines to use all
available legal remedies to stop an unconstitutional impeachment, that the
issues raised in his petition for Certiorari, Prohibition and Mandamus are of
transcendental importance, and that he "himself was a victim of the
capricious and arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"14 posits that his right to
bring an impeachment complaint against then Ombudsman Aniano Desierto
had been violated due to the capricious and arbitrary changes in the House
Impeachment Rules adopted and approved on November 28, 2001 by the
House of Representatives and prays that (1) Rule V, Sections 16 and 17 and
Rule III, Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2)
this Court issue a writ of mandamus directing respondents House of
Representatives et. al. to comply with Article IX, Section 3 (2), (3) and (5) of
the Constitution, to return the second impeachment complaint and/or strike it
off the records of the House of Representatives, and to promulgate rules
which are consistent with the Constitution; and (3) this Court permanently
enjoin respondent House of Representatives from proceeding with the
second impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as citizens and
taxpayers, alleging that the issues of the case are of transcendental
importance, pray, in their petition for Certiorari/Prohibition, the issuance of a
writ "perpetually" prohibiting respondent House of Representatives from filing
any Articles of Impeachment against the Chief Justice with the Senate; and
for the issuance of a writ "perpetually" prohibiting respondents Senate and
Senate President Franklin Drilon from accepting any Articles of Impeachment
against the Chief Justice or, in the event that the Senate has accepted the
same, from proceeding with the impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the Integrated
Bar of the Philippines, alleging that their petition for Prohibition involves
public interest as it involves the use of public funds necessary to conduct the
impeachment trial on the second impeachment complaint, pray for the
issuance of a writ of prohibition enjoining Congress from conducting further
proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that this Court
has recognized that he has locus standi to bring petitions of this nature in the
cases of Chavez v. PCGG15 and Chavez v. PEA-Amari Coastal Bay
Development Corporation,16 prays in his petition for Injunction that the
second impeachment complaint be declared unconstitutional.
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as taxpayers
and members of the legal profession, pray in their petition for Prohibition for
an order prohibiting respondent House of Representatives from drafting,
adopting, approving and transmitting to the Senate the second impeachment
complaint, and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate.
40
In G.R. No. 160295, petitioners Representatives Salacnib F. Baterina and
Deputy Speaker Raul M. Gonzalez, alleging that, as members of the House
of Representatives, they have a legal interest in ensuring that only
constitutional impeachment proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and any act
proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming that they
have a right to be protected against all forms of senseless spending of
taxpayers' money and that they have an obligation to protect the Supreme
Court, the Chief Justice, and the integrity of the Judiciary, allege in their
petition for Certiorari and Prohibition that it is instituted as "a class suit" and
pray that (1) the House Resolution endorsing the second impeachment
complaint as well as all issuances emanating therefrom be declared null and
void; and (2) this Court enjoin the Senate and the Senate President from
taking cognizance of, hearing, trying and deciding the second impeachment
complaint, and issue a writ of prohibition commanding the Senate, its
prosecutors and agents to desist from conducting any proceedings or to act
on the impeachment complaint.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose members
are citizens and taxpayers, and its co-petitioner Crispin T. Reyes, a citizen,
taxpayer and a member of the Philippine Bar, both allege in their petition,
which does not state what its nature is, that the filing of the second
impeachment complaint involves paramount public interest and pray that
Sections 16 and 17 of the House Impeachment Rules and the second
impeachment complaint/Articles of Impeachment be declared null and void.
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a citizen and a
member of the Philippine Bar Association and of the Integrated Bar of the
Philippines, and petitioner Engr. Maximo N. Menez, Jr., as a taxpayer, pray
in their petition for the issuance of a Temporary Restraining Order and
Permanent Injunction to enjoin the House of Representatives from
proceeding with the second impeachment complaint.
In G.R. No. 160343, petitioner Integrated Bar of the Philippines, alleging that
it is mandated by the Code of Professional Responsibility to uphold the
Constitution, prays in its petition for Certiorari and Prohibition that Sections
16 and 17 of Rule V and Sections 5, 6, 7, 8, 9 of Rule III of the House
Impeachment Rules be declared unconstitutional and that the House of
Representatives be permanently enjoined from proceeding with the second
impeachment complaint.
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays in his
petition for Certiorari and Prohibition that the House Impeachment Rules be
declared unconstitutional.
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation Inc., et.
al., in their petition for Prohibition and Injunction which they claim is a class
suit filed in behalf of all citizens, citing Oposa v. Factoran17 which was filed
in behalf of succeeding generations of Filipinos, pray for the issuance of a
writ prohibiting respondents House of Representatives and the Senate from
conducting further proceedings on the second impeachment complaint and
that this Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in interfering
with the fiscal matters of the Judiciary.
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio Callangan Aquino,
alleging that the issues in his petition for Prohibition are of national and
transcendental significance and that as an official of the Philippine Judicial
Academy, he has a direct and substantial interest in the unhampered
operation of the Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ prohibiting
the House of Representatives from transmitting the Articles of Impeachment
to the Senate and the Senate from receiving the same or giving the
impeachment complaint due course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer, alleges in
his petition for Prohibition that respondents Fuentebella and Teodoro at the
time they filed the second impeachment complaint, were "absolutely without
any legal power to do so, as they acted without jurisdiction as far as the
Articles of Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and Hector L.
Hofileña, alleging that as professors of law they have an abiding interest in
the subject matter of their petition for Certiorari and Prohibition as it pertains
to a constitutional issue "which they are trying to inculcate in the minds of
their students," pray that the House of Representatives be enjoined from
endorsing and the Senate from trying the Articles of Impeachment and that
the second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr., without alleging
his locus standi, but alleging that the second impeachment complaint is
founded on the issue of whether or not the Judicial Development Fund (JDF)
was spent in accordance with law and that the House of Representatives
does not have exclusive jurisdiction in the examination and audit thereof,
prays in his petition "To Declare Complaint Null and Void for Lack of Cause
41
of Action and Jurisdiction" that the second impeachment complaint be
declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging that the
issues raised in the filing of the second impeachment complaint involve
matters of transcendental importance, prays in its petition for
Certiorari/Prohibition that (1) the second impeachment complaint and all
proceedings arising therefrom be declared null and void; (2) respondent
House of Representatives be prohibited from transmitting the Articles of
Impeachment to the Senate; and (3) respondent Senate be prohibited from
accepting the Articles of Impeachment and from conducting any proceedings
thereon.
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as citizens and
taxpayers, pray in their petition for Certiorari/Prohibition that (1) the second
impeachment complaint as well as the resolution of endorsement and
impeachment by the respondent House of Representatives be declared null
and void and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against the Chief
Justice or, in the event that they have accepted the same, that they be
prohibited from proceeding with the impeachment trial.
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and 160263,
the first three of the eighteen which were filed before this Court,18 prayed for
the issuance of a Temporary Restraining Order and/or preliminary injunction
to prevent the House of Representatives from transmitting the Articles of
Impeachment arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed for the
declaration of the November 28, 2001 House Impeachment Rules as null and
void for being unconstitutional.
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and 160295,
which were filed on October 28, 2003, sought similar relief. In addition,
petition bearing docket number G.R. No. 160292 alleged that House
Resolution No. 260 (calling for a legislative inquiry into the administration by
the Chief Justice of the JDF) infringes on the constitutional doctrine of
separation of powers and is a direct violation of the constitutional principle of
fiscal autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second impeachment
complaint be formally transmitted to the Senate, but it was not carried
because the House of Representatives adjourned for lack of quorum,19 and
as reflected above, to date, the Articles of Impeachment have yet to be
forwarded to the Senate.
Before acting on the petitions with prayers for temporary restraining order
and/or writ of preliminary injunction which were filed on or before October 28,
2003, Justices Puno and Vitug offered to recuse themselves, but the Court
rejected their offer. Justice Panganiban inhibited himself, but the Court
directed him to participate.
Without necessarily giving the petitions due course, this Court in its
Resolution of October 28, 2003, resolved to (a) consolidate the petitions; (b)
require respondent House of Representatives and the Senate, as well as the
Solicitor General, to comment on the petitions not later than 4:30 p.m. of
November 3, 2003; (c) set the petitions for oral arguments on November 5,
2003, at 10:00 a.m.; and (d) appointed distinguished legal experts as amici
curiae.20 In addition, this Court called on petitioners and respondents to
maintain the status quo, enjoining all the parties and others acting for and in
their behalf to refrain from committing acts that would render the petitions
moot.
Also on October 28, 2003, when respondent House of Representatives
through Speaker Jose C. De Venecia, Jr. and/or its co-respondents, by way
of special appearance, submitted a Manifestation asserting that this Court
has no jurisdiction to hear, much less prohibit or enjoin the House of
Representatives, which is an independent and co-equal branch of
government under the Constitution, from the performance of its
constitutionally mandated duty to initiate impeachment cases. On even date,
Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion to
Intervene (Ex Abudante Cautela)21 and Comment, praying that "the
consolidated petitions be dismissed for lack of jurisdiction of the Court over
the issues affecting the impeachment proceedings and that the sole power,
authority and jurisdiction of the Senate as the impeachment court to try and
decide impeachment cases, including the one where the Chief Justice is the
respondent, be recognized and upheld pursuant to the provisions of Article XI
of the Constitution."22
Acting on the other petitions which were subsequently filed, this Court
resolved to (a) consolidate them with the earlier consolidated petitions; (b)
require respondents to file their comment not later than 4:30 p.m. of
November 3, 2003; and (c) include them for oral arguments on November 5,
2003.
On October 29, 2003, the Senate of the Philippines, through Senate
President Franklin M. Drilon, filed a Manifestation stating that insofar as it is
concerned, the petitions are plainly premature and have no basis in law or in
fact, adding that as of the time of the filing of the petitions, no justiciable
issue was presented before it since (1) its constitutional duty to constitute
itself as an impeachment court commences only upon its receipt of the
42
Articles of Impeachment, which it had not, and (2) the principal issues raised
by the petitions pertain exclusively to the proceedings in the House of
Representatives.
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for Leave to
Intervene" in G.R. Nos. 160261, 160262, 160263, 160277, 160292, and
160295, questioning the status quo Resolution issued by this Court on
October 28, 2003 on the ground that it would unnecessarily put Congress
and this Court in a "constitutional deadlock" and praying for the dismissal of
all the petitions as the matter in question is not yet ripe for judicial
determination.
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete Quirino
Quadra filed in G.R. No. 160262 a "Motion for Leave of Court to Intervene
and to Admit the Herein Incorporated Petition in Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc. filed a Motion for Intervention in G.R. No.
160261. On November 5, 2003, World War II Veterans Legionnaires of the
Philippines, Inc. also filed a "Petition-in-Intervention with Leave to Intervene"
in G.R. Nos. 160261, 160262, 160263, 160277, 160292, 160295, and
160310.
The motions for intervention were granted and both Senator Pimentel's
Comment and Attorneys Macalintal and Quadra's Petition in Intervention
were admitted.
On November 5-6, 2003, this Court heard the views of the amici curiae and
the arguments of petitioners, intervenors Senator Pimentel and Attorney
Makalintal, and Solicitor General Alfredo Benipayo on the principal issues
outlined in an Advisory issued by this Court on November 3, 2003, to wit:
Whether the certiorari jurisdiction of the Supreme Court may be invoked; who
can invoke it; on what issues and at what time; and whether it should be
exercised by this Court at this time.
In discussing these issues, the following may be taken up:
a) locus standi of petitioners;
b) ripeness(prematurity; mootness);
c) political question/justiciability;
d) House's "exclusive" power to initiate all cases of impeachment;
e) Senate's "sole" power to try and decide all cases of impeachment;
f) constitutionality of the House Rules on Impeachment vis-a-vis Section 3(5)
of Article XI of the Constitution; and
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive issues arising
from the instant petitions as well as the myriad arguments and opinions
presented for and against the grant of the reliefs prayed for, this Court has
sifted and determined them to be as follows: (1) the threshold and novel
issue of whether or not the power of judicial review extends to those arising
from impeachment proceedings; (2) whether or not the essential pre-
requisites for the exercise of the power of judicial review have been fulfilled;
and (3) the substantive issues yet remaining. These matters shall now be
discussed in seriatim.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the power of
judicial review to determine the validity of the second impeachment
complaint.
This Court's power of judicial review is conferred on the judicial branch of the
government in Section 1, Article VIII of our present 1987 Constitution:
SECTION 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Emphasis supplied)
Such power of judicial review was early on exhaustively expounded upon by
Justice Jose P. Laurel in the definitive 1936 case of Angara v. Electoral
Commission23 after the effectivity of the 1935 Constitution whose provisions,
unlike the present Constitution, did not contain the present provision in Article
VIII, Section 1, par. 2 on what judicial power includes. Thus, Justice Laurel
discoursed:
x x x In times of social disquietude or political excitement, the great
landmarks of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper
allocation of powers between the several departments and among the
integral or constituent units thereof.
43
As any human production, our Constitution is of course lacking perfection
and perfectibility, but as much as it was within the power of our people,
acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under
a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. In the
United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to
speak of its historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and a half centuries. In
our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to actual cases
and controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments,
not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of
the government. (Italics in the original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to "determine the
proper allocation of powers" of the different branches of government and "to
direct the course of government along constitutional channels" is inherent in
all courts25 as a necessary consequence of the judicial power itself, which is
"the power of the court to settle actual controversies involving rights which
are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review is not
explicitly conferred upon the courts by its Constitution, such power has "been
set at rest by popular acquiescence for a period of more than one and a half
centuries." To be sure, it was in the 1803 leading case of Marbury v.
Madison27 that the power of judicial review was first articulated by Chief
Justice Marshall, to wit:
It is also not entirely unworthy of observation, that in declaring what shall be
the supreme law of the land, the constitution itself is first mentioned; and not
the laws of the United States generally, but those only which shall be made
in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the constitution of the United States
confirms and strengthens the principle, supposed to be essential to all written
constitutions, that a law repugnant to the constitution is void; and that courts,
as well as other departments, are bound by that instrument.28 (Italics in the
original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its express grant in
the 1935 Constitution, the power of judicial review was exercised by our
courts to invalidate constitutionally infirm acts. And as pointed out by noted
political law professor and former Supreme Court Justice Vicente V.
Mendoza, the executive and legislative branches of our government in fact
effectively acknowledged this power of judicial review in Article 7 of the Civil
Code, to wit:
Article 7. Laws are repealed only by subsequent ones, and their violation or
non-observance shall not be excused by disuse, or custom or practice to the
contrary.
When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
44
Administrative or executive acts, orders and regulations shall be valid only
when they are not contrary to the laws or the Constitution. (Emphasis
supplied)
As indicated in Angara v. Electoral Commission, judicial review is indeed an
integral component of the delicate system of checks and balances which,
together with the corollary principle of separation of powers, forms the
bedrock of our republican form of government and insures that its vast
powers are utilized only for the benefit of the people for which it serves.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x
x x And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.32 (Emphasis and underscoring supplied)
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "x x x judicial review is essential for the maintenance and
enforcement of the separation of powers and the balancing of powers among
the three great departments of government through the definition and
maintenance of the boundaries of authority and control between them."33 To
him, "[j]udicial review is the chief, indeed the only, medium of participation –
or instrument of intervention – of the judiciary in that balancing operation."34
To ensure the potency of the power of judicial review to curb grave abuse of
discretion by "any branch or instrumentalities of government," the afore-
quoted Section 1, Article VIII of the Constitution engraves, for the first time
into its history, into block letter law the so-called "expanded certiorari
jurisdiction" of this Court, the nature of and rationale for which are mirrored in
the following excerpt from the sponsorship speech of its proponent, former
Chief Justice Constitutional Commissioner Roberto Concepcion:
xxx
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of 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 or instrumentality of
the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some antecedents in
the past, but the role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the solicitor general set
up the defense of political questions and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other
matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court
said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the
rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. x x x
xxx
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question 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 or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.35 (Italics in the
original; emphasis and underscoring supplied)
45
To determine the merits of the issues raised in the instant petitions, this
Court must necessarily turn to the Constitution itself which employs the well-
settled principles of constitutional construction.
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where technical
terms are employed. Thus, in J.M. Tuason & Co., Inc. v. Land Tenure
Administration,36 this Court, speaking through Chief Justice Enrique
Fernando, declared:
We look to the language of the document itself in our search for its meaning.
We do not of course stop there, but that is where we begin. It is to be
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case
the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus
these are the cases where the need for construction is reduced to a
minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words of the
Constitution should be interpreted in accordance with the intent of its
framers. And so did this Court apply this principle in Civil Liberties Union v.
Executive Secretary38 in this wise:
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers
of the Constitution to enact the particular provision and the purpose sought to
be accomplished thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect that purpose.39
(Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue40 where, speaking
through Madame Justice Amuerfina A. Melencio-Herrera, it declared:
x x x The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary
task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in ratifying
the Constitution were guided mainly by the explanation offered by the
framers.41 (Emphasis and underscoring supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be interpreted as
a whole. Thus, in Chiongbian v. De Leon,42 this Court, through Chief Justice
Manuel Moran declared:
x x x [T]he members of the Constitutional Convention could not have
dedicated a provision of our Constitution merely for the benefit of one person
without considering that it could also affect others. When they adopted
subsection 2, they permitted, if not willed, that said provision should function
to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document.43 (Emphasis
and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this Court
affirmed that:
It is a well-established rule in constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered
alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes
of the instrument. Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the
Constitution and one section is not to be allowed to defeat another, if by any
reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean
in favor of a construction which will render every word operative, rather than
one which may make the words idle and nugatory.45 (Emphasis supplied)
If, however, the plain meaning of the word is not found to be clear, resort to
other aids is available. In still the same case of Civil Liberties Union v.
Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are powerless to vary the terms
46
of the Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give us no light as to
the views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what
appears upon its face." The proper interpretation therefore depends more on
how it was understood by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring supplied)
It is in the context of the foregoing backdrop of constitutional refinement and
jurisprudential application of the power of judicial review that respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel raise the novel
argument that the Constitution has excluded impeachment proceedings from
the coverage of judicial review.
Briefly stated, it is the position of respondents Speaker De Venecia et. al.
that impeachment is a political action which cannot assume a judicial
character. Hence, any question, issue or incident arising at any stage of the
impeachment proceeding is beyond the reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the Senate's "sole
power to try" impeachment cases48 (1) entirely excludes the application of
judicial review over it; and (2) necessarily includes the Senate's power to
determine constitutional questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents Speaker
De Venecia, et. al. and intervenor Senator Pimentel rely heavily on American
authorities, principally the majority opinion in the case of Nixon v. United
States.50 Thus, they contend that the exercise of judicial review over
impeachment proceedings is inappropriate since it runs counter to the
framers' decision to allocate to different fora the powers to try impeachments
and to try crimes; it disturbs the system of checks and balances, under which
impeachment is the only legislative check on the judiciary; and it would
create a lack of finality and difficulty in fashioning relief.51 Respondents
likewise point to deliberations on the US Constitution to show the intent to
isolate judicial power of review in cases of impeachment.
Respondents' and intervenors' reliance upon American jurisprudence, the
American Constitution and American authorities cannot be credited to
support the proposition that the Senate's "sole power to try and decide
impeachment cases," as provided for under Art. XI, Sec. 3(6) of the
Constitution, is a textually demonstrable constitutional commitment of all
issues pertaining to impeachment to the legislature, to the total exclusion of
the power of judicial review to check and restrain any grave abuse of the
impeachment process. Nor can it reasonably support the interpretation that it
necessarily confers upon the Senate the inherently judicial power to
determine constitutional questions incident to impeachment proceedings.
Said American jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned. As held in the case of Garcia vs.
COMELEC,52 "[i]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable
because they have been dictated by different constitutional settings and
needs."53 Indeed, although the Philippine Constitution can trace its origins to
that of the United States, their paths of development have long since
diverged. In the colorful words of Father Bernas, "[w]e have cut the umbilical
cord."
The major difference between the judicial power of the Philippine Supreme
Court and that of the U.S. Supreme Court is that while the power of judicial
review is only impliedly granted to the U.S. Supreme Court and is
discretionary in nature, that granted to the Philippine Supreme Court and
lower courts, as expressly provided for in the Constitution, is not just a power
but also a duty, and it was given an expanded definition to include the power
to correct any grave abuse of discretion on the part of any government
branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution and the
Philippine Constitution with respect to the power of the House of
Representatives over impeachment proceedings. While the U.S. Constitution
bestows sole power of impeachment to the House of Representatives without
limitation,54 our Constitution, though vesting in the House of Representatives
the exclusive power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section 3(2), (3), (4)
and (5), Article XI thereof. These limitations include the manner of filing,
required vote to impeach, and the one year bar on the impeachment of one
and the same official.
Respondents are also of the view that judicial review of impeachments
undermines their finality and may also lead to conflicts between Congress
and the judiciary. Thus, they call upon this Court to exercise judicial
statesmanship on the principle that "whenever possible, the Court should
defer to the judgment of the people expressed legislatively, recognizing full
well the perils of judicial willfulness and pride."56
47
But did not the people also express their will when they instituted the above-
mentioned safeguards in the Constitution? This shows that the Constitution
did not intend to leave the matter of impeachment to the sole discretion of
Congress. Instead, it provided for certain well-defined limits, or in the
language of Baker v. Carr,57 "judicially discoverable standards" for
determining the validity of the exercise of such discretion, through the power
of judicial review.
The cases of Romulo v. Yniguez58 and Alejandrino v. Quezon,59 cited by
respondents in support of the argument that the impeachment power is
beyond the scope of judicial review, are not in point. These cases concern
the denial of petitions for writs of mandamus to compel the legislature to
perform non-ministerial acts, and do not concern the exercise of the power of
judicial review.
There is indeed a plethora of cases in which this Court exercised the power
of judicial review over congressional action. Thus, in Santiago v. Guingona,
Jr.,60 this Court ruled that it is well within the power and jurisdiction of the
Court to inquire whether the Senate or its officials committed a violation of
the Constitution or grave abuse of discretion in the exercise of their functions
and prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of the
Philippine Senate on the ground that it contravened the Constitution, it held
that the petition raises a justiciable controversy and that when 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. In Bondoc v. Pineda,62 this Court declared null and void a resolution
of the House of Representatives withdrawing the nomination, and rescinding
the election, of a congressman as a member of the House Electoral Tribunal
for being violative of Section 17, Article VI of the Constitution. In Coseteng v.
Mitra,63 it held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional representation of
the political parties as provided in Section 18, Article VI of the Constitution is
subject to judicial review. In Daza v. Singson,64 it held that the act of the
House of Representatives in removing the petitioner from the Commission on
Appointments is subject to judicial review. In Tanada v. Cuenco,65 it held
that although under the Constitution, the legislative power is vested
exclusively in Congress, this does not detract from the power of the courts to
pass upon the constitutionality of acts of Congress. In Angara v. Electoral
Commission,66 it ruled that confirmation by the National Assembly of the
election of any member, irrespective of whether his election is contested, is
not essential before such member-elect may discharge the duties and enjoy
the privileges of a member of the National Assembly.
Finally, there exists no constitutional basis for the contention that the
exercise of judicial review over impeachment proceedings would upset the
system of checks and balances. Verily, the Constitution is to be interpreted
as a whole and "one section is not to be allowed to defeat another."67 Both
are integral components of the calibrated system of independence and
interdependence that insures that no branch of government act beyond the
powers assigned to it by the Constitution.
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts' power of
judicial review, like almost all powers conferred by the Constitution, is subject
to several limitations, namely: (1) an actual case or controversy calling for the
exercise of judicial power; (2) the person challenging the act must have
"standing" to challenge; he must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of
its enforcement; (3) the question of constitutionality must be raised at the
earliest possible opportunity; and (4) the issue of constitutionality must be the
very lis mota of the case.
x x x Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the
parties, and limited further to the constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation. More than that,
courts accord the presumption of constitutionality to legislative enactments,
not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative departments of
the government.68 (Italics in the original)
Standing
Locus standi or legal standing or has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions.69
Intervenor Soriano, in praying for the dismissal of the petitions, contends that
petitioners do not have standing since only the Chief Justice has sustained
48
and will sustain direct personal injury. Amicus curiae former Justice Minister
and Solicitor General Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners have
standing since this Court had, in the past, accorded standing to taxpayers,
voters, concerned citizens, legislators in cases involving paramount public
interest70 and transcendental importance,71 and that procedural matters are
subordinate to the need to determine whether or not the other branches of
the government have kept themselves within the limits of the Constitution
and the laws and that they have not abused the discretion given to them.72
Amicus curiae Dean Raul Pangalangan of the U.P. College of Law is of the
same opinion, citing transcendental importance and the well-entrenched rule
exception that, when the real party in interest is unable to vindicate his rights
by seeking the same remedies, as in the case of the Chief Justice who, for
ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts
will grant petitioners standing.
There is, however, a difference between the rule on real-party-in-interest and
the rule on standing, for the former is a concept of civil procedure73 while the
latter has constitutional underpinnings.74 In view of the arguments set forth
regarding standing, it behooves the Court to reiterate the ruling in
Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus standi and to
distinguish it from real party-in-interest.
The difference between the rule on standing and real party in interest has
been noted by authorities thus: "It is important to note . . . that standing
because of its constitutional and public policy underpinnings, is very different
from questions relating to whether a particular plaintiff is the real party in
interest or has capacity to sue. Although all three requirements are directed
towards ensuring that only certain parties can maintain an action, standing
restrictions require a partial consideration of the merits, as well as broader
policy concerns relating to the proper role of the judiciary in certain areas.
Standing is a special concern in constitutional law because in some cases
suits are brought not by parties who have been personally injured by the
operation of a law or by official action taken, but by concerned citizens,
taxpayers or voters who actually sue in the public interest. Hence the
question in standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."
xxx
On the other hand, the question as to "real party in interest" is whether he is
"the party who would be benefited or injured by the judgment, or the 'party
entitled to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured by the
alleged unconstitutional acts of the House of Representatives, none of the
petitioners before us asserts a violation of the personal rights of the Chief
Justice. On the contrary, they invariably invoke the vindication of their own
rights – as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession – which were
supposedly violated by the alleged unconstitutional acts of the House of
Representatives.
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been given
standing by this Court.
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must be able to
show, not only that the law or any government act is invalid, but also that he
sustained or is in imminent danger of sustaining some direct injury as a result
of its enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the statute
or act complained of.77 In fine, when the proceeding involves the assertion
of a public right,78 the mere fact that he is a citizen satisfies the requirement
of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a claim that
public funds are illegally disbursed, or that public money is being deflected to
any improper purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.79 Before he can invoke the
power of judicial review, however, he must specifically prove that he has
sufficient interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not sufficient that he
has merely a general interest common to all members of the public.80
At all events, courts are vested with discretion as to whether or not a
taxpayer's suit should be entertained.81 This Court opts to grant standing to
most of the petitioners, given their allegation that any impending transmittal
to the Senate of the Articles of Impeachment and the ensuing trial of the
Chief Justice will necessarily involve the expenditure of public funds.
49
As for a legislator, he is allowed to sue to question the validity of any official
action which he claims infringes his prerogatives as a legislator. Indeed, a
member of the House of Representatives has standing to maintain inviolate
the prerogatives, powers and privileges vested by the Constitution in his
office.
While an association has legal personality to represent its members,84
especially when it is composed of substantial taxpayers and the outcome will
affect their vital interests,85 the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to preserve the
rule of law and nothing more, although undoubtedly true, does not suffice to
clothe it with standing. Its interest is too general. It is shared by other groups
and the whole citizenry. However, a reading of the petitions shows that it has
advanced constitutional issues which deserve the attention of this Court in
view of their seriousness, novelty and weight as precedents.86 It, therefore,
behooves this Court to relax the rules on standing and to resolve the issues
presented by it.
In the same vein, when dealing with class suits filed in behalf of all citizens,
persons intervening must be sufficiently numerous to fully protect the
interests of all concerned87 to enable the court to deal properly with all
interests involved in the suit,88 for a judgment in a class suit, whether
favorable or unfavorable to the class, is, under the res judicata principle,
binding on all members of the class whether or not they were before the
court.89 Where it clearly appears that not all interests can be sufficiently
represented as shown by the divergent issues raised in the numerous
petitions before this Court, G.R. No. 160365 as a class suit ought to fail.
Since petitioners additionally allege standing as citizens and taxpayers,
however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the sole ground
of transcendental importance, while Atty. Dioscoro U. Vallejos, in G.R. No.
160397, is mum on his standing.
There being no doctrinal definition of transcendental importance, the
following instructive determinants formulated by former Supreme Court
Justice Florentino P. Feliciano are instructive: (1) the character of the funds
or other assets involved in the case; (2) the presence of a clear case of
disregard of a constitutional or statutory prohibition by the public respondent
agency or instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in raising the questions being
raised.90 Applying these determinants, this Court is satisfied that the issues
raised herein are indeed of transcendental importance.
In not a few cases, this Court has in fact adopted a liberal attitude on the
locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people, as when the issues raised are of
paramount importance to the public.91 Such liberality does not, however,
mean that the requirement that a party should have an interest in the matter
is totally eliminated. A party must, at the very least, still plead the existence
of such interest, it not being one of which courts can take judicial notice. In
petitioner Vallejos' case, he failed to allege any interest in the case. He does
not thus have standing.
With respect to the motions for intervention, Rule 19, Section 2 of the Rules
of Court requires an intervenor to possess a legal interest in the matter in
litigation, or in the success of either of the parties, or an interest against both,
or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof.
While intervention is not a matter of right, it may be permitted by the courts
when the applicant shows facts which satisfy the requirements of the law
authorizing intervention.
In Intervenors Attorneys Romulo Macalintal and Pete Quirino Quadra's case,
they seek to join petitioners Candelaria, et. al. in G.R. No. 160262. Since,
save for one additional issue, they raise the same issues and the same
standing, and no objection on the part of petitioners Candelaria, et. al. has
been interposed, this Court as earlier stated, granted the Motion for Leave of
Court to Intervene and Petition-in-Intervention.
Nagmamalasakit na mga Manananggol ng mga Manggagawang Pilipino,
Inc., et. al. sought to join petitioner Francisco in G.R. No. 160261. Invoking
their right as citizens to intervene, alleging that "they will suffer if this
insidious scheme of the minority members of the House of Representatives
is successful," this Court found the requisites for intervention had been
complied with.
Alleging that the issues raised in the petitions in G.R. Nos. 160261, 160262,
160263, 160277, 160292, 160295, and 160310 were of transcendental
importance, World War II Veterans Legionnaires of the Philippines, Inc. filed
a "Petition-in-Intervention with Leave to Intervene" to raise the additional
issue of whether or not the second impeachment complaint against the Chief
Justice is valid and based on any of the grounds prescribed by the
Constitution.
Finding that Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et al. and World War II Veterans Legionnaires of the
Philippines, Inc. possess a legal interest in the matter in litigation the
respective motions to intervene were hereby granted.
50
Senator Aquilino Pimentel, on the other hand, sought to intervene for the
limited purpose of making of record and arguing a point of view that differs
with Senate President Drilon's. He alleges that submitting to this Court's
jurisdiction as the Senate President does will undermine the independence of
the Senate which will sit as an impeachment court once the Articles of
Impeachment are transmitted to it from the House of Representatives.
Clearly, Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein petitions
are directed. For this reason, and to fully ventilate all substantial issues
relating to the matter at hand, his Motion to Intervene was granted and he
was, as earlier stated, allowed to argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same must be
denied for, while he asserts an interest as a taxpayer, he failed to meet the
standing requirement for bringing taxpayer's suits as set forth in Dumlao v.
Comelec,93 to wit:
x x x While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their
tax money is "being extracted and spent in violation of specific constitutional
protection against abuses of legislative power," or that there is a
misapplication of such funds by respondent COMELEC, or that public money
is being deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the enforcement of an
invalid or unconstitutional law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to allege that
the act of petitioners will result in illegal disbursement of public funds or in
public money being deflected to any improper purpose. Additionally, his mere
interest as a member of the Bar does not suffice to clothe him with standing.
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando, held that
for a case to be considered ripe for adjudication, "it is a prerequisite that
something had by then been accomplished or performed by either branch
before a court may come into the picture."96 Only then may the courts pass
on the validity of what was done, if and when the latter is challenged in an
appropriate legal proceeding.
The instant petitions raise in the main the issue of the validity of the filing of
the second impeachment complaint against the Chief Justice in accordance
with the House Impeachment Rules adopted by the 12th Congress, the
constitutionality of which is questioned. The questioned acts having been
carried out, i.e., the second impeachment complaint had been filed with the
House of Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged unconstitutional
act should be accomplished and performed before suit, as Tan v. Macapagal
holds, has been complied with.
Related to the issue of ripeness is the question of whether the instant
petitions are premature. Amicus curiae former Senate President Jovito R.
Salonga opines that there may be no urgent need for this Court to render a
decision at this time, it being the final arbiter on questions of constitutionality
anyway. He thus recommends that all remedies in the House and Senate
should first be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P. College of Law
who suggests to this Court to take judicial notice of on-going attempts to
encourage signatories to the second impeachment complaint to withdraw
their signatures and opines that the House Impeachment Rules provide for
an opportunity for members to raise constitutional questions themselves
when the Articles of Impeachment are presented on a motion to transmit to
the same to the Senate. The dean maintains that even assuming that the
Articles are transmitted to the Senate, the Chief Justice can raise the issue of
their constitutional infirmity by way of a motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the House
Impeachment Rules of their constitutional infirmity. Neither would such a
withdrawal, by itself, obliterate the questioned second impeachment
complaint since it would only place it under the ambit of Sections 3(2) and (3)
of Article XI of the Constitution97 and, therefore, petitioners would continue
to suffer their injuries.
Second and most importantly, the futility of seeking remedies from either or
both Houses of Congress before coming to this Court is shown by the fact
that, as previously discussed, neither the House of Representatives nor the
Senate is clothed with the power to rule with definitiveness on the issue of
constitutionality, whether concerning impeachment proceedings or otherwise,
as said power is exclusively vested in the judiciary by the earlier quoted
Section I, Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it.
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto
Concepcion defined the term "political question," viz:
51
[T]he term "political question" connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the
language of Corpus Juris Secundum, it refers to "those questions which,
under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated
to the Legislature or executive branch of the Government." It is concerned
with issues dependent upon the wisdom, not legality, of a particular
measure.99 (Italics in the original)
Prior to the 1973 Constitution, without consistency and seemingly without
any rhyme or reason, this Court vacillated on its stance of taking cognizance
of cases which involved political questions. In some cases, this Court hid
behind the cover of the political question doctrine and refused to exercise its
power of judicial review.100 In other cases, however, despite the seeming
political nature of the therein issues involved, this Court assumed jurisdiction
whenever it found constitutionally imposed limits on powers or functions
conferred upon political bodies.101 Even in the landmark 1988 case of
Javellana v. Executive Secretary102 which raised the issue of whether the
1973 Constitution was ratified, hence, in force, this Court shunted the political
question doctrine and took cognizance thereof. Ratification by the people of a
Constitution is a political question, it being a question decided by the people
in their sovereign capacity.
The frequency with which this Court invoked the political question doctrine to
refuse to take jurisdiction over certain cases during the Marcos regime
motivated Chief Justice Concepcion, when he became a Constitutional
Commissioner, to clarify this Court's power of judicial review and its
application on issues involving political questions, viz:
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I suppose, the
usual comment that the judiciary is the weakest among the three major
branches of the service. Since the legislature holds the purse and the
executive the sword, the judiciary has nothing with which to enforce its
decisions or commands except the power of reason and appeal to
conscience which, after all, reflects the will of God, and is the most powerful
of all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the Committee on
the Judiciary.
The first section starts with a sentence copied from former Constitutions. It
says:
The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will read it first and
explain.
Judicial power includes the duty of 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 or instrumentality of
the government.
Fellow Members of this Commission, this is actually a product of our
experience during martial law. As a matter of fact, it has some antecedents in
the past, but the role of the judiciary during the deposed regime was marred
considerably by the circumstance that in a number of cases against the
government, which then had no legal defense at all, the solicitor general set
up the defense of political questions and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas corpus, that is,
the authority of courts to order the release of political detainees, and other
matters related to the operation and effect of martial law failed because the
government set up the defense of political question. And the Supreme Court
said: "Well, since it is political, we have no authority to pass upon it." The
Committee on the Judiciary feels that this was not a proper solution of the
questions involved. It did not merely request an encroachment upon the
rights of the people, but it, in effect, encouraged further violations thereof
during the martial law regime. I am sure the members of the Bar are familiar
with this situation. But for the benefit of the Members of the Commission who
are not lawyers, allow me to explain. I will start with a decision of the
Supreme Court in 1973 on the case of Javellana vs. the Secretary of Justice,
if I am not mistaken. Martial law was announced on September 22, although
the proclamation was dated September 21. The obvious reason for the delay
in its publication was that the administration had apprehended and detained
prominent newsmen on September 21. So that when martial law was
announced on September 22, the media hardly published anything about it.
In fact, the media could not publish any story not only because our main
writers were already incarcerated, but also because those who succeeded
them in their jobs were under mortal threat of being the object of wrath of the
ruling party. The 1971 Constitutional Convention had begun on June 1, 1971
and by September 21 or 22 had not finished the Constitution; it had barely
agreed in the fundamentals of the Constitution. I forgot to say that upon the
proclamation of martial law, some delegates to that 1971 Constitutional
Convention, dozens of them, were picked up. One of them was our very own
52
colleague, Commissioner Calderon. So, the unfinished draft of the
Constitution was taken over by representatives of Malacañang. In 17 days,
they finished what the delegates to the 1971 Constitutional Convention had
been unable to accomplish for about 14 months. The draft of the 1973
Constitution was presented to the President around December 1, 1972,
whereupon the President issued a decree calling a plebiscite which
suspended the operation of some provisions in the martial law decree which
prohibited discussions, much less public discussions of certain matters of
public concern. The purpose was presumably to allow a free discussion on
the draft of the Constitution on which a plebiscite was to be held sometime in
January 1973. If I may use a word famous by our colleague, Commissioner
Ople, during the interregnum, however, the draft of the Constitution was
analyzed and criticized with such a telling effect that Malacañang felt the
danger of its approval. So, the President suspended indefinitely the holding
of the plebiscite and announced that he would consult the people in a
referendum to be held from January 10 to January 15. But the questions to
be submitted in the referendum were not announced until the eve of its
scheduled beginning, under the supposed supervision not of the Commission
on Elections, but of what was then designated as "citizens assemblies or
barangays." Thus the barangays came into existence. The questions to be
propounded were released with proposed answers thereto, suggesting that it
was unnecessary to hold a plebiscite because the answers given in the
referendum should be regarded as the votes cast in the plebiscite.
Thereupon, a motion was filed with the Supreme Court praying that the
holding of the referendum be suspended. When the motion was being heard
before the Supreme Court, the Minister of Justice delivered to the Court a
proclamation of the President declaring that the new Constitution was
already in force because the overwhelming majority of the votes cast in the
referendum favored the Constitution. Immediately after the departure of the
Minister of Justice, I proceeded to the session room where the case was
being heard. I then informed the Court and the parties the presidential
proclamation declaring that the 1973 Constitution had been ratified by the
people and is now in force.
A number of other cases were filed to declare the presidential proclamation
null and void. The main defense put up by the government was that the issue
was a political question and that the court had no jurisdiction to entertain the
case.
xxx
The government said that in a referendum held from January 10 to January
15, the vast majority ratified the draft of the Constitution. Note that all
members of the Supreme Court were residents of Manila, but none of them
had been notified of any referendum in their respective places of residence,
much less did they participate in the alleged referendum. None of them saw
any referendum proceeding.
In the Philippines, even local gossips spread like wild fire. So, a majority of
the members of the Court felt that there had been no referendum.
Second, a referendum cannot substitute for a plebiscite. There is a big
difference between a referendum and a plebiscite. But another group of
justices upheld the defense that the issue was a political question.
Whereupon, they dismissed the case. This is not the only major case in
which the plea of "political question" was set up. There have been a number
of other cases in the past.
x x x The defense of the political question was rejected because the issue
was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to perform its functions, it
faced the following questions: What is judicial power? What is a political
question?
The Supreme Court, like all other courts, has one main function: to settle
actual controversies involving conflicts of rights which are demandable and
enforceable. There are rights which are guaranteed by law but cannot be
enforced by a judiciary party. In a decided case, a husband complained that
his wife was unwilling to perform her duties as a wife. The Court said: "We
can tell your wife what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to discharge her main
marital duty to her husband. There are some rights guaranteed by law, but
they are so personal that to enforce them by actual compulsion would be
highly derogatory to human dignity."
This is why the first part of the second paragraph of Section I provides that:
Judicial power includes the duty of courts to settle actual controversies
involving rights which are legally demandable or enforceable . . .
The courts, therefore, cannot entertain, much less decide, hypothetical
questions. In a presidential system of government, the Supreme Court has,
also another important function. The powers of government are generally
considered divided into three branches: the Legislative, the Executive and
the Judiciary. Each one is supreme within its own sphere and independent of
the others. Because of that supremacy power to determine whether a given
law is valid or not is vested in courts of justice.
53
Briefly stated, courts of justice determine the limits of power of the agencies
and offices of the government as well as those of its officers. In other words,
the judiciary is the final arbiter on the question 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 or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which means that the
courts cannot hereafter evade the duty to settle matters of this nature, by
claiming that such matters constitute a political question.
I have made these extended remarks to the end that the Commissioners may
have an initial food for thought on the subject of the judiciary.103 (Italics in
the original; emphasis supplied)
During the deliberations of the Constitutional Commission, Chief Justice
Concepcion further clarified the concept of judicial power, thus:
MR. NOLLEDO. The Gentleman used the term "judicial power" but judicial
power is not vested in the Supreme Court alone but also in other lower courts
as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman seems to identify
political questions with jurisdictional questions. But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to ordinary cases
but where there is a question as to whether the government had authority or
had abused its authority to the extent of lacking jurisdiction or excess of
jurisdiction, that is not a political question. Therefore, the court has the duty
to decide.
xxx
FR. BERNAS. Ultimately, therefore, it will always have to be decided by the
Supreme Court according to the new numerical need for votes.
On another point, is it the intention of Section 1 to do away with the political
question doctrine?
MR. CONCEPCION. No.
FR. BERNAS. It is not.
MR. CONCEPCION. No, because whenever there is an abuse of discretion,
amounting to a lack of jurisdiction. . .
FR. BERNAS. So, I am satisfied with the answer that it is not intended to do
away with the political question doctrine.
MR. CONCEPCION. No, certainly not.
When this provision was originally drafted, it sought to define what is judicial
power. But the Gentleman will notice it says, "judicial power includes" and
the reason being that the definition that we might make may not cover all
possible areas.
FR. BERNAS. So, this is not an attempt to solve the problems arising from
the political question doctrine.
MR. CONCEPCION. It definitely does not eliminate the fact that truly political
questions are beyond the pale of judicial power.104 (Emphasis supplied)
From the foregoing record of the proceedings of the 1986 Constitutional
Commission, it is clear that judicial power is not only a power; it is also a
duty, a duty which cannot be abdicated by the mere specter of this creature
called the political question doctrine. Chief Justice Concepcion hastened to
clarify, however, that Section 1, Article VIII was not intended to do away with
"truly political questions." From this clarification it is gathered that there are
two species of political questions: (1) "truly political questions" and (2) those
which "are not truly political questions."
Truly political questions are thus beyond judicial review, the reason for
respect of the doctrine of separation of powers to be maintained. On the
other hand, by virtue of Section 1, Article VIII of the Constitution, courts can
review questions which are not truly political in nature.
As pointed out by amicus curiae former dean Pacifico Agabin of the UP
College of Law, this Court has in fact in a number of cases taken jurisdiction
over questions which are not truly political following the effectivity of the
present Constitution.
In Marcos v. Manglapus,105 this Court, speaking through Madame Justice
Irene Cortes, held:
The present Constitution limits resort to the political question doctrine and
broadens the scope of judicial inquiry into areas which the Court, under
previous constitutions, would have normally left to the political departments
to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice Teodoro
Padilla, this Court declared:
54
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases."108
(Emphasis and underscoring supplied)
And in Daza v. Singson,109 speaking through Justice Isagani Cruz, this
Court ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question.110 x x x
(Emphasis and underscoring supplied.)
Section 1, Article VIII, of the Court does not define what are justiciable
political questions and non-justiciable political questions, however.
Identification of these two species of political questions may be problematic.
There has been no clear standard. The American case of Baker v. Carr111
attempts to provide some:
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 questioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.112 (Underscoring supplied)
Of these standards, the more reliable have been the first three: (1) a textually
demonstrable constitutional commitment of the issue to a coordinate political
department; (2) the lack of judicially discoverable and manageable standards
for resolving it; and (3) the impossibility of deciding without an initial policy
determination of a kind clearly for non-judicial discretion. These standards
are not separate and distinct concepts but are interrelated to each in that the
presence of one strengthens the conclusion that the others are also present.
The problem in applying the foregoing standards is that the American
concept of judicial review is radically different from our current concept, for
Section 1, Article VIII of the Constitution provides our courts with far less
discretion in determining whether they should pass upon a constitutional
issue.
In our jurisdiction, the determination of a truly political question from a non-
justiciable political question lies in the answer to the question of whether
there are constitutionally imposed limits on powers or functions conferred
upon political bodies. If there are, then our courts are duty-bound to examine
whether the branch or instrumentality of the government properly acted
within such limits. This Court shall thus now apply this standard to the
present controversy.
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second impeachment complaint
constitute valid impeachable offenses under the Constitution.
II. Whether the second impeachment complaint was filed in accordance with
Section 3(4), Article XI of the Constitution.
III. Whether the legislative inquiry by the House Committee on Justice into
the Judicial Development Fund is an unconstitutional infringement of the
constitutionally mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on Impeachment
adopted by the 12th Congress are unconstitutional for violating the provisions
of Section 3, Article XI of the Constitution.
V. Whether the second impeachment complaint is barred under Section 3(5)
of Article XI of the Constitution.
The first issue goes into the merits of the second impeachment complaint
over which this Court has no jurisdiction. More importantly, any discussion of
this issue would require this Court to make a determination of what
constitutes an impeachable offense. Such a determination is a purely political
question which the Constitution has left to the sound discretion of the
legislation. Such an intent is clear from the deliberations of the Constitutional
Commission.113
Although Section 2 of Article XI of the Constitution enumerates six grounds
for impeachment, two of these, namely, other high crimes and betrayal of
public trust, elude a precise definition. In fact, an examination of the records
of the 1986 Constitutional Commission shows that the framers could find no
55
better way to approximate the boundaries of betrayal of public trust and other
high crimes than by alluding to both positive and negative examples of both,
without arriving at their clear cut definition or even a standard therefor.114
Clearly, the issue calls upon this court to decide a non-justiciable political
question which is beyond the scope of its judicial power under Section 1,
Article VIII.
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing the
constitutionality of a governmental act should be avoided whenever possible.
Thus, in the case of Sotto v. Commission on Elections,115 this Court held:
x x x It is a well-established rule that a court should not pass upon a
constitutional question and decide a law to be unconstitutional or invalid,
unless such question is raised by the parties and that when it is raised, if the
record also presents some other ground upon which the court may rest its
judgment, that course will be adopted and the constitutional question will be
left for consideration until a case arises in which a decision upon such
question will be unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of Agrarian
Reform,117 where this Court invalidated Sections 13 and 32 of Republic Act
No. 6657 for being confiscatory and violative of due process, to wit:
It has been established that this Court will assume jurisdiction over a
constitutional question only if it is shown that the essential requisites of a
judicial inquiry into such a question are first satisfied. Thus, there must be an
actual case or controversy involving a conflict of legal rights susceptible of
judicial determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the question is
unavoidably necessary to the decision of the case itself.118 [Emphasis
supplied]
Succinctly put, courts will not touch the issue of constitutionality unless it is
truly unavoidable and is the very lis mota or crux of the controversy.
As noted earlier, the instant consolidated petitions, while all seeking the
invalidity of the second impeachment complaint, collectively raise several
constitutional issues upon which the outcome of this controversy could
possibly be made to rest. In determining whether one, some or all of the
remaining substantial issues should be passed upon, this Court is guided by
the related cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to which it is
applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue that, among
other reasons, the second impeachment complaint is invalid since it directly
resulted from a Resolution120 calling for a legislative inquiry into the JDF,
which Resolution and legislative inquiry petitioners claim to likewise be
unconstitutional for being: (a) a violation of the rules and jurisprudence on
investigations in aid of legislation; (b) an open breach of the doctrine of
separation of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence of the
judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s claims, it is the
studied opinion of this Court that the issue of the constitutionality of the said
Resolution and resulting legislative inquiry is too far removed from the issue
of the validity of the second impeachment complaint. Moreover, the
resolution of said issue would, in the Court's opinion, require it to form a rule
of constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is required
by the facts of these consolidated cases. This opinion is further strengthened
by the fact that said petitioners have raised other grounds in support of their
petition which would not be adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of legislative
inquiries has already been enunciated by this Court in Bengzon, Jr. v. Senate
Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of both houses of
Congress to conduct inquiries in aid of legislation. Thus, Section 21, Article
VI thereof provides:
The Senate or the House of Representatives or any of its respective
committees may conduct inquiries in aid of legislation in accordance with its
duly published rules of procedure. The rights of persons appearing in or
affected by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries in aid of
legislation is not, therefore absolute or unlimited. Its exercise is
circumscribed by the afore-quoted provision of the Constitution. Thus, as
provided therein, the investigation must be "in aid of legislation in accordance
with its duly published rules of procedure" and that "the rights of persons
appearing in or affected by such inquiries shall be respected." It follows then
that the right rights of persons under the Bill of Rights must be respected,
including the right to due process and the right not be compelled to testify
against one's self.
56
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete Quirino
Quadra, while joining the original petition of petitioners Candelaria, et. al.,
introduce the new argument that since the second impeachment complaint
was verified and filed only by Representatives Gilberto Teodoro, Jr. and Felix
William Fuentebella, the same does not fall under the provisions of Section 3
(4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of impeachment is
filed by at least one-third of all the Members of the House, the same shall
constitute the Articles of Impeachment, and trial by the Senate shall forthwith
proceed.
They assert that while at least 81 members of the House of Representatives
signed a Resolution of Endorsement/Impeachment, the same did not satisfy
the requisites for the application of the afore-mentioned section in that the
"verified complaint or resolution of impeachment" was not filed "by at least
one-third of all the Members of the House." With the exception of
Representatives Teodoro and Fuentebella, the signatories to said Resolution
are alleged to have verified the same merely as a "Resolution of
Endorsement." Intervenors point to the "Verification" of the Resolution of
Endorsement which states that:
"We are the proponents/sponsors of the Resolution of Endorsement of the
abovementioned Complaint of Representatives Gilberto Teodoro and Felix
William B. Fuentebella x x x"
Intervenors Macalintal and Quadra further claim that what the Constitution
requires in order for said second impeachment complaint to automatically
become the Articles of Impeachment and for trial in the Senate to begin
"forthwith," is that the verified complaint be "filed," not merely endorsed, by at
least one-third of the Members of the House of Representatives. Not having
complied with this requirement, they concede that the second impeachment
complaint should have been calendared and referred to the House
Committee on Justice under Section 3(2), Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be filed by any
Member of the House of Representatives or by any citizen upon a resolution
of endorsement by any Member thereof, which shall be included in the Order
of Business within ten session days, and referred to the proper Committee
within three session days thereafter. The Committee, after hearing, and by a
majority vote of all its Members, shall submit its report to the House within
sixty session days from such referral, together with the corresponding
resolution. The resolution shall be calendared for consideration by the House
within ten session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong who opined
that for Section 3 (4), Article XI of the Constitution to apply, there should be
76 or more representatives who signed and verified the second impeachment
complaint as complainants, signed and verified the signatories to a resolution
of impeachment. Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the members of
the House of Representatives as endorsers is not the resolution of
impeachment contemplated by the Constitution, such resolution of
endorsement being necessary only from at least one Member whenever a
citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and Quadra,
does indeed limit the scope of the constitutional issues to the provisions on
impeachment, more compelling considerations militate against its adoption
as the lis mota or crux of the present controversy. Chief among this is the
fact that only Attorneys Macalintal and Quadra, intervenors in G.R. No.
160262, have raised this issue as a ground for invalidating the second
impeachment complaint. Thus, to adopt this additional ground as the basis
for deciding the instant consolidated petitions would not only render for
naught the efforts of the original petitioners in G.R. No. 160262, but the
efforts presented by the other petitioners as well.
Again, the decision to discard the resolution of this issue as unnecessary for
the determination of the instant cases is made easier by the fact that said
intervenors Macalintal and Quadra have joined in the petition of Candelaria,
et. al., adopting the latter's arguments and issues as their own.
Consequently, they are not unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably linked as
they are, constitute the very lis mota of the instant controversy: (1) whether
Sections 15 and 16 of Rule V of the House Impeachment Rules adopted by
the 12th Congress are unconstitutional for violating the provisions of Section
3, Article XI of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of Article XI of
the Constitution.
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on the ground
that the Senate, sitting as an impeachment court, has the sole power to try
and decide all cases of impeachment. Again, this Court reiterates that the
power of judicial review includes the power of review over justiciable issues
in impeachment proceedings.
57
On the other hand, respondents Speaker De Venecia et. al. argue that
"[t]here is a moral compulsion for the Court to not assume jurisdiction over
the impeachment because all the Members thereof are subject to
impeachment."125 But this argument is very much like saying the Legislature
has a moral compulsion not to pass laws with penalty clauses because
Members of the House of Representatives are subject to them.
The exercise of judicial restraint over justiciable issues is not an option
before this Court. Adjudication may not be declined, because this Court is not
legally disqualified. Nor can jurisdiction be renounced as there is no other
tribunal to which the controversy may be referred."126 Otherwise, this Court
would be shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this Court is duty-
bound to take cognizance of the instant petitions.127 In the august words of
amicus curiae Father Bernas, "jurisdiction is not just a power; it is a solemn
duty which may not be renounced. To renounce it, even if it is vexatious,
would be a dereliction of duty."
Even in cases where it is an interested party, the Court under our system of
government cannot inhibit itself and must rule upon the challenge because
no other office has the authority to do so.128 On the occasion that this Court
had been an interested party to the controversy before it, it has acted upon
the matter "not with officiousness but in the discharge of an unavoidable duty
and, as always, with detachment and fairness."129 After all, "by [his]
appointment to the office, the public has laid on [a member of the judiciary]
their confidence that [he] is mentally and morally fit to pass upon the merits
of their varied contentions. For this reason, they expect [him] to be fearless in
[his] pursuit to render justice, to be unafraid to displease any person, interest
or power and to be equipped with a moral fiber strong enough to resist the
temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of interest had
already been settled in the case of Abbas v. Senate Electoral Tribunal.131 In
that case, the petitioners filed with the respondent Senate Electoral Tribunal
a Motion for Disqualification or Inhibition of the Senators-Members thereof
from the hearing and resolution of SET Case No. 002-87 on the ground that
all of them were interested parties to said case as respondents therein. This
would have reduced the Tribunal's membership to only its three Justices-
Members whose disqualification was not sought, leaving them to decide the
matter. This Court held:
Where, as here, a situation is created which precludes the substitution of any
Senator sitting in the Tribunal by any of his other colleagues in the Senate
without inviting the same objections to the substitute's competence, the
proposed mass disqualification, if sanctioned and ordered, would leave the
Tribunal no alternative but to abandon a duty that no other court or body can
perform, but which it cannot lawfully discharge if shorn of the participation of
its entire membership of Senators.
To our mind, this is the overriding consideration — that the Tribunal be not
prevented from discharging a duty which it alone has the power to perform,
the performance of which is in the highest public interest as evidenced by its
being expressly imposed by no less than the fundamental law.
It is aptly noted in the first of the questioned Resolutions that the framers of
the Constitution could not have been unaware of the possibility of an election
contest that would involve all Senators—elect, six of whom would inevitably
have to sit in judgment thereon. Indeed, such possibility might surface again
in the wake of the 1992 elections when once more, but for the last time, all
24 seats in the Senate will be at stake. Yet the Constitution provides no
scheme or mode for settling such unusual situations or for the substitution of
Senators designated to the Tribunal whose disqualification may be sought.
Litigants in such situations must simply place their trust and hopes of
vindication in the fairness and sense of justice of the Members of the
Tribunal. Justices and Senators, singly and collectively.
Let us not be misunderstood as saying that no Senator-Member of the
Senate Electoral Tribunal may inhibit or disqualify himself from sitting in
judgment on any case before said Tribunal. Every Member of the Tribunal
may, as his conscience dictates, refrain from participating in the resolution of
a case where he sincerely feels that his personal interests or biases would
stand in the way of an objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate Electoral Tribunal
cannot legally function as such, absent its entire membership of Senators
and that no amendment of its Rules can confer on the three Justices-
Members alone the power of valid adjudication of a senatorial election
contest.
More recently in the case of Estrada v. Desierto,132 it was held that:
Moreover, to disqualify any of the members of the Court, particularly a
majority of them, is nothing short of pro tanto depriving the Court itself of its
jurisdiction as established by the fundamental law. Disqualification of a judge
is a deprivation of his judicial power. And if that judge is the one designated
by the Constitution to exercise the jurisdiction of his court, as is the case with
the Justices of this Court, the deprivation of his or their judicial power is
equivalent to the deprivation of the judicial power of the court itself. It affects
the very heart of judicial independence. The proposed mass disqualification,
if sanctioned and ordered, would leave the Court no alternative but to
58
abandon a duty which it cannot lawfully discharge if shorn of the participation
of its entire membership of Justices.133 (Italics in the original)
Besides, there are specific safeguards already laid down by the Court when it
exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan cited the
"seven pillars" of limitations of the power of judicial review, enunciated by US
Supreme Court Justice Brandeis in Ashwander v. TVA135 as follows:
1. The Court will not pass upon the constitutionality of legislation in a friendly,
non-adversary proceeding, declining because to decide such questions 'is
legitimate only in the last resort, and as a necessity in the determination of
real, earnest and vital controversy between individuals. It never was the
thought that, by means of a friendly suit, a party beaten in the legislature
could transfer to the courts an inquiry as to the constitutionality of the
legislative act.'
2. The Court will not 'anticipate a question of constitutional law in advance of
the necessity of deciding it.' . . . 'It is not the habit of the Court to decide
questions of a constitutional nature unless absolutely necessary to a decision
of the case.'
3. The Court will not 'formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be applied.'
4. The Court will not pass upon a constitutional question although properly
presented by the record, if there is also present some other ground upon
which the case may be disposed of. This rule has found most varied
application. Thus, if a case can be decided on either of two grounds, one
involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter. Appeals
from the highest court of a state challenging its decision of a question under
the Federal Constitution are frequently dismissed because the judgment can
be sustained on an independent state ground.
5. The Court will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. Among the many
applications of this rule, none is more striking than the denial of the right of
challenge to one who lacks a personal or property right. Thus, the challenge
by a public official interested only in the performance of his official duty will
not be entertained . . . In Fairchild v. Hughes, the Court affirmed the
dismissal of a suit brought by a citizen who sought to have the Nineteenth
Amendment declared unconstitutional. In Massachusetts v. Mellon, the
challenge of the federal Maternity Act was not entertained although made by
the Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a statute at the
instance of one who has availed himself of its benefits.
7. When the validity of an act of the Congress is drawn in question, and even
if a serious doubt of constitutionality is raised, it is a cardinal principle that
this Court will first ascertain whether a construction of the statute is fairly
possible by which the question may be avoided (citations omitted).
The foregoing "pillars" of limitation of judicial review, summarized in
Ashwander v. TVA from different decisions of the United States Supreme
Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case
2. that rules of constitutional law shall be formulated only as required by the
facts of the case
3. that judgment may not be sustained on some other ground
4. that there be actual injury sustained by the party by reason of the
operation of the statute
5. that the parties are not in estoppel
6. that the Court upholds the presumption of constitutionality.
As stated previously, parallel guidelines have been adopted by this Court in
the exercise of judicial review:
1. actual case or controversy calling for the exercise of judicial power
2. the person challenging the act must have "standing" to challenge; he must
have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the earliest possible
opportunity
4. the issue of constitutionality must be the very lis mota of the case.136
Respondents Speaker de Venecia, et. al. raise another argument for judicial
restraint the possibility that "judicial review of impeachments might also lead
to embarrassing conflicts between the Congress and the [J]udiciary." They
stress the need to avoid the appearance of impropriety or conflicts of interest
in judicial hearings, and the scenario that it would be confusing and
humiliating and risk serious political instability at home and abroad if the
judiciary countermanded the vote of Congress to remove an impeachable
official.137 Intervenor Soriano echoes this argument by alleging that failure
of this Court to enforce its Resolution against Congress would result in the
59
diminution of its judicial authority and erode public confidence and faith in the
judiciary.
Such an argument, however, is specious, to say the least. As correctly stated
by the Solicitor General, the possibility of the occurrence of a constitutional
crisis is not a reason for this Court to refrain from upholding the Constitution
in all impeachment cases. Justices cannot abandon their constitutional duties
just because their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court refuses to act.
x x x Frequently, the fight over a controversial legislative or executive act is
not regarded as settled until the Supreme Court has passed upon the
constitutionality of the act involved, the judgment has not only juridical effects
but also political consequences. Those political consequences may follow
even where the Court fails to grant the petitioner's prayer to nullify an act for
lack of the necessary number of votes. Frequently, failure to act explicitly,
one way or the other, itself constitutes a decision for the respondent and
validation, or at least quasi-validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was split and
"in the end there were not enough votes either to grant the petitions, or to
sustain respondent's claims,"140 the pre-existing constitutional order was
disrupted which paved the way for the establishment of the martial law
regime.
Such an argument by respondents and intervenor also presumes that the
coordinate branches of the government would behave in a lawless manner
and not do their duty under the law to uphold the Constitution and obey the
laws of the land. Yet there is no reason to believe that any of the branches of
government will behave in a precipitate manner and risk social upheaval,
violence, chaos and anarchy by encouraging disrespect for the fundamental
law of the land.
Substituting the word public officers for judges, this Court is well guided by
the doctrine in People v. Veneracion, to wit:141
Obedience to the rule of law forms the bedrock of our system of justice. If
[public officers], under the guise of religious or political beliefs were allowed
to roam unrestricted beyond boundaries within which they are required by
law to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad discretionary
powers by those acting under its authority. Under this system, [public
officers] are guided by the Rule of Law, and ought "to protect and enforce it
without fear or favor," resist encroachments by governments, political parties,
or even the interference of their own personal beliefs.
Constitutionality of the Rules of Procedure for Impeachment
Proceedings adopted by the 12th Congress
Respondent House of Representatives, through Speaker De Venecia, argues
that Sections 16 and 17 of Rule V of the House Impeachment Rules do not
violate Section 3 (5) of Article XI of our present Constitution, contending that
the term "initiate" does not mean "to file;" that Section 3 (1) is clear in that it is
the House of Representatives, as a collective body, which has the exclusive
power to initiate all cases of impeachment; that initiate could not possibly
mean "to file" because filing can, as Section 3 (2), Article XI of the
Constitution provides, only be accomplished in 3 ways, to wit: (1) by a
verified complaint for impeachment by any member of the House of
Representatives; or (2) by any citizen upon a resolution of endorsement by
any member; or (3) by at least 1/3 of all the members of the House.
Respondent House of Representatives concludes that the one year bar
prohibiting the initiation of impeachment proceedings against the same
officials could not have been violated as the impeachment complaint against
Chief Justice Davide and seven Associate Justices had not been initiated as
the House of Representatives, acting as the collective body, has yet to act on
it.
The resolution of this issue thus hinges on the interpretation of the term
"initiate." Resort to statutory construction is, therefore, in order.
That the sponsor of the provision of Section 3(5) of the Constitution,
Commissioner Florenz Regalado, who eventually became an Associate
Justice of this Court, agreed on the meaning of "initiate" as "to file," as
proffered and explained by Constitutional Commissioner Maambong during
the Constitutional Commission proceedings, which he (Commissioner
Regalado) as amicus curiae affirmed during the oral arguments on the
instant petitions held on November 5, 2003 at which he added that the act of
"initiating" included the act of taking initial action on the complaint, dissipates
any doubt that indeed the word "initiate" as it twice appears in Article XI (3)
and (5) of the Constitution means to file the complaint and take initial action
on it.
"Initiate" of course is understood by ordinary men to mean, as dictionaries
do, to begin, to commence, or set going. As Webster's Third New
International Dictionary of the English Language concisely puts it, it means
"to perform or facilitate the first action," which jibes with Justice Regalado's
position, and that of Father Bernas, who elucidated during the oral
arguments of the instant petitions on November 5, 2003 in this wise:
60
Briefly then, an impeachment proceeding is not a single act. It is a comlexus
of acts consisting of a beginning, a middle and an end. The end is the
transmittal of the articles of impeachment to the Senate. The middle consists
of those deliberative moments leading to the formulation of the articles of
impeachment. The beginning or the initiation is the filing of the complaint and
its referral to the Committee on Justice.
Finally, it should be noted that the House Rule relied upon by
Representatives Cojuangco and Fuentebella says that impeachment is
"deemed initiated" when the Justice Committee votes in favor of
impeachment or when the House reverses a contrary vote of the Committee.
Note that the Rule does not say "impeachment proceedings" are initiated but
rather are "deemed initiated." The language is recognition that initiation
happened earlier, but by legal fiction there is an attempt to postpone it to a
time after actual initiation. (Emphasis and underscoring supplied)
As stated earlier, one of the means of interpreting the Constitution is looking
into the intent of the law. Fortunately, the intent of the framers of the 1987
Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding the procedure and
the substantive provisions on impeachment, I understand there have been
many proposals and, I think, these would need some time for Committee
action.
However, I would just like to indicate that I submitted to the Committee a
resolution on impeachment proceedings, copies of which have been
furnished the Members of this body. This is borne out of my experience as a
member of the Committee on Justice, Human Rights and Good Government
which took charge of the last impeachment resolution filed before the First
Batasang Pambansa. For the information of the Committee, the resolution
covers several steps in the impeachment proceedings starting with initiation,
action of the Speaker committee action, calendaring of report, voting on the
report, transmittal referral to the Senate, trial and judgment by the Senate.
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving for a
reconsideration of the approval of the amendment submitted by
Commissioner Regalado, but I will just make of record my thinking that we do
not really initiate the filing of the Articles of Impeachment on the floor. The
procedure, as I have pointed out earlier, was that the initiation starts with the
filing of the complaint. And what is actually done on the floor is that the
committee resolution containing the Articles of Impeachment is the one
approved by the body.
As the phraseology now runs, which may be corrected by the Committee on
Style, it appears that the initiation starts on the floor. If we only have time, I
could cite examples in the case of the impeachment proceedings of
President Richard Nixon wherein the Committee on the Judiciary submitted
the recommendation, the resolution, and the Articles of Impeachment to the
body, and it was the body who approved the resolution. It is not the body
which initiates it. It only approves or disapproves the resolution. So, on that
score, probably the Committee on Style could help in rearranging these
words because we have to be very technical about this. I have been bringing
with me The Rules of the House of Representatives of the U.S. Congress.
The Senate Rules are with me. The proceedings on the case of Richard
Nixon are with me. I have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this on record.
xxx
MR. MAAMBONG. I would just like to move for a reconsideration of the
approval of Section 3 (3). My reconsideration will not at all affect the
substance, but it is only in keeping with the exact formulation of the Rules of
the House of Representatives of the United States regarding impeachment.
I am proposing, Madam President, without doing damage to any of this
provision, that on page 2, Section 3 (3), from lines 17 to 18, we delete the
words which read: "to initiate impeachment proceedings" and the comma (,)
and insert on line 19 after the word "resolution" the phrase WITH THE
ARTICLES, and then capitalize the letter "i" in "impeachment" and replace
the word "by" with OF, so that the whole section will now read: "A vote of at
least one-third of all the Members of the House shall be necessary either to
affirm a resolution WITH THE ARTICLES of Impeachment OF the Committee
or to override its contrary resolution. The vote of each Member shall be
recorded."
I already mentioned earlier yesterday that the initiation, as far as the House
of Representatives of the United States is concerned, really starts from the
filing of the verified complaint and every resolution to impeach always carries
with it the Articles of Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the direct filing of a
verified compliant of one-third of all the Members of the House. I will mention
again, Madam President, that my amendment will not vary the substance in
any way. It is only in keeping with the uniform procedure of the House of
Representatives of the United States Congress. Thank you, Madam
President.143 (Italics in the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was clarified and
accepted by the Committee on the Accountability of Public Officers.144
61
It is thus clear that the framers intended "initiation" to start with the filing of
the complaint. In his amicus curiae brief, Commissioner Maambong
explained that "the obvious reason in deleting the phrase "to initiate
impeachment proceedings" as contained in the text of the provision of
Section 3 (3) was to settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing of the complaint,
and the vote of one-third of the House in a resolution of impeachment does
not initiate the impeachment proceedings which was already initiated by the
filing of a verified complaint under Section 3, paragraph (2), Article XI of the
Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the same view as
is Father Bernas, who was also a member of the 1986 Constitutional
Commission, that the word "initiate" as used in Article XI, Section 3(5) means
to file, both adding, however, that the filing must be accompanied by an
action to set the complaint moving.
During the oral arguments before this Court, Father Bernas clarified that the
word "initiate," appearing in the constitutional provision on impeachment, viz:
Section 3 (1) The House of Representatives shall have the exclusive power
to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment proceeding."
Father Bernas explains that in these two provisions, the common verb is "to
initiate." The object in the first sentence is "impeachment case." The object in
the second sentence is "impeachment proceeding." Following the principle of
reddendo singuala sinuilis, the term "cases" must be distinguished from the
term "proceedings." An impeachment case is the legal controversy that must
be decided by the Senate. Above-quoted first provision provides that the
House, by a vote of one-third of all its members, can bring a case to the
Senate. It is in that sense that the House has "exclusive power" to initiate all
cases of impeachment. No other body can do it. However, before a decision
is made to initiate a case in the Senate, a "proceeding" must be followed to
arrive at a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other hand,
proceeding is a progressive noun. It has a beginning, a middle, and an end. It
takes place not in the Senate but in the House and consists of several steps:
(1) there is the filing of a verified complaint either by a Member of the House
of Representatives or by a private citizen endorsed by a Member of the
House of the Representatives; (2) there is the processing of this complaint by
the proper Committee which may either reject the complaint or uphold it; (3)
whether the resolution of the Committee rejects or upholds the complaint, the
resolution must be forwarded to the House for further processing; and (4)
there is the processing of the same complaint by the House of
Representatives which either affirms a favorable resolution of the Committee
or overrides a contrary resolution by a vote of one-third of all the members. If
at least one third of all the Members upholds the complaint, Articles of
Impeachment are prepared and transmitted to the Senate. It is at this point
that the House "initiates an impeachment case." It is at this point that an
impeachable public official is successfully impeached. That is, he or she is
successfully charged with an impeachment "case" before the Senate as
impeachment court.
Father Bernas further explains: The "impeachment proceeding" is not
initiated when the complaint is transmitted to the Senate for trial because that
is the end of the House proceeding and the beginning of another proceeding,
namely the trial. Neither is the "impeachment proceeding" initiated when the
House deliberates on the resolution passed on to it by the Committee,
because something prior to that has already been done. The action of the
House is already a further step in the proceeding, not its initiation or
beginning. Rather, the proceeding is initiated or begins, when a verified
complaint is filed and referred to the Committee on Justice for action. This is
the initiating step which triggers the series of steps that follow.
The framers of the Constitution also understood initiation in its ordinary
meaning. Thus when a proposal reached the floor proposing that "A vote of
at least one-third of all the Members of the House shall be necessary… to
initiate impeachment proceedings," this was met by a proposal to delete the
line on the ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the line was
deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No impeachment
proceeding shall be initiated against the same official more than once within
a period of one year," it means that no second verified complaint may be
accepted and referred to the Committee on Justice for action. By his
explanation, this interpretation is founded on the common understanding of
the meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and sophisticated, as they
understand it; and that ordinary people read ordinary meaning into ordinary
words and not abstruse meaning, they ratify words as they understand it and
not as sophisticated lawyers confuse it.
62
To the argument that only the House of Representatives as a body can
initiate impeachment proceedings because Section 3 (1) says "The House of
Representatives shall have the exclusive power to initiate all cases of
impeachment," This is a misreading of said provision and is contrary to the
principle of reddendo singula singulis by equating "impeachment cases" with
"impeachment proceeding."
From the records of the Constitutional Commission, to the amicus curiae
briefs of two former Constitutional Commissioners, it is without a doubt that
the term "to initiate" refers to the filing of the impeachment complaint coupled
with Congress' taking initial action of said complaint.
Having concluded that the initiation takes place by the act of filing and
referral or endorsement of the impeachment complaint to the House
Committee on Justice or, by the filing by at least one-third of the members of
the House of Representatives with the Secretary General of the House, the
meaning of Section 3 (5) of Article XI becomes clear. Once an impeachment
complaint has been initiated, another impeachment complaint may not be
filed against the same official within a one year period.
Under Sections 16 and 17 of Rule V of the House Impeachment Rules,
impeachment proceedings are deemed initiated (1) if there is a finding by the
House Committee on Justice that the verified complaint and/or resolution is
sufficient in substance, or (2) once the House itself affirms or overturns the
finding of the Committee on Justice that the verified complaint and/or
resolution is not sufficient in substance or (3) by the filing or endorsement
before the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the members of
the House. These rules clearly contravene Section 3 (5) of Article XI since
the rules give the term "initiate" a meaning different meaning from filing and
referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this Court could
not use contemporaneous construction as an aid in the interpretation of
Sec.3 (5) of Article XI, citing Vera v. Avelino147 wherein this Court stated
that "their personal opinions (referring to Justices who were delegates to the
Constitution Convention) on the matter at issue expressed during this Court's
our deliberations stand on a different footing from the properly recorded
utterances of debates and proceedings." Further citing said case, he states
that this Court likened the former members of the Constitutional Convention
to actors who are so absorbed in their emotional roles that intelligent
spectators may know more about the real meaning because of the latter's
balanced perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present petitions.
There are at present only two members of this Court who participated in the
1986 Constitutional Commission – Chief Justice Davide and Justice Adolf
Azcuna. Chief Justice Davide has not taken part in these proceedings for
obvious reasons. Moreover, this Court has not simply relied on the personal
opinions now given by members of the Constitutional Commission, but has
examined the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section 3 (8) of
Article XI, it is clear and unequivocal that it and only it has the power to make
and interpret its rules governing impeachment. Its argument is premised on
the assumption that Congress has absolute power to promulgate its rules.
This assumption, however, is misplaced.
Section 3 (8) of Article XI provides that "The Congress shall promulgate its
rules on impeachment to effectively carry out the purpose of this section."
Clearly, its power to promulgate its rules on impeachment is limited by the
phrase "to effectively carry out the purpose of this section." Hence, these
rules cannot contravene the very purpose of the Constitution which said rules
were intended to effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to make rules, viz:
Section 3. (1) x x x
(2) A verified complaint for impeachment may be filed by any Member of the
House of Representatives or by any citizen upon a resolution of endorsement
by any Member thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper Committee within three
session days thereafter. The Committee, after hearing, and by a majority
vote of all its Members, shall submit its report to the House within sixty
session days from such referral, together with the corresponding resolution.
The resolution shall be calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the House shall be
necessary to either affirm a favorable resolution with the Articles of
Impeachment of the Committee, or override its contrary resolution. The vote
of each Member shall be recorded.
(4) In case the verified complaint or resolution of impeachment is filed by at
least one-third of all the Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be initiated against the same official
more than once within a period of one year.
63
It is basic that all rules must not contravene the Constitution which is the
fundamental law. If as alleged Congress had absolute rule making power,
then it would by necessary implication have the power to alter or amend the
meaning of the Constitution without need of referendum.
In Osmeña v. Pendatun,149 this Court held that it is within the province of
either House of Congress to interpret its rules and that it was the best judge
of what constituted "disorderly behavior" of its members. However, in Paceta
v. Secretary of the Commission on Appointments,150 Justice (later Chief
Justice) Enrique Fernando, speaking for this Court and quoting Justice
Brandeis in United States v. Smith,151 declared that where the construction
to be given to a rule affects persons other than members of the Legislature,
the question becomes judicial in nature. In Arroyo v. De Venecia,152 quoting
United States v. Ballin, Joseph & Co.,153 Justice Vicente Mendoza,
speaking for this Court, held that while the Constitution empowers each
house to determine its rules of proceedings, it may not by its rules ignore
constitutional restraints or violate fundamental rights, and further that there
should be a reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be attained. It is only
within these limitations that all matters of method are open to the
determination of the Legislature. In the same case of Arroyo v. De Venecia,
Justice Reynato S. Puno, in his Concurring and Dissenting Opinion, was
even more emphatic as he stressed that in the Philippine setting there is
even more reason for courts to inquire into the validity of the Rules of
Congress, viz:
With due respect, I do not agree that the issues posed by the petitioner are
non-justiciable. Nor do I agree that we will trivialize the principle of separation
of power if we assume jurisdiction over he case at bar. Even in the United
States, the principle of separation of power is no longer an impregnable
impediment against the interposition of judicial power on cases involving
breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v Ballin (144 US 1) as a
window to view the issues before the Court. It is in Ballin where the US
Supreme Court first defined the boundaries of the power of the judiciary to
review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each house may
determine the rules of its proceedings." It appears that in pursuance of this
authority the House had, prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of the Speaker, the
names of members sufficient to make a quorum in the hall of the House who
do not vote shall be noted by the clerk and recorded in the journal, and
reported to the Speaker with the names of the members voting, and be
counted and announced in determining the presence of a quorum to do
business. (House Journal, 230, Feb. 14, 1890)
The action taken was in direct compliance with this rule. The question,
therefore, is as to the validity of this rule, and not what methods the Speaker
may of his own motion resort to for determining the presence of a quorum,
nor what matters the Speaker or clerk may of their own volition place upon
the journal. Neither do the advantages or disadvantages, the wisdom or folly,
of such a rule present any matters for judicial consideration. With the courts
the question is only one of power. The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a reasonable
relation between the mode or method of proceedings established by the rule
and the result which is sought to be attained. But within these limitations all
matters of method are open to the determination of the House, and it is no
impeachment of the rule to say that some other way would be better, more
accurate, or even more just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a length of time. The
power to make rules is not one which once exercised is exhausted. It is a
continuous power, always subject to be exercised by the House, and within
the limitations suggested, absolute and beyond the challenge of any other
body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to pass upon the validity of
congressional rules, i.e, whether they are constitutional. Rule XV was
examined by the Court and it was found to satisfy the test: (1) that it did not
ignore any constitutional restraint; (2) it did not violate any fundamental right;
and (3) its method had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its jurisdiction to be
defeated by the mere invocation of the principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling reason for courts to
categorically reject the political question defense when its interposition will
cover up abuse of power. For section 1, Article VIII of our Constitution was
intentionally cobbled to empower courts "x x x 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."
This power is new and was not granted to our courts in the 1935 and 1972
Constitutions. It was not also xeroxed from the US Constitution or any foreign
64
state constitution. The CONCOM granted this enormous power to our courts
in view of our experience under martial law where abusive exercises of state
power were shielded from judicial scrutiny by the misuse of the political
question doctrine. Led by the eminent former Chief Justice Roberto
Concepcion, the CONCOM expanded and sharpened the checking powers of
the judiciary vis-à-vis the Executive and the Legislative departments of
government.
xxx
The Constitution cannot be any clearer. What it granted to this Court is not a
mere power which it can decline to exercise. Precisely to deter this
disinclination, the Constitution imposed it as a duty of this Court to strike
down any act of a branch or instrumentality of government or any of its
officials done with grave abuse of discretion amounting to lack or excess of
jurisdiction. Rightly or wrongly, the Constitution has elongated the checking
powers of this Court against the other branches of government despite their
more democratic character, the President and the legislators being elected
by the people.
xxx
The provision defining judicial power as including the 'duty of the courts of
justice. . . 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' constitutes the capstone of the
efforts of the Constitutional Commission to upgrade the powers of this court
vis-à-vis the other branches of government. This provision was dictated by
our experience under martial law which taught us that a stronger and more
independent judiciary is needed to abort abuses in government. x x x
xxx
In sum, I submit that in imposing to this Court the duty to annul acts of
government committed with grave abuse of discretion, the new Constitution
transformed this Court from passivity to activism. This transformation,
dictated by our distinct experience as nation, is not merely evolutionary but
revolutionary. Under the 1935 and the 1973 Constitutions, this Court
approached constitutional violations by initially determining what it cannot do;
under the 1987 Constitution, there is a shift in stress – this Court is mandated
to approach constitutional violations not by finding out what it should not do
but what it must do. The Court must discharge this solemn duty by not
resuscitating a past that petrifies the present.
I urge my brethren in the Court to give due and serious consideration to this
new constitutional provision as the case at bar once more calls us to define
the parameters of our power to review violations of the rules of the House.
We will not be true to our trust as the last bulwark against government
abuses if we refuse to exercise this new power or if we wield it with timidity.
To be sure, it is this exceeding timidity to unsheathe the judicial sword that
has increasingly emboldened other branches of government to denigrate, if
not defy, orders of our courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the latitude of judicial
power is distinctly Filipino and its interpretation should not be depreciated by
undue reliance on inapplicable foreign jurisprudence. In resolving the case at
bar, the lessons of our own history should provide us the light and not the
experience of foreigners. (Italics in the original emphasis and underscoring
supplied)
Thus, the ruling in Osmena v. Pendatun is not applicable to the instant
petitions. Here, the third parties alleging the violation of private rights and the
Constitution are involved.
Neither may respondent House of Representatives' rely on Nixon v. US158
as basis for arguing that this Court may not decide on the constitutionality of
Sections 16 and 17 of the House Impeachment Rules. As already observed,
the U.S. Federal Constitution simply provides that "the House of
Representatives shall have the sole power of impeachment." It adds nothing
more. It gives no clue whatsoever as to how this "sole power" is to be
exercised. No limitation whatsoever is given. Thus, the US Supreme Court
concluded that there was a textually demonstrable constitutional commitment
of a constitutional power to the House of Representatives. This reasoning
does not hold with regard to impeachment power of the Philippine House of
Representatives since our Constitution, as earlier enumerated, furnishes
several provisions articulating how that "exclusive power" is to be exercised.
The provisions of Sections 16 and 17 of Rule V of the House Impeachment
Rules which state that impeachment proceedings are deemed initiated (1) if
there is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once the House
itself affirms or overturns the finding of the Committee on Justice that the
verified complaint and/or resolution is not sufficient in substance or (3) by the
filing or endorsement before the Secretary-General of the House of
Representatives of a verified complaint or a resolution of impeachment by at
least 1/3 of the members of the House thus clearly contravene Section 3 (5)
of Article XI as they give the term "initiate" a meaning different from "filing."
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing of the
impeachment complaint and referral to the House Committee on Justice, the
initial action taken thereon, the meaning of Section 3 (5) of Article XI
becomes clear. Once an impeachment complaint has been initiated in the
65
foregoing manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the Constitution.
In fine, considering that the first impeachment complaint, was filed by former
President Estrada against Chief Justice Hilario G. Davide, Jr., along with
seven associate justices of this Court, on June 2, 2003 and referred to the
House Committee on Justice on August 5, 2003, the second impeachment
complaint filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
Fuentebella against the Chief Justice on October 23, 2003 violates the
constitutional prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.
Conclusion
If there is anything constant about this country, it is that there is always a
phenomenon that takes the center stage of our individual and collective
consciousness as a people with our characteristic flair for human drama,
conflict or tragedy. Of course this is not to demean the seriousness of the
controversy over the Davide impeachment. For many of us, the past two
weeks have proven to be an exasperating, mentally and emotionally
exhausting experience. Both sides have fought bitterly a dialectical struggle
to articulate what they respectively believe to be the correct position or view
on the issues involved. Passions had ran high as demonstrators, whether for
or against the impeachment of the Chief Justice, took to the streets armed
with their familiar slogans and chants to air their voice on the matter. Various
sectors of society - from the business, retired military, to the academe and
denominations of faith – offered suggestions for a return to a state of
normalcy in the official relations of the governmental branches affected to
obviate any perceived resulting instability upon areas of national life.
Through all these and as early as the time when the Articles of Impeachment
had been constituted, this Court was specifically asked, told, urged and
argued to take no action of any kind and form with respect to the prosecution
by the House of Representatives of the impeachment complaint against the
subject respondent public official. When the present petitions were knocking
so to speak at the doorsteps of this Court, the same clamor for non-
interference was made through what are now the arguments of "lack of
jurisdiction," "non-justiciability," and "judicial self-restraint" aimed at halting
the Court from any move that may have a bearing on the impeachment
proceedings.
This Court did not heed the call to adopt a hands-off stance as far as the
question of the constitutionality of initiating the impeachment complaint
against Chief Justice Davide is concerned. To reiterate what has been
already explained, the Court found the existence in full of all the requisite
conditions for its exercise of its constitutionally vested power and duty of
judicial review over an issue whose resolution precisely called for the
construction or interpretation of a provision of the fundamental law of the
land. What lies in here is an issue of a genuine constitutional material which
only this Court can properly and competently address and adjudicate in
accordance with the clear-cut allocation of powers under our system of
government. Face-to-face thus with a matter or problem that squarely falls
under the Court's jurisdiction, no other course of action can be had but for it
to pass upon that problem head on.
The claim, therefore, that this Court by judicially entangling itself with the
process of impeachment has effectively set up a regime of judicial
supremacy, is patently without basis in fact and in law.
This Court in the present petitions subjected to judicial scrutiny and resolved
on the merits only the main issue of whether the impeachment proceedings
initiated against the Chief Justice transgressed the constitutionally imposed
one-year time bar rule. Beyond this, it did not go about assuming jurisdiction
where it had none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this Court to assert
judicial dominance over the other two great branches of the government.
Rather, the raison d'etre of the judiciary is to complement the discharge by
the executive and legislative of their own powers to bring about ultimately the
beneficent effects of having founded and ordered our society upon the rule of
law.
It is suggested that by our taking cognizance of the issue of constitutionality
of the impeachment proceedings against the Chief Justice, the members of
this Court have actually closed ranks to protect a brethren. That the
members' interests in ruling on said issue is as much at stake as is that of the
Chief Justice. Nothing could be farther from the truth.
The institution that is the Supreme Court together with all other courts has
long held and been entrusted with the judicial power to resolve conflicting
legal rights regardless of the personalities involved in the suits or actions.
This Court has dispensed justice over the course of time, unaffected by
whomsoever stood to benefit or suffer therefrom, unfraid by whatever
imputations or speculations could be made to it, so long as it rendered
judgment according to the law and the facts. Why can it not now be trusted to
wield judicial power in these petitions just because it is the highest ranking
magistrate who is involved when it is an incontrovertible fact that the
fundamental issue is not him but the validity of a government branch's official
act as tested by the limits set by the Constitution? Of course, there are rules
on the inhibition of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now from the suit at
66
bar is to regard the Supreme Court as likely incapable of impartiality when
one of its members is a party to a case, which is simply a non sequitur.

No one is above the law or the Constitution. This is a basic precept in any
legal system which recognizes equality of all men before the law as essential
to the law's moral authority and that of its agents to secure respect for and
obedience to its commands. Perhaps, there is no other government branch
or instrumentality that is most zealous in protecting that principle of legal
equality other than the Supreme Court which has discerned its real meaning
and ramifications through its application to numerous cases especially of the
high-profile kind in the annals of jurisprudence. The Chief Justice is not
above the law and neither is any other member of this Court. But just
because he is the Chief Justice does not imply that he gets to have less in
law than anybody else. The law is solicitous of every individual's rights
irrespective of his station in life.

The Filipino nation and its democratic institutions have no doubt been put to
test once again by this impeachment case against Chief Justice Hilario
Davide. Accordingly, this Court has resorted to no other than the Constitution
in search for a solution to what many feared would ripen to a crisis in
government. But though it is indeed immensely a blessing for this Court to
have found answers in our bedrock of legal principles, it is equally important
that it went through this crucible of a democratic process, if only to discover
that it can resolve differences without the use of force and aggression upon
each other.

WHEREFORE, Sections 16 and 17 of Rule V of the Rules of Procedure in

Impeachment Proceedings which were approved by the House of
Representatives on November 28, 2001 are unconstitutional. Consequently,
the second impeachment complaint against Chief Justice Hilario G. Davide,
Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix
William B. Fuentebella with the Office of the Secretary General of the House
of Representatives on October 23, 2003 is barred under paragraph 5, section
3 of Article XI of the Constitution.

SO ORDERED.

67
G.R. No. 143855 September 21, 2010 D store of foreign
enterprises specializing
REPRESENTATIVES GERARDO S. ESPINA, ORLANDO FUA, JR., in high-end or luxury
PROSPERO AMATONG, ROBERT ACE S. BARBERS, RAUL M. products
GONZALES, PROSPERO PICHAY, JUAN MIGUEL ZUBIRI and
FRANKLIN BAUTISTA, Petitioners, vs. HON. RONALDO ZAMORA, JR. R.A. 8762 also allows natural-born Filipino citizens, who had lost their
(Executive Secretary), HON. MAR ROXAS (Secretary of Trade and citizenship and now reside in the Philippines, to engage in the retail trade
Industry), HON. FELIPE MEDALLA (Secretary of National Economic and business with the same rights as Filipino citizens.
Development Authority), GOV. RAFAEL BUENAVENTURA (Bangko
Sentral ng Pilipinas) and HON. LILIA BAUTISTA (Chairman, Securities On October 11, 2000 petitioners ***Magtanggol T. Gunigundo I, Michael T.
and Exchange Commission), Respondents. Defensor, Gerardo S. Espina, Benjamin S. Lim, Orlando Fua, Jr., Prospero
Amatong, Sergio Apostol, Robert Ace S. Barbers, Enrique Garcia, Jr., Raul
DECISION M. Gonzales, Jaime Jacob, Apolinario Lozada, Jr., Leonardo Montemayor,
Ma. Elena Palma-Gil, Prospero Pichay, Juan Miguel Zubiri and Franklin
ABAD, J.: Bautista, all members of the House of Representatives, filed the present
petition, assailing the constitutionality of R.A. 8762 on the following grounds:
This case calls upon the Court to exercise its power of judicial review and
determine the constitutionality of the Retail Trade Liberalization Act of 2000, First, the law runs afoul of Sections 9, 19, and 20 of Article II of the
which has been assailed as in breach of the constitutional mandate for the Constitution which enjoins the State to place the national economy under the
development of a self-reliant and independent national economy effectively control of Filipinos to achieve equal distribution of opportunities, promote
controlled by Filipinos. industrialization and full employment, and protect Filipino enterprise against
unfair competition and trade policies.
The Facts and the Case
Second, the implementation of R.A. 8762 would lead to alien control of the
On March 7, 2000 President Joseph E. Estrada signed into law Republic Act retail trade, which taken together with alien dominance of other areas of
(R.A.) 8762, also known as the Retail Trade Liberalization Act of 2000. It business, would result in the loss of effective Filipino control of the economy.
expressly repealed R.A. 1180, which absolutely prohibited foreign nationals
from engaging in the retail trade business. R.A. 8762 now allows them to do Third, foreign retailers like Walmart and K-Mart would crush Filipino retailers
so under four categories: and sari-sari store vendors, destroy self-employment, and bring about more
unemployment.
Category Less than Exclusively for Filipino citizens and
A US$2,500,000.00 corporations wholly owned by Fourth, the World Bank-International Monetary Fund had improperly imposed
Filipino citizens. the passage of R.A. 8762 on the government as a condition for the release of
Category US$2,500,000.00 up For the first two years of R.A. certain loans.
B but less than 8762’s effectivity, foreign ownership
US$7,500,000.00 is allowed up to 60%. After the two- Fifth, there is a clear and present danger that the law would promote
year period, 100% foreign equity monopolies or combinations in restraint of trade.
shall be allowed.
Category US$7,500,000.00 or May be wholly owned by foreigners. Respondents Executive Secretary Ronaldo Zamora, Jr., Trade and Industry
C more Foreign investments for Secretary Mar Roxas, National Economic and Development Authority
establishing a store in Categories B (NEDA) Secretary Felipe Medalla, Bangko Sentral ng Pilipinas Gov. Rafael
and C shall not be less than the Buenaventura, and Securities and Exchange Commission Chairman Lilia
equivalent in Philippine Pesos of Bautista countered that:
US$830,000.00.
Category US$250,000.00 per May be wholly owned by foreigners.

68
First, petitioners have no legal standing to file the petition. They cannot
invoke the fact that they are taxpayers since R.A. 8762 does not involve the
disbursement of public funds. Nor can they invoke the fact that they are
members of Congress since they made no claim that the law infringes on
their right as legislators.
Second, the petition does not involve any justiciable controversy. Petitioners
of course claim that, as members of Congress, they represent the small retail
vendors in their respective districts but the petition does not allege that the
subject law violates the rights of those vendors.
Third, petitioners have failed to overcome the presumption of constitutionality
of R.A. 8762. Indeed, they could not specify how the new law violates the
constitutional provisions they cite. Sections 9, 19, and 20 of Article II of the
Constitution are not self-executing provisions that are judicially demandable.
Fourth, the Constitution mandates the regulation but not the prohibition of
foreign investments. It directs Congress to reserve to Filipino citizens certain
areas of investments upon the recommendation of the NEDA and when the
national interest so dictates. But the Constitution leaves to the discretion of
the Congress whether or not to make such reservation. It does not prohibit
Congress from enacting laws allowing the entry of foreigners into certain
industries not reserved by the Constitution to Filipino citizens.
The Issues Presented
Simplified, the case presents two issues:
1. Whether or not petitioner lawmakers have the legal standing to challenge
the constitutionality of R.A. 8762; and
2. Whether or not R.A. 8762 is unconstitutional.
The Court’s Ruling
One. The long settled rule is that he who challenges the validity of a law must
have a standing to do so.1 Legal standing or locus standi refers to the right of
a party to come to a court of justice and make such a challenge. More
particularly, standing refers to his personal and substantial interest in that he
has suffered or will suffer direct injury as a result of the passage of that law.2
To put it another way, he must show that he has been or is about to be
denied some right or privilege to which he is lawfully entitled or that he is
about to be subjected to some burdens or penalties by reason of the law he
complains of.3
Here, there is no clear showing that the implementation of the Retail Trade
Liberalization Act prejudices petitioners or inflicts damages on them, either
as taxpayers4 or as legislators.5 Still the Court will resolve the question they
raise since the rule on standing can be relaxed for nontraditional plaintiffs like
ordinary citizens, taxpayers, and legislators when as in this case the public
interest so requires or the matter is of transcendental importance, of
overarching significance to society, or of paramount public interest.6
Two. Petitioners mainly argue that R.A. 8762 violates the mandate of the
1987 Constitution for the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos. They invoke the
provisions of the Declaration of Principles and State Policies under Article II
of the 1987 Constitution, which read as follows:
Section 9. The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the people
from poverty through policies that provide adequate social services, promote
full employment, a rising standard of living, and an improved quality of life for
all.
xxxx
Section 19. The State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos.
Section 20. The State recognizes the indispensable role of the private sector,
encourages private enterprise, and provides incentives to needed
investments.
Petitioners also invoke the provisions of the National Economy and
Patrimony under Article XII of the 1987 Constitution, which reads:
Section 10. The Congress shall, upon recommendation of the economic and
planning agency, when the national interest dictates, reserve to citizens of
the Philippines or to corporations or associations at least sixty per centum of
whose capital is owned by such citizens, or such higher percentage as
Congress may prescribe, certain areas of investments. 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.
The State shall regulate and exercise authority over foreign investments
within its national jurisdiction and in accordance with its national goals and
priorities.
69

xxxx
Section 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.
Section 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.
But, as the Court explained in Tañada v. Angara,7 the provisions of Article II
of the 1987 Constitution, the declarations of principles and state policies, are
not self-executing. Legislative failure to pursue such policies cannot give rise
to a cause of action in the courts.
The Court further explained in Tañada that Article XII of the 1987
Constitution lays down 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 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;
and (3) by requiring the State to develop a self-reliant and independent
national economy effectively controlled by Filipinos.8ten.lihpwal
In other words, while Section 19, Article II of the 1987 Constitution requires
the development of a self-reliant and independent national economy
effectively controlled by Filipino entrepreneurs, it does not impose a policy of
Filipino monopoly of the economic environment. The objective is simply to
prohibit foreign powers or interests from maneuvering our economic policies
and ensure that Filipinos are given preference in all areas of development.
Indeed, the 1987 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; 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. Thus,
while the Constitution mandates a bias in favor of Filipino goods, services,
labor and enterprises, it also 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.9
In other words, the 1987 Constitution does not rule out the entry of foreign
investments, goods, and services. While it does not encourage their
unlimited entry 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.10 The key, as in all economies in the world,
is to strike a balance between protecting local businesses and allowing the
entry of foreign investments and services.1avvphi1
More importantly, Section 10, Article XII of the 1987 Constitution gives
Congress the discretion to reserve to Filipinos certain areas of investments
upon the recommendation of the NEDA and when the national interest
requires. Thus, Congress can determine what policy to pass and when to
pass it depending on the economic exigencies. It can enact laws allowing the
entry of foreigners into certain industries not reserved by the Constitution to
Filipino citizens. In this case, Congress has decided to open certain areas of
the retail trade business to foreign investments instead of reserving them
exclusively to Filipino citizens. The NEDA has not opposed such policy.
The control and regulation of trade in the interest of the public welfare is of
course an exercise of the police power of the State. A person’s right to
property, whether he is a Filipino citizen or foreign national, cannot be taken
from him without due process of law. In 1954, Congress enacted the Retail
Trade Nationalization Act or R.A. 1180 that restricts the retail business to
Filipino citizens. In denying the petition assailing the validity of such Act for
violation of the foreigner’s right to substantive due process of law, the
Supreme Court held that the law constituted a valid exercise of police
power.11 The State had an interest in preventing alien control of the retail
trade and R.A. 1180 was reasonably related to that purpose. That law is not
arbitrary.
Here, to the extent that R.A. 8762, the Retail Trade Liberalization Act,
lessens the restraint on the foreigners’ right to property or to engage in an
ordinarily lawful business, it cannot be said that the law amounts to a denial
of the Filipinos’ right to property and to due process of law. Filipinos continue
to have the right to engage in the kinds of retail business to which the law in
question has permitted the entry of foreign investors.
Certainly, it is not within the province of the Court to inquire into the wisdom
of R.A. 8762 save when it blatantly violates the Constitution. But as the Court
has said, there is no showing that the law has contravened any constitutional
mandate. The Court is not convinced that the implementation of R.A. 8762
would eventually lead to alien control of the retail trade business. Petitioners
have not mustered any concrete and strong argument to support its thesis.
The law itself has provided strict safeguards on foreign participation in that
business. Thus –
70
First, aliens can only engage in retail trade business subject to the categories
above-enumerated; Second, only nationals from, or juridical entities formed
or incorporated in countries which allow the entry of Filipino retailers shall be
allowed to engage in retail trade business; and Third, qualified foreign
retailers shall not be allowed to engage in certain retailing activities outside
their accredited stores through the use of mobile or rolling stores or carts, the
use of sales representatives, door-to-door selling, restaurants and sari-sari
stores and such other similar retailing activities.

In sum, petitioners have not shown how the retail trade liberalization has
prejudiced and can prejudice the local small and medium enterprises since
its implementation about a decade ago.

WHEREFORE, the Court DISMISSES the petition for lack of merit. No costs.

SO ORDERED.

71
G.R. No. 141284 August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.
RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B.
AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with prayer for
issuance of a temporary restraining order seeking to nullify on constitutional
grounds the order of President Joseph Ejercito Estrada commanding the
deployment of the Philippine Marines (the "Marines") to join the Philippine
National Police (the "PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal directive,
ordered the PNP and the Marines to conduct joint visibility patrols for the
purpose of crime prevention and suppression. The Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines (the
"AFP"), the Chief of the PNP and the Secretary of the Interior and Local
Government were tasked to execute and implement the said order. In
compliance with the presidential mandate, the PNP Chief, through Police
Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction
02/20001 (the "LOI") which detailed the manner by which the joint visibility
patrols, called Task Force Tulungan, would be conducted.2 Task Force
Tulungan was placed under the leadership of the Police Chief of Metro
Manila.
Subsequently, the President confirmed his previous directive on the
deployment of the Marines in a Memorandum, dated 24 January 2000,
addressed to the Chief of Staff of the AFP and the PNP Chief.3 In the
Memorandum, the President expressed his desire to improve the peace and
order situation in Metro Manila through a more effective crime prevention
program including increased police patrols.4 The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is
necessary.5 Invoking his powers as Commander-in-Chief under Section 18,
Article VII of the Constitution, the President directed the AFP Chief of Staff
and PNP Chief to coordinate with each other for the proper deployment and
utilization of the Marines to assist the PNP in preventing or suppressing
criminal or lawless violence.6 Finally, the President declared that the
services of the Marines in the anti-crime campaign are merely temporary in
nature and for a reasonable period only, until such time when the situation
shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint visibility
patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO
and the Philippine Marines partnership in the conduct of visibility patrols in
Metro Manila for the suppression of crime prevention and other serious
threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by
ordinary criminals but also by organized syndicates whose members include
active and former police/military personnel whose training, skill, discipline
and firepower prove well-above the present capability of the local police
alone to handle. The deployment of a joint PNP NCRPO-Philippine Marines
in the conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint
NCRPO-PM visibility patrols to keep Metro Manila streets crime-free, through
a sustained street patrolling to minimize or eradicate all forms of high-profile
crimes especially those perpetrated by organized crime syndicates whose
members include those that are well-trained, disciplined and well-armed
active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National
Capital Regional Police Office] and the Philippine Marines to curb criminality
in Metro Manila and to preserve the internal security of the state against
insurgents and other serious threat to national security, although the primary
responsibility over Internal Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms
of high-profile crimes perpetrated by organized crime syndicates operating in
Metro Manila. This concept requires the military and police to work
cohesively and unify efforts to ensure a focused, effective and holistic
approach in addressing crime prevention. Along this line, the role of the
military and police aside from neutralizing crime syndicates is to bring a
wholesome atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-Philippine
Marines visibility patrols, local Police Units are responsible for the
maintenance of peace and order in their locality.
72
c. To ensure the effective implementation of this project, a provisional Task
Force "TULUNGAN" shall be organized to provide the mechanism, structure,
and procedures for the integrated planning, coordinating, monitoring and
assessing the security situation.
xxx.
The selected areas of deployment under the LOI are: Monumento Circle,
North Edsa (SM City), Araneta Shopping Center, Greenhills, SM Megamall,
Makati Commercial Center, LRT/MRT Stations and the NAIA and Domestic
Airport.
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed
the instant petition to annul LOI 02/2000 and to declare the deployment of
the Philippine Marines, null and void and unconstitutional, arguing that:
I of the necessity of calling the armed forces is subject to judicial review; and,
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS
VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF THE
CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY
THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF
THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY
ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.
Asserting itself as the official organization of Filipino lawyers tasked with the
bounden duty to uphold the rule of law and the Constitution, the IBP
questions the validity of the deployment and utilization of the Marines to
assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,11
dated 25 January 2000, required the Solicitor General to file his Comment on
the petition. On 8 February 2000, the Solicitor General submitted his
Comment.
The Solicitor General vigorously defends the constitutionality of the act of the
President in deploying the Marines, contending, among others, that petitioner
has no legal standing; that the question of deployment of the Marines is not
proper for judicial scrutiny since the same involves a political question; that
the organization and conduct of police visibility patrols, which feature the
team-up of one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner
has legal standing; (2) Whether or not the President’s factual determination
(3) Whether or not the calling of the armed forces to assist the PNP in joint
visibility patrols violates the constitutional provisions on civilian supremacy
over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the
requisites of standing to raise the issues in the petition. Second, the
President did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction nor did he commit a violation of the civilian supremacy
clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.
When questions of constitutional significance are raised, the Court can
exercise its power of judicial review only if the following requisites are
complied with, namely: (1) the existence of an actual and appropriate case;
(2) a personal and substantial interest of the party raising the constitutional
73
question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of standing in this
case.
"Legal standing" or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or will
sustain direct injury as a result of the governmental act that is being
challenged.13 The term "interest" means a material interest, an interest in
issue affected by the decree, as distinguished from mere interest in the
question involved, or a mere incidental interest.14 The gist of the question of
standing is whether a party alleges "such personal stake in the outcome of
the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of
difficult constitutional questions."15
In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its locus
standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest in the resolution
of the case. Its fundamental purpose which, under Section 2, Rule 139-A of
the Rules of Court, is to elevate the standards of the law profession and to
improve the administration of justice is alien to, and cannot be affected by the
deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a
formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions
on the issue. Moreover, the IBP, assuming that it has duly authorized the
National President to file the petition, has not shown any specific injury which
it has suffered or may suffer by virtue of the questioned governmental act.
Indeed, none of its members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation of the joint visibility
patrols. Neither is it alleged that any of its members has been arrested or that
their civil liberties have been violated by the deployment of the Marines.
What the IBP projects as injurious is the supposed "militarization" of law
enforcement which might threaten Philippine democratic institutions and may
cause more harm than good in the long run. Not only is the presumed "injury"
not personal in character, it is likewise too vague, highly speculative and
uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule
that the IBP has absolutely no standing to raise constitutional issues now or
in the future. The IBP must, by way of allegations and proof, satisfy this Court
that it has sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court has the
discretion to take cognizance of a suit which does not satisfy the requirement
of legal standing when paramount interest is involved.16 In not a few cases,
the Court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental significance to
the people.17 Thus, when the issues raised are of paramount importance to
the public, the Court may brush aside technicalities of procedure.18 In this
case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace
and order are under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the Mindanao insurgency
problem, the legal controversy raised in the petition almost certainly will not
go away. It will stare us in the face again. It, therefore, behooves the Court to
relax the rules on standing and to resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out the
Marines.
In the case at bar, the bone of contention concerns the factual determination
of the President of the necessity of calling the armed forces, particularly the
Marines, to aid the PNP in visibility patrols. In this regard, the IBP admits that
the deployment of the military personnel falls under the Commander-in-Chief
powers of the President as stated in Section 18, Article VII of the
Constitution, specifically, the power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion. What the IBP questions,
however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the
need for the calling of the military to assist the police force. It contends that
no lawless violence, invasion or rebellion exist to warrant the calling of the
Marines. Thus, the IBP prays that this Court "review the sufficiency of the
factual basis for said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue pertaining
to the necessity of calling the armed forces is not proper for judicial scrutiny
since it involves a political question and the resolution of factual issues which
are beyond the review powers of this Court.
74
As framed by the parties, the underlying issues are the scope of presidential
powers and limits, and the extent of judicial review. But, while this Court
gives considerable weight to the parties’ formulation of the issues, the
resolution of the controversy may warrant a creative approach that goes
beyond the narrow confines of the issues raised. Thus, while the parties are
in agreement that the power exercised by the President is the power to call
out the armed forces, the Court is of the view that the power involved may be
no more than the maintenance of peace and order and promotion of the
general welfare.20 For one, the realities on the ground do not show that
there exist a state of warfare, widespread civil unrest or anarchy. Secondly,
the full brunt of the military is not brought upon the citizenry, a point
discussed in the latter part of this decision. In the words of the late Justice
Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s powers as
protector of the peace. [Rossiter, The American Presidency]. The power of
the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not
only clothed with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears
on the horizon. Wide discretion, within the bounds of law, in fulfilling
presidential duties in times of peace is not in any way diminished by the
relative want of an emergency specified in the commander-in-chief provision.
For in making the President commander-in-chief the enumeration of powers
that follow cannot be said to exclude the President’s exercising as
Commander-in-Chief powers short of the calling of the armed forces, or
suspending the privilege of the writ of habeas corpus or declaring martial law,
in order to keep the peace, and maintain public order and security.
xxx
Nonetheless, even if it is conceded that the power involved is the President’s
power to call out the armed forces to prevent or suppress lawless violence,
invasion or rebellion, the resolution of the controversy will reach a similar
result.
We now address the Solicitor General’s argument that the issue involved is
not susceptible to review by the judiciary because it involves a political
question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter
which is appropriate for court review.22 It pertains to issues which are
inherently susceptible of being decided on grounds recognized by law.
Nevertheless, the Court does not automatically assume jurisdiction over
actual constitutional cases brought before it even in instances that are ripe
for resolution. One class of cases wherein the Court hesitates to rule on are
"political questions." The reason is that political questions are concerned with
issues dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a function of
the separation of powers, the courts will not normally interfere with the
workings of another co-equal branch unless the case shows a clear need for
the courts to step in to uphold the law and the Constitution.
As Tañada v. Cuenco puts it, 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 government." Thus, if an
issue is clearly identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the people
themselves then it is held to be a political question. In the classic formulation
of Justice Brennan in Baker v. Carr, "[p]rominent 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 nonjudicial 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 embarassment from
multifarious pronouncements by various departments on the one question."
The 1987 Constitution expands the concept of judicial review by providing
that "(T)he Judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. Judicial power includes the duty
of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."
Under this definition, the Court cannot agree with the Solicitor General that
the issue involved is a political question beyond the jurisdiction of this Court
to review. When the grant of power is qualified, conditional or subject to
limitations, the issue of whether the prescribed qualifications or conditions
have been met or the limitations respected, is justiciable - the problem being
one of legality or validity, not its wisdom. Moreover, the jurisdiction to delimit
constitutional boundaries has been given to this Court. When political
questions are involved, the Constitution limits the determination as to
whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
questioned.
75
By grave abuse of discretion is meant simply capricious or whimsical
exercise of judgment that is patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty enjoined by law, or to act at
all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion or hostility. Under this definition, a
court is without power to directly decide matters over which full discretionary
authority has been delegated. But while this Court has no power to substitute
its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of
discretion. A showing that plenary power is granted either department of
government may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable controversy.
When the President calls the armed forces to prevent or suppress lawless
violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear from the intent of the framers
and from the text of the Constitution itself. The Court, thus, cannot be called
upon to overrule the President’s wisdom or substitute its own. However, this
does not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional
intent to give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon the petitioner
to show that the President’s decision is totally bereft of factual basis. The
present petition fails to discharge such heavy burden as there is no evidence
to support the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that
grave abuse was committed because the power to call was exercised in such
a manner as to violate the constitutional provision on civilian supremacy over
the military. In the performance of this Court’s duty of "purposeful
hesitation"32 before declaring an act of another branch as unconstitutional,
only where such grave abuse of discretion is clearly shown shall the Court
interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the
President full discretionary power to call out the armed forces and to
determine the necessity for the exercise of such power. Section 18, Article
VII of the Constitution, which embodies the powers of the President as
Commander-in-Chief, provides in part:
The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed
forces to prevent or suppress lawless violence, invasion or rebellion. In case
of invasion or rebellion, when the public safety requires it, he may, for a
period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus, or place the Philippines or any part thereof under martial law.
xxx
The full discretionary power of the President to determine the factual basis
for the exercise of the calling out power is also implied and further reinforced
in the rest of Section 18, Article VII which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation
shall not be set aside by the President. Upon the initiative of the President,
the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or
rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without
need of a call.
The Supreme Court may 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 or the extension thereof, and
must promulgate its decision thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or legislative assemblies, nor
authorize the conferment of jurisdiction on military courts and agencies over
civilians where civil courts are able to function, nor automatically suspend the
privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly connected
with invasion.
During the suspension of the privilege of the writ, any person thus arrested or
detained shall be judicially charged within three days, otherwise he shall be
released.
Under the foregoing provisions, Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of the factual basis
thereof. However, there is no such equivalent provision dealing with the
76
revocation or review of the President’s action to call out the armed forces.
The distinction places the calling out power in a different category from the
power to declare martial law and the power to suspend the privilege of the
writ of habeas corpus, otherwise, the framers of the Constitution would have
simply lumped together the three powers and provided for their revocation
and review without any qualification. Expressio unius est exclusio alterius.
Where the terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. That the intent of
the Constitution is exactly what its letter says, i.e., that the power to call is
fully discretionary to the President, is extant in the deliberation of the
Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he can call
out such Armed Forces as may be necessary to suppress lawless violence;
then he can suspend the privilege of the writ of habeas corpus, then he can
impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the
privilege of the writ of habeas corpus, his judgment is subject to review. We
are making it subject to review by the Supreme Court and subject to
concurrence by the National Assembly. But when he exercises this lesser
power of calling on the Armed Forces, when he says it is necessary, it is my
opinion that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the
matter can be handled by the first sentence: "The President may call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion." So we feel that that is sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is imminent
danger, the matter can be handled by the First Sentence: "The
President....may call out such Armed Forces to prevent or suppress lawless
violence, invasion or rebellion." So we feel that that is sufficient for handling
imminent danger, of invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the
idea?
MR. REGALADO. That does not require any concurrence by the legislature
nor is it subject to judicial review.
The reason for the difference in the treatment of the aforementioned powers
highlights the intent to grant the President the widest leeway and broadest
discretion in using the power to call out because it is considered as the lesser
and more benign power compared to the power to suspend the privilege of
the writ of habeas corpus and the power to impose martial law, both of which
involve the curtailment and suppression of certain basic civil rights and
individual freedoms, and thus necessitating safeguards by Congress and
review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of
the power to suspend the privilege of the writ of habeas corpus or to impose
martial law, two conditions must concur: (1) there must be an actual invasion
or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the armed forces. The only
criterion is that "whenever it becomes necessary," the President may call the
armed forces "to prevent or suppress lawless violence, invasion or rebellion."
The implication is that the President is given full discretion and wide latitude
in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot undertake an
independent investigation beyond the pleadings. The factual necessity of
calling out the armed forces is not easily quantifiable and cannot be
objectively established since matters considered for satisfying the same is a
combination of several factors which are not always accessible to the courts.
Besides the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be difficult
to verify, or wholly unavailable to the courts. In many instances, the evidence
upon which the President might decide that there is a need to call out the
armed forces may be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be classified
as highly confidential or affecting the security of the state. In the exercise of
the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction
of property. Indeed, the decision to call out the military to prevent or suppress
lawless violence must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we consider the present
situation in Mindanao, where the insurgency problem could spill over the
other parts of the country. The determination of the necessity for the calling
out power if subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly straitjacketed by an
injunction or a temporary restraining order every time it is exercised.
77
Thus, it is the unclouded intent of the Constitution to vest upon the President,
as Commander-in-Chief of the Armed Forces, full discretion to call forth the
military when in his judgment it is necessary to do so in order to prevent or
suppress lawless violence, invasion or rebellion. Unless the petitioner can
show that the exercise of such discretion was gravely abused, the
President’s exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and factual basis for
calling the armed forces. In his Memorandum, he categorically asserted that,
"[V]iolent crimes like bank/store robberies, holdups, kidnappings and
carnappings continue to occur in Metro Manila..."35 We do not doubt the
veracity of the President’s assessment of the situation, especially in the light
of present developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment
described in the LOI 2000. Considering all these facts, we hold that the
President has sufficient factual basis to call for military aid in law
enforcement and in the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian supremacy
clause nor does it infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify
the calling of the Marines, the IBP asserts that by the deployment of the
Marines, the civilian task of law enforcement is "militarized" in violation of
Section 3, Article II36 of the Constitution.
We disagree. The deployment of the Marines does not constitute a breach of
the civilian supremacy clause. The calling of the Marines in this case
constitutes permissible use of military assets for civilian law enforcement.
The participation of the Marines in the conduct of joint visibility patrols is
appropriately circumscribed. The limited participation of the Marines is
evident in the provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines’ authority. It is noteworthy that the local
police forces are the ones in charge of the visibility patrols at all times, the
real authority belonging to the PNP. In fact, the Metro Manila Police Chief is
the overall leader of the PNP-Philippine Marines joint visibility patrols.37
Under the LOI, the police forces are tasked to brief or orient the soldiers on
police patrol procedures.38 It is their responsibility to direct and manage the
deployment of the Marines.39 It is, likewise, their duty to provide the
necessary equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority. Moreover, the deployment of the
Marines to assist the PNP does not unmake the civilian character of the
police force. Neither does it amount to an "insidious incursion" of the military
in the task of law enforcement in violation of Section 5(4), Article XVI of the
Constitution.
In this regard, it is not correct to say that General Angelo Reyes, Chief of
Staff of the AFP, by his alleged involvement in civilian law enforcement, has
been virtually appointed to a civilian post in derogation of the aforecited
provision. The real authority in these operations, as stated in the LOI, is
lodged with the head of a civilian institution, the PNP, and not with the
military. Such being the case, it does not matter whether the AFP Chief
actually participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines was
incorporated or enlisted as members of the PNP, there can be no
appointment to civilian position to speak of. Hence, the deployment of the
Marines in the joint visibility patrols does not destroy the civilian character of
the PNP.
Considering the above circumstances, the Marines render nothing more than
assistance required in conducting the patrols. As such, there can be no
"insidious incursion" of the military in civilian affairs nor can there be a
violation of the civilian supremacy clause in the Constitution.
It is worth mentioning that military assistance to civilian authorities in various
forms persists in Philippine jurisdiction. The Philippine experience reveals
that it is not averse to requesting the assistance of the military in the
implementation and execution of certain traditionally "civil" functions. As
correctly pointed out by the Solicitor General, some of the multifarious
activities wherein military aid has been rendered, exemplifying the activities
that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;
2. Administration of the Philippine National Red Cross;
3. Relief and rescue operations during calamities and disasters;
4. Amateur sports promotion and development;
5. Development of the culture and the arts;
6. Conservation of natural resources;
7. Implementation of the agrarian reform program;
8. Enforcement of customs laws;
9. Composite civilian-military law enforcement activities;
10. Conduct of licensure examinations;
11. Conduct of nationwide tests for elementary and high school students;
12. Anti-drug enforcement activities;
13. Sanitary inspections;
14. Conduct of census work;
78
15. Administration of the Civil Aeronautics Board;
16. Assistance in installation of weather forecasting devices;
17. Peace and order policy formulation in local government units.
This unquestionably constitutes a gloss on executive power resulting from a
systematic, unbroken, executive practice, long pursued to the knowledge of
Congress and, yet, never before questioned. What we have here is mutual
support and cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and hostility towards
the use of military force for domestic purposes has persisted,60 and whose
Constitution, unlike ours, does not expressly provide for the power to call, the
use of military personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present deployment of the
Philippine Marines. Under the Posse Comitatus Act61 of the US, the use of
the military in civilian law enforcement is generally prohibited, except in
certain allowable circumstances. A provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by
the Constitution or Act of Congress, willfully uses any part of the Army or the
Air Force as posse comitatus or otherwise to execute the laws shall be fined
not more than $10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus Act in the
use of military personnel, the US courts63 apply the following standards, to
wit:
Were Army or Air Force personnel used by the civilian law enforcement
officers at Wounded Knee in such a manner that the military personnel
subjected the citizens to the exercise of military power which was regulatory,
proscriptive, or compulsory64 George Washington Law Review, pp. 404-433
(1986), which discusses the four divergent standards for assessing
acceptable involvement of military personnel in civil law enforcement. See
likewise HONORED IN THE BREECH: PRESIDENTIAL AUTHORITY TO
EXECUTE THE LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp.
130-152, 1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context, we take it to
mean that military involvement, even when not expressly authorized by the
Constitution or a statute, does not violate the Posse Comitatus Act unless it
actually regulates, forbids or compels some conduct on the part of those
claiming relief.1âwphi1 A mere threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the present case
to determine whether there is permissible use of the military in civilian law
enforcement, the conclusion is inevitable that no violation of the civilian
supremacy clause in the Constitution is committed. On this point, the Court
agrees with the observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do
not control or direct the operation. This is evident from Nos. 6,66 8(k)67 and
9(a)68 of Annex A. These soldiers, second, also have no power to prohibit or
condemn. In No. 9(d)69 of Annex A, all arrested persons are brought to the
nearest police stations for proper disposition. And last, these soldiers apply
no coercive force. The materials or equipment issued to them, as shown in
No. 8(c)70 of Annex A, are all low impact and defensive in character. The
conclusion is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law
enforcement.71
It appears that the present petition is anchored on fear that once the armed
forces are deployed, the military will gain ascendancy, and thus place in peril
our cherished liberties. Such apprehensions, however, are unfounded. The
power to call the armed forces is just that - calling out the armed forces.
Unless, petitioner IBP can show, which it has not, that in the deployment of
the Marines, the President has violated the fundamental law, exceeded his
authority or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the President’s determination of the factual basis for the
calling of the Marines to prevent or suppress lawless violence.
One last point. Since the institution of the joint visibility patrol in January,
2000, not a single citizen has complained that his political or civil rights have
been violated as a result of the deployment of the Marines. It was precisely to
safeguard peace, tranquility and the civil liberties of the people that the joint
visibility patrol was conceived. Freedom and democracy will be in full bloom
only when people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.
79
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA
ISABEL ONGPIN, petitioners, vs. COMMISSION ON ELECTIONS, JESUS
DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their capacities
as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition
under Rule 65 of the Rules of Court is the right of the people to directly
propose amendments to the Constitution through the system of initiative
under Section 2 of Article XVII of the 1987 Constitution. Undoubtedly, this
demands special attention, as this system of initiative was unknown to the
people of this country, except perhaps to a few scholars, before the drafting
of the 1987 Constitution. The 1986 Constitutional Commission itself, through
the original proponent1 and the main sponsor2 of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as
"innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions,
only two methods of proposing amendments to, or revision of, the
Constitution were recognized, viz., (1) by Congress upon a vote of three-
fourths of all its members and (2) by a constitutional convention.4 For this
and the other reasons hereafter discussed, we resolved to give due course to
this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with
public respondent Commission on Elections (hereafter, COMELEC) a
"Petition to Amend the Constitution, to Lift Term Limits of Elective Officials,
by People's Initiative" (hereafter, Delfin Petition)5 wherein Delfin asked the
COMELEC for an order
1. Fixing the time and dates for signature gathering all over the country;
2. Causing the necessary publications of said Order and the attached
"Petition for Initiative on the 1987 Constitution, in newspapers of general and
local circulation;
3. Instructing Municipal Election Registrars in all Regions of the Philippines,
to assist Petitioners and volunteers, in establishing signing stations at the
time and on the dates designated for the purpose.
Delfin alleged in his petition that he is a founding member of the Movement
for People's Initiative,6 a group of citizens desirous to avail of the system
intended to institutionalize people power; that he and the members of the
Movement and other volunteers intend to exercise the power to directly
propose amendments to the Constitution granted under Section 2, Article
XVII of the Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be
established all over the country, with the assistance of municipal election
registrars, who shall verify the signatures affixed by individual signatories;
that before the Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the purpose be first
fixed in an order to be issued by the COMELEC; and that to adequately
inform the people of the electoral process involved, it is likewise necessary
that the said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation, under
the control and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended
are Sections 4 and 7 of Article VI,7 Section 4 of Article VII,8 and Section 8 of
Article X9 of the Constitution. Attached to the petition is a copy of a "Petition
for Initiative on the 1987 Constitution" 10 embodying the proposed
amendments which consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE
GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS
4 AND 7 OF ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8
OF ARTICLE X OF THE 1987 PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the
people, and after it is signed by at least twelve per cent of the total number of
registered voters in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number
UND 96-037 (INITIATIVE), the COMELEC, through its Chairman, issued an
Order 11 (a) directing Delfin "to cause the publication of the petition, together
with the attached Petition for Initiative on the 1987 Constitution (including the
proposal, proposed constitutional amendment, and the signature form), and
the notice of hearing in three (3) daily newspapers of general circulation at
his own expense" not later than 9 December 1996; and (b) setting the case
for hearing on 12 December 1996 at 10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following
appeared: Delfin and Atty. Pete Q. Quadra; representatives of the People's
Initiative for Reforms, Modernization and Action (PIRMA); intervenor-
oppositor Senator Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the Philippines (IBP),
80
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law
Center, and Laban ng Demokratikong Pilipino (LABAN). 12 Senator Roco, on
that same day, filed a Motion to Dismiss the Delfin Petition on the ground that
it is not the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the
oppositors to file their "memoranda and/or oppositions/memoranda" within
five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor
Santiago, Alexander Padilla, and Maria Isabel Ongpin — filed this special
civil action for prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the
Constitution can only be implemented by law to be passed by Congress. No
such law has been passed; in fact, Senate Bill No. 1290 entitled An Act
Prescribing and Regulating Constitution Amendments by People's Initiative,
which petitioner Senator Santiago filed on 24 November 1995, is still pending
before the Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle on initiative on the Constitution,
unlike in the other modes of initiative, which are specifically provided for in
Subtitle II and Subtitle III. This deliberate omission indicates that the matter
of people's initiative to amend the Constitution was left to some future law.
Former Senator Arturo Tolentino stressed this deficiency in the law in his
privilege speech delivered before the Senate in 1994: "There is not a single
word in that law which can be considered as implementing [the provision on
constitutional initiative]. Such implementing provisions have been obviously
left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws and
not constitutional amendments because the latter take effect only upon
ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern
"the conduct of initiative on the Constitution and initiative and referendum on
national and local laws, is ultra vires insofar as initiative on amendments to
the Constitution is concerned, since the COMELEC has no power to provide
rules and regulations for the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the Constitution to pass the
implementing law.
(5) The people's initiative is limited to amendments to the Constitution, not to
revision thereof. Extending or lifting of term limits constitutes a revision and
is, therefore, outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's initiative;
neither the COMELEC nor any other government department, agency, or
office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the
petitioners allege that in the event the COMELEC grants the Delfin Petition,
the people's initiative spearheaded by PIRMA would entail expenses to the
national treasury for general re-registration of voters amounting to at least
P180 million, not to mention the millions of additional pesos in expenses
which would be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely,
brushing aside technicalities of procedure and calling for the admission of a
taxpayer's and legislator's suit. 14 Besides, there is no other plain, speedy,
and adequate remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment
on the petition within a non-extendible period of ten days from notice; and (b)
issued a temporary restraining order, effective immediately and continuing
until further orders, enjoining public respondent COMELEC from proceeding
with the Delfin Petition, and private respondents Alberto and Carmen
Pedrosa from conducting a signature drive for people's initiative to amend the
Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION
(P180,000,000.00)" IF THE "COMELEC GRANTS THE PETITION FILED BY
RESPONDENT DELFIN BEFORE THE COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL
GOVERNMENT IF THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE
GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND
EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL
81
TEACHERS IN THE SIGNATURE GATHERING TO BE DEPOSITED and
TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE
SIGNATURE GATHERING WHICH BY LAW COMELEC IS DUTY BOUND
"TO SUPERVISE CLOSELY" PURSUANT TO ITS "INITIATORY
JURISDICTION" UPHELD BY THE HONORABLE COURT IN ITS RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE INITIATIVE
TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR
DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290 IS A DUPLICATION OF
WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16,
1991 PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE
HONORABLE COURT IN THE RECENT SEPTEMBER 26, 1996 DECISION
IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS.
COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT
SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS BY
SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND
RULES FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO. 1290
CONTAINS A PROVISION DELEGATING TO THE COMELEC THE POWER
TO "PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE
NECESSARY TO CARRY OUT THE PURPOSES OF THIS ACT." (SEC. 12,
S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF
ELECTIVE OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS
NOT A "REVISION" OF THE CONSTITUTION. IT IS ONLY AN
AMENDMENT. "AMENDMENT ENVISAGES AN ALTERATION OF ONE OR
A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION
CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED."
(PP. 412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN
G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a
"knee-jerk reaction to a draft 'Petition for Initiative on the 1987
Constitution'. . . which is not formally filed yet." What he filed on 6 December
1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally
necessary to start the signature campaign to amend the Constitution or to put
the movement to gather signatures under COMELEC power and function. On
the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735,
which governs the conduct of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is not fatal, since subtitles are
not requirements for the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in
an initiative to amend the Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which grants
the COMELEC the power to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the
purposes of the Act.
(4) The proposed initiative does not involve a revision of, but mere
amendment to, the Constitution because it seeks to alter only a few specific
provisions of the Constitution, or more specifically, only those which lay term
limits. It does not seek to reexamine or overhaul the entire document.
As to the public expenditures for registration of voters, Delfin considers
petitioners' estimate of P180 million as unreliable, for only the COMELEC
can give the exact figure. Besides, if there will be a plebiscite it will be
simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it
will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2
January 1997, the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend the
Constitution. Its Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its Section 3, which enumerates
the three systems of initiative, includes initiative on the Constitution and
defines the same as the power to propose amendments to the Constitution.
Likewise, its Section 5 repeatedly mentions initiative on the Constitution.
82
(2) A separate subtitle on initiative on the Constitution is not necessary in
R.A. No. 6735 because, being national in scope, that system of initiative is
deemed included in the subtitle on National Initiative and Referendum; and
Senator Tolentino simply overlooked pertinent provisions of the law when he
claimed that nothing therein was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A.
No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere amendment
to the Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of
R.A. No. 6735 and under the Omnibus Election Code. The rule-making
power of the COMELEC to implement the provisions of R.A. No. 6735 was in
fact upheld by this Court in Subic Bay Metropolitan Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary
restraining order; (b) noted the aforementioned Comments and the Motion to
Lift Temporary Restraining Order filed by private respondents through Atty.
Quadra, as well as the latter's Manifestation stating that he is the counsel for
private respondents Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for Intervention filed
on 6 January 1997 by Senator Raul Roco and allowed him to file his Petition
in Intervention not later than 20 January 1997; and (d) set the case for
hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK)
and the Movement of Attorneys for Brotherhood Integrity and Nationalism,
Inc. (MABINI), filed a Motion for Intervention. Attached to the motion was
their Petition in Intervention, which was later replaced by an Amended
Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but a
revision of, the Constitution because, in the words of Fr. Joaquin Bernas,
S.J., 18 it would involve a change from a political philosophy that rejects
unlimited tenure to one that accepts unlimited tenure; and although the
change might appear to be an isolated one, it can affect other provisions,
such as, on synchronization of elections and on the State policy of
guaranteeing equal access to opportunities for public service and prohibiting
political dynasties. 19 A revision cannot be done by initiative which, by
express provision of Section 2 of Article XVII of the Constitution, is limited to
amendments.
(2) The prohibition against reelection of the President and the limits provided
for all other national and local elective officials are based on the philosophy
of governance, "to open up the political arena to as many as there are
Filipinos qualified to handle the demands of leadership, to break the
concentration of political and economic powers in the hands of a few, and to
promote effective proper empowerment for participation in policy and
decision-making for the common good"; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative, particularly in
a conflict-of-interest situation. Initiative is intended as a fallback position that
may be availed of by the people only if they are dissatisfied with the
performance of their elective officials, but not as a premium for good
performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments to the
Constitution. It fails to state (a) the proper parties who may file the petition,
(b) the appropriate agency before whom the petition is to be filed, (c) the
contents of the petition, (d) the publication of the same, (e) the ways and
means of gathering the signatures of the voters nationwide and 3% per
legislative district, (f) the proper parties who may oppose or question the
veracity of the signatures, (g) the role of the COMELEC in the verification of
the signatures and the sufficiency of the petition, (h) the appeal from any
decision of the COMELEC, (I) the holding of a plebiscite, and (g) the
appropriation of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by
COMELEC Resolution No. 2300, since the COMELEC is without authority to
legislate the procedure for a people's initiative under Section 2 of Article XVII
of the Constitution. That function exclusively pertains to Congress. Section
20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as
the former does not set a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that
implements the people's right to initiate constitutional amendments. This law
is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-
authored the House Bill and even delivered a sponsorship speech thereon.
He likewise submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300. Nevertheless, he
contends that the respondent Commission is without jurisdiction to take
cognizance of the Delfin Petition and to order its publication because the said
petition is not the initiatory pleading contemplated under the Constitution,
83
Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution is the filing
of a petition for initiative which is signed by the required number of registered
voters. He also submits that the proponents of a constitutional amendment
cannot avail of the authority and resources of the COMELEC to assist them
is securing the required number of signatures, as the COMELEC's role in an
initiative on the Constitution is limited to the determination of the sufficiency
of the initiative petition and the call and supervision of a plebiscite, if
warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached
a Petition in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under Section 2,
Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the required
implementing law on the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal defect in that it does not have
the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which can be
proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions
for Intervention filed by the DIK and MABINI and by the IBP, as well as the
Motion for Leave to Intervene filed by LABAN; (b) admitting the Amended
Petition in Intervention of DIK and MABINI, and the Petitions in Intervention
of Senator Roco and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments on the
aforesaid Petitions in Intervention; and (d) requiring LABAN to file its Petition
in Intervention within a nonextendible period of three days from notice, and
the respondents to comment thereon within a nonextendible period of five
days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the
following pivotal issues, which the Court formulated in light of the allegations
and arguments raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative
and Referendum and Appropriating Funds Therefor, was intended to include
or cover initiative on amendments to the Constitution; and if so, whether the
Act, as worded, adequately covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and
Regulations Governing the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local Laws) regarding the
conduct of initiative on amendments to the Constitution is valid, considering
the absence in the law of specific provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local officials, as
proposed in the draft "Petition for Initiative on the 1987 Constitution," would
constitute a revision of, or an amendment to, the Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a
petition solely intended to obtain an order (a) fixing the time and dates for
signature gathering; (b) instructing municipal election officers to assist
Delfin's movement and volunteers in establishing signature stations; and (c)
directing or causing the publication of, inter alia, the unsigned proposed
Petition for Initiative on the 1987 Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of the
petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit
simultaneously their respective memoranda within twenty days and
requested intervenor Senator Roco to submit copies of the deliberations on
House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it
adopts the allegations and arguments in the main Petition. It further submits
that the COMELEC should have dismissed the Delfin Petition for failure to
state a sufficient cause of action and that the Commission's failure or refusal
to do so constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the
Journal and the Record of the House of Representatives relating to the
deliberations of House Bill No. 21505, as well as the transcripts of
stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989
on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated
Comments on the Petitions in Intervention of Senator Roco, DIK and
84
MABINI, and IBP. The parties thereafter filed, in due time, their separate
memoranda.
As we stated in the beginning, we resolved to give due course to this special
civil action.
For a more logical discussion of the formulated issues, we shall first take up
the fifth issue which appears to pose a prejudicial procedural question.
I abuse of discretion, and there is no appeal or any other plain, speedy and
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE
COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious
attention to the fifth issue, i.e., whether it is proper for this Court to take
cognizance of this special civil action when there is a pending case before
the COMELEC. The petitioners provide an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition filed
by private respondent Delfin. This being so, it becomes imperative to stop the
Comelec from proceeding any further, and under the Rules of Court, Rule 65,
Section 2, a petition for prohibition is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the purpose
of preventing the inferior tribunal from usurping a jurisdiction with which it is
not legally vested. (People v. Vera, supra., p. 84). In this case the writ is an
urgent necessity, in view of the highly divisive and adverse environmental
consequences on the body politic of the questioned Comelec order. The
consequent climate of legal confusion and political instability begs for judicial
statesmanship.
30. In the final analysis, when the system of constitutional law is threatened
by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the
Constitution. 25
It must be recalled that intervenor Roco filed with the COMELEC a motion to
dismiss the Delfin Petition on the ground that the COMELEC has no
jurisdiction or authority to entertain the petition. 26 The COMELEC made no
ruling thereon evidently because after having heard the arguments of Delfin
and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. 27
Earlier, or specifically on 6 December 1996, it practically gave due course to
the Delfin Petition by ordering Delfin to cause the publication of the petition,
together with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The COMELEC's
failure to act on Roco's motion to dismiss and its insistence to hold on to the
petition rendered ripe and viable the instant petition under Section 2 of Rule
65 of the Rules of Court, which provides:
Sec. 2. Petition for prohibition. — Where the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or
ministerial, are without or in excess of its or his jurisdiction, or with grave
adequate remedy in the ordinary course of law, a person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the defendant to desist
from further proceedings in the action or matter specified therein.
It must also be noted that intervenor Roco claims that the COMELEC has no
jurisdiction over the Delfin Petition because the said petition is not supported
by the required minimum number of signatures of registered voters. LABAN
also asserts that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required number of
signatures. In light of these claims, the instant case may likewise be treated
as a special civil action for certiorari under Section I of Rule 65 of the Rules
of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v.
Guingona, Jr.
A party's standing before this Court is a procedural technicality which it may,
in the exercise of its discretion, set aside in view of the importance of issues
raised. In the landmark Emergency Powers Cases, this Court brushed aside
this technicality because the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing aside, if
we must, technicalities of procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per centum
85
of the total number of registered voters, of which every legislative district
must be represented by at least three per centum of the registered voters
therein. No amendment under this section shall be authorized within five
years following the ratification of this Constitution nor oftener than once every
five years thereafter.
The Congress shall provide for the implementation of the exercise of this
right.
This provision is not self-executory. In his book, Joaquin Bernas, a member
of the 1986 Constitutional Commission, stated:
Without implementing legislation Section 2 cannot operate. Thus, although
this mode of amending the Constitution is a mode of amendment which
bypasses congressional action, in the last analysis it still is dependent on
congressional action.
Bluntly stated, the right of the people to directly propose amendments to the
Constitution through the system of initiative would remain entombed in the
cold niche of the Constitution until Congress provides for its implementation.
Stated otherwise, while the Constitution has recognized or granted that right,
the people cannot exercise it if Congress, for whatever reason, does not
provide for its implementation.
This system of initiative was originally included in Section 1 of the draft
Article on Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions of the 1986 Constitutional
Commission in its Committee Report No. 7 (Proposed Resolution No. 332).
30 That section reads as follows:
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
(a) by the National Assembly upon a vote of three-fourths of all its members;
or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative as provided for in
Article___ Section ___of the Constitution.
After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
MR. SUAREZ. Thank you, Madam President. May we respectfully call
attention of the Members of the Commission that pursuant to the mandate
given to us last night, we submitted this afternoon a complete Committee
Report No. 7 which embodies the proposed provision governing the matter of
initiative. This is now covered by Section 2 of the complete committee report.
With the permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last plebiscite held,
directly propose amendments to this Constitution thru initiative upon petition
of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.
The interpellations on Section 2 showed that the details for carrying out
Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President, just two simple, clarificatory questions.
First, on Section 1 on the matter of initiative upon petition of at least 10
percent, there are no details in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand, therefore, that for as long as the
legislature does not pass the necessary implementing law on this, this will
not operate?
MR. SUAREZ. That matter was also taken up during the committee hearing,
especially with respect to the budget appropriations which would have to be
legislated so that the plebiscite could be called. We deemed it best that this
matter be left to the legislature. The Gentleman is right. In any event, as
envisioned, no amendment through the power of initiative can be called until
after five years from the date of the ratification of this Constitution. Therefore,
the first amendment that could be proposed through the exercise of this
initiative power would be after five years. It is reasonably expected that within
that five-year period, the National Assembly can come up with the
appropriate rules governing the exercise of this power.
FR. BERNAS. Since the matter is left to the legislature — the details on how
this is to be carried out — is it possible that, in effect, what will be presented
to the people for ratification is the work of the legislature rather than of the
people? Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that possibility because even the
legislature itself as a body could propose that amendment, maybe
individually or collectively, if it fails to muster the three-fourths vote in order to
86
constitute itself as a constituent assembly and submit that proposal to the
people for ratification through the process of an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor that the intention in the
proposal is to vest constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam President.
MS. AQUINO. I fully concur with the underlying precept of the proposal in
terms of institutionalizing popular participation in the drafting of the
Constitution or in the amendment thereof, but I would have a lot of difficulties
in terms of accepting the draft of Section 2, as written. Would the sponsor
agree with me that in the hierarchy of legal mandate, constituent power has
primacy over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam President.
MS. AQUINO. And would the sponsor agree with me that in the hierarchy of
legal values, the Constitution is source of all legal mandates and that
therefore we require a great deal of circumspection in the drafting and in the
amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the primacy of constituent
power we have a separate article in the constitution that would specifically
cover the process and the modes of amending the Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are
drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the Constitution by
people's initiative?
MR. SUAREZ. The matter of implementing this could very well be placed in
the hands of the National Assembly, not unless we can incorporate into this
provision the mechanics that would adequately cover all the conceivable
situations. 33
It was made clear during the interpellations that the aforementioned Section
2 is limited to proposals to AMEND — not to REVISE — the Constitution;
thus:
MR. SUAREZ. . . . This proposal was suggested on the theory that this
matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of
amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the revision of
the entire Constitution, so we removed it from the operation of Section 1 of
the proposed Article on Amendment or Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously bothered by providing this
process of initiative as a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing
provision?
MR. SUAREZ. We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish
the coverage of modes (a) and (b) in Section 1 to include the process of
revision; whereas the process of initiation to amend, which is given to the
public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms envisioned in the
Committee.
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I propose to substitute the entire
Section 2 with the following:
MR. DAVIDE. Madam President, I have modified the proposed amendment
after taking into account the modifications submitted by the sponsor himself
and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los
Reyes and Romulo. The modified amendment in substitution of the proposed
Section 2 will now read as follows: "SECTION 2. — AMENDMENTS TO
THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER Of REGISTERED VOTERS,
OF WHICH EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED
87
BY AT LEAST THREE PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL BE
AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF
THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS
THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that the proposed amendment
is reflective of the sense contained in Section 2 of our completed Committee
Report No. 7, we accept the proposed amendment. 36
The interpellations which ensued on the proposed modified amendment to
Section 2 clearly showed that it was a legislative act which must implement
the exercise of the right. Thus:
MR. ROMULO. Under Commissioner Davide's amendment, is it possible for
the legislature to set forth certain procedures to carry out the initiative. . .?
MR. DAVIDE. It can.
xxx xxx xxx
MR. ROMULO. But the Commissioner's amendment does not prevent the
legislature from asking another body to set the proposition in proper form.
MR. DAVIDE. The Commissioner is correct. In other words, the
implementation of this particular right would be subject to legislation,
provided the legislature cannot determine anymore the percentage of the
requirement.
MR. ROMULO. But the procedures, including the determination of the proper
form for submission to the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the substantive right to initiate. In
other words, none of the procedures to be proposed by the legislative body
must diminish or impair the right conceded here.
MR. ROMULO. In that provision of the Constitution can the procedures which
I have discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to — NOT REVISION of — the
Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendment." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because "amendments" and "revision" should
be covered by Section 1. So insofar as initiative is concerned, it can only
relate to "amendments" not "revision." 38
Commissioner Davide further emphasized that the process of proposing
amendments through initiative must be more rigorous and difficult than the
initiative on legislation. Thus:
MR. DAVIDE. A distinction has to be made that under this proposal, what is
involved is an amendment to the Constitution. To amend a Constitution
would ordinarily require a proposal by the National Assembly by a vote of
three-fourths; and to call a constitutional convention would require a higher
number. Moreover, just to submit the issue of calling a constitutional
convention, a majority of the National Assembly is required, the import being
that the process of amendment must be made more rigorous and difficult
than probably initiating an ordinary legislation or putting an end to a law
proposed by the National Assembly by way of a referendum. I cannot agree
to reducing the requirement approved by the Committee on the Legislative
because it would require another voting by the Committee, and the voting as
precisely based on a requirement of 10 percent. Perhaps, I might present
such a proposal, by way of an amendment, when the Commission shall take
up the Article on the Legislative or on the National Assembly on plenary
sessions.
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission approved by a
vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam President. Section 2, as amended, reads
as follows: "AMENDMENT TO THIS CONSTITUTION MAY LIKEWISE BE
DIRECTLY PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE DISTRICT
MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
88
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING
THE RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE
IMPLEMENTATION OF THE EXERCISE OF THIS RIGHT.
The entire proposed Article on Amendments or Revisions was approved on
second reading on 9 July 1986. 41 Thereafter, upon his motion for
reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view
thereof, the Article was again approved on Second and Third Readings on 1
August 1986. 42
However, the Committee on Style recommended that the approved Section 2
be amended by changing "percent" to "per centum" and "thereof" to "therein"
and deleting the phrase "by law" in the second paragraph so that said
paragraph reads: The Congress 43 shall provide for the implementation of
the exercise of this right. 44 This amendment was approved and is the text of
the present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-
executory.
Has Congress "provided" for the implementation of the exercise of this right?
Those who answer the question in the affirmative, like the private
respondents and intervenor Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the
exercise of the right than through the passage of a statute or legislative act.
This is the essence or rationale of the last minute amendment by the
Constitutional Commission to substitute the last paragraph of Section 2 of
Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the exercise
of this right.
with
The Congress shall provide for the implementation of the exercise of this
right.
This substitute amendment was an investiture on Congress of a power to
provide for the rules implementing the exercise of the right. The "rules"
means "the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover
initiative to propose amendments to the Constitution. The Act is a
consolidation of House Bill No. 21505 and Senate Bill No. 17. The former
was prepared by the Committee on Suffrage and Electoral Reforms of the
House of Representatives on the basis of two House Bills referred to it, viz.,
(a) House Bill No. 497, 47 which dealt with the initiative and referendum
mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as
with initiative and referendum under Section 3 of Article X (Local
Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum
concerning ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No. 17 and
House Bill No. 21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate 50 and by the House of Representatives. 51 This
approved bill is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress
to "provide for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of
the Act does not suggest an initiative on amendments to the Constitution.
The said section reads:
Sec. 2. Statement and Policy. — The power of the people under a system of
initiative and referendum to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or resolutions passed by
any legislative body upon compliance with the requirements of this Act is
hereby affirmed, recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought.
That word is neither germane nor relevant to said section, which exclusively
relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the
Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in part, the
89
Constitution" through the system of initiative. They can only do so with
respect to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section
was lifted from Section 1 of Senate Bill No. 17, which solely referred to a
statement of policy on local initiative and referendum and appropriately used
the phrases "propose and enact," "approve or reject" and "in whole or in
part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines
initiative on amendments to the Constitution and mentions it as one of the
three systems of initiative, and that Section 5 (Requirements) restates the
constitutional requirements as to the percentage of the registered voters who
must submit the proposal. But unlike in the case of the other systems of
initiative, the Act does not provide for the contents of a petition for initiative
on the Constitution. Section 5, paragraph (c) requires, among other things,
statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the
contents of the petition, the provisions of the Constitution sought to be
amended, in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to be enacted, approved or
rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred (100)
words which shall be legibly written or printed at the top of every page of the
petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or
rejected, amended or repealed" only strengthens the conclusion that Section
2, quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum
(Subtitle II) and for Local Initiative and Referendum (Subtitle III), no subtitle is
provided for initiative on the Constitution. This conspicuous silence as to the
latter simply means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to fully
provide for the implementation of the initiative on amendments to the
Constitution, it could have provided for a subtitle therefor, considering that in
the order of things, the primacy of interest, or hierarchy of values, the right of
the people to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the
Constitution is subsumed under the subtitle on National Initiative and
Referendum because it is national in scope. Our reading of Subtitle II
(National Initiative and Referendum) and Subtitle III (Local Initiative and
Referendum) leaves no room for doubt that the classification is not based on
the scope of the initiative involved, but on its nature and character. It is
"national initiative," if what is proposed to be adopted or enacted is a national
law, or a law which only Congress can pass. It is "local initiative" if what is
proposed to be adopted or enacted is a law, ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions,
provinces, cities, municipalities, and barangays can pass. This classification
of initiative into national and local is actually based on Section 3 of the Act,
which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact a
national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing to enact
a regional, provincial, city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been
a subtitle on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not
accurate. Provisions not germane to the subtitle on National Initiative and
Referendum are placed therein, like (1) paragraphs (b) and (c) of Section 9,
which reads:
(b) The proposition in an initiative on the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.
90
(c) A national or local initiative proposition approved by majority of the votes
cast in an election called for the purpose shall become effective fifteen (15)
days after certification and proclamation of the Commission. (Emphasis
supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative
with the legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's organization, as
defined by law, may file a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC
on the findings of sufficiency or insufficiency of the petition for initiative or
referendum, which could be petitions for both national and local initiative and
referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on
Local Initiative and Referendum is misplaced, 54 since the provision therein
applies to both national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude
the proper courts from declaring null and void any proposition approved
pursuant to this Act for violation of the Constitution or want of capacity of the
local legislative body to enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in
providing for the details in the implementation of initiative and referendum on
national and local legislation thereby giving them special attention, it failed,
rather intentionally, to do so on the system of initiative on amendments to the
Constitution. Anent the initiative on national legislation, the Act provides for
the following:
(a) The required percentage of registered voters to sign the petition and the
contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required
number of votes for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a
newspaper of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered
voters for the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the
invocation of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the
local government unit concerned as to whether the required number of
signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of the
proposition to the registered voters for their approval, which must be within
the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.
Upon the other hand, as to initiative on amendments to the Constitution, R.A.
No. 6735, in all of its twenty-three sections, merely (a) mentions, the word
"Constitution" in Section 2; (b) defines "initiative on the Constitution" and
includes it in the enumeration of the three systems of initiative in Section 3;
(c) speaks of "plebiscite" as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the people; (d)
reiterates the constitutional requirements as to the number of voters who
should sign the petition; and (e) provides for the date of effectivity of the
approved proposition.
There was, therefore, an obvious downgrading of the more important or the
paramount system of initiative. RA. No. 6735 thus delivered a humiliating
blow to the system of initiative on amendments to the Constitution by merely
paying it a reluctant lip service.
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned. Its lacunae on this
substantive matter are fatal and cannot be cured by "empowering" the
COMELEC "to promulgate such rules and regulations as may be necessary
to carry out the purposes of [the] Act.
The rule is that what has been delegated, cannot be delegated or as
expressed in a Latin maxim: potestas delegata non delegari potest. 59 The
recognized exceptions to the rule are as follows:
91
(1) Delegation of tariff powers to the President under Section 28(2) of Article
VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of
Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
Empowering the COMELEC, an administrative body exercising quasi-judicial
functions, to promulgate rules and regulations is a form of delegation of
legislative authority under no. 5 above. However, in every case of
permissible delegation, there must be a showing that the delegation itself is
valid. It is valid only if the law (a) is complete in itself, setting forth therein the
policy to be executed, carried out, or implemented by the delegate; and (b)
fixes a standard — the limits of which are sufficiently determinate and
determinable — to which the delegate must conform in the performance of
his functions. 61 A sufficient standard is one which defines legislative policy,
marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command
is to be effected.
Insofar as initiative to propose amendments to the Constitution is concerned,
R.A. No. 6735 miserably failed to satisfy both requirements in subordinate
legislation. The delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES
RULES AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and
regulations to implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of initiative. It
does not have that power under R.A. No. 6735. Reliance on the COMELEC's
power under Section 2(1) of Article IX-C of the Constitution is misplaced, for
the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law
where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE
OF DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with
the power of Congress to implement the right to initiate constitutional
amendments, or that it has validly vested upon the COMELEC the power of
subordinate legislation and that COMELEC Resolution No. 2300 is valid, the
COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A.
No. 6735, a petition for initiative on the Constitution must be signed by at
least 12% of the total number of registered voters of which every legislative
district is represented by at least 3% of the registered voters therein. The
Delfin Petition does not contain signatures of the required number of voters.
Delfin himself admits that he has not yet gathered signatures and that the
purpose of his petition is primarily to obtain assistance in his drive to gather
signatures. Without the required signatures, the petition cannot be deemed
validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its
filing. The petition then is the initiatory pleading. Nothing before its filing is
cognizable by the COMELEC, sitting en banc. The only participation of the
COMELEC or its personnel before the filing of such petition are (1) to
prescribe the form of the petition; 63 (2) to issue through its Election Records
and Statistics Office a certificate on the total number of registered voters in
each legislative district; 64 (3) to assist, through its election registrars, in the
establishment of signature stations; 65 and (4) to verify, through its election
registrars, the signatures on the basis of the registry list of voters, voters'
affidavits, and voters' identification cards used in the immediately preceding
election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given
cognizance of by the COMELEC. The respondent Commission must have
known that the petition does not fall under any of the actions or proceedings
under the COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence, the
said petition was merely entered as UND, meaning, undocketed. That
petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12
December 1996, and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC acted without
jurisdiction or with grave abuse of discretion and merely wasted its time,
energy, and resources.
The foregoing considered, further discussion on the issue of whether the
proposal to lift the term limits of elective national and local officials is an
92
amendment to, and not a revision of, the Constitution is rendered
unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be

permanently enjoined from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation of the system.

We feel, however, that the system of initiative to propose amendments to the

Constitution should no longer be kept in the cold; it should be given flesh and
blood, energy and strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for the implementation
of the right of the people under that system.

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on

amendments to the Constitution, and to have failed to provide sufficient
standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission

on Elections prescribing rules and regulations on the conduct of initiative or
amendments to the Constitution; and

d) ORDERING the Commission on Elections to forthwith DISMISS the

DELFIN petition (UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made

permanent as against the Commission on Elections, but is LIFTED as
against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

93
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner, vs. GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE
ON PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant
of rights, privileges, and concessions covering the national economy and
patrimony, the State shall give preference to qualified Filipinos,1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel
Corporation (MHC) which owns the historic Manila Hotel. Opposing,
respondents maintain that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask whether the
51% shares form part of the national economy and patrimony covered by the
protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance
System (GSIS), pursuant to the privatization program of the Philippine
Government under Proclamation No. 50 dated 8 December 1986, decided to
sell through public bidding 30% to 51% of the issued and outstanding shares
of respondent MHC. The winning bidder, or the eventual "strategic partner,"
is to provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel.2 In a close bidding held on
18 September 1995 only two (2) bidders participated: petitioner Manila
Prince Hotel Corporation, a Filipino corporation, which offered to buy 51% of
the MHC or 15,300,000 shares at P41.58 per share, and Renong Berhad, a
Malaysian firm, with ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 more than the bid of
petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state
— On 10 September 1996 the instant case was accepted by the Court En Banc
I. EXECUTION OF THE NECESSARY CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth below by
October 23, 1995 (reset to November 3, 1995) or the Highest Bidder will lose
the right to purchase the Block of Shares and GSIS will instead offer the
Block of Shares to the other Qualified Bidders:
a. The Highest Bidder must negotiate and execute with the GSIS/MHC the
Management Contract, International Marketing/Reservation System Contract
or other type of contract specified by the Highest Bidder in its strategic plan
for the Manila Hotel. . . .
b. The Highest Bidder must execute the Stock Purchase and Sale
Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic Partner
after the following conditions are met:
a. Execution of the necessary contracts with GSIS/MHC not later than
October 23, 1995 (reset to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and COP (Committee on
Privatization)/OGCC (Office of the Government Corporate Counsel) are
obtained.3
Pending the declaration of Renong Berhad as the winning bidder/strategic
partner and the execution of the necessary contracts, petitioner in a letter to
respondent GSIS dated 28 September 1995 matched the bid price of P44.00
per share tendered by Renong Berhad.4 In a subsequent letter dated 10
October 1995 petitioner sent a manager's check issued by Philtrust Bank for
Thirty-three Million Pesos (P33.000.000.00) as Bid Security to match the bid
of the Malaysian Group, Messrs. Renong Berhad . . .5 which respondent
GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has
disregarded the tender of the matching bid and that the sale of 51% of the
MHC may be hastened by respondent GSIS and consummated with Renong
Berhad, petitioner came to this Court on prohibition and mandamus. On 18
October 1995 the Court issued a temporary restraining order enjoining
respondents from perfecting and consummating the sale to the Malaysian
firm.
after it was referred to it by the First Division. The case was then set for oral
arguments with former Chief Justice Enrique M. Fernando and Fr. Joaquin G.
Bernas, S.J., as amici curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987
Constitution and submits that the Manila Hotel has been identified with the
Filipino nation and has practically become a historical monument which
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of
an earlier generation of Filipinos who believed in the nobility and sacredness
94
of independence and its power and capacity to release the full potential of
the Filipino people. To all intents and purposes, it has become a part of the
national patrimony.6 Petitioner also argues that since 51% of the shares of
the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS being a part of the
tourism industry is unquestionably a part of the national economy. Thus, any
transaction involving 51% of the shares of stock of the MHC is clearly
covered by the term national economy, to which Sec. 10, second par., Art.
XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the national
patrimony and its business also unquestionably part of the national economy
petitioner should be preferred after it has matched the bid offer of the
Malaysian firm. For the bidding rules mandate that if for any reason, the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
to the other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII,
of the 1987 Constitution is merely a statement of principle and policy since it
is not a self-executing provision and requires implementing legislation(s) . . .
Thus, for the said provision to Operate, there must be existing laws "to lay
down conditions under which business may be done."
Second, granting that this provision is self-executing, Manila Hotel does not
fall under the term national patrimony which only refers to lands of the public
domain, waters, minerals, coal, petroleum and other mineral oils, all forces of
potential energy, fisheries, forests or timber, wildlife, flora and fauna and all
marine wealth in its territorial sea, and exclusive marine zone as cited in the
first and second paragraphs of Sec. 2, Art. XII, 1987 Constitution. According
to respondents, while petitioner speaks of the guests who have slept in the
hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimony of the
nation. What is more, the mandate of the Constitution is addressed to the
State, not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is
only 51% of the outstanding shares of the corporation, not the hotel building
nor the land upon which the building stands. Certainly, 51% of the equity of
the MHC cannot be considered part of the national patrimony. Moreover, if
the disposition of the shares of the MHC is really contrary to the Constitution,
petitioner should have questioned it right from the beginning and not after it
had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules
which provides that if for any reason, the Highest Bidder cannot be awarded
the Block of Shares, GSIS may offer this to the other Qualified Bidders that
have validly submitted bids provided that these Qualified Bidders are willing
to match the highest bid in terms of price per share, is misplaced.
Respondents postulate that the privilege of submitting a matching bid has not
yet arisen since it only takes place if for any reason, the Highest Bidder
cannot be awarded the Block of Shares. Thus the submission by petitioner of
a matching bid is premature since Renong Berhad could still very well be
awarded the block of shares and the condition giving rise to the exercise of
the privilege to submit a matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
capricious, whimsical manner, and if ever it did abuse its discretion it was not
so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law. Similarly, the petition for
mandamus should fail as petitioner has no clear legal right to what it
demands and respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the
governance and administration of a nation. It is supreme, imperious, absolute
and unalterable except by the authority from which it emanates. It has been
defined as the fundamental and paramount law of the nation. 10 It prescribes
the permanent framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes certain fixed
principles on which government is founded. The fundamental conception in
other words is that it is a supreme law to which all other laws must conform
and in accordance with which all private rights must be determined and all
public authority administered. 11 Under the doctrine of constitutional
supremacy, if a law or contract violates any norm of the constitution that law
or contract whether promulgated by the legislative or by the executive branch
or entered into by private persons for private purposes is null and void and
without any force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in every
statute and contract.
Admittedly, some constitutions are merely declarations of policies and
principles. Their provisions command the legislature to enact laws and carry
out the purposes of the framers who merely establish an outline of
government providing for the different departments of the governmental
95
machinery and securing certain fundamental and inalienable rights of
citizens. 12 A provision which lays down a general principle, such as those
found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by
means of which the right it grants may be enjoyed or protected, is self-
executing. Thus a constitutional provision is self-executing if the nature and
extent of the right conferred and the liability imposed are fixed by the
constitution itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that the subject
is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been
generally drafted upon a different principle and have often become in effect
extensive codes of laws intended to operate directly upon the people in a
manner similar to that of statutory enactments, and the function of
constitutional conventions has evolved into one more like that of a legislative
body. Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that
all provisions of the constitution are self-executing If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law.14 This can be cataclysmic. That is why the prevailing
view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing . . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987
Constitution is clearly not self-executing, as they quote from discussions on
the floor of the 1986 Constitutional Commission —
MR. RODRIGO. Madam President, I am asking this question as the
Chairman of the Committee on Style. If the wording of "PREFERENCE" is
given to QUALIFIED FILIPINOS," can it be understood as a preference to
qualified Filipinos vis-a-vis Filipinos who are not qualified. So, why do we not
make it clear? To qualified Filipinos as against aliens?
THE PRESIDENT. What is the question of Commissioner Rodrigo? Is it to
remove the word "QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO QUALIFIED FILIPINOS" as
against whom? As against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is understood. We use the
word "QUALIFIED" because the existing laws or prospective laws will always
lay down conditions under which business may be done. For example,
qualifications on the setting up of other financial structures, et cetera
(emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes,
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way
as not to make it appear that it is non-self-executing but simply for purposes
of style. But, certainly, the legislature is not precluded from enacting other
further laws to enforce the constitutional provision so long as the
contemplated statute squares with the Constitution. Minor details may be left
to the legislature without impairing the self-executing nature of constitutional
provisions.
In self-executing constitutional provisions, the legislature may still enact
legislation to facilitate the exercise of powers directly granted by the
constitution, further the operation of such a provision, prescribe a practice to
be used for its enforcement, provide a convenient remedy for the protection
of the rights secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that legislation
may supplement and add to or prescribe a penalty for the violation of a self-
executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a
constitution of any express provision for a remedy for enforcing a right or
liability is not necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the constitution does
not necessarily exhaust legislative power on the subject, but any legislation
must be in harmony with the constitution, further the exercise of constitutional
right and make it more available. 17 Subsequent legislation however does
not necessarily mean that the subject constitutional provision is not, by itself,
fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10,
second par., of Art. XII is implied from the tenor of the first and third
paragraphs of the same section which undoubtedly are not self-executing. 18
The argument is flawed. If the first and third paragraphs are not self-
executing because Congress is still to enact measures to encourage the
formation and operation of enterprises fully owned by Filipinos, as in the first
paragraph, and the State still needs legislation to regulate and exercise
authority over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second paragraph can
96
only be self-executing as it does not by its language require any legislation in
order to give preference to qualified Filipinos in the grant of rights, privileges
and concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and non-self-
executing in another. 19
Even the cases cited by respondents holding that certain constitutional
provisions are merely statements of principles and policies, which are
basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights — are simply not
in point. Basco v. Philippine Amusements and Gaming Corporation 20
speaks of constitutional provisions on personal dignity, 21 the sanctity of
family life, 22 the vital role of the youth in nation-building 23 the promotion of
social justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human
rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites
provisions on the promotion of general welfare, 30 the sanctity of family life,
31 the vital role of the youth in nation-building 32 and the promotion of total
human liberation and development. 33 A reading of these provisions indeed
clearly shows that they are not judicially enforceable constitutional rights but
merely guidelines for legislation. The very terms of the provisions manifest
that they are only principles upon which the legislations must be based. Res
ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the 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 When our
Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give
preference to qualified Filipinos, it means just that — qualified Filipinos shall
be preferred. And when our Constitution declares that a right exists in certain
specified circumstances an action may be maintained to enforce such right
notwithstanding the absence of any legislation on the subject; consequently,
if there is no statute especially enacted to enforce such constitutional right,
such right enforces itself by its own inherent potency and puissance, and
from which all legislations must take their bearings. Where there is a right
there is a remedy. Ubi jus ibi remedium.
As regards our national patrimony, a member of the 1986 Constitutional
Commission explains —
The patrimony of the Nation that should be conserved and developed refers
not only to out rich natural resources but also to the cultural heritage of out
race. It also refers to our intelligence in arts, sciences and letters. Therefore,
we should develop not only our lands, forests, mines and other natural
resources but also the mental ability or faculty of our people.
We agree. In its plain and ordinary meaning, the term patrimony pertains to
heritage. When the Constitution speaks of national patrimony, it refers not
only to the natural resources of the Philippines, as the Constitution could
have very well used the term natural resources, but also to the cultural
heritage of the Filipinos.
Manila Hotel has become a landmark — a living testimonial of Philippine
heritage. While it was restrictively an American hotel when it first opened in
1912, it immediately evolved to be truly Filipino, Formerly a concourse for the
elite, it has since then become the venue of various significant events which
have shaped Philippine history. It was called the Cultural Center of the
1930's. It was the site of the festivities during the inauguration of the
Philippine Commonwealth. Dubbed as the Official Guest House of the
Philippine Government. it plays host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality.
The history of the hotel has been chronicled in the book The Manila Hotel:
The Heart and Memory of a City. During World War II the hotel was
converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila the
hotel was selected by the Japanese together with Intramuros as the two (2)
places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing host to almost every political
convention. In 1970 the hotel reopened after a renovation and reaped
numerous international recognitions, an acknowledgment of the Filipino
talent and ingenuity. In 1986 the hotel was the site of a failed coup d' etat
where an aspirant for vice-president was "proclaimed" President of the
Philippine Republic.
For more than eight (8) decades Manila Hotel has bore mute witness to the
triumphs and failures, loves and frustrations of the Filipinos; its existence is
impressed with public interest; its own historicity associated with our struggle
for sovereignty, independence and nationhood. Verily, Manila Hotel has
become part of our national economy and patrimony. For sure, 51% of the
equity of the MHC comes within the purview of the constitutional shelter for it
comprises the majority and controlling stock, so that anyone who acquires or
owns the 51% will have actual control and management of the hotel. In this
instance, 51% of the MHC cannot be disassociated from the hotel and the
land on which the hotel edifice stands. Consequently, we cannot sustain
respondents' claim that the Filipino First Policy provision is not applicable
since what is being sold is only 51% of the outstanding shares of the
97
corporation, not the Hotel building nor the land upon which the building
stands. 38
The argument is pure sophistry. The term qualified Filipinos as used in Our
Constitution also includes corporations at least 60% of which is owned by
Filipinos. This is very clear from the proceedings of the 1986 Constitutional
Commission
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I would like to introduce an amendment to the Nolledo
amendment. And the amendment would consist in substituting the words
"QUALIFIED FILIPINOS" with the following: "CITIZENS OF THE
PHILIPPINES OR CORPORATIONS OR ASSOCIATIONS WHOSE
CAPITAL OR CONTROLLING STOCK IS WHOLLY OWNED BY SUCH
CITIZENS.
xxx xxx xxx
MR. MONSOD. Madam President, apparently the proponent is agreeable,
but we have to raise a question. Suppose it is a corporation that is 80-
percent Filipino, do we not give it preference?
MR. DAVIDE. The Nolledo amendment would refer to an individual Filipino.
What about a corporation wholly owned by Filipino citizens?
MR. MONSOD. At least 60 percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in fact, we would be limiting it if we say that
the preference should only be 100-percent Filipino.
MR: DAVIDE. I want to get that meaning clear because "QUALIFIED
FILIPINOS" may refer only to individuals and not to juridical personalities or
entities.
MR. MONSOD. We agree, Madam President.
xxx xxx xxx
MR. RODRIGO. Before we vote, may I request that the amendment be read
again.
MR. NOLLEDO. The amendment will read: "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE SHALL GIVE PREFERENCE
TO QUALIFIED FILIPINOS." And the word "Filipinos" here, as intended by
the proponents, will include not only individual Filipinos but also Filipino-
controlled entities or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus —
MR. FOZ. Madam President, I would like to request Commissioner Nolledo to
please restate his amendment so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS."
MR FOZ. In connection with that amendment, if a foreign enterprise is
qualified and a Filipino enterprise is also qualified, will the Filipino enterprise
still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some aspects than the Filipino
enterprise, will the Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you,
Expounding further on the Filipino First Policy provision Commissioner
Nolledo continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be
"SHALL — THE STATE SHALL GlVE PREFERENCE TO QUALIFIED
FILIPINOS. This embodies the so-called "Filipino First" policy. That means
that Filipinos should be given preference in the grant of concessions,
privileges and rights covering the national patrimony.
The exchange of views in the sessions of the Constitutional Commission
regarding the subject provision was still further clarified by Commissioner
Nolledo —
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias in all
economic concerns. It is better known as the FILIPINO FIRST Policy . . . This
provision was never found in previous Constitutions . . . .
98
The term "qualified Filipinos" simply means that preference shall be given to
those citizens who can make a viable contribution to the common good,
because of credible competence and efficiency. It certainly does NOT
mandate the pampering and preferential treatment to Filipino citizens or
organizations that are incompetent or inefficient, since such an indiscriminate
preference would be counter productive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when a
choice has to be made between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered
by respondent GSIS and selected as one of the qualified bidders. It was pre-
qualified by respondent GSIS in accordance with its own guidelines so that
the sole inference here is that petitioner has been found to be possessed of
proven management expertise in the hotel industry, or it has significant
equity ownership in another hotel company, or it has an overall management
and marketing proficiency to successfully operate the Manila Hotel.
The penchant to try to whittle away the mandate of the Constitution by
arguing that the subject provision is not self-executory and requires
implementing legislation is quite disturbing. The attempt to violate a clear
constitutional provision — by the government itself — is only too distressing.
To adopt such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life
of their own and can be the source of a judicial remedy. We cannot simply
afford the government a defense that arises out of the failure to enact further
enabling, implementing or guiding legislation. In fine, the discourse of Fr.
Joaquin G. Bernas, S.J., on constitutional government is apt —
The executive department has a constitutional duty to implement laws,
including the Constitution, even before Congress acts — provided that there
are discoverable legal standards for executive action. When the executive
acts, it must be guided by its own understanding of the constitutional
command and of applicable laws. The responsibility for reading and
understanding the Constitution and the laws is not the sole prerogative of
Congress. If it were, the executive would have to ask Congress, or perhaps
the Court, for an interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government operates.
Respondents further argue that the constitutional provision is addressed to
the State, not to respondent GSIS which by itself possesses a separate and
distinct personality. This argument again is at best specious. It is undisputed
that the sale of 51% of the MHC could only be carried out with the prior
approval of the State acting through respondent Committee on Privatization.
As correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact alone makes
the sale of the assets of respondents GSIS and MHC a "state action." In
constitutional jurisprudence, the acts of persons distinct from the government
are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so
significantly involved with the private actor as to make the government
responsible for his action; and, (3) when the government has approved or
authorized the action. It is evident that the act of respondent GSIS in selling
51% of its share in respondent MHC comes under the second and third
categories of "state action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of the State and
therefore subject to the constitutional command.
When the Constitution addresses the State it refers not only to the people but
also to the government as elements of the State. After all, government is
composed of three (3) divisions of power — legislative, executive and
judicial. Accordingly, a constitutional mandate directed to the State is
correspondingly directed to the three(3) branches of government. It is
undeniable that in this case the subject constitutional injunction is addressed
among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is
not yet the winning bidder. The bidding rules expressly provide that the
highest bidder shall only be declared the winning bidder after it has
negotiated and executed the necessary contracts, and secured the requisite
approvals. Since the "Filipino First Policy provision of the Constitution
bestows preference on qualified Filipinos the mere tending of the highest bid
is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor
are they under obligation to enter into one with the highest bidder. For in
choosing the awardee respondents are mandated to abide by the dictates of
the 1987 Constitution the provisions of which are presumed to be known to
all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the bidding
rules issued by respondent GSIS, lest the bidding rules be nullified for being
violative of the Constitution. It is a basic principle in constitutional law that all
laws and contracts must conform with the fundamental law of the land. Those
which violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this
99
to other Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in terms of price
per
share. 47 Certainly, the constitutional mandate itself is reason enough not to
award the block of shares immediately to the foreign bidder notwithstanding
its submission of a higher, or even the highest, bid. In fact, we cannot
conceive of a stronger reason than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public
bidding concerning the grant of rights, privileges and concessions covering
the national economy and patrimony, thereby exceeding the bid of a Filipino,
there is no question that the Filipino will have to be allowed to match the bid
of the foreign entity. And if the Filipino matches the bid of a foreign firm the
award should go to the Filipino. It must be so if we are to give life and
meaning to the Filipino First Policy provision of the 1987 Constitution. For,
while this may neither be expressly stated nor contemplated in the bidding
rules, the constitutional fiat is, omnipresent to be simply disregarded. To
ignore it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may
discourage foreign investors. But the Constitution and laws of the Philippines
are understood to be always open to public scrutiny. These are given factors
which investors must consider when venturing into business in a foreign
jurisdiction. Any person therefore desiring to do business in the Philippines or
with any of its agencies or instrumentalities is presumed to know his rights
and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from
questioning the sale to Renong Berhad since petitioner was well aware from
the beginning that a foreigner could participate in the bidding is meritless.
Undoubtedly, Filipinos and foreigners alike were invited to the bidding. But
foreigners may be awarded the sale only if no Filipino qualifies, or if the
qualified Filipino fails to match the highest bid tendered by the foreign entity.
In the case before us, while petitioner was already preferred at the inception
of the bidding because of the constitutional mandate, petitioner had not yet
matched the bid offered by Renong Berhad. Thus it did not have the right or
personality then to compel respondent GSIS to accept its earlier bid. Rightly,
only after it had matched the bid of the foreign firm and the apparent
disregard by respondent GSIS of petitioner's matching bid did the latter have
a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard
unless perhaps the award has been finally made. To insist on selling the
Manila Hotel to foreigners when there is a Filipino group willing to match the
bid of the foreign group is to insist that government be treated as any other
ordinary market player, and bound by its mistakes or gross errors of
judgment, regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down
the basic conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
execute the necessary agreements and documents to effect the sale in
accordance not only with the bidding guidelines and procedures but with the
Constitution as well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the bidding rules
after the latter has matched the bid of the Malaysian firm clearly constitutes
grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied
in the 1987 Constitution not merely to be used as a guideline for future
legislation but primarily to be enforced; so must it be enforced. This Court as
the ultimate guardian of the Constitution will never shun, under any
reasonable circumstance, the duty of upholding the majesty of the
Constitution which it is tasked to defend. It is worth emphasizing that it is not
the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and
welcomes more business opportunities but avowedly sanctions the
preference for Filipinos whenever such preference is ordained by the
Constitution. The position of the Court on this matter could have not been
more appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive about the
wisdom and feasibility of legislation economic in nature, the Supreme Court
has not been spared criticism for decisions perceived as obstacles to
economic progress and development . . . in connection with a temporary
injunction issued by the Court's First Division against the sale of the Manila
Hotel to a Malaysian Firm and its partner, certain statements were published
in a major daily to the effect that injunction "again demonstrates that the
Philippine legal system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business of the
Court to intervene in contracts of the kind referred to or set itself up as the
judge of whether they are viable or attainable, it is its bounden duty to make
sure that they do not violate the Constitution or the laws, or are not adopted
or implemented with grave abuse of discretion amounting to lack or excess of
100
jurisdiction. It will never shirk that duty, no matter how buffeted by winds of
unfair and ill-informed criticism.
Privatization of a business asset for purposes of enhancing its business
viability and preventing further losses, regardless of the character of the
asset, should not take precedence over non-material values. A commercial,
nay even a budgetary, objective should not be pursued at the expense of
national pride and dignity. For the Constitution enshrines higher and nobler
non-material values. Indeed, the Court will always defer to the Constitution in
the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review
when the Constitution is involved.
Nationalism is inherent, in the very concept of the Philippines being a
democratic and republican state, with sovereignty residing in the Filipino
people and from whom all government authority emanates. In nationalism,
the happiness and welfare of the people must be the goal. The nation-state
can have no higher purpose. Any interpretation of any constitutional provision
must adhere to such basic concept. Protection of foreign investments, while
laudible, is merely a policy. It cannot override the demands of nationalism.
hands of a qualified, zealous and well-meaning Filipino? This is the plain and
simple meaning of the Filipino First Policy provision of the Philippine
Constitution. And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation, will continue
to respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL are directed to CEASE and DESIST from selling 51% of the
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila
Hotel Corporation at P44.00 per share and thereafter to execute the
necessary clearances and to do such other acts and deeds as may be
necessary for purpose.
SO ORDERED.

The Manila Hotel or, for that matter, 51% of the MHC, is not just any
commodity to be sold to the highest bidder solely for the sake of privatization.
We are not talking about an ordinary piece of property in a commercial
district. We are talking about a historic relic that has hosted many of the most
important events in the short history of the Philippines as a nation. We are
talking about a hotel where heads of states would prefer to be housed as a
strong manifestation of their desire to cloak the dignity of the highest state
function to their official visits to the Philippines. Thus the Manila Hotel has
played and continues to play a significant role as an authentic repository of
twentieth century Philippine history and culture. In this sense, it has become
truly a reflection of the Filipino soul — a place with a history of grandeur; a
most historical setting that has played a part in the shaping of a country.

This Court cannot extract rhyme nor reason from the determined efforts of
respondents to sell the historical landmark — this Grand Old Dame of hotels
in Asia — to a total stranger. For, indeed, the conveyance of this epic
exponent of the Filipino psyche to alien hands cannot be less than
mephistophelian for it is, in whatever manner viewed, a veritable alienation of
a nation's soul for some pieces of foreign silver. And so we ask: What
advantage, which cannot be equally drawn from a qualified Filipino, can be
gained by the Filipinos Manila Hotel — and all that it stands for — is sold to a
non-Filipino? How much of national pride will vanish if the nation's cultural
heritage is entrusted to a foreign entity? On the other hand, how much dignity
will be preserved and realized if the national patrimony is safekept in the

101
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, minors, and represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA, minor, represented by
her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their
parents ENRICO and NIDA FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES FORTUN, GEORGE II
and MA. CONCEPCION, all surnamed MISA, minors and represented by
their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN,
JOVIE MARIE ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION T. CASTRO, minor,
represented by her parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO, minor, represented by her parents JOSE and
ANGELA DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and
MARIE GABRIELLE, all surnamed SAENZ, minors, represented by their
parents ROBERTO and AURORA SAENZ, KRISTINE, MARY ELLEN,
MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING, DAVID,
FRANCISCO and THERESE VICTORIA, all surnamed ENDRIGA, minors,
represented by their parents BALTAZAR and TERESITA ENDRIGA,
JOSE MA. and REGINA MA., all surnamed ABAYA, minors, represented
by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR.
and MARIETTE, all surnamed CARDAMA, minors, represented by their
parents MARIO and LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL,
and IMEE LYN, all surnamed OPOSA, minors and represented by their
parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH, STEPHEN
JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by
their parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed BIBAL,
minors, represented by their parents FRANCISCO, JR. and MILAGROS
BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC.,
petitioners, vs. THE HONORABLE FULGENCIO S. FACTORAN, JR., in
his capacity as the Secretary of the Department of Environment and
Natural Resources, and THE HONORABLE ERIBERTO U. ROSARIO,
Presiding Judge of the RTC, Makati, Branch 66, respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of Filipinos to a
balanced and healthful ecology which the petitioners dramatically associate
with the twin concepts of "inter-generational responsibility" and "inter-
generational justice." Specifically, it touches on the issue of whether the said
petitioners have a cause of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the unabated hemorrhage of
the country's vital life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77 which was filed
before Branch 66 (Makati, Metro Manila) of the Regional Trial Court (RTC),
National Capital Judicial Region. The principal plaintiffs therein, now the
principal petitioners, are all minors duly represented and joined by their
respective parents. Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted
action geared for the protection of our environment and natural resources.
The original defendant was the Honorable Fulgencio S. Factoran, Jr., then
Secretary of the Department of Environment and Natural Resources (DENR).
His substitution in this petition by the new Secretary, the Honorable Angel C.
Alcala, was subsequently ordered upon proper motion by the petitioners.1
The complaint2 was instituted as a taxpayers' class suit3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and
entitled to the full benefit, use and enjoyment of the natural resource treasure
that is the country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the preservation of
said resource but are "so numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn."4 Consequently, it is prayed
for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons acting
in his behalf to —
(1) Cancel all existing timber license agreements in the country;
(2) Cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and equitable under the
premises."
The complaint starts off with the general averments that the Philippine
archipelago of 7,100 islands has a land area of thirty million (30,000,000)
hectares and is endowed with rich, lush and verdant rainforests in which
varied, rare and unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures
which have existed, endured and flourished since time immemorial; scientific
102
evidence reveals that in order to maintain a balanced and healthful ecology,
the country's land area should be utilized on the basis of a ratio of fifty-four
per cent (54%) for forest cover and forty-six per cent (46%) for agricultural,
residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted
in a host of environmental tragedies, such as (a) water shortages resulting
from drying up of the water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the water table as a result
of the intrusion therein of salt water, incontrovertible examples of which may
be found in the island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum — approximately the size of the
entire island of Catanduanes, (d) the endangering and extinction of the
country's unique, rare and varied flora and fauna, (e) the disturbance and
dislocation of cultural communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life leading to a critical
reduction in marine resource productivity, (g) recurrent spells of drought as is
presently experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising from the absence of the
absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose
of supplying water for domestic uses, irrigation and the generation of electric
power, and (k) the reduction of the earth's capacity to process carbon dioxide
gases which has led to perplexing and catastrophic climatic changes such as
the phenomenon of global warming, otherwise known as the "greenhouse
effect."
Plaintiffs further assert that the adverse and detrimental consequences of
continued and deforestation are so capable of unquestionable demonstration
that the same may be submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present expert witnesses
as well as documentary, photographic and film evidence in the course of the
trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million
hectares of rainforests constituting roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained no more than
1.2 million hectares of said rainforests or four per cent (4.0%) of the country's
land area.
10. More recent surveys reveal that a mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8% of the entire land mass of the
Philippine archipelago and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors have granted
timber license agreements ('TLA's') to various corporations to cut the
aggregate area of 3.89 million hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000 hectares per
annum or 25 hectares per hour — nighttime, Saturdays, Sundays and
holidays included — the Philippines will be bereft of forest resources after the
end of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious injury and
irreparable damage of this continued trend of deforestation to the plaintiff
minor's generation and to generations yet unborn are evident and
incontrovertible. As a matter of fact, the environmental damages enumerated
in paragraph 6 hereof are already being felt, experienced and suffered by the
generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders to cut and deforest
the remaining forest stands will work great damage and irreparable injury to
plaintiffs — especially plaintiff minors and their successors — who may never
see, use, benefit from and enjoy this rare and unique natural resource
treasure.
This act of defendant constitutes a misappropriation and/or impairment of the
natural resource property he holds in trust for the benefit of plaintiff minors
and succeeding generations.
15. Plaintiffs have a clear and constitutional right to a balanced and healthful
ecology and are entitled to protection by the State in its capacity as the
parens patriae.
16. Plaintiff have exhausted all administrative remedies with the defendant's
office. On March 2, 1990, plaintiffs served upon defendant a final demand to
cancel all logging permits in the country.
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A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as
Annex "B".
17. Defendant, however, fails and refuses to cancel the existing TLA's to the
continuing serious damage and extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to cancel the TLA's is an
act violative of the rights of plaintiffs, especially plaintiff minors who may be
left with a country that is desertified (sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's is manifestly
contrary to the public policy enunciated in the Philippine Environmental
Policy which, in pertinent part, states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions under which man and
nature can thrive in productive and enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;
(c) to ensure the attainment of an environmental quality that is conductive to
a life of dignity and well-being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the aforementioned
TLA's is contradictory to the Constitutional policy of the State to —
a. effect "a more equitable distribution of opportunities, income and wealth"
and "make full and efficient use of natural resources (sic)." (Section 1, Article
XII of the Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature." (Section 16,
Article II, id.)
21. Finally, defendant's act is contrary to the highest law of humankind — the
natural law — and violative of plaintiffs' right to self-preservation and
perpetuation.
22. There is no other plain, speedy and adequate remedy in law other than
the instant action to arrest the unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a
Motion to Dismiss the complaint based on two (2) grounds, namely: (1) the
plaintiffs have no cause of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to the legislative or
executive branches of Government. In their 12 July 1990 Opposition to the
Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action
presents a justiciable question as it involves the defendant's abuse of
discretion.
On 18 July 1991, respondent Judge issued an order granting the
aforementioned motion to dismiss.7 In the said order, not only was the
defendant's claim — that the complaint states no cause of action against him
and that it raises a political question — sustained, the respondent Judge
further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the
land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65
of the Revised Rules of Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent Judge gravely abused his
discretion in dismissing the action. Again, the parents of the plaintiffs-minors
not only represent their children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required
the parties to submit their respective Memoranda after the Office of the
Solicitor General (OSG) filed a Comment in behalf of the respondents and
the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a
cause of action as it contains sufficient allegations concerning their right to a
sound environment based on Articles 19, 20 and 21 of the Civil Code
(Human Relations), Section 4 of Executive Order (E.O.) No. 192 creating the
DENR, Section 3 of Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the
concept of generational genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation embodied in
natural law. Petitioners likewise rely on the respondent's correlative
obligation per Section 4 of E.O. No. 192, to safeguard the people's right to a
healthful environment.
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It is further claimed that the issue of the respondent Secretary's alleged
grave abuse of discretion in granting Timber License Agreements (TLAs) to
cover more areas for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the Constitution's non-
impairment clause, petitioners maintain that the same does not apply in this
case because TLAs are not contracts. They likewise submit that even if TLAs
may be considered protected by the said clause, it is well settled that they
may still be revoked by the State when the public interest so requires.
On the other hand, the respondents aver that the petitioners failed to allege
in their complaint a specific legal right violated by the respondent Secretary
for which any relief is provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an "environmental right" which
supposedly entitles the petitioners to the "protection by the state in its
capacity as parens patriae." Such allegations, according to them, do not
reveal a valid cause of action. They then reiterate the theory that the
question of whether logging should be permitted in the country is a political
question which should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the petitioners'
resources is not to file an action to court, but to lobby before Congress for the
passage of a bill that would ban logging totally.
As to the matter of the cancellation of the TLAs, respondents submit that the
same cannot be done by the State without due process of law. Once issued,
a TLA remains effective for a certain period of time — usually for twenty-five
(25) years. During its effectivity, the same can neither be revised nor
cancelled unless the holder has been found, after due notice and hearing, to
have violated the terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be violative of the requirements
of due process.
Before going any further, We must first focus on some procedural matters.
Petitioners instituted Civil Case No. 90-777 as a class suit. The original
defendant and the present respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is indeed a class suit.
The subject matter of the complaint is of common and general interest not
just to several, but to all citizens of the Philippines. Consequently, since the
parties are so numerous, it, becomes impracticable, if not totally impossible,
to bring all of them before the court. We likewise declare that the plaintiffs
therein are numerous and representative enough to ensure the full protection
of all concerned interests. Hence, all the requisites for the filing of a valid
class suit under Section 12, Rule 3 of the Revised Rules of Court are present
both in the said civil case and in the instant petition, the latter being but an
incident to the former.
This case, however, has a special and novel element. Petitioners minors
assert that they represent their generation as well as generations yet unborn.
We find no difficulty in ruling that they can, for themselves, for others of their
generation and for the succeeding generations, file a class suit. Their
personality to sue in behalf of the succeeding generations can only be based
on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter
expounded, considers
the "rhythm and harmony of nature." Nature means the created world in its
entirety.9 Such rhythm and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources to the end that their exploration, development
and utilization be equitably accessible to the present as well as future
generations. 10 Needless to say, every generation has a responsibility to the
next to preserve that rhythm and harmony for the full enjoyment of a
balanced and healthful ecology. Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at the same time, the
performance of their obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been addressed, We shall
now proceed to the merits of the petition.
After a careful perusal of the complaint in question and a meticulous
consideration and evaluation of the issues raised and arguments adduced by
the parties, We do not hesitate to find for the petitioners and rule against the
respondent Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The pertinent portions of
the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court cannot
help but agree with the defendant. For although we believe that plaintiffs
have but the noblest of all intentions, it (sic) fell short of alleging, with
sufficient definiteness, a specific legal right they are seeking to enforce and
protect, or a specific legal wrong they are seeking to prevent and redress
(Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions based on unverified
data. In fine, plaintiffs fail to state a cause of action in its Complaint against
the herein defendant.
105
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy, may not
be taken cognizance of by this Court without doing violence to the sacred
principle of "Separation of Powers" of the three (3) co-equal branches of the
Government.
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the plaintiffs failed to
allege with sufficient definiteness a specific legal right involved or a specific
legal wrong committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A reading of the
complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal right — the right to
a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly provides:
Sec. 16. The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is provided for in the preceding
section of the same article:
Sec. 15. The State shall protect and promote the right to health of the people
and instill health consciousness among them.
While the right to a balanced and healthful ecology is to be found under the
Declaration of Principles and State Policies and not under the Bill of Rights, it
does not follow that it is less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different category of rights
altogether for it concerns nothing less than self-preservation and self-
perpetuation — aptly and fittingly stressed by the petitioners — the
advancement of which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need not even be written
in the Constitution for they are assumed to exist from the inception of
humankind. If they are now explicitly mentioned in the fundamental charter, it
is because of the well-founded fear of its framers that unless the rights to a
balanced and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the first and protect
and advance the second, the day would not be too far when all else would be
lost not only for the present generation, but also for those to come —
generations which stand to inherit nothing but parched earth incapable of
sustaining life.
The right to a balanced and healthful ecology carries with it the correlative
duty to refrain from impairing the environment. During the debates on this
right in one of the plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner Wilfrido Villacorta
and Commissioner Adolfo Azcuna who sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions against all forms of
pollution — air, water and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic) environment necessarily
carries with it the correlative duty of not impairing the same and, therefore,
sanctions may be provided for impairment of environmental balance. 12
The said right implies, among many other things, the judicious management
and conservation of the country's forests.
Without such forests, the ecological or environmental balance would be
irreversiby disrupted.
Conformably with the enunciated right to a balanced and healthful ecology
and the right to health, as well as the other related provisions of the
Constitution concerning the conservation, development and utilization of the
country's natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of which expressly
mandates that the Department of Environment and Natural Resources "shall
be the primary government agency responsible for the conservation,
management, development and proper use of the country's environment and
natural resources, specifically forest and grazing lands, mineral, resources,
including those in reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all natural resources as
may be provided for by law in order to ensure equitable sharing of the
benefits derived therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the following statement of
policy:
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Sec. 3. Declaration of Policy. — It is hereby declared the policy of the State
to ensure the sustainable use, development, management, renewal, and
conservation of the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and enhancement of the quality of
the environment, and equitable access of the different segments of the
population to the development and the use of the country's natural resources,
not only for the present generation but for future generations as well. It is
also the policy of the state to recognize and apply a true value system
including social and environmental cost implications relative to their
utilization, development and conservation of our natural resources.
This policy declaration is substantially re-stated it Title XIV, Book IV of the
Administrative Code of 1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure, for the benefit of
the Filipino people, the full exploration and development as well as the
judicious disposition, utilization, management, renewal and conservation of
the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas
and other natural resources, consistent with the necessity of maintaining a
sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and
utilization of such natural resources equitably accessible to the different
segments of the present as well as future generations.
(2) The State shall likewise recognize and apply a true value system that
takes into account social and environmental cost implications relative to the
utilization, development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining a sound
ecological balance and protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the other hand, specifically
speaks of the mandate of the DENR; however, it makes particular reference
to the fact of the agency's being subject to law and higher authority. Said
section provides:
Sec. 2. Mandate. — (1) The Department of Environment and Natural
Resources shall be primarily responsible for the implementation of the
foregoing policy.
(2) It shall, subject to law and higher authority, be in charge of carrying out
the State's constitutional mandate to control and supervise the exploration,
development, utilization, and conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987 have set the
objectives which will serve as the bases for policy formulation, and have
defined the powers and functions of the DENR.
It may, however, be recalled that even before the ratification of the 1987
Constitution, specific statutes already paid special attention to the
"environmental right" of the present and future generations. On 6 June 1977,
P.D. No. 1151 (Philippine Environmental Policy) and P.D. No. 1152
(Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve
conditions under which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social, economic and
other requirements of present and future generations of Filipinos, and (c) to
insure the attainment of an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the "responsibilities of
each generation as trustee and guardian of the environment for succeeding
generations." 17 The latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they represent) to a balanced
and healthful ecology is as clear as the DENR's duty — under its mandate
and by virtue of its powers and functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and advance the said right.
A denial or violation of that right by the other who has the corelative duty or
obligation to respect or protect the same gives rise to a cause of action.
Petitioners maintain that the granting of the TLAs, which they claim was done
with grave abuse of discretion, violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires that no further TLAs
should be renewed or granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal right or rights of
the other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation
of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss based on the ground
that the complaint fails to state a cause of action, 19 the question submitted
to the court for resolution involves the sufficiency of the facts alleged in the
complaint itself. No other matter should be considered; furthermore, the truth
of falsity of the said allegations is beside the point for the truth thereof is
deemed hypothetically admitted. The only issue to be resolved in such a
case is: admitting such alleged facts to be true, may the court render a valid
107
judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should
"exercise the utmost care and circumspection in passing upon a motion to
dismiss on the ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is effectively
nullified. If that happens, there is a blot on the legal order. The law itself
stands in disrepute."
After careful examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as well as the
specific averments under the sub-heading CAUSE OF ACTION, to be
adequate enough to show, prima facie, the claimed violation of their rights.
On the basis thereof, they may thus be granted, wholly or partly, the reliefs
prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political
question. Policy formulation or determination by the executive or legislative
branches of Government is not squarely put in issue. What is principally
involved is the enforcement of a right vis-a-vis policies already formulated
and expressed in legislation. It must, nonetheless, be emphasized that the
political question doctrine is no longer, the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive
and legislative actions from judicial inquiry or review. The second paragraph
of section 1, Article VIII of the Constitution states that:
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.
Commenting on this provision in his book, Philippine Political Law, 22 Mr.
Justice Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of judicial
power, involving the settlement of conflicting rights as conferred as law. The
second part of the authority represents a broadening of judicial power to
enable the courts of justice to review what was before forbidden territory, to
wit, the discretion of the political departments of the government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the decisions of
the executive and the legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of discretion. The
catch, of course, is the meaning of "grave abuse of discretion," which is a
very elastic phrase that can expand or contract according to the disposition
of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from revolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question. Article VII,
Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the
non-impairment of contracts clause found in the Constitution. The court a quo
declared that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to
cancel all existing timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or approving new
timber license agreements. For to do otherwise would amount to "impairment
of contracts" abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked,
by such a sweeping pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in his motion to dismiss
the non-impairment clause. If he had done so, he would have acted with
utmost infidelity to the Government by providing undue and unwarranted
benefits and advantages to the timber license holders because he would
have forever bound the Government to strictly respect the said licenses
according to their terms and conditions regardless of changes in policy and
the demands of public interest and welfare. He was aware that as correctly
pointed out by the petitioners, into every timber license must be read Section
20 of the Forestry Reform Code (P.D. No. 705) which provides:
. . . Provided, That when the national interest so requires, the President may
amend, modify, replace or rescind any contract, concession, permit, licenses
or any other form of privilege granted herein . . .
Needless to say, all licenses may thus be revoked or rescinded by executive
action. It is not a contract, property or a property right protested by the due
108
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the State regulates the
utilization and disposition of forest resources to the end that public welfare is
promoted. A timber license is not a contract within the purview of the due
process clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public welfare as in this
case.
A license is merely a permit or privilege to do what otherwise would be
unlawful, and is not a contract between the authority, federal, state, or
municipal, granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right; nor is it taxation
(37 C.J. 168). Thus, this Court held that the granting of license does not
create irrevocable rights, neither is it property or property rights (People vs.
Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs.
Deputy Executive Secretary:
. . . Timber licenses, permits and license agreements are the principal
instruments by which the State regulates the utilization and disposition of
forest resources to the end that public welfare is promoted. And it can hardly
be gainsaid that they merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or irrevocable
right to the particular concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See Sections
3(ee) and 20 of Pres. Decree No. 705, as amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment clause, which
reads:
Sec. 10. No law impairing, the obligation of contracts shall be passed.
cannot be invoked.
In the second place, even if it is to be assumed that the same are contracts,
the instant case does not involve a law or even an executive issuance
declaring the cancellation or modification of existing timber licenses. Hence,
the non-impairment clause cannot as yet be invoked. Nevertheless, granting
further that a law has actually been passed mandating cancellations or
modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as
law could have only been passed in the exercise of the police power of the
state for the purpose of advancing the right of the people to a balanced and
healthful ecology, promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler Corp. 28 this Court stated:
The freedom of contract, under our system of government, is not meant to be
absolute. The same is understood to be subject to reasonable legislative
regulation aimed at the promotion of public health, moral, safety and welfare.
In other words, the constitutional guaranty of non-impairment of obligations of
contract is limited by the exercise of the police power of the State, in the
interest of public health, safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern. The
general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the police power of the
state.
Finally, it is difficult to imagine, as the trial court did, how the non-impairment
clause could apply with respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing, renewing or approving new
timber licenses for, save in cases of renewal, no contract would have as of
yet existed in the other instances. Moreover, with respect to renewal, the
holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby
GRANTED, and the challenged Order of respondent Judge of 18 July 1991
dismissing Civil Case No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants the holders or
grantees of the questioned timber license agreements.
No pronouncement as to costs.
SO ORDERED.
109
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA 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 OSMEÑA,
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.
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 . . . , (the reduction of) costs and uncertainty associated with exporting
. . . , 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
110
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 . . . (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 proscribe 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 Philippines4 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 of the
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
111
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 signed7 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.
112
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.
Tañada 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 petition's 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?
113
(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 department's 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 merits of
trade liberalization as a policy espoused by said international body. Neither
will it rule on the propriety of the government's 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.
114
Specifically, the "flagship" constitutional provisions referred to are Sec 19, (Agreement on Trade-Related Investment Measures, Vol. 27, Uruguay
Article II, and Secs. 10 and 12, Article XII, of the Constitution, which are Round, Legal Instruments, p. 22121, emphasis supplied).
worded as follows:
The Annex referred to reads as follows:
Article II
DECLARATION OF PRINCIPLES ANNEX
AND STATE POLICIES Illustrative List
xxx xxx xxx
1. TRIMS that are inconsistent with the obligation of national treatment
Sec. 19. The State shall develop a self-reliant and independent national provided for in paragraph 4 of Article III of GATT 1994 include those which
economy effectively controlled by Filipinos. are mandatory or enforceable under domestic law or under administrative
xxx xxx xxx rulings, or compliance with which is necessary to obtain an advantage, and
which require:
Article XII
NATIONAL ECONOMY AND PATRIMONY (a) the purchase or use by an enterprise of products of domestic origin or
xxx xxx xxx 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
Sec. 10. . . . The Congress shall enact measures that will encourage the value of its local production; or
formation and operation of enterprises whose capital is wholly owned by
Filipinos. (b) that an enterprise's purchases or use of imported products be limited to
an amount related to the volume or value of local products that it exports.
In the grant of rights, privileges, and concessions covering the national
economy and patrimony, the State shall give preference to qualified Filipinos. 2. TRIMS that are inconsistent with the obligations of general elimination of
quantitative restrictions provided for in paragraph 1 of Article XI of GATT
xxx xxx xxx 1994 include those which are mandatory or enforceable under domestic laws
Sec. 12. The State shall promote the preferential use of Filipino labor, or under administrative rulings, or compliance with which is necessary to
domestic materials and locally produced goods, and adopt measures that obtain an advantage, and which restrict:
help make them competitive.
(a) the importation by an enterprise of products used in or related to the local
Petitioners aver that these sacred constitutional principles are desecrated by production that it exports;
the following WTO provisions quoted in their memorandum:
(b) the importation by an enterprise of products used in or related to its local
a) In the area of investment measures related to trade in goods (TRIMS, for production by restricting its access to foreign exchange inflows attributable to
brevity): the enterprise; or

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 II 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."
(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

115
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 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 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 the, 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,
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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
board 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 grating 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:
Sec. 1. . . .
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. (Emphasis 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:
Sec. 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. . . .
xxx xxx xxx
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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 ad 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 rule 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
member's 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
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effective demand, and expanding the production of and trade in goods and
services, while allowing for the optimal use of the world's 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, . . . (emphasis 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
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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 of foreign
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 country's 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
explains:
The Constitution must be quintessential rather than superficial, the root and
not the blossom, the base and frame-work 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 . . . but also to the flow of investments and money . . . as well as to a
whole slew of agreements on socio-cultural matters . . .
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 . . . such limitations and
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restrictions" as Congress may provide, 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 . . . 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.
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(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 country's 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 . . . 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
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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
(not 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. (emphasis
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 in 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
123
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 cloture, 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."
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."
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 frame-work 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:
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 Tañada 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.
124
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 Tañada and later on Senator
Tolentino since they were the ones that raised this question yesterday?
Senator Tañada, please.
SEN. TAÑADA: 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. TAÑADA. . . . of President Ramos, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tañada. 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
yesterday's session and I don't 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 Court's 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
125
or to act at all in contemplation of law. Failure on the part of the petitioner to
show grave abuse of discretion will result in the dismissal of the petition.
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 Senate's processes, this
Court cannot find any cogent reason to impute grave abuse of discretion to
the Senate's exercise of its power of concurrence in the WTO Agreement
granted it by Sec. 21 of Article VII of the Constitution.
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 cooperation and amity with all
nations.
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.

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

126
G.R. No. 169815 August 13, 2008
BUREAU OF FISHERIES AND AQUATIC RESOURCES (BFAR)
EMPLOYEES UNION, REGIONAL OFFICE NO. VII, CEBU CITY,
petitioner, vs. COMMISSION ON AUDIT, respondent.
DECISION
PUNO, C.J.:
On appeal are the Decision1 dated April 8, 2005 of respondent Commission
on Audit (COA) in LAO-N-2005-119 upholding the disallowance by the COA
Legal and Adjudication Office (COA-LAO), Regional Office No. VII, Cebu City
of the P10,000.00 Food Basket Allowance granted by BFAR to each of its
employees in 1999, and COA Resolution2 dated August 5, 2005, denying
petitioner’s motion for reconsideration of said Decision.
First, the facts:
On October 18, 1999, petitioner Bureau of Fisheries and Aquatic Resources
(BFAR) Employees Union, Regional Office No. VII, Cebu City issued
Resolution No. 01, series of 1999 requesting the BFAR Central Office for a
Food Basket Allowance. It justified its request on the high cost of living, i.e.,
"the increase in prices of petroleum products which catapulted the cost of
food commodities, has greatly affected the economic conditions and living
standard of the government employees of BFAR Region VII and could hardly
sustain its need to cope up with the four (4) basic needs, i.e., food, shelter,
clothing and education."3 It also relied on the Employees Suggestions and
Incentive Awards System (ESIAS), pursuant to Book V of Executive Order
No. 292, or the Administrative Code of 1987, and approved by the Civil
Service Commission on December 3, 1996. The ESIAS "includes the
granting of incentives that will help employees overcome present economic
difficulties, boost their morale, and further commitment and dedication to
public service."4 Regional Director Corazon M. Corrales of BFAR Region VII
indorsed the Resolution, and Malcolm I. Sarmiento, Jr., Director of BFAR
recommended its approval. Honorable Cesar M. Drilon, Jr., Undersecretary
for Fisheries and Livestock of the Department of Agriculture, approved the
request for Authority to Grant a Gift Check or the Food Basket Allowance at
the rate of P10,000.00 each to the 130 employees of BFAR Region VII, or in
the total amount of P1,322,682.00.5 On the strength of the approval,
Regional Director Corrales released the allowance to the BFAR employees.
On post audit, the Commission on Audit – Legal and Adjudication Office
(COA-LAO) Regional Office No. VII, Cebu City disallowed the grant of Food
Basket Allowance under Notice of Disallowance No. 2003-022-101 (1999)
dated September 19, 2003. It ruled that the allowance had no legal basis and
that it violated: a) Sec. 15(d) of the General Appropriations Act of 1999,
prohibiting the payment of honoraria, allowances, or other forms of
compensation to any government official or employee, except those
specifically authorized by law; b) par. 4.5 of Budget Circular No. 16 dated
November 28, 1998, prohibiting the grant of food, rice, gift checks, or any
other form of incentives/allowances, except those authorized via
Administrative Order by the Office of the President; and c) Sec. 12 of
Republic Act (R.A.) No. 6758, or the Salary Standardization Law of 1989,
which includes all allowances in the standardized salary rates, subject to
certain exceptions.
On February 26, 2004, BFAR Regional Office No. VII, through Regional
Director Corrales, moved for reconsideration and prayed for the lifting of the
disallowance. It argued that the grant of Food Basket Allowance would
enhance the welfare and productivity of the employees. Further, it contended
that the approval by the Honorable Drilon, Undersecretary for Fisheries and
Livestock, of the said benefit was the law itself which vested the specific
authority for its release. The Commission on Audit – Legal and Adjudication
Office (COA-LAO) Regional Office No. VII, Cebu City denied the motion.
Petitioner appealed to the Commission on Audit – Legal and Adjudication
Office (COA-LAO) National, Quezon City. The appeal was denied in a
Decision dated April 8, 2005. Petitioner’s motion for reconsideration was
likewise denied in a Resolution dated August 5, 2005.
Hence, this appeal.
Petitioner cites the following grounds for its appeal:
1. The disallowance in question is unconstitutional as it contravenes the
fundamental principle of the State enshrined under Sections 9 and 10, Article
II of the 1987 Constitution, which provide as follows:
SEC. 9. The State shall promote a just and dynamic social order that will
ensure the prosperity and independence of the nation and free the people
from poverty through policies that provide adequate social services, promote
full employment, a rising standard of living, and an improved quality of life for
all.
SEC. 10. The State shall promote social justice in all phases of national
development.6
2. The Undersecretary for Fisheries and Livestock is an extension of the
Secretary of Agriculture who is an alter-ego of the President. His approval
127
was tantamount to the authority from the Office of the President, as
contemplated in DBM Budget Circular No. 16, dated November 28, 1998.7
3. The grant of the Food Basket Allowance is in conformity with Sec. 12 of
the Salary Standardization Law.8
We deny the petition.
First, we rule on the issue of constitutionality. Petitioner invokes the
provisions of the 1987 Constitution on social justice to warrant the grant of
the Food Basket Allowance. Time and again, we have ruled that the social
justice provisions of the Constitution are not self-executing principles ready
for enforcement through the courts. They are merely statements of principles
and policies. To give them effect, legislative enactment is required. As we
held in Kilosbayan, Incorporated v. Morato,9 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."10
Second, petitioner contends that the approval of the Department of
Agriculture (DA) Undersecretary for Fisheries and Livestock of the Food
Basket Allowance is the law which authorizes its release. It is crystal clear
that the DA Undersecretary has no authority to grant any allowance to the
employees of BFAR. Section 4.5 of Budget Circular No. 16 dated November
28, 1998 states:
All agencies are hereby prohibited from granting any food, rice, gift checks,
or any other form of incentives/allowances except those authorized via
Administrative Order by the Office of the President.
In the instant case, no Administrative Order has been issued by the Office of
the President to exempt BFAR from the express prohibition against the grant
of any food, rice, gift checks, or any other form of incentive/allowance to its
employees.
Petitioner argues that the grant of the Food Basket Allowance does not
violate Sec. 12 of R.A. No. 6758 or the Salary Standardization Law. This law
was passed to standardize salary rates among government personnel and do
away with multiple allowances and other incentive packages and the
resulting differences in compensation among them.11 Sec. 12 of the law
provides:
Consolidation of Allowances and Compensation. — All allowances, except
for representation and transportation allowances; clothing and laundry
allowances; subsistence allowance of marine officers and crew on board
government vessels and hospital personnel; hazard pay; allowances of
foreign service personnel stationed abroad; and such other additional
compensation not otherwise specified herein as may be determined by the
DBM [Department of Budget and Management], shall be deemed included in
the standardized salary rates herein prescribed. Such other additional
compensation, whether in cash or in kind, being received by incumbents only
as of July 1, 1989 not integrated into the standardized salary rates shall
continue to be authorized.
Existing additional compensation of any national government official or
employee paid from local funds of a local government unit shall be absorbed
into the basic salary of said official or employee and shall be paid by the
National Government.
Under Sec. 12, as quoted, all kinds of allowances are integrated in the
standardized salary rates. The exceptions are:
1. representation and transportation allowance (RATA);
2. clothing and laundry allowance;
3. subsistence allowance of marine officers and crew on board government
vessels;
4. subsistence allowance of hospital personnel;
5. hazard pay;
6. allowances of foreign service personnel stationed abroad; and
7. such other additional compensation not otherwise specified herein as may
be determined by the DBM.
Petitioner contends that the Food Basket Allowance falls under the 7th
category above, that of "other additional compensation not otherwise
specified herein as may be determined by the DBM."
The Court has had the occasion to interpret Sec. 12 of R.A. No. 6758. In
National Tobacco Administration v. Commission on Audit,12 we held that
under the first sentence of Section 12, the benefits excluded from the
standardized salary rates are the "allowances" or those which are usually
granted to officials and employees of the government to defray or reimburse
the expenses incurred in the performance of their official functions. These
are the RATA, clothing and laundry allowance, subsistence allowance of
marine officers and crew on board government vessels and hospital
personnel, hazard pay, and others, as enumerated in the first sentence of
Section 12. We further ruled that the phrase "and such other additional
compensation not otherwise specified herein as may be determined by the
DBM" is a catch-all proviso for benefits in the nature of allowances similar to
those enumerated. In Philippine Ports Authority v. Commission on Audit,13
128
we explained that if these allowances were consolidated with the
standardized salary rates, then government officials or employees would be
compelled to spend their personal funds in attending to their duties.
In the instant case, the Food Basket Allowance is definitely not in the nature
of an allowance to reimburse expenses incurred by officials and employees
of the government in the performance of their official functions. It is not
payment in consideration of the fulfillment of official duty. It is a form of
financial assistance to all officials and employees of BFAR. Petitioner itself
stated that the Food Basket Allowance has the purpose of alleviating the
economic condition of BFAR employees.
Next, petitioner relies on National Compensation Circular No. 59 dated
September 30, 1989, issued by the DBM, which is the "List of
Allowances/Additional Compensation of Government Officials and
Employees which shall be Deemed Integrated into the Basic Salary." The list
enumerates the following allowances/additional compensation which shall be
incorporated in the basic salary, hence, may no longer be granted to
government employees:
1. Cost of Living Allowance (COLA);
2. Inflation connected allowance;
3. Living Allowance;
4. Emergency Allowance;
5. Additional Compensation of Public Health Nurses assigned to public
health nursing;
6. Additional Compensation of Rural Health Physicians;
7. Additional Compensation of Nurses in Malacañang Clinic;
8. Nurses Allowance in the Air Transportation Office;
9. Assignment Allowance of School Superintendents;
10. Post allowance of Postal Service Office employees;
11. Honoraria/allowances which are regularly given except the following:
a. those for teaching overload;
b. in lieu of overtime pay;
c. for employees on detail with task forces/special projects;
d. researchers, experts and specialists who are acknowledged authorities in
their field of specialization;
e. lecturers and resource persons;
f. Municipal Treasurers deputized by the Bureau of Internal Revenue to
collect and remit internal revenue collections; and
g. Executive positions in State Universities and Colleges filled by designation
from among their faculty members.
12. Subsistence Allowance of employees except those authorized under EO
[Executive Order] No. 346 and uniformed personnel of the Armed Forces of
the Philippines and Integrated National Police;
13. Laundry Allowance of employees except those hospital/sanitaria
personnel who attend directly to patients and who by the nature of their
duties are required to wear uniforms, prison guards and uniformed personnel
of the Armed Forces of the Philippines and Integrated National Police; and
14. Incentive allowance/fee/pay except those authorized under the General
Appropriations Act and Section 33 of P.D. No. 807.
Petitioner invokes the rule of statutory construction that "what is not included
is excluded." Inclusio unius est exclusio alterius. Petitioner claims that the
Food Basket Allowance is distinct and separate from the specific
allowances/additional compensation listed in the circular.
Again, we reject petitioner’s contention. The Food Basket Allowance falls
under the 14th category, that of incentive allowance/fee/pay. Petitioner itself
justified the Food Basket Allowance as an incentive to the employees to
encourage them to be more productive and efficient.14 Under National
Compensation Circular No. 59, exceptions to the incentive allowance/fee/pay
category are those authorized under the General Appropriations Act (GAA)
and Section 33 of Presidential Decree (P.D.) No. 807. Sec. 15(d) of the GAA
for Fiscal Year 1999 or R.A. No. 8745 clearly prohibits the payment of
honoraria, allowances or other forms of compensation to any government
official or employee, except those specifically authorized by law. There is no
law authorizing the grant of the subject Food Basket Allowance. Further, Sec.
33 of P.D. No. 807 or the Civil Service Decree of the Philippines does not
exempt the Food Basket Allowance from the general rule. Sec. 33 states:
Section 33. Employee Suggestions and Incentive Award System. There shall
be established a government-wide employee suggestions and incentive
awards system which shall be administered under such rules, regulations,
and standards as may be promulgated by the Commission.
In accordance with rules, regulations, and standards promulgated by the
Commission, the President or the head of each department or agency is
authorized to incur whatever necessary expenses involved in the honorary
recognition of subordinate officers and employees of the government who by
their suggestions, inventions, superior accomplishment, and other personal
efforts contribute to the efficiency, economy, or other improvement of
government operations, or who perform such other extraordinary acts or
services in the public interest in connection with, or in relation to, their official
employment.
129
We are not convinced that the Food Basket Allowance falls under the
incentive award system contemplated above. The decree speaks of
suggestions, inventions, superior accomplishments, and other personal
efforts contributed by an employee to the efficiency, economy, or other
improvement of government operations, or other extraordinary acts or
services performed by an employee in the public interest in connection with,
or in relation to, his official employment. In the instant case, the Food Basket
Allowance was granted to all BFAR employees, without distinction. It was not
granted due to any extraordinary contribution or exceptional accomplishment
by an employee. The Food Basket Allowance was primarily an economic
monetary assistance to the employees.

Lastly, we note, as the Office of the Solicitor General, on behalf of

respondent did, that petitioner failed to exhaust its administrative remedies. It
stopped seeking remedies at the level of respondent’s Legal and
Adjudication Office. It failed to appeal the latter’s adverse decision to the
Commission on Audit proper. The consequence for failure to exhaust
administrative remedies is clear: the disallowance, as ruled by the
Commission on Audit – Legal and Adjudication Office Regional Office No.
VII, Cebu City and upheld by the Commission on Audit – Legal and
Adjudication Office National, Quezon City, became final and executory.
Sections 48 and 51 of Presidential Decree No. 1445, or the Government
Auditing Code of the Philippines provide:

Section 48. Appeal from decision of auditors. – Any person aggrieved by the
decision of an auditor of any government agency in the settlement of an
account or claim may, within six months from receipt of a copy of the
decision, appeal in writing to the Commission.

Section 51. Finality of decisions of the Commission or any auditor. – A

decision of the Commission or of any auditor upon any matter within its or his
jurisdiction, if not appealed as herein provided, shall be final and executory.

IN VIEW WHEREOF, the petition is DENIED. The Decision and Resolution of

the Commission on Audit – Legal and Adjudication Office dated April 8, 2005
and August 5, 2005, respectively, in LAO-N-2005-119, are AFFIRMED.

SO ORDERED.

130
G.R. No. 176579 June 28, 2011
WILSON P. GAMBOA, Petitioner, vs. FINANCE SECRETARY
MARGARITO B. TEVES, FINANCE UNDERSECRETARY JOHN P.
SEVILLA, AND COMMISSIONER RICARDO ABCEDE OF THE
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT (PCGG) IN
THEIR CAPACITIES AS CHAIR AND MEMBERS, RESPECTIVELY, OF
THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM OF FIRST
PACIFIC CO., LTD. IN HIS CAPACITY AS DIRECTOR OF METRO
PACIFIC ASSET HOLDINGS INC., CHAIRMAN MANUEL V. PANGILINAN
OF PHILIPPINE LONG DISTANCE TELEPHONE COMPANY (PLDT) IN
HIS CAPACITY AS MANAGING DIRECTOR OF FIRST PACIFIC CO.,
LTD., PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE LONG
DISTANCE TELEPHONE COMPANY, CHAIR FE BARIN OF THE
SECURITIES EXCHANGE COMMISSION, and PRESIDENT FRANCIS LIM
OF THE PHILIPPINE STOCK EXCHANGE, Respondents. PABLITO V.
SANIDAD and ARNO V. SANIDAD, Petitioners-in-Intervention.
DECISION
CARPIO, J.:
The Case
This is an original petition for prohibition, injunction, declaratory relief and
declaration of nullity of the sale of shares of stock of Philippine
Telecommunications Investment Corporation (PTIC) by the government of
the Republic of the Philippines to Metro Pacific Assets Holdings, Inc.
(MPAH), an affiliate of First Pacific Company Limited (First Pacific).
The Antecedents
The facts, according to petitioner Wilson P. Gamboa, a stockholder of
Philippine Long Distance Telephone Company (PLDT), are as follows:1
On 28 November 1928, the Philippine Legislature enacted Act No. 3436
which granted PLDT a franchise and the right to engage in
telecommunications business. In 1969, General Telephone and Electronics
Corporation (GTE), an American company and a major PLDT stockholder,
sold 26 percent of the outstanding common shares of PLDT to PTIC. In
1977, Prime Holdings, Inc. (PHI) was incorporated by several persons,
including Roland Gapud and Jose Campos, Jr. Subsequently, PHI became
the owner of 111,415 shares of stock of PTIC by virtue of three Deeds of
Assignment executed by PTIC stockholders Ramon Cojuangco and Luis
Tirso Rivilla. In 1986, the 111,415 shares of stock of PTIC held by PHI were
sequestered by the Presidential Commission on Good Government (PCGG).
The 111,415 PTIC shares, which represent about 46.125 percent of the
outstanding capital stock of PTIC, were later declared by this Court to be
owned by the Republic of the Philippines.
In 1999, First Pacific, a Bermuda-registered, Hong Kong-based investment
firm, acquired the remaining 54 percent of the outstanding capital stock of
PTIC. On 20 November 2006, the Inter-Agency Privatization Council (IPC) of
the Philippine Government announced that it would sell the 111,415 PTIC
shares, or 46.125 percent of the outstanding capital stock of PTIC, through a
public bidding to be conducted on 4 December 2006. Subsequently, the
public bidding was reset to 8 December 2006, and only two bidders, Parallax
Venture Fund XXVII (Parallax) and Pan-Asia Presidio Capital, submitted their
bids. Parallax won with a bid of ₱25.6 billion or US$510 million.
Thereafter, First Pacific announced that it would exercise its right of first
refusal as a PTIC stockholder and buy the 111,415 PTIC shares by matching
the bid price of Parallax. However, First Pacific failed to do so by the 1
February 2007 deadline set by IPC and instead, yielded its right to PTIC itself
which was then given by IPC until 2 March 2007 to buy the PTIC shares. On
14 February 2007, First Pacific, through its subsidiary, MPAH, entered into a
Conditional Sale and Purchase Agreement of the 111,415 PTIC shares, or
46.125 percent of the outstanding capital stock of PTIC, with the Philippine
Government for the price of ₱25,217,556,000 or US$510,580,189. The sale
was completed on 28 February 2007.
Since PTIC is a stockholder of PLDT, the sale by the Philippine Government
of 46.125 percent of PTIC shares is actually an indirect sale of 12 million
shares or about 6.3 percent of the outstanding common shares of PLDT.
With the sale, First Pacific’s common shareholdings in PLDT increased from
30.7 percent to 37 percent, thereby increasing the common shareholdings of
foreigners in PLDT to about 81.47 percent. This violates Section 11, Article
XII of the 1987 Philippine Constitution which limits foreign ownership of the
capital of a public utility to not more than 40 percent.3
On the other hand, public respondents Finance Secretary Margarito B.
Teves, Undersecretary John P. Sevilla, and PCGG Commissioner Ricardo
Abcede allege the following relevant facts:
On 9 November 1967, PTIC was incorporated and had since engaged in the
business of investment holdings. PTIC held 26,034,263 PLDT common
shares, or 13.847 percent of the total PLDT outstanding common shares.
PHI, on the other hand, was incorporated in 1977, and became the owner of
111,415 PTIC shares or 46.125 percent of the outstanding capital stock of
PTIC by virtue of three Deeds of Assignment executed by Ramon Cojuangco
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and Luis Tirso Rivilla. In 1986, the 111,415 PTIC shares held by PHI were
sequestered by the PCGG, and subsequently declared by this Court as part
of the ill-gotten wealth of former President Ferdinand Marcos. The
sequestered PTIC shares were reconveyed to the Republic of the Philippines
in accordance with this Court’s decision4 which became final and executory
on 8 August 2006.
The Philippine Government decided to sell the 111,415 PTIC shares, which
represent 6.4 percent of the outstanding common shares of stock of PLDT,
and designated the Inter-Agency Privatization Council (IPC), composed of
the Department of Finance and the PCGG, as the disposing entity. An
invitation to bid was published in seven different newspapers from 13 to 24
November 2006. On 20 November 2006, a pre-bid conference was held, and
the original deadline for bidding scheduled on 4 December 2006 was reset to
8 December 2006. The extension was published in nine different
newspapers.
During the 8 December 2006 bidding, Parallax Capital Management LP
emerged as the highest bidder with a bid of ₱25,217,556,000. The
government notified First Pacific, the majority owner of PTIC shares, of the
bidding results and gave First Pacific until 1 February 2007 to exercise its
right of first refusal in accordance with PTIC’s Articles of Incorporation. First
Pacific announced its intention to match Parallax’s bid.
On 31 January 2007, the House of Representatives (HR) Committee on
Good Government conducted a public hearing on the particulars of the then
impending sale of the 111,415 PTIC shares. Respondents Teves and Sevilla
were among those who attended the public hearing. The HR Committee
Report No. 2270 concluded that: (a) the auction of the government’s 111,415
PTIC shares bore due diligence, transparency and conformity with existing
legal procedures; and (b) First Pacific’s intended acquisition of the
government’s 111,415 PTIC shares resulting in First Pacific’s 100%
ownership of PTIC will not violate the 40 percent constitutional limit on
foreign ownership of a public utility since PTIC holds only 13.847 percent of
the total outstanding common shares of PLDT.5 On 28 February 2007, First
Pacific completed the acquisition of the 111,415 shares of stock of PTIC.
Respondent Manuel V. Pangilinan admits the following facts: (a) the IPC
conducted a public bidding for the sale of 111,415 PTIC shares or 46 percent
of the outstanding capital stock of PTIC (the remaining 54 percent of PTIC
shares was already owned by First Pacific and its affiliates); (b) Parallax
offered the highest bid amounting to ₱25,217,556,000; (c) pursuant to the
right of first refusal in favor of PTIC and its shareholders granted in PTIC’s
Articles of Incorporation, MPAH, a First Pacific affiliate, exercised its right of
first refusal by matching the highest bid offered for PTIC shares on 13
February 2007; and (d) on 28 February 2007, the sale was consummated
when MPAH paid IPC ₱25,217,556,000 and the government delivered the
certificates for the 111,415 PTIC shares. Respondent Pangilinan denies the
other allegations of facts of petitioner.
On 28 February 2007, petitioner filed the instant petition for prohibition,
injunction, declaratory relief, and declaration of nullity of sale of the 111,415
PTIC shares. Petitioner claims, among others, that the sale of the 111,415
PTIC shares would result in an increase in First Pacific’s common
shareholdings in PLDT from 30.7 percent to 37 percent, and this, combined
with Japanese NTT DoCoMo’s common shareholdings in PLDT, would result
to a total foreign common shareholdings in PLDT of 51.56 percent which is
over the 40 percent constitutional limit.6 Petitioner asserts:
If and when the sale is completed, First Pacific’s equity in PLDT will go up
from 30.7 percent to 37.0 percent of its common – or voting- stockholdings, x
x x. Hence, the consummation of the sale will put the two largest foreign
investors in PLDT – First Pacific and Japan’s NTT DoCoMo, which is the
world’s largest wireless telecommunications firm, owning 51.56 percent of
PLDT common equity. x x x With the completion of the sale, data culled from
the official website of the New York Stock Exchange (www.nyse.com)
showed that those foreign entities, which own at least five percent of
common equity, will collectively own 81.47 percent of PLDT’s common
equity. x x x
x x x as the annual disclosure reports, also referred to as Form 20-K reports
x x x which PLDT submitted to the New York Stock Exchange for the period
2003-2005, revealed that First Pacific and several other foreign entities
breached the constitutional limit of 40 percent ownership as early as 2003. x
x x"7
Petitioner raises the following issues: (1) whether the consummation of the
then impending sale of 111,415 PTIC shares to First Pacific violates the
constitutional limit on foreign ownership of a public utility; (2) whether public
respondents committed grave abuse of discretion in allowing the sale of the
111,415 PTIC shares to First Pacific; and (3) whether the sale of common
shares to foreigners in excess of 40 percent of the entire subscribed common
capital stock violates the constitutional limit on foreign ownership of a public
utility.8
On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed a Motion
for Leave to Intervene and Admit Attached Petition-in-Intervention. In the
Resolution of 28 August 2007, the Court granted the motion and noted the
Petition-in-Intervention.
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Petitioners-in-intervention "join petitioner Wilson Gamboa x x x in seeking,
among others, to enjoin and/or nullify the sale by respondents of the 111,415
PTIC shares to First Pacific or assignee." Petitioners-in-intervention claim
that, as PLDT subscribers, they have a "stake in the outcome of the
controversy x x x where the Philippine Government is completing the sale of
government owned assets in [PLDT], unquestionably a public utility, in
violation of the nationality restrictions of the Philippine Constitution."
The Issue
This Court is not a trier of facts. Factual questions such as those raised by
petitioner,9 which indisputably demand a thorough examination of the
evidence of the parties, are generally beyond this Court’s jurisdiction.
Adhering to this well-settled principle, the Court shall confine the resolution of
the instant controversy solely on the threshold and purely legal issue of
whether the term "capital" in Section 11, Article XII of the Constitution refers
to the total common shares only or to the total outstanding capital stock
(combined total of common and non-voting preferred shares) of PLDT, a
public utility.
The Ruling of the Court
The petition is partly meritorious.
Petition for declaratory relief treated as petition for mandamus
At the outset, petitioner is faced with a procedural barrier. Among the
remedies petitioner seeks, only the petition for prohibition is within the
original jurisdiction of this court, which however is not exclusive but is
concurrent with the Regional Trial Court and the Court of Appeals. The
actions for declaratory relief,10 injunction, and annulment of sale are not
embraced within the original jurisdiction of the Supreme Court. On this
ground alone, the petition could have been dismissed outright.
While direct resort to this Court may be justified in a petition for prohibition,11
the Court shall nevertheless refrain from discussing the grounds in support of
the petition for prohibition since on 28 February 2007, the questioned sale
was consummated when MPAH paid IPC ₱25,217,556,000 and the
government delivered the certificates for the 111,415 PTIC shares.
However, since the threshold and purely legal issue on the definition of the
term "capital" in Section 11, Article XII of the Constitution has far-reaching
implications to the national economy, the Court treats the petition for
declaratory relief as one for mandamus.12
In Salvacion v. Central Bank of the Philippines,13 the Court treated the
petition for declaratory relief as one for mandamus considering the grave
injustice that would result in the interpretation of a banking law. In that case,
which involved the crime of rape committed by a foreign tourist against a
Filipino minor and the execution of the final judgment in the civil case for
damages on the tourist’s dollar deposit with a local bank, the Court declared
Section 113 of Central Bank Circular No. 960, exempting foreign currency
deposits from attachment, garnishment or any other order or process of any
court, inapplicable due to the peculiar circumstances of the case. The Court
held that "injustice would result especially to a citizen aggrieved by a foreign
guest like accused x x x" that would "negate Article 10 of the Civil Code
which provides that ‘in case of doubt in the interpretation or application of
laws, it is presumed that the lawmaking body intended right and justice to
prevail.’" The Court therefore required respondents Central Bank of the
Philippines, the local bank, and the accused to comply with the writ of
execution issued in the civil case for damages and to release the dollar
deposit of the accused to satisfy the judgment.
In Alliance of Government Workers v. Minister of Labor,14 the Court similarly
brushed aside the procedural infirmity of the petition for declaratory relief and
treated the same as one for mandamus. In Alliance, the issue was whether
the government unlawfully excluded petitioners, who were government
employees, from the enjoyment of rights to which they were entitled under
the law. Specifically, the question was: "Are the branches, agencies,
subdivisions, and instrumentalities of the Government, including government
owned or controlled corporations included among the four ‘employers’ under
Presidential Decree No. 851 which are required to pay their employees x x x
a thirteenth (13th) month pay x x x ?" The Constitutional principle involved
therein affected all government employees, clearly justifying a relaxation of
the technical rules of procedure, and certainly requiring the interpretation of
the assailed presidential decree.
In short, it is well-settled that this Court may treat a petition for declaratory
relief as one for mandamus if the issue involved has far-reaching
implications. As this Court held in Salvacion:
The Court has no original and exclusive jurisdiction over a petition for
declaratory relief. However, exceptions to this rule have been recognized.
Thus, where the petition has far-reaching implications and raises questions
that should be resolved, it may be treated as one for mandamus.15
(Emphasis supplied)
In the present case, petitioner seeks primarily the interpretation of the term
"capital" in Section 11, Article XII of the Constitution. He prays that this Court
declare that the term "capital" refers to common shares only, and that such
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shares constitute "the sole basis in determining foreign equity in a public
utility." Petitioner further asks this Court to declare any ruling inconsistent
with such interpretation unconstitutional.
The interpretation of the term "capital" in Section 11, Article XII of the
Constitution has far-reaching implications to the national economy. In fact, a
resolution of this issue will determine whether Filipinos are masters, or
second class citizens, in their own country. What is at stake here is whether
Filipinos or foreigners will have effective control of the national economy.
Indeed, if ever there is a legal issue that has far-reaching implications to the
entire nation, and to future generations of Filipinos, it is the threshhold legal
issue presented in this case.
The Court first encountered the issue on the definition of the term "capital" in
Section 11, Article XII of the Constitution in the case of Fernandez v.
Cojuangco, docketed as G.R. No. 157360.16 That case involved the same
public utility (PLDT) and substantially the same private respondents. Despite
the importance and novelty of the constitutional issue raised therein and
despite the fact that the petition involved a purely legal question, the Court
declined to resolve the case on the merits, and instead denied the same for
disregarding the hierarchy of courts.17 There, petitioner Fernandez assailed
on a pure question of law the Regional Trial Court’s Decision of 21 February
2003 via a petition for review under Rule 45. The Court’s Resolution, denying
the petition, became final on 21 December 2004.
The instant petition therefore presents the Court with another opportunity to
finally settle this purely legal issue which is of transcendental importance to
the national economy and a fundamental requirement to a faithful adherence
to our Constitution. The Court must forthwith seize such opportunity, not only
for the benefit of the litigants, but more significantly for the benefit of the
entire Filipino people, to ensure, in the words of the Constitution, "a self-
reliant and independent national economy effectively controlled by
Filipinos."18 Besides, in the light of vague and confusing positions taken by
government agencies on this purely legal issue, present and future foreign
investors in this country deserve, as a matter of basic fairness, a categorical
ruling from this Court on the extent of their participation in the capital of
public utilities and other nationalized businesses.
Despite its far-reaching implications to the national economy, this purely legal
issue has remained unresolved for over 75 years since the 1935
Constitution. There is no reason for this Court to evade this ever recurring
fundamental issue and delay again defining the term "capital," which appears
not only in Section 11, Article XII of the Constitution, but also in Section 2,
Article XII on co-production and joint venture agreements for the
development of our natural resources,19 in Section 7, Article XII on
ownership of private lands,20 in Section 10, Article XII on the reservation of
certain investments to Filipino citizens,21 in Section 4(2), Article XIV on the
ownership of educational institutions,22 and in Section 11(2), Article XVI on
the ownership of advertising companies.23
Petitioner has locus standi
There is no dispute that petitioner is a stockholder of PLDT. As such, he has
the right to question the subject sale, which he claims to violate the
nationality requirement prescribed in Section 11, Article XII of the
Constitution. If the sale indeed violates the Constitution, then there is a
possibility that PLDT’s franchise could be revoked, a dire consequence
directly affecting petitioner’s interest as a stockholder.
More importantly, there is no question that the instant petition raises matters
of transcendental importance to the public. The fundamental and threshold
legal issue in this case, involving the national economy and the economic
welfare of the Filipino people, far outweighs any perceived impediment in the
legal personality of the petitioner to bring this action.
In Chavez v. PCGG, the Court upheld the right of a citizen to bring a suit on
matters of transcendental importance to the public, thus:
In Tañada v. Tuvera, the Court asserted that when the issue concerns a
public right and the object of mandamus is to obtain the enforcement of a
public duty, the people are regarded as the real parties in interest; and
because it is sufficient that petitioner is a citizen and as such is interested in
the execution of the laws, he need not show that he has any legal or special
interest in the result of the action. In the aforesaid case, the petitioners
sought to enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid and enforceable must
be published in the Official Gazette or otherwise effectively promulgated. In
ruling for the petitioners’ legal standing, the Court declared that the right they
sought to be enforced ‘is a public right recognized by no less than the
fundamental law of the land.’
Legaspi v. Civil Service Commission, while reiterating Tañada, further
declared that ‘when a mandamus proceeding involves the assertion of a
public right, the requirement of personal interest is satisfied by the mere fact
that petitioner is a citizen and, therefore, part of the general ‘public’ which
possesses the right.’
Further, in Albano v. Reyes, we said that while expenditure of public funds
may not have been involved under the questioned contract for the
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development, management and operation of the Manila International
Container Terminal, ‘public interest [was] definitely involved considering the
important role [of the subject contract] . . . in the economic development of
the country and the magnitude of the financial consideration involved.’ We
concluded that, as a consequence, the disclosure provision in the
Constitution would constitute sufficient authority for upholding the petitioner’s
standing. (Emphasis supplied)
Clearly, since the instant petition, brought by a citizen, involves matters of
transcendental public importance, the petitioner has the requisite locus
standi.
Definition of the Term "Capital" in Section 11, Article XII of the 1987
Constitution
Section 11, Article XII (National Economy and Patrimony) of the 1987
Constitution mandates the Filipinization of public utilities, to wit:
Section 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines, at least sixty per centum of whose capital is owned by such
citizens; nor shall such franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the Congress when the
common good so requires. The State shall encourage equity participation in
public utilities by the general public. The participation of foreign investors in
the governing body of any public utility enterprise shall be limited to their
proportionate share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the Philippines.
(Emphasis supplied)
The above provision substantially reiterates Section 5, Article XIV of the 1973
Constitution, thus:
Section 5. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of the capital of which is owned by such
citizens, nor shall such franchise, certificate, or authorization be exclusive in
character or for a longer period than fifty years. Neither shall any such
franchise or right be granted except under the condition that it shall be
subject to amendment, alteration, or repeal by the National Assembly when
the public interest so requires. The State shall encourage equity participation
in public utilities by the general public. The participation of foreign investors
in the governing body of any public utility enterprise shall be limited to their
proportionate share in the capital thereof. (Emphasis supplied)
The foregoing provision in the 1973 Constitution reproduced Section 8,
Article XIV of the 1935 Constitution, viz:
Section 8. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the
Philippines or to corporations or other entities organized under the laws of
the Philippines sixty per centum of the capital of which is owned by citizens
of the Philippines, nor shall such franchise, certificate, or authorization be
exclusive in character or for a longer period than fifty years. No franchise or
right shall be granted to any individual, firm, or corporation, except under the
condition that it shall be subject to amendment, alteration, or repeal by the
Congress when the public interest so requires. (Emphasis supplied)
Father Joaquin G. Bernas, S.J., a leading member of the 1986 Constitutional
Commission, reminds us that the Filipinization provision in the 1987
Constitution is one of the products of the spirit of nationalism which gripped
the 1935 Constitutional Convention.25 The 1987 Constitution "provides for
the Filipinization of public utilities by requiring that any form of authorization
for the operation of public utilities should be granted only to ‘citizens of the
Philippines or to corporations or associations organized under the laws of the
Philippines at least sixty per centum of whose capital is owned by such
citizens.’ The provision is [an express] recognition of the sensitive and vital
position of public utilities both in the national economy and for national
security."26 The evident purpose of the citizenship requirement is to prevent
aliens from assuming control of public utilities, which may be inimical to the
national interest.27 This specific provision explicitly reserves to Filipino
citizens control of public utilities, pursuant to an overriding economic goal of
the 1987 Constitution: to "conserve and develop our patrimony"28 and
ensure "a self-reliant and independent national economy effectively
controlled by Filipinos."
Any citizen or juridical entity desiring to operate a public utility must therefore
meet the minimum nationality requirement prescribed in Section 11, Article
XII of the Constitution. Hence, for a corporation to be granted authority to
operate a public utility, at least 60 percent of its "capital" must be owned by
Filipino citizens.
The crux of the controversy is the definition of the term "capital." Does the
term "capital" in Section 11, Article XII of the Constitution refer to common
shares or to the total outstanding capital stock (combined total of common
and non-voting preferred shares)?
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Petitioner submits that the 40 percent foreign equity limitation in domestic
public utilities refers only to common shares because such shares are
entitled to vote and it is through voting that control over a corporation is
exercised. Petitioner posits that the term "capital" in Section 11, Article XII of
the Constitution refers to "the ownership of common capital stock subscribed
and outstanding, which class of shares alone, under the corporate set-up of
PLDT, can vote and elect members of the board of directors." It is undisputed
that PLDT’s non-voting preferred shares are held mostly by Filipino
citizens.30 This arose from Presidential Decree No. 217,31 issued on 16
June 1973 by then President Ferdinand Marcos, requiring every applicant of
a PLDT telephone line to subscribe to non-voting preferred shares to pay for
the investment cost of installing the telephone line.32
Petitioners-in-intervention basically reiterate petitioner’s arguments and
adopt petitioner’s definition of the term "capital."33 Petitioners-in-intervention
allege that "the approximate foreign ownership of common capital stock of
PLDT x x x already amounts to at least 63.54% of the total outstanding
common stock," which means that foreigners exercise significant control over
PLDT, patently violating the 40 percent foreign equity limitation in public
utilities prescribed by the Constitution.
Respondents, on the other hand, do not offer any definition of the term
"capital" in Section 11, Article XII of the Constitution. More importantly,
private respondents Nazareno and Pangilinan of PLDT do not dispute that
more than 40 percent of the common shares of PLDT are held by foreigners.
In particular, respondent Nazareno’s Memorandum, consisting of 73 pages,
harps mainly on the procedural infirmities of the petition and the supposed
violation of the due process rights of the "affected foreign common
shareholders." Respondent Nazareno does not deny petitioner’s allegation of
foreigners’ dominating the common shareholdings of PLDT. Nazareno
stressed mainly that the petition "seeks to divest foreign common
shareholders purportedly exceeding 40% of the total common shareholdings
in PLDT of their ownership over their shares." Thus, "the foreign natural and
juridical PLDT shareholders must be impleaded in this suit so that they can
be heard."34 Essentially, Nazareno invokes denial of due process on behalf
of the foreign common shareholders.
While Nazareno does not introduce any definition of the term "capital," he
states that "among the factual assertions that need to be established to
counter petitioner’s allegations is the uniform interpretation by government
agencies (such as the SEC), institutions and corporations (such as the
Philippine National Oil Company-Energy Development Corporation or PNOC-
EDC) of including both preferred shares and common shares in "controlling
interest" in view of testing compliance with the 40% constitutional limitation
on foreign ownership in public utilities."
Similarly, respondent Manuel V. Pangilinan does not define the term "capital"
in Section 11, Article XII of the Constitution. Neither does he refute
petitioner’s claim of foreigners holding more than 40 percent of PLDT’s
common shares. Instead, respondent Pangilinan focuses on the procedural
flaws of the petition and the alleged violation of the due process rights of
foreigners. Respondent Pangilinan emphasizes in his Memorandum (1) the
absence of this Court’s jurisdiction over the petition; (2) petitioner’s lack of
standing; (3) mootness of the petition; (4) non-availability of declaratory relief;
and (5) the denial of due process rights. Moreover, respondent Pangilinan
alleges that the issue should be whether "owners of shares in PLDT as well
as owners of shares in companies holding shares in PLDT may be required
to relinquish their shares in PLDT and in those companies without any law
requiring them to surrender their shares and also without notice and trial."
Respondent Pangilinan further asserts that "Section 11, [Article XII of the
Constitution] imposes no nationality requirement on the shareholders of the
utility company as a condition for keeping their shares in the utility company."
According to him, "Section 11 does not authorize taking one person’s
property (the shareholder’s stock in the utility company) on the basis of
another party’s alleged failure to satisfy a requirement that is a condition only
for that other party’s retention of another piece of property (the utility
company being at least 60% Filipino-owned to keep its franchise)."36
The OSG, representing public respondents Secretary Margarito Teves,
Undersecretary John P. Sevilla, Commissioner Ricardo Abcede, and
Chairman Fe Barin, is likewise silent on the definition of the term "capital." In
its Memorandum37 dated 24 September 2007, the OSG also limits its
discussion on the supposed procedural defects of the petition, i.e. lack of
standing, lack of jurisdiction, non-inclusion of interested parties, and lack of
basis for injunction. The OSG does not present any definition or
interpretation of the term "capital" in Section 11, Article XII of the
Constitution. The OSG contends that "the petition actually partakes of a
collateral attack on PLDT’s franchise as a public utility," which in effect
requires a "full-blown trial where all the parties in interest are given their day
in court."
Respondent Francisco Ed Lim, impleaded as President and Chief Executive
Officer of the Philippine Stock Exchange (PSE), does not also define the
term "capital" and seeks the dismissal of the petition on the following
grounds: (1) failure to state a cause of action against Lim; (2) the PSE
allegedly implemented its rules and required all listed companies, including
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PLDT, to make proper and timely disclosures; and (3) the reliefs prayed for in
the petition would adversely impact the stock market.
In the earlier case of Fernandez v. Cojuangco, petitioner Fernandez who
claimed to be a stockholder of record of PLDT, contended that the term
"capital" in the 1987 Constitution refers to shares entitled to vote or the
common shares. Fernandez explained thus:
The forty percent (40%) foreign equity limitation in public utilities prescribed
by the Constitution refers to ownership of shares of stock entitled to vote, i.e.,
common shares, considering that it is through voting that control is being
exercised. x x x
Obviously, the intent of the framers of the Constitution in imposing limitations
and restrictions on fully nationalized and partially nationalized activities is for
Filipino nationals to be always in control of the corporation undertaking said
activities. Otherwise, if the Trial Court’s ruling upholding respondents’
arguments were to be given credence, it would be possible for the ownership
structure of a public utility corporation to be divided into one percent (1%)
common stocks and ninety-nine percent (99%) preferred stocks. Following
the Trial Court’s ruling adopting respondents’ arguments, the common
shares can be owned entirely by foreigners thus creating an absurd situation
wherein foreigners, who are supposed to be minority shareholders, control
the public utility corporation.
xxxx
Thus, the 40% foreign ownership limitation should be interpreted to apply to
both the beneficial ownership and the controlling interest.
xxxx
Clearly, therefore, the forty percent (40%) foreign equity limitation in public
utilities prescribed by the Constitution refers to ownership of shares of stock
entitled to vote, i.e., common shares. Furthermore, ownership of record of
shares will not suffice but it must be shown that the legal and beneficial
ownership rests in the hands of Filipino citizens. Consequently, in the case of
petitioner PLDT, since it is already admitted that the voting interests of
foreigners which would gain entry to petitioner PLDT by the acquisition of
SMART shares through the Questioned Transactions is equivalent to
82.99%, and the nominee arrangements between the foreign principals and
the Filipino owners is likewise admitted, there is, therefore, a violation of
Section 11, Article XII of the Constitution.
Parenthetically, the Opinions dated February 15, 1988 and April 14, 1987
cited by the Trial Court to support the proposition that the meaning of the
word "capital" as used in Section 11, Article XII of the Constitution allegedly
refers to the sum total of the shares subscribed and paid-in by the
shareholder and it allegedly is immaterial how the stock is classified, whether
as common or preferred, cannot stand in the face of a clear legislative policy
as stated in the FIA which took effect in 1991 or way after said opinions were
rendered, and as clarified by the above-quoted Amendments. In this regard,
suffice it to state that as between the law and an opinion rendered by an
administrative agency, the law indubitably prevails. Moreover, said Opinions
are merely advisory and cannot prevail over the clear intent of the framers of
the Constitution.
In the same vein, the SEC’s construction of Section 11, Article XII of the
Constitution is at best merely advisory for it is the courts that finally
determine what a law means.39
On the other hand, respondents therein, Antonio O. Cojuangco, Manuel V.
Pangilinan, Carlos A. Arellano, Helen Y. Dee, Magdangal B. Elma, Mariles
Cacho-Romulo, Fr. Bienvenido F. Nebres, Ray C. Espinosa, Napoleon L.
Nazareno, Albert F. Del Rosario, and Orlando B. Vea, argued that the term
"capital" in Section 11, Article XII of the Constitution includes preferred
shares since the Constitution does not distinguish among classes of stock,
thus:
16. The Constitution applies its foreign ownership limitation on the
corporation’s "capital," without distinction as to classes of shares. x x x
In this connection, the Corporation Code – which was already in force at the
time the present (1987) Constitution was drafted – defined outstanding
capital stock as follows:
Section 137. Outstanding capital stock defined. – The term "outstanding
capital stock", as used in this Code, means the total shares of stock issued
under binding subscription agreements to subscribers or stockholders,
whether or not fully or partially paid, except treasury shares.
Section 137 of the Corporation Code also does not distinguish between
common and preferred shares, nor exclude either class of shares, in
determining the outstanding capital stock (the "capital") of a corporation.
Consequently, petitioner’s suggestion to reckon PLDT’s foreign equity only
on the basis of PLDT’s outstanding common shares is without legal basis.
The language of the Constitution should be understood in the sense it has in
common use.
xxxx
17. But even assuming that resort to the proceedings of the Constitutional
Commission is necessary, there is nothing in the Record of the Constitutional
137
Commission (Vol. III) – which petitioner misleadingly cited in the Petition x x x
– which supports petitioner’s view that only common shares should form the
basis for computing a public utility’s foreign equity.
xxxx
18. In addition, the SEC – the government agency primarily responsible for
implementing the Corporation Code, and which also has the responsibility of
ensuring compliance with the Constitution’s foreign equity restrictions as
regards nationalized activities x x x – has categorically ruled that both
common and preferred shares are properly considered in determining
outstanding capital stock and the nationality composition thereof.40
We agree with petitioner and petitioners-in-intervention. The term "capital" in
Section 11, Article XII of the Constitution refers only to shares of stock
entitled to vote in the election of directors, and thus in the present case only
to common shares,41 and not to the total outstanding capital stock
comprising both common and non-voting preferred shares.
The Corporation Code of the Philippines42 classifies shares as common or
preferred, thus:
Sec. 6. Classification of shares. - The shares of stock of stock corporations
may be divided into classes or series of shares, or both, any of which classes
or series of shares may have such rights, privileges or restrictions as may be
stated in the articles of incorporation: Provided, That no share may be
deprived of voting rights except those classified and issued as "preferred" or
"redeemable" shares, unless otherwise provided in this Code: Provided,
further, That there shall always be a class or series of shares which have
complete voting rights. Any or all of the shares or series of shares may have
a par value or have no par value as may be provided for in the articles of
incorporation: Provided, however, That banks, trust companies, insurance
companies, public utilities, and building and loan associations shall not be
permitted to issue no-par value shares of stock.
Preferred shares of stock issued by any corporation may be given preference
in the distribution of the assets of the corporation in case of liquidation and in
the distribution of dividends, or such other preferences as may be stated in
the articles of incorporation which are not violative of the provisions of this
Code: Provided, That preferred shares of stock may be issued only with a
stated par value. The Board of Directors, where authorized in the articles of
incorporation, may fix the terms and conditions of preferred shares of stock
or any series thereof: Provided, That such terms and conditions shall be
effective upon the filing of a certificate thereof with the Securities and
Exchange Commission.
Shares of capital stock issued without par value shall be deemed fully paid
and non-assessable and the holder of such shares shall not be liable to the
corporation or to its creditors in respect thereto: Provided; That shares
without par value may not be issued for a consideration less than the value of
five (₱5.00) pesos per share: Provided, further, That the entire consideration
received by the corporation for its no-par value shares shall be treated as
capital and shall not be available for distribution as dividends.
A corporation may, furthermore, classify its shares for the purpose of insuring
compliance with constitutional or legal requirements.
Except as otherwise provided in the articles of incorporation and stated in the
certificate of stock, each share shall be equal in all respects to every other
share.
Where the articles of incorporation provide for non-voting shares in the cases
allowed by this Code, the holders of such shares shall nevertheless be
entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
3. Sale, lease, exchange, mortgage, pledge or other disposition of all or
substantially all of the corporate property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another corporation or
other corporations;
7. Investment of corporate funds in another corporation or business in
accordance with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the vote
necessary to approve a particular corporate act as provided in this Code
shall be deemed to refer only to stocks with voting rights.
Indisputably, one of the rights of a stockholder is the right to participate in the
control or management of the corporation.43 This is exercised through his
vote in the election of directors because it is the board of directors that
controls or manages the corporation.44 In the absence of provisions in the
articles of incorporation denying voting rights to preferred shares, preferred
shares have the same voting rights as common shares. However, preferred
shareholders are often excluded from any control, that is, deprived of the
right to vote in the election of directors and on other matters, on the theory
that the preferred shareholders are merely investors in the corporation for
income in the same manner as bondholders.45 In fact, under the Corporation
138
Code only preferred or redeemable shares can be deprived of the right to
vote.46 Common shares cannot be deprived of the right to vote in any
corporate meeting, and any provision in the articles of incorporation
restricting the right of common shareholders to vote is invalid.
Considering that common shares have voting rights which translate to
control, as opposed to preferred shares which usually have no voting rights,
the term "capital" in Section 11, Article XII of the Constitution refers only to
common shares. However, if the preferred shares also have the right to vote
in the election of directors, then the term "capital" shall include such
preferred shares because the right to participate in the control or
management of the corporation is exercised through the right to vote in the
election of directors. In short, the term "capital" in Section 11, Article XII of
the Constitution refers only to shares of stock that can vote in the election of
directors.
This interpretation is consistent with the intent of the framers of the
Constitution to place in the hands of Filipino citizens the control and
management of public utilities. As revealed in the deliberations of the
Constitutional Commission, "capital" refers to the voting stock or controlling
interest of a corporation, to wit:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated local or
Filipino equity and foreign equity; namely, 60-40 in Section 3, 60-40 in
Section 9 and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced with this question:
"Where do we base the equity requirement, is it on the authorized capital
stock, on the subscribed capital stock, or on the paid-up capital stock of a
corporation"? Will the Committee please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the members of the
team from the UP Law Center who provided us a draft. The phrase that is
contained here which we adopted from the UP draft is "60 percent of voting
stock."
MR. NOLLEDO. That must be based on the subscribed capital stock,
because unless declared delinquent, unpaid capital stock shall be entitled to
vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in another corporation, say,
a corporation with 60-40 percent equity invests in another corporation which
is permitted by the Corporation Code, does the Committee adopt the
grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee.
MR. NOLLEDO. Therefore, we need additional Filipino capital?
MR. VILLEGAS. Yes.
xx x
MR. AZCUNA. May I be clarified as to that portion that was accepted by the
Committee.
MR. VILLEGAS. The portion accepted by the Committee is the deletion of
the phrase "voting stock or controlling interest."
MR. AZCUNA. Hence, without the Davide amendment, the committee report
would read: "corporations or associations at least sixty percent of whose
CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck with 60
percent of the capital to be owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the foreigners even if they are the
minority. Let us say 40 percent of the capital is owned by them, but it is the
voting capital, whereas, the Filipinos own the nonvoting shares. So we can
have a situation where the corporation is controlled by foreigners despite
being the minority because they have the voting capital. That is the anomaly
that would result here.
MR. BENGZON. No, the reason we eliminated the word "stock" as stated in
the 1973 and 1935 Constitutions is that according to Commissioner Rodrigo,
there are associations that do not have stocks. That is why we say
"CAPITAL."
MR. AZCUNA. We should not eliminate the phrase "controlling interest."
MR. BENGZON. In the case of stock corporations, it is assumed.49
(Emphasis supplied)
Thus, 60 percent of the "capital" assumes, or should result in, "controlling
interest" in the corporation. Reinforcing this interpretation of the term
"capital," as referring to controlling interest or shares entitled to vote, is the
definition of a "Philippine national" in the Foreign Investments Act of 1991,50
to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen of the Philippines; or a
domestic partnership or association wholly owned by citizens of the
Philippines; or a corporation organized under the laws of the Philippines of
which at least sixty percent (60%) of the capital stock outstanding and
entitled to vote is owned and held by citizens of the Philippines; or a
corporation organized abroad and registered as doing business in the
Philippines under the Corporation Code of which one hundred percent
(100%) of the capital stock outstanding and entitled to vote is wholly owned
by Filipinos or a trustee of funds for pension or other employee retirement or
139
separation benefits, where the trustee is a Philippine national and at least
sixty percent (60%) of the fund will accrue to the benefit of Philippine
nationals: Provided, That where a corporation and its non-Filipino
stockholders own stocks in a Securities and Exchange Commission (SEC)
registered enterprise, at least sixty percent (60%) of the capital stock
outstanding and entitled to vote of each of both corporations must be owned
and held by citizens of the Philippines and at least sixty percent (60%) of the
members of the Board of Directors of each of both corporations must be
citizens of the Philippines, in order that the corporation, shall be considered a
"Philippine national." (Emphasis supplied)
In explaining the definition of a "Philippine national," the Implementing Rules
and Regulations of the Foreign Investments Act of 1991 provide:
b. "Philippine national" shall mean a citizen of the Philippines or a domestic
partnership or association wholly owned by the citizens of the Philippines; or
a corporation organized under the laws of the Philippines of which at least
sixty percent [60%] of the capital stock outstanding and entitled to vote is
owned and held by citizens of the Philippines; or a trustee of funds for
pension or other employee retirement or separation benefits, where the
trustee is a Philippine national and at least sixty percent [60%] of the fund will
accrue to the benefit of the Philippine nationals; Provided, that where a
corporation its non-Filipino stockholders own stocks in a Securities and
Exchange Commission [SEC] registered enterprise, at least sixty percent
[60%] of the capital stock outstanding and entitled to vote of both
corporations must be owned and held by citizens of the Philippines and at
least sixty percent [60%] of the members of the Board of Directors of each of
both corporation must be citizens of the Philippines, in order that the
corporation shall be considered a Philippine national. The control test shall
be applied for this purpose.
Compliance with the required Filipino ownership of a corporation shall be
determined on the basis of outstanding capital stock whether fully paid or not,
but only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine
nationals, mere legal title is not enough to meet the required Filipino equity.
Full beneficial ownership of the stocks, coupled with appropriate voting rights
is essential. Thus, stocks, the voting rights of which have been assigned or
transferred to aliens cannot be considered held by Philippine citizens or
Philippine nationals.
Individuals or juridical entities not meeting the aforementioned qualifications
are considered as non-Philippine nationals. (Emphasis supplied)
Mere legal title is insufficient to meet the 60 percent Filipino-owned "capital"
required in the Constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is
required. The legal and beneficial ownership of 60 percent of the outstanding
capital stock must rest in the hands of Filipino nationals in accordance with
the constitutional mandate. Otherwise, the corporation is "considered as non-
Philippine national[s]."
Under Section 10, Article XII of the Constitution, Congress may "reserve to
citizens of the Philippines or to corporations or associations at least sixty per
centum of whose capital is owned by such citizens, or such higher
percentage as Congress may prescribe, certain areas of investments." Thus,
in numerous laws Congress has reserved certain areas of investments to
Filipino citizens or to corporations at least sixty percent of the "capital" of
which is owned by Filipino citizens. Some of these laws are: (1) Regulation of
Award of Government Contracts or R.A. No. 5183; (2) Philippine Inventors
Incentives Act or R.A. No. 3850; (3) Magna Carta for Micro, Small and
Medium Enterprises or R.A. No. 6977; (4) Philippine Overseas Shipping
Development Act or R.A. No. 7471; (5) Domestic Shipping Development Act
of 2004 or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009 or
R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No. 1521. Hence, the
term "capital" in Section 11, Article XII of the Constitution is also used in the
same context in numerous laws reserving certain areas of investments to
Filipino citizens.
To construe broadly the term "capital" as the total outstanding capital stock,
including both common and non-voting preferred shares, grossly
contravenes the intent and letter of the Constitution that the "State shall
develop a self-reliant and independent national economy effectively
controlled by Filipinos." A broad definition unjustifiably disregards who owns
the all-important voting stock, which necessarily equates to control of the
public utility.
We shall illustrate the glaring anomaly in giving a broad definition to the term
"capital." Let us assume that a corporation has 100 common shares owned
by foreigners and 1,000,000 non-voting preferred shares owned by Filipinos,
with both classes of share having a par value of one peso (₱1.00) per share.
Under the broad definition of the term "capital," such corporation would be
considered compliant with the 40 percent constitutional limit on foreign equity
of public utilities since the overwhelming majority, or more than 99.999
percent, of the total outstanding capital stock is Filipino owned. This is
obviously absurd.
In the example given, only the foreigners holding the common shares have
voting rights in the election of directors, even if they hold only 100 shares.
140
The foreigners, with a minuscule equity of less than 0.001 percent, exercise
control over the public utility. On the other hand, the Filipinos, holding more
than 99.999 percent of the equity, cannot vote in the election of directors and
hence, have no control over the public utility. This starkly circumvents the
intent of the framers of the Constitution, as well as the clear language of the
Constitution, to place the control of public utilities in the hands of Filipinos. It
also renders illusory the State policy of an independent national economy
effectively controlled by Filipinos.
The example given is not theoretical but can be found in the real world, and
in fact exists in the present case.
Holders of PLDT preferred shares are explicitly denied of the right to vote in
the election of directors. PLDT’s Articles of Incorporation expressly state that
"the holders of Serial Preferred Stock shall not be entitled to vote at any
meeting of the stockholders for the election of directors or for any other
purpose or otherwise participate in any action taken by the corporation or its
stockholders, or to receive notice of any meeting of stockholders."51
On the other hand, holders of common shares are granted the exclusive right
to vote in the election of directors. PLDT’s Articles of Incorporation52 state
that "each holder of Common Capital Stock shall have one vote in respect of
each share of such stock held by him on all matters voted upon by the
stockholders, and the holders of Common Capital Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes."53
In short, only holders of common shares can vote in the election of directors,
meaning only common shareholders exercise control over PLDT.
Conversely, holders of preferred shares, who have no voting rights in the
election of directors, do not have any control over PLDT. In fact, under
PLDT’s Articles of Incorporation, holders of common shares have voting
rights for all purposes, while holders of preferred shares have no voting right
for any purpose whatsoever.
It must be stressed, and respondents do not dispute, that foreigners hold a
majority of the common shares of PLDT. In fact, based on PLDT’s 2010
General Information Sheet (GIS),54 which is a document required to be
submitted annually to the Securities and Exchange Commission,55
foreigners hold 120,046,690 common shares of PLDT whereas Filipinos hold
only 66,750,622 common shares.56 In other words, foreigners hold 64.27%
of the total number of PLDT’s common shares, while Filipinos hold only
35.73%. Since holding a majority of the common shares equates to control, it
is clear that foreigners exercise control over PLDT. Such amount of control
unmistakably exceeds the allowable 40 percent limit on foreign ownership of
public utilities expressly mandated in Section 11, Article XII of the
Constitution.
Moreover, the Dividend Declarations of PLDT for 2009,57 as submitted to the
SEC, shows that per share the SIP58 preferred shares earn a pittance in
dividends compared to the common shares. PLDT declared dividends for the
common shares at ₱70.00 per share, while the declared dividends for the
preferred shares amounted to a measly ₱1.00 per share.59 So the preferred
shares not only cannot vote in the election of directors, they also have very
little and obviously negligible dividend earning capacity compared to common
shares.
As shown in PLDT’s 2010 GIS,60 as submitted to the SEC, the par value of
PLDT common shares is ₱5.00 per share, whereas the par value of preferred
shares is ₱10.00 per share. In other words, preferred shares have twice the
par value of common shares but cannot elect directors and have only 1/70 of
the dividends of common shares. Moreover, 99.44% of the preferred shares
are owned by Filipinos while foreigners own only a minuscule 0.56% of the
preferred shares.61 Worse, preferred shares constitute 77.85% of the
authorized capital stock of PLDT while common shares constitute only
22.15%.62 This undeniably shows that beneficial interest in PLDT is not with
the non-voting preferred shares but with the common shares, blatantly
violating the constitutional requirement of 60 percent Filipino control and
Filipino beneficial ownership in a public utility.
The legal and beneficial ownership of 60 percent of the outstanding capital
stock must rest in the hands of Filipinos in accordance with the constitutional
mandate. Full beneficial ownership of 60 percent of the outstanding capital
stock, coupled with 60 percent of the voting rights, is constitutionally required
for the State’s grant of authority to operate a public utility. The undisputed
fact that the PLDT preferred shares, 99.44% owned by Filipinos, are non-
voting and earn only 1/70 of the dividends that PLDT common shares earn,
grossly violates the constitutional requirement of 60 percent Filipino control
and Filipino beneficial ownership of a public utility.
In short, Filipinos hold less than 60 percent of the voting stock, and earn less
than 60 percent of the dividends, of PLDT. This directly contravenes the
express command in Section 11, Article XII of the Constitution that "[n]o
franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to x x x corporations x x x organized
under the laws of the Philippines, at least sixty per centum of whose capital is
owned by such citizens x x x."
To repeat, (1) foreigners own 64.27% of the common shares of PLDT, which
class of shares exercises the sole right to vote in the election of directors,
141
and thus exercise control over PLDT; (2) Filipinos own only 35.73% of
PLDT’s common shares, constituting a minority of the voting stock, and thus
do not exercise control over PLDT; (3) preferred shares, 99.44% owned by
Filipinos, have no voting rights; (4) preferred shares earn only 1/70 of the
dividends that common shares earn;63 (5) preferred shares have twice the
par value of common shares; and (6) preferred shares constitute 77.85% of
the authorized capital stock of PLDT and common shares only 22.15%. This
kind of ownership and control of a public utility is a mockery of the
Constitution.
Incidentally, the fact that PLDT common shares with a par value of ₱5.00
have a current stock market value of ₱2,328.00 per share,64 while PLDT
preferred shares with a par value of ₱10.00 per share have a current stock
market value ranging from only ₱10.92 to ₱11.06 per share,65 is a glaring
confirmation by the market that control and beneficial ownership of PLDT rest
with the common shares, not with the preferred shares.
Indisputably, construing the term "capital" in Section 11, Article XII of the
Constitution to include both voting and non-voting shares will result in the
abject surrender of our telecommunications industry to foreigners, amounting
to a clear abdication of the State’s constitutional duty to limit control of public
utilities to Filipino citizens. Such an interpretation certainly runs counter to the
constitutional provision reserving certain areas of investment to Filipino
citizens, such as the exploitation of natural resources as well as the
ownership of land, educational institutions and advertising businesses. The
Court should never open to foreign control what the Constitution has
expressly reserved to Filipinos for that would be a betrayal of the Constitution
and of the national interest. The Court must perform its solemn duty to
defend and uphold the intent and letter of the Constitution to ensure, in the
words of the Constitution, "a self-reliant and independent national economy
effectively controlled by Filipinos."
Section 11, Article XII of the Constitution, like other provisions of the
Constitution expressly reserving to Filipinos specific areas of investment,
such as the development of natural resources and ownership of land,
educational institutions and advertising business, is self-executing. There is
no need for legislation to implement these self-executing provisions of the
Constitution. The rationale why these constitutional provisions are self-
executing was explained in Manila Prince Hotel v. GSIS,66 thus:
x x x Hence, unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphasis
supplied)
In Manila Prince Hotel, even the Dissenting Opinion of then Associate Justice
Reynato S. Puno, later Chief Justice, agreed that constitutional provisions
are presumed to be self-executing. Justice Puno stated:
Courts as a rule consider the provisions of the Constitution as self-executing,
rather than as requiring future legislation for their enforcement. The reason is
not difficult to discern. For if they are not treated as self-executing, the
mandate of the fundamental law ratified by the sovereign people can be
easily ignored and nullified by Congress. Suffused with wisdom of the ages is
the unyielding rule that legislative actions may give breath to constitutional
rights but congressional inaction should not suffocate them.
Thus, we have treated as self-executing the provisions in the Bill of Rights on
arrests, searches and seizures, the rights of a person under custodial
investigation, the rights of an accused, and the privilege against self-
incrimination. It is recognized that legislation is unnecessary to enable courts
to effectuate constitutional provisions guaranteeing the fundamental rights of
life, liberty and the protection of property. The same treatment is accorded to
constitutional provisions forbidding the taking or damaging of property for
public use without just compensation. (Emphasis supplied)
Thus, in numerous cases,67 this Court, even in the absence of implementing
legislation, applied directly the provisions of the 1935, 1973 and 1987
Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo,68
this Court ruled:
x x x As the Constitution is silent as to the effects or consequences of a sale
by a citizen of his land to an alien, and as both the citizen and the alien have
violated the law, none of them should have a recourse against the other, and
it should only be the State that should be allowed to intervene and determine
what is to be done with the property subject of the violation. We have said
that what the State should do or could do in such matters is a matter of public
policy, entirely beyond the scope of judicial authority. (Dinglasan, et al. vs.
142
Lee Bun Ting, et al., 6 G. R. No. L-5996, June 27, 1956.) While the
legislature has not definitely decided what policy should be followed in cases
of violations against the constitutional prohibition, courts of justice cannot go
beyond by declaring the disposition to be null and void as violative of the
Constitution. x x x (Emphasis supplied)
To treat Section 11, Article XII of the Constitution as not self-executing would
mean that since the 1935 Constitution, or over the last 75 years, not one of
the constitutional provisions expressly reserving specific areas of
investments to corporations, at least 60 percent of the "capital" of which is
owned by Filipinos, was enforceable. In short, the framers of the 1935, 1973
and 1987 Constitutions miserably failed to effectively reserve to Filipinos
specific areas of investment, like the operation by corporations of public
utilities, the exploitation by corporations of mineral resources, the ownership
by corporations of real estate, and the ownership of educational institutions.
All the legislatures that convened since 1935 also miserably failed to enact
legislations to implement these vital constitutional provisions that determine
who will effectively control the national economy, Filipinos or foreigners. This
Court cannot allow such an absurd interpretation of the Constitution.
This Court has held that the SEC "has both regulatory and adjudicative
functions."69 Under its regulatory functions, the SEC can be compelled by
mandamus to perform its statutory duty when it unlawfully neglects to
perform the same. Under its adjudicative or quasi-judicial functions, the SEC
can be also be compelled by mandamus to hear and decide a possible
violation of any law it administers or enforces when it is mandated by law to
investigate such violation.1awphi1
SEC is mandated under Section 5(d) of the same Code with the "power and
function" to "investigate x x x the activities of persons to ensure compliance"
with the laws and regulations that SEC administers or enforces. The GIS that
all corporations are required to submit to SEC annually should put the SEC
on guard against violations of the nationality requirement prescribed in the
Constitution and existing laws. This Court can compel the SEC, in a petition
for declaratory relief that is treated as a petition for mandamus as in the
present case, to hear and decide a possible violation of Section 11, Article
XII of the Constitution in view of the ownership structure of PLDT’s voting
shares, as admitted by respondents and as stated in PLDT’s 2010 GIS that
PLDT submitted to SEC.
WHEREFORE, we PARTLY GRANT the petition and rule that the term
"capital" in Section 11, Article XII of the 1987 Constitution refers only to
shares of stock entitled to vote in the election of directors, and thus in the
present case only to common shares, and not to the total outstanding capital
stock (common and non-voting preferred shares). Respondent Chairperson
of the Securities and Exchange Commission is DIRECTED to apply this
definition of the term "capital" in determining the extent of allowable foreign
ownership in respondent Philippine Long Distance Telephone Company, and
if there is a violation of Section 11, Article XII of the Constitution, to impose
the appropriate sanctions under the law.
SO ORDERED.

Under Section 17(4)70 of the Corporation Code, the SEC has the regulatory
function to reject or disapprove the Articles of Incorporation of any
corporation where "the required percentage of ownership of the capital stock
to be owned by citizens of the Philippines has not been complied with as
required by existing laws or the Constitution." Thus, the SEC is the
government agency tasked with the statutory duty to enforce the nationality
requirement prescribed in Section 11, Article XII of the Constitution on the
ownership of public utilities. This Court, in a petition for declaratory relief that
is treated as a petition for mandamus as in the present case, can direct the
SEC to perform its statutory duty under the law, a duty that the SEC has
apparently unlawfully neglected to do based on the 2010 GIS that
respondent PLDT submitted to the SEC.

Under Section 5(m) of the Securities Regulation Code,71 the SEC is vested
with the "power and function" to "suspend or revoke, after proper notice and
hearing, the franchise or certificate of registration of corporations,
partnerships or associations, upon any of the grounds provided by law." The

143
G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and
in behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD
DEVELOPMENT CENTER, INC., Petitioners, vs. HON. PAQUITO N.
OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education, Culture and Sports and HON.
MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino
people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to
enact laws and policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz. Seemingly
distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is
called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation vis-
a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every
democratic society, diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to
mass gatherings organized by members of the clergy4 - the clash between
the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7
and several others8 in their personal capacities as citizens and on behalf of
the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life
Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
144
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in
their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is
also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27
Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni
Catalufia Causing, in their capacities as citizens, taxpayers and members of
the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY)
, an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing
the constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes
cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and
correct information on reproductive health programs and service, although it
is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations
of the RH Law (RH-IRR),39 provides that skilled health professionals who
are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona
services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.
145
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed
that the RH Law discriminates against the poor as it makes them the primary
target of the government program that promotes contraceptive use. The
petitioners argue that, rather than promoting reproductive health among the
poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause
of the Constitution. In imposing the penalty of imprisonment and/or fine for
"any violation," it is vague because it does not define the type of conduct to
be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the
right to due process by removing from them (the people) the right to manage
their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer." It ignores the management prerogative
inherent in corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to
explain a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note
that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.
• The RH Law intrudes into the zone of privacy of one's family protected by
the Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of spouses to mutually decide on
matters pertaining to the overall well-being of their family. In the same breath,
it is also claimed that the parents of a child who has suffered a miscarriage
are deprived of parental authority to determine whether their child should use
contraceptives.
• The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to
the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).
• The RH Law violates the one subject/one bill rule provision under Section
26( 1 ), Article VI of the Constitution.
• The RH Law violates Natural Law.
• The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at
the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and
R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on
the petitions in behalf of the respondents, Congressman Edcel C. Lagman,
former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie
Galvez-Tan, and Dr. Alberto G. Romualdez, the Filipino Catholic Voices for
Reproductive Health (C4RH), Ana Theresa "Risa" Hontiveros, and Atty. Joan
De Venecia60 also filed their respective Comments-in-Intervention in
conjunction with several others. On June 4, 2013, Senator Pia Juliana S.
Cayetano was also granted leave to intervene.
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons
that 1] there is no actual case or controversy and, therefore, the issues are
not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels
of the parties to determine and/or identify the pertinent issues raised by the
146
parties and the sequence by which these issues were to be discussed in the
oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013,
the cases were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective
memoranda within sixty (60) days and, at the same time posed several
questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back
as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anti-conceptional
substances and devices." Under Section 37 thereof, it was provided that "no
drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration
shall be delivered or sold to any person without a proper prescription by a
duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be
considered as the principal element for long-term economic development,
enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No.
6365, approved on August 16, 1971, entitled "An Act Establishing a National
Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to
couples desiring to space or limit family size; mortality and morbidity rates
will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972,
which, among others, made "family planning a part of a broad educational
program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except
abortion, to all Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among
others, mandated the State to provide for comprehensive health services and
programs for women, including family planning and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the country kept
on galloping at an uncontrollable pace. From a paltry number of just over 27
million Filipinos in 1960, the population of the country reached over 76 million
in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the
problem, the RH Law was enacted to provide Filipinos, especially the poor
and the marginalized, access and information to the full range of modem
family planning methods, and to ensure that its objective to provide for the
peoples' right to reproductive health be achieved. To make it more effective,
the RH Law made it mandatory for health providers to provide information on
the full range of modem family planning methods, supplies and services, and
for schools to provide reproductive health education. To put teeth to it, the
RH Law criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify and
make effective the current laws on contraception, women's health and
population control.
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be declared
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates
the right to health of women and the sanctity of life, which the State is
147
mandated to protect and promote. Thus, ALFI prays that "the status quo ante
- the situation prior to the passage of the RH Law - must be maintained."73 It
explains:
x x x. The instant Petition does not question contraception and
contraceptives per se. As provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of contraceptives are
prohibited unless dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under the RH Law is the
role that the State and its agencies - the entire bureaucracy, from the cabinet
secretaries down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the contraception program
to the fullest extent possible using taxpayers' money. The State then will be
the funder and provider of all forms of family planning methods and the
implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and
supplies.
ISSUES
After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of judicial
review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process" and "characterized by an
inordinate amount of transparency." The OSG posits that the authority of the
Court to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the constitutional
policies and positive norms with the political departments, in particular, with
Congress. It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council, the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.
Moreover, the OSG submits that as an "as applied challenge," it cannot
prosper considering that the assailed law has yet to be enforced and applied
to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.
In many cases involving the determination of the constitutionality of the
actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom of
its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of
government, which obtains not through express provision but by actual
division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within
its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c) the judicial power shall
be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes
148
and in bold lines, the allotment of powers among the three branches of
government.
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.
It has also long been observed, however, that in times of social disquietude
or political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the
same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse
of discretion.88 Thus, while the Court may not pass upon questions of
wisdom, justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion results.89 The
Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative
and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with
their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of
any sort, then, it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the Constitution which
expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared
that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement
of the separation of powers and the balancing of powers among the three
great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review
is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have
the unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present
any actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not
yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation.98 In short, it
is contended that judicial review of the RH Law is premature.
149
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented
Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly
violate the petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet effective
does not negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the Constitution
and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally
prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on
the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the
subject petitions, contending that the RH Law cannot be challenged "on its
face" as it is not a speech regulating measure.
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right
to religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues,108
it has expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental rights.109
The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional
150
scrutiny. To dismiss these petitions on the simple expedient that there exist
no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and
applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury
as a result of the challenged governmental act. It requires a personal stake in
the outcome of the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.
In relation to locus standi, the "as applied challenge" embodies the rule that
one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition
against third-party standing.
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is
a matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,118 ordinary
citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general
interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not be
assailed through an "as-applied challenge, still, the Court has time and again
acted liberally on the locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any other
government act. As held in Jaworski v. PAGCOR:
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved
in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being
of this nation, specially the youth; hence, their proper and just determination
is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or
delay, but to facilitate and promote the administration of justice. Their strict
and rigid application, which would result in technicalities that tend to frustrate,
rather than promote substantial justice, must always be eschewed.
(Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact
that the issues of contraception and reproductive health have already caused
deep division among a broad spectrum of society, the Court entertains no
doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court
need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do
so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
151
Declaratory Relief
The respondents also assail the petitions because they are essentially
petitions for declaratory relief over which the Court has no original
jurisdiction. Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the
case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming
that it violates Section 26(1 ), Article VI of the Constitution, prescribing the
one subject-one title rule. According to them, being one for reproductive
health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act
as a population control measure.
To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure, and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.
Despite efforts to push the RH Law as a reproductive health law, the Court
sees it as principally a population control measure. The corpus of the RH
Law is geared towards the reduction of the country's population. While it
claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law
emphasizes the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce
the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and
post-natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe,
non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to
prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the
RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation. As earlier explained,
"the other positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management of
reproductive tract infections including HIV/AIDS are already provided for in
the Magna Carta for Women."
Be that as it may, the RH Law does not violate the one subject/one bill rule.
In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision
as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect, and
where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court
has invariably adopted a liberal rather than technical construction of the rule
"so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the
human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right
to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law
must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any
expression or indication of the real subject or scope of the act."
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the goal of
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achieving "sustainable human development" as stated under its terms, the
Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and
health of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to the intent of the Framers of
the Constitution to afford protection to the fertilized ovum which already has
life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion
as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products
and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such a
determination and pass judgment only when a particular drug or device is
later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right
to life.
Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and transcends any authority or
the laws of men.
In this jurisdiction, the right to life is given more than ample protection.
Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
As expounded earlier, the use of contraceptives and family planning methods
in the Philippines is not of recent vintage. From the enactment of R.A. No.
4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation,139
and the ratification of numerous international agreements, the country has
long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development.
Through the years, however, the use of contraceptives and other family
153
planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly,
reproductive health.
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta
of Women" were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-
coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided,
at this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception.
This is undisputable because before conception, there is no unborn to speak
of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization. They are
waving the view that life begins at implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm. On
the other side of the spectrum are those who assert that conception refers to
the "implantation" of the fertilized ovum in the uterus.
Plain and Legal Meaning
It is a canon in statutory construction that the words of the Constitution
should be interpreted in their plain and ordinary meaning. As held in the
recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a well-
settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical
terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Verba legis non est
recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results
in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
154
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb
already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death. [Emphases in the
original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US
Supreme Court, said that the State "has respect for human life at all stages in
the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of
the Framers regarding the term "conception" used in Section 12, Article II of
the Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the
beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized ovum is alive. First of all, like
all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows
from within. Thirdly, it multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical
"yes." At the moment of conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude
that if the fertilized ovum is both alive and human, then, as night follows day,
it must be human life. Its nature is human.
Why the Constitution used the phrase "from the moment of conception" and
not "from the moment of fertilization" was not because of doubt when human
life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was
described by us here before with the scientific phrase "fertilized ovum" may
be beyond the comprehension of some people; we want to use the simpler
phrase "from the moment of conception."
Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according
to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six
months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception.
There can be no doubt about it. So we should not give any doubt to
Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that
point. Actually, that is one of the questions I was going to raise during the
period of interpellations but it has been expressed already. The provision, as
proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
155
When it speaks of "from the moment of conception," does this mean when
the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the
rooting of the ovum in the uterus. If fertilization has already occurred, the
next process is for the fertilized ovum to travel towards the uterus and to take
root. What happens with some contraceptives is that they stop the
opportunity for the fertilized ovum to reach the uterus. Therefore, if we take
the provision as it is proposed, these so called contraceptives should be
banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is
called abortifacient and, therefore, would be unconstitutional and should be
banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to
state whether or not these certain contraceptives are abortifacient.
Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it determine
when life begins.
Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established
evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-
life, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclear-
free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask
that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to
certain contraceptives which are already being encouraged at this point in
time. Is that the sense of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.
The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was
conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
156
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?
Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation.
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception
as "the beginning of pregnancy usually taken to be the instant a
spermatozoon enters an ovum and forms a viable zygote."
It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161
used by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the
egg and the sperm resulting in the formation of a new individual, with a
unique genetic composition that dictates all developmental stages that
ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei
(the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is
a large diploid cell that is the beginning, or primordium, of a human being."
The authors of Human Embryology & Teratology mirror the same position.
They wrote: "Although life is a continuous process, fertilization is a critical
landmark because, under ordinary circumstances, a new, genetically distinct
human organism is thereby formed.... The combination of 23 chromosomes
present in each pronucleus results in 46 chromosomes in the zygote. Thus
the diploid number is restored and the embryonic genome is formed. The
embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at
this stage that conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that destroying those new lives
is never licit, no matter what the purported good outcome would be. In terms
of biology and human embryology, a human being begins immediately at
fertilization and after that, there is no point along the continuous line of
human embryogenesis where only a "potential" human being can be posited.
Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a
scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human
embryos.
Conclusion: The Moment of Conception is Reckoned from Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a scientifically well-
defined moment of conception, that is, upon fertilization.
157
For the above reasons, the Court cannot subscribe to the theory advocated
by Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it
is a living human being complete with DNA and 46 chromosomes.168
Implantation has been conceptualized only for convenience by those who
had population control in mind. To adopt it would constitute textual infidelity
not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation of the
fetus at the uterine wall. It would be provocative and further aggravate
religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that
even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws
ever passed by Congress or any pro-abortion decision passed by the
Supreme Court.
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256
of the Revised Penal Code, which penalizes the destruction or expulsion of
the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the
following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples,
to decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion,
any law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
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In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an
abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded
from the moment of fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent implantation, but also those
that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the
RH Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum
to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized
ovum to reach and be implanted in the mother's womb is an abortifacient
(third kind), the RH Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches
and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing or destroying the fertilized
ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to
the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a
drug or device will not all be used as an abortifacient, since the agency
cannot be present in every instance when the contraceptive product or
supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and
non-abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that
"any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section
that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by
any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
159
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as
follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb
in doses of its approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are
well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra
vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH
Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the Constitution.
With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if its sole known
effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be
those contraceptives that do not have the primary action of causing abortion
or the destruction of a fetus inside the mother's womb or the prevention of
the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the matter,
the petitioners posit that the risk of developing breast and cervical cancer is
greatly increased in women who use oral contraceptives as compared to
women who never use them. They point out that the risk is decreased when
the use of contraceptives is discontinued. Further, it is contended that the
use of combined oral contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual
health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners
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assert that the assailed legislation only seeks to ensure that women have
pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this
regard, the Constitution is replete with provisions protecting and promoting
the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and
problems.
Section 13. The State shall establish a special agency for disabled person for
their rehabilitation, self-development, and self-reliance, and their integration
into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and
from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-
executing. Unless the provisions clearly express the contrary, the provisions
of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS, it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphases
supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se. In fact, ALFI
prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale
and distribution of contraceptives are not prohibited when they are dispensed
by a prescription of a duly licensed by a physician - be maintained.
The legislative intent in the enactment of the RH Law in this regard is to
leave intact the provisions of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its requirements are still in to be
complied with. Thus, the Court agrees with the observation of respondent
Lagman that the effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a licensed
physician. With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to
the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be dispensed and used without prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
161
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts
are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides
in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration,
any contraceptive drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female
ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of
this Act shall be punished with a fine of not more than five hundred pesos or
an imprisonment of not less than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA No.
5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device
shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this
Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or
not, is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of
the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement
and distribution program. The supply and budget allotments shall be based
on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it
must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
162
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress cannot legislate
that hormonal contraceptives and intra-uterine devices are safe and non-
abortifacient. The first sentence of Section 9 that ordains their inclusion by
the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or intrauterine device
is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning
supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of
hormonal contraceptives, intra-uterine devices, injectables, and other safe,
legal, non-abortifacient and effective family planning products and supplies
by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-
abortifacient and effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of contraceptives are
"safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are
not covered by the constitutional proscription, there are those who, because
of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are
medical practitioners who essentially claim that their beliefs prohibit not only
the use of contraceptives but also the willing participation and cooperation in
all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the
good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their
religious beliefs.189
2. On Religious Accommodation and The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be
able to provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very thing he
refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no escape is afforded
the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in
public schools referred to in Section 14 of the RH Law, are also not
recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend
that the requirement to refer the matter to another health care service
provider is still considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do the act against their
will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are required.
Petitioner CFC also argues that the requirement for a conscientious objector
to refer the person seeking reproductive health care services to another
provider infringes on one's freedom of religion as it forces the objector to
become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
163
Petitioner CFC adds that the RH Law does not show compelling state
interest to justify regulation of religious freedom because it mentions no
emergency, risk or threat that endangers state interests. It does not explain
how the rights of the people (to equality, non-discrimination of rights,
sustainable human development, health, education, information, choice and
to make decisions according to religious convictions, ethics, cultural beliefs
and the demands of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring
would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH
Law even if it contravenes their religious beliefs.195 As the assailed law
dangles the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH Law forcing
them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not
provide that a specific mode or type of contraceptives be used, be it natural
or artificial. It neither imposes nor sanctions any religion or belief. They point
out that the RH Law only seeks to serve the public interest by providing
accessible, effective and quality reproductive health services to ensure
maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution, and that what the law
only prohibits are those acts or practices, which deprive others of their right
to reproductive health. They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.
The respondents add that by asserting that only natural family planning
should be allowed, the petitioners are effectively going against the
constitutional right to religious freedom, the same right they invoked to assail
the constitutionality of the RH Law. In other words, by seeking the declaration
that the RH Law is unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.
With respect to the duty to refer, the respondents insist that the same does
not violate the constitutional guarantee of religious freedom, it being a
carefully balanced compromise between the interests of the religious
objector, on one hand, who is allowed to keep silent but is required to refer
-and that of the citizen who needs access to information and who has the
right to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of
others.
Whatever burden is placed on the petitioner's religious freedom is minimal as
the duty to refer is limited in duration, location and impact.
Regarding mandatory family planning seminars under Section 15, the
respondents claim that it is a reasonable regulation providing an opportunity
for would-be couples to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the
required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without intervention of
the State.
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups
and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the
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blessings of independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions
in public schools.
The Framers, however, felt the need to put up a strong barrier so that the
State would not encroach into the affairs of the church, and vice-versa. The
principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of
the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other
hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs,
even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be
preferred over another, the Constitution in the above-cited provision utilizes
the term "church" in its generic sense, which refers to a temple, a mosque,
an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the
support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of
religious freedom, the Court, in Victoriano v. Elizalde Rope Workers
Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of one's chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct
by enacting, within its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute is valid despite its
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indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.
Corollary to the guarantee of free exercise of one's religion is the principle
that the guarantee of religious freedom is comprised of two parts: the
freedom to believe, and the freedom to act on one's belief. The first part is
absolute. As explained in Gerona v. Secretary of Education:
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.
The second part however, is limited and subject to the awesome power of
the State and can be enjoyed only with proper regard to the rights of others.
It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."
Legislative Acts and the Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated
"that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine
Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion." "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper. Underlying the compelling state interest test is
the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny. In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the "compelling state interest" test. After Victoriano ,
German went back to the Gerona rule. Ebralinag then employed the "grave
and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the " clear and present danger" test in
the maiden case of A merican Bible Society. Not surprisingly, all the cases
which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however, which was
the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only
case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
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"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation
of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful
ones until they are destroyed. In determining which shall prevail between the
state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved. [Emphases in the
original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For
the Court has declared that matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the
civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion
and religious beliefs and convictions. It is replete with assurances the no one
can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right
to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information and access, without bias,
to all methods of family planning, including effective natural and modern
methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for
the poor and marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That the State
shall also provide funding support to promote modern natural methods of
family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration
of Policy]
4. The State shall promote programs that: (1) enable individuals and couples
to have the number of children they desire with due consideration to the
health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family
planning methods that are in accordance with their religious convictions and
cultural beliefs, taking into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
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6. Active participation by nongovernment organizations (NGOs) , women's
and people's organizations, civil society, faith-based organizations, the
religious sector and communities is crucial to ensure that reproductive health
and population and development policies, plans, and programs will address
the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond
to the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number
of children, spacing and timing of their children according to their own family
life aspirations, taking into account psychological preparedness, health
status, sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause and Contraceptives
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can or
cannot do with the government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor can they not cause
the government to restrict other groups. To do so, in simple terms, would
cause the State to adhere to a particular religion and, thus, establishing a
state religion.
Consequently, the petitioners are misguided in their supposition that the
State cannot enhance its population control program through the RH Law
simply because the promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to pursue its legitimate
secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his
conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-
Establishment Clause, the same conclusion cannot be reached with respect
to Sections 7, 23 and 24 thereof. The said provisions commonly mandate
that a hospital or a medical practitioner to immediately refer a person seeking
health care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious or ethical
beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line
with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious
freedom would warrant an exemption from obligations under the RH Law,
unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily
so, the plea of conscientious objectors for exemption from the RH Law
deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right
to religious freedom has been burdened. As in Escritor, there is no doubt that
an intense tug-of-war plagues a conscientious objector. One side coaxes him
into obedience to the law and the abandonment of his religious beliefs, while
the other entices him to a clean conscience yet under the pain of penalty.
The scenario is an illustration of the predicament of medical practitioners
whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information
on modem reproductive health products, services, procedures and methods,
his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free exercise clause
is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded
to individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the liberty of
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the individual to utter what is in his mind and the liberty not to utter what is
not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the
religious conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to
provide access and information on reproductive health products, services,
procedures and methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Court is of the strong
view that the religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief and conviction, it would be
violative of "the principle of non-coercion" enshrined in the constitutional right
to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow
and Clyde Health Board, that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not
be required to delegate, supervise or support staff on their labor ward who
were involved in abortions. The Inner House stated "that if 'participation' were
defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be
against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down
for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of
health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law
endeavour to ensure compliance. Without set consequences for either an
active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law
is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails
and/or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to
all medical practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none
in the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in
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occasions or gatherings or in more permanent aggrupation. Embraced in
such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association.
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
protection clause in the Constitution. Quoting respondent Lagman, if there is
any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have
not thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as conscientious objectors." Do
you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners
who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law
must prevail.
Compelling State Interest
The foregoing discussion then begets the question on whether the
respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2] discharge the burden of
proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be
in vain. The OSG was curiously silent in the establishment of a more
compelling state interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his religious convictions.
During the oral arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals.
This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their
patients.
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If
the government fails to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
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Freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. And
this freedom is violated when one is compelled to act against one's belief or
is prevented from acting according to one's belief.
Apparently, in these cases, there is no immediate danger to the life or health
of an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother
decides to adopt or use the information, product, method or supply given to
her or whether she even decides to become pregnant at all. On the other
hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have failed
to demonstrate "the gravest abuses, endangering paramount interests" which
could limit or override a person's fundamental right to religious freedom. Also,
the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that the act of referring would
only be momentary, considering that the act of referral by a conscientious
objector is the very action being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without violating the rights of
the conscientious objector. The health concerns of women may still be
addressed by other practitioners who may perform reproductive health-
related procedures with open willingness and motivation. Suffice it to say, a
person who is forced to perform an act in utter reluctance deserves the
protection of the Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known
as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact,
reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. -
The State shall, at all times, provide for a comprehensive, culture-sensitive,
and gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive
health services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible parenthood, and
the right of women to protection from hazardous drugs, devices,
interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and children
victims and survivors shall be provided with comprehensive health services
that include psychosocial, therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant
to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall
provide women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health
in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the
youth and the development of moral character and the right of children to be
brought up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
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(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a
measure that puts an unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be
forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
these situations, the right to life of the mother should be given preference,
considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are objecting on grounds of
violation of freedom of religion does not contemplate an emergency."
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the
RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily
the mother) when it is medically impossible to save both, provided that no
direct harm is intended to the other. If the above principles are observed, the
loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder.
The mother is never pitted against the child because both their lives are
equally valuable.
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the
assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by the OSG,
those who receive any information during their attendance in the required
seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
violates the provisions of the Constitution by intruding into marital privacy and
autonomy. It argues that it cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it
is the basic social institution. In fact, one article, Article XV, is devoted
entirely to the family.
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 ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply
because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures
on any person of legal age on the ground of lack of consent or authorization
of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall
prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal
litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect
issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that affect them "
is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making.
By giving absolute authority to the spouse who would undergo a procedure,
and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or
the number of their children significantly matters. The decision whether or not
to undergo the procedure belongs exclusively to, and shared by, both
spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which
has not shown any compelling interest, the State should see to it that they
chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
9710, otherwise known as the "Magna Carta for Women," provides that
women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional mandate to protect
and strengthen the family by giving to only one spouse the absolute authority
to decide whether to undergo reproductive health procedure.
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
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through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."244 Marje adopted the ruling of
the US Supreme Court in Griswold v. Connecticut,245 where Justice William
O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance. Various guarantees create zones of
privacy."
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not be
allowed access to modern methods of family planning without written consent
from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.
There can be no other interpretation of this provision except that when a
minor is already a parent or has had a miscarriage, the parents are excluded
from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her
natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does
not promote unity in the family. It is an affront to the constitutional mandate to
protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the
support of the Government." In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of
the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the family and
society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern
family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of
her own body and that of her unborn child. After all, Section 12, Article II of
the Constitution mandates the State to protect both the life of the mother as
that of the unborn child. Considering that information to enable a person to
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make informed decisions is essential in the protection and maintenance of
ones' health, access to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents might be deprived of
their parental control is unfounded because they are not prohibited to
exercise parental guidance and control over their minor child and assist her
in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in
life-threatening cases that require the performance of emergency
procedures. In such cases, the life of the minor who has already suffered a
miscarriage and that of the spouse should not be put at grave risk simply for
lack of consent. It should be emphasized that no person should be denied
the appropriate medical care urgently needed to preserve the primordial
right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be
struck down. By effectively limiting the requirement of parental consent to
"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case
of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional
mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health
education even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births;
divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and validate
their apprehensions. Thus, considering the premature nature of this particular
issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of
parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development
of their children by recognizing that said role shall be "primary," that is, that
the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents
in the moral development of the youth. Indeed, the Constitution makes
mention of the importance of developing the youth and their important role in
nation building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible parenthood,
and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH
Law itself provides for the teaching of responsible teenage behavior, gender
sensitivity and physical and emotional changes among adolescents - the
Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in
the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-
teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.
While the Court notes the possibility that educators might raise their objection
to their participation in the reproductive health education program provided
under Section 14 of the RH Law on the ground that the same violates their
religious beliefs, the Court reserves its judgment should an actual case be
filed before it.
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6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them,
Section 23 (a)(l) mentions a "private health service provider" among those
who may be held punishable but does not define who is a "private health
care service provider." They argue that confusion further results since
Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation
exempts hospitals operated by religious groups from rendering reproductive
health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures
under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.255
Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone,
but also in relation to other parts of the statute. It is a rule that every part of
the statute must be interpreted with reference to the context, that is, every
part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH
Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other
medical and nursing care; (2) public health care professional, who is a doctor
of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has
undergone training programs under any accredited government and NGO
and who voluntarily renders primarily health care services in the community
after having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause
of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and
to render reproductive health procedures. The terms "service" and "methods"
are broad enough to include the providing of information and the rendering of
medical procedures.
The same can be said with respect to the contention that the RH Law
punishes health care service providers who intentionally withhold, restrict and
provide incorrect information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby quoted as
follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/
or intentionally provide incorrect information regarding programs and
services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree
with a copy or model or with established rules; inaccurate, faulty; failing to
agree with the requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in
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relation to Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of programs
and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical
information in accordance with what is acceptable in medical practice. While
health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide public health
and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection
clause under the Constitution as it discriminates against the poor because it
makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would
effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned
in the guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the
sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
177
underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to
have children. There is, therefore, no merit to the contention that the RH Law
only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the "promotion and/or stabilization of the
population growth rate is incidental to the advancement of reproductive
health."
Moreover, the RH Law does not prescribe the number of children a couple
may have and does not impose conditions upon couples who intend to have
children. While the petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would raise them in a truly
humane way, a deeper look into its provisions shows that what the law seeks
to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it
to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand,
substantial distinction rests between public educational institutions and
private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity towards
the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it
violates the constitutional prohibition against involuntary servitude. They posit
that Section 17 of the assailed legislation requiring private and non-
government health care service providers to render forty-eight (48) hours of
pro bono reproductive health services, actually amounts to involuntary
servitude because it requires medical practitioners to perform acts against
their will.
The OSG counters that the rendition of pro bono services envisioned in
Section 17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation
of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably
imbued with public interest that it is both a power and a duty of the State to
control and regulate it in order to protect and promote the public welfare. Like
the legal profession, the practice of medicine is not a right but a privileged
burdened with conditions as it directly involves the very lives of the people. A
fortiori, this power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public safety; and to
regulate or control such professions or trades, even to the point of revoking
such right altogether.
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means
of coercion and compulsion. A reading of the assailed provision, however,
reveals that it only encourages private and non- government reproductive
healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they
wish to provide, when, where and how to provide it or whether to provide it
all. Clearly, therefore, no compulsion, force or threat is made upon them to
render pro bono service against their will. While the rendering of such service
was made a prerequisite to accreditation with PhilHealth, the Court does not
consider the same to be an unreasonable burden, but rather, a necessary
incentive imposed by Congress in the furtherance of a perceived legitimate
state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as
long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
178
The petitioners likewise question the delegation by Congress to the FDA of
the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover
health services and methods. It is the only government entity empowered to
render such services and highly proficient to do so. It should be understood
that health services and methods fall under the gamut of terms that are
associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No.
9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an
office to be called the Food and Drug Administration (FDA) in the Department
of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules
and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of
health products standards, and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve
as basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments
and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health
products to report to the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint
for health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after due process has
been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any
health product found to have caused death, serious illness or serious injury
to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the
appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the
FDA are specific to enable the agency to carry out the mandates of the law.
Being the country's premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and medicines that
are safe includes "service" and "methods." From the declared policy of the
RH Law, it is clear that Congress intended that the public be given only those
medicines that are proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and
the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious,
not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region of
Muslim Mindanao (ARMM)
179
As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested
upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall
continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to
this Code. Local government units shall likewise exercise such other powers
and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the
functions and responsibilities that have already been devolved upon them
from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by
the National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those
cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government
is that, unless an LGU is particularly designated as the implementing agency,
it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the
Local Government Code itself weighs against it.
In this case, a reading of the RH Law clearly shows that whether it pertains to
the establishment of health care facilities, the hiring of skilled health
professionals, or the training of barangay health workers, it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say
when it comes to national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah
to justify the exemption of the operation of the RH Law in the autonomous
region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to
enact legislation that would benefit the general welfare. After all, despite the
veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in
the relationship between the national and the regional governments.274
Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and
plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice
it to say that the Court does not duly recognize it as a legal basis for
upholding or invalidating a law. Our only guidepost is the Constitution. While
every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is
in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists. The jurists of the
180
philosophical school are interested in the law as an abstraction, rather than in
the actual law of the past or present. Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a
law. In Republic v. Sandiganbayan, the very case cited by the petitioners, it
was explained that the Court is not duty-bound to examine every law or
action and whether it conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is applicable.
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as
it seeks to provide access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out, however, the religious freedom
of some sectors of society cannot be trampled upon in pursuit of what the law
hopes to achieve. After all, the Constitutional safeguard to religious freedom
is a recognition that man stands accountable to an authority higher than the
State.
In conformity with the principle of separation of Church and State, one
religious group cannot be allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape
the Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even
if population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the
long run. The European and Asian countries, which embarked on such a
program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from
our Overseas Filipino Workers. This is because we have an ample supply of
young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation
would not be able to support them? This would be the situation when our
total fertility rate would go down below the replacement level of two (2)
children per woman.
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the
Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not
the same as saying what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature
to enact remedial legislation if that would be necessary in the premises. But
as always, with apt judicial caution and cold neutrality, the Court must carry
out the delicate function of interpreting the law, guided by the Constitution
and existing legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine itself to the judicial
task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation
and enhancement of the prior existing contraceptive and reproductive health
laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365),
the Contraceptive Act (R.A. No. 4729) and the reproductive health for women
or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions
of the assailed legislation. All the same, the principle of "no-abortion" and
"non-coercion" in the adoption of any family planning method should be
maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
UNCONSTITUTIONAL:
181
1) Section 7 and the corresponding provision in the RH-IRR insofar as they:
a) require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or
guardian/s;
The Status Quo Ante Order issued by the Court on March 19, 2013 as
extended by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the
provisions of R.A. No. 10354 which have been herein declared as
constitutional.
SO ORDERED.

2) Section 23(a)(l) and the corresponding provision in the RH-IRR,

particularly Section 5 .24 thereof, insofar as they punish any healthcare
service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or
her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar

as they allow a married individual, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar

as they limit the requirement of parental consent only to elective surgical
procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR,

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

6) Section 23(b) and the corresponding provision in the RH-IRR, particularly

Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the

rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they are
ultra vires and, therefore, null and void for contravening Section 4(a) of the
RH Law and violating Section 12, Article II of the Constitution.

182
G.R. No. 212426
RENE A.V. SAGUISAG, WIGBERTO E. TAÑADA, FRANCISCO
"DODONG" NEMENZO, JR., SR. MARY JOHN MANANZAN, PACIFICO A.
AGABIN, ESTEBAN "STEVE" SALONGA, H. HARRY L. ROQUE, JR.,
EVALYN G. URSUA, EDRE U. OLALIA, DR. CAROL PAGADUAN-
ARAULLO, DR. ROLAND SIMBULAN, AND TEDDY CASIÑO, Petitioners,
vs. EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., DEPARTMENT
OF NATIONAL DEFENSE SECRETARY VOLTAIRE GAZMIN,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERT DEL
ROSARIO, JR., DEPARTMENT OF BUDGET AND MANAGEMENT
SECRETARY FLORENCIO ABAD, AND ARMED FORCES OF THE
PHILIPPINES CHIEF OF STAFF GENERAL EMMANUEL T. BAUTISTA,
Respondents.
DECISION
SERENO, J.:
The petitions1 before this Court question the constitutionality of the
Enhanced Defense Cooperation Agreement (EDCA) between the Republic of
the Philippines and the United States of America (U.S.). Petitioners allege
that respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction when they entered into EDCA with the U.S.,2 claiming
that the instrument violated multiple constitutional provisions.3 In reply,
respondents argue that petitioners lack standing to bring the suit. To support
the legality of their actions, respondents invoke the 1987 Constitution,
treaties, and judicial precedents.4
A proper analysis of the issues requires this Court to lay down at the outset
the basic parameters of the constitutional powers and roles of the President
and the Senate in respect of the above issues. A more detailed discussion of
these powers and roles will be made in the latter portions.
I. BROAD CONSTITUTIONAL CONTEXT OF THE POWERS OF THE
PRESIDENT: DEFENSE, FOREIGN RELATIONS, AND EDCA
A. The Prime Duty of the State and the Consolidation of Executive
Power in the President
Mataimtim kong pinanunumpaan (o pinatotohanan) na tutuparin ko nang
buong katapatan at sigasig ang aking mga tungkulin bilang Pangulo (o
Pangalawang Pangulo o Nanunungkulang Pangulo) ng Pilipinas,
pangangalagaan at ipagtatanggol ang kanyang Konstitusyon, ipatutupad ang
mga batas nito, magiging makatarungan sa bawat tao, at itatalaga ang aking
sarili sa paglilingkod sa Bansa. Kasihan nawa aka ng Diyos.
- Panunumpa sa Katungkulan ng Pangulo ng Pilipinas ayon sa Saligang
Batas5
The 1987 Constitution has "vested the executive power in the President of
the Republic of the Philippines."6 While the vastness of the executive power
that has been consolidated in the person of the President cannot be
expressed fully in one provision, the Constitution has stated the prime duty of
the government, of which the President is the head:
The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the
fulfillment thereof, all citizens may be required, under conditions provided by
law, to render personal military or civil service.7 (Emphases supplied)
B. The duty to protect the territory and the citizens of the Philippines,
the power to call upon the people to defend the State, and the President
as Commander-in-Chief
The duty to protect the State and its people must be carried out earnestly
and effectively throughout the whole territory of the Philippines in accordance
with the constitutional provision on national territory. Hence, the President of
the Philippines, as the sole repository of executive power, is the guardian of
the Philippine archipelago, including all the islands and waters embraced
therein and all other territories over which it has sovereignty or jurisdiction.
These territories consist of its terrestrial, fluvial, and aerial domains; including
its territorial sea, the seabed, the subsoil, the insular shelves, and other
submarine areas; and the waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and dimensions.8
To carry out this important duty, the President is equipped with authority over
the Armed Forces of the Philippines (AFP),9 which is the protector of the
people and the state. The AFP's role is to secure the sovereignty of the State
and the integrity of the national territory.10 In addition, the Executive is
constitutionally empowered to maintain peace and order; protect life, liberty,
and property; and promote the general welfare.
In recognition of these powers, Congress has specified that the President
must oversee, ensure, and reinforce our defensive capabilities against
external and internal threats and, in the same vein, ensure that the country is
adequately prepared for all national and local emergencies arising from
natural and man-made disasters.
183
To be sure, this power is limited by the Constitution itself. To illustrate, the
President may call out the AFP to prevent or suppress instances of lawless
violence, invasion or rebellion,14 but not suspend the privilege of the writ of
habeas corpus for a period exceeding 60 days, or place the Philippines or
any part thereof under martial law exceeding that same span. In the exercise
of these powers, the President is also duty-bound to submit a report to
Congress, in person or in writing, within 48 hours from the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus;
and Congress may in turn revoke the proclamation or suspension. The same
provision provides for the Supreme Court's review of the factual basis for the
proclamation or suspension, as well as the promulgation of the decision
within 30 days from filing.
C. The power and duty to conduct foreign relations
The President also carries the mandate of being the sole organ in the
conduct of foreign relations.15 Since every state has the capacity to interact
with and engage in relations with other sovereign states,16 it is but logical
that every state must vest in an agent the authority to represent its interests
to those other sovereign states.
The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act
on the basis of the best available information and can decide with
decisiveness. x x x It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries
for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.17
The role of the President in foreign affairs is qualified by the Constitution in
that the Chief Executive must give paramount importance to the sovereignty
of the nation, the integrity of its territory, its interest, and the right of the
sovereign Filipino people to self-determination.18 In specific provisions, the
President's power is also limited, or at least shared, as in Section 2 of Article
II on the conduct of war; Sections 20 and 21 of Article VII on foreign loans,
treaties, and international agreements; Sections 4(2) and 5(2)(a) of Article
VIII on the judicial review of executive acts; Sections 4 and 25 of Article XVIII
on treaties and international agreements entered into prior to the Constitution
and on the presence of foreign military troops, bases, or facilities.
D. The relationship between the two major presidential functions and
the role of the Senate
Clearly, the power to defend the State and to act as its representative in the
international sphere inheres in the person of the President. This power,
however, does not crystallize into absolute discretion to craft whatever
instrument the Chief Executive so desires. As previously mentioned, the
Senate has a role in ensuring that treaties or international agreements the
President enters into, as contemplated in Section 21 of Article VII of the
Constitution, obtain the approval of two-thirds of its members.
Previously, treaties under the 1973 Constitution required ratification by a
majority of the Batasang Pambansa,19 except in instances wherein the
President "may enter into international treaties or agreements as the national
welfare and interest may require."20 This left a large margin of discretion that
the President could use to bypass the Legislature altogether. This was a
departure from the 1935 Constitution, which explicitly gave the President the
power to enter into treaties only with the concurrence of two-thirds of all the
Members of the Senate.21 The 1987 Constitution returned the Senate's
power22 and, with it, the legislative's traditional role in foreign affairs.23
The responsibility of the President when it comes to treaties and international
agreements under the present Constitution is therefore shared with the
Senate. This shared role, petitioners claim, is bypassed by EDCA.
II. HISTORICAL ANTECEDENTS OF EDCA
A. U.S. takeover of Spanish colonization and its military bases, and the
transition to Philippine independence
The presence of the U.S. military forces in the country can be traced to their
pivotal victory in the 1898 Battle of Manila Bay during the Spanish-American
War.24 Spain relinquished its sovereignty over the Philippine Islands in favor
of the U.S. upon its formal surrender a few months later.25 By 1899, the
Americans had consolidated a military administration in the archipelago.26
When it became clear that the American forces intended to impose colonial
control over the Philippine Islands, General Emilio Aguinaldo immediately led
the Filipinos into an all-out war against the U.S.27 The Filipinos were
ultimately defeated in the Philippine-American War, which lasted until 1902
and led to the downfall of the first Philippine Republic.28 The Americans
184
henceforth began to strengthen their foothold in the country.29 They took
over and expanded the former Spanish Naval Base in Subic Bay, Zambales,
and put up a cavalry post called Fort Stotsenberg in Pampanga, now known
as Clark Air Base.30
When talks of the eventual independence of the Philippine Islands gained
ground, the U.S. manifested the desire to maintain military bases and armed
forces in the country.31 The U.S. Congress later enacted the Hare-Hawes-
Cutting Act of 1933, which required that the proposed constitution of an
independent Philippines recognize the right of the U.S. to maintain the latter's
armed forces and military bases.32 The Philippine Legislature rejected that
law, as it also gave the U.S. the power to unilaterally designate any part of
Philippine territory as a permanent military or naval base of the U.S. within
two years from complete independence.33
The U.S. Legislature subsequently crafted another law called the Tydings-
McDuffie Act or the Philippine Independence Act of 1934. Compared to the
old Hare-Hawes-Cutting Act, the new law provided for the surrender to the
Commonwealth Government of "all military and other reservations" of the
U.S. government in the Philippines, except "naval reservations and refueling
stations."34 Furthermore, the law authorized the U.S. President to enter into
negotiations for the adjustment and settlement of all questions relating to
naval reservations and fueling stations within two years after the Philippines
would have gained independence.35 Under the Tydings-McDuffie Act, the
U.S. President would proclaim the American withdrawal and surrender of
sovereignty over the islands 10 years after the inauguration of the new
government in the Philippines.36 This law eventually led to the promulgation
of the 1935 Philippine Constitution.
The original plan to surrender the military bases changed.37 At the height of
the Second World War, the Philippine and the U.S. Legislatures each passed
resolutions authorizing their respective Presidents to negotiate the matter of
retaining military bases in the country after the planned withdrawal of the
U.S.38 Subsequently, in 1946, the countries entered into the Treaty of
General Relations, in which the U.S. relinquished all control and sovereignty
over the Philippine Islands, except the areas that would be covered by the
American military bases in the country.39 This treaty eventually led to the
creation of the post-colonial legal regime on which would hinge the continued
presence of U.S. military forces until 1991: the Military Bases Agreement
(MBA) of 1947, the Military Assistance Agreement of 1947, and the Mutual
Defense Treaty (MDT) of 1951.
B. Former legal regime on the presence of U.S. armed forces in the
territory of an independent Philippines (1946-1991)
Soon after the Philippines was granted independence, the two countries
entered into their first military arrangement pursuant to the Treaty of General
Relations - the 1947 MBA.41 The Senate concurred on the premise of
"mutuality of security interest," which provided for the presence and
operation of 23 U.S. military bases in the Philippines for 99 years or until the
year 2046. The treaty also obliged the Philippines to negotiate with the U.S.
to allow the latter to expand the existing bases or to acquire new ones as
military necessity might require.
A number of significant amendments to the 1947 MBA were made.45 With
respect to its duration, the parties entered into the Ramos-Rusk Agreement
of 1966, which reduced the term of the treaty from 99 years to a total of 44
years or until 1991.46 Concerning the number of U.S. military bases in the
country, the Bohlen-Serrano Memorandum of Agreement provided for the
return to the Philippines of 17 U.S. military bases covering a total area of
117,075 hectares. Twelve years later, the U.S. returned Sangley Point in
Cavite City through an exchange of notes.48 Then, through the Romulo-
Murphy Exchange of Notes of 1979, the parties agreed to the recognition of
Philippine sovereignty over Clark and Subic Bases and the reduction of the
areas that could be used by the U.S. military.49 The agreement also
provided for the mandatory review of the treaty every five years.50 In 1983,
the parties revised the 1947 MBA through the Romualdez-Armacost
Agreement. The revision pertained to the operational use of the military
bases by the U.S. government within the context of Philippine sovereignty,52
including the need for prior consultation with the Philippine government on
the former' s use of the bases for military combat operations or the
establishment of long-range missiles.
Pursuant to the legislative authorization granted under Republic Act No. 9,
the President also entered into the 1947 Military Assistance Agreement55
with the U.S. This executive agreement established the conditions under
which U.S. military assistance would be granted to the Philippines,
particularly the provision of military arms, ammunitions, supplies, equipment,
vessels, services, and training for the latter's defense forces. An exchange of
notes in 1953 made it clear that the agreement would remain in force until
terminated by any of the parties.
To further strengthen their defense and security relationship,59 the
Philippines and the U.S. next entered into the MDT in 1951. Concurred in by
both the Philippine60 and the U.S.61 Senates, the treaty has two main
features: first, it allowed for mutual assistance in maintaining and developing
their individual and collective capacities to resist an armed attack;62 and
second, it provided for their mutual self-defense in the event of an armed
attack against the territory of either party.63 The treaty was premised on their
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recognition that an armed attack on either of them would equally be a threat
to the security of the other.
C. Current legal regime on the presence of U.S. armed forces in the
country
In view of the impending expiration of the 1947 MBA in 1991, the Philippines
and the U.S. negotiated for a possible renewal of their defense and security
relationship.65 Termed as the Treaty of Friendship, Cooperation and
Security, the countries sought to recast their military ties by providing a new
framework for their defense cooperation and the use of Philippine
installations.66 One of the proposed provisions included an arrangement in
which U.S. forces would be granted the use of certain installations within the
Philippine naval base in Subic.67 On 16 September 1991, the Senate
rejected the proposed treaty.68
The consequent expiration of the 1947 MBA and the resulting paucity of any
formal agreement dealing with the treatment of U.S. personnel in the
Philippines led to the suspension in 1995 of large-scale joint military
exercises.69 In the meantime, the respective governments of the two
countries agreed70 to hold joint exercises at a substantially reduced level.71
The military arrangements between them were revived in 1999 when they
concluded the first Visiting Forces Agreement (VFA).72
As a "reaffirm[ation] [of the] obligations under the MDT,"73 the VFA has laid
down the regulatory mechanism for the treatment of U.S. military and civilian
personnel visiting the country.74 It contains provisions on the entry and
departure of U.S. personnel; the purpose, extent, and limitations of their
activities; criminal and disciplinary jurisdiction; the waiver of certain claims;
the importation and exportation of equipment, materials, supplies, and other
pieces of property owned by the U.S. government; and the movement of U.S.
military vehicles, vessels, and aircraft into and within the country.75 The
Philippines and the U.S. also entered into a second counterpart agreement
(VFA II), which in turn regulated the treatment of Philippine military and
civilian personnel visiting the U.S.76 The Philippine Senate concurred in the
first VFA on 27 May 1999.77
Beginning in January 2002, U.S. military and civilian personnel started
arriving in Mindanao to take part in joint military exercises with their Filipino
counterparts.78 Called Balikatan, these exercises involved trainings aimed at
simulating joint military maneuvers pursuant to the MDT.79
In the same year, the Philippines and the U.S. entered into the Mutual
Logistics Support Agreement to "further the interoperability, readiness, and
effectiveness of their respective military forces"80 in accordance with the
MDT, the Military Assistance Agreement of 1953, and the VFA.81 The new
agreement outlined the basic terms, conditions, and procedures for
facilitating the reciprocal provision of logistics support, supplies, and services
between the military forces of the two countries.82 The phrase "logistics
support and services" includes billeting, operations support, construction and
use of temporary structures, and storage services during an approved activity
under the existing military arrangements.83 Already extended twice, the
agreement will last until 2017.84
D. The Enhanced Defense Cooperation Agreement
EDCA authorizes the U.S. military forces to have access to and conduct
activities within certain "Agreed Locations" in the country. It was not
transmitted to the Senate on the executive's understanding that to do so was
no longer necessary.85 Accordingly, in June 2014, the Department of
Foreign Affairs (DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal requirements for the
agreement to enter into force in the two countries.86
According to the Philippine government, the conclusion of EDCA was the
result of intensive and comprehensive negotiations in the course of almost
two years.87 After eight rounds of negotiations, the Secretary of National
Defense and the U.S. Ambassador to the Philippines signed the agreement
on 28 April 2014.88 President Benigno S. Aquino III ratified EDCA on 6 June
2014.89 The OSG clarified during the oral arguments90 that the Philippine
and the U.S. governments had yet to agree formally on the specific sites of
the Agreed Locations mentioned in the agreement.
Two petitions for certiorari were thereafter filed before us assailing the
constitutionality of EDCA. They primarily argue that it should have been in
the form of a treaty concurred in by the Senate, not an executive agreement.
On 10 November 2015, months after the oral arguments were concluded and
the parties ordered to file their respective memoranda, the Senators adopted
Senate Resolution No. (SR) 105.91 The resolution expresses the "strong
sense"92 of the Senators that for EDCA to become valid and effective, it
must first be transmitted to the Senate for deliberation and concurrence.
III. ISSUES
Petitioners mainly seek a declaration that the Executive Department
committed grave abuse of discretion in entering into EDCA in the form of an
executive agreement. For this reason, we cull the issues before us:
A. Whether the essential requisites for judicial review are present
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B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution,
as well as with existing laws and treaties
IV. DISCUSSION
A. Whether the essential requisites for judicial review have been
satisfied
Petitioners are hailing this Court's power of judicial review in order to strike
down EDCA for violating the Constitution. They stress that our fundamental
law is explicit in prohibiting the presence of foreign military forces in the
country, except under a treaty concurred in by the Senate. Before this Court
may begin to analyze the constitutionality or validity of an official act of a
coequal branch of government, however, petitioners must show that they
have satisfied all the essential requisites for judicial review.93
Distinguished from the general notion of judicial power, the power of judicial
review specially refers to both the authority and the duty of this Court to
determine whether a branch or an instrumentality of government has acted
beyond the scope of the latter's constitutional powers. As articulated in
Section 1, Article VIII of the Constitution, the power of judicial review involves
the power to resolve cases in which the questions concern the
constitutionality or validity of any treaty, international or executive agreement,
law, presidential decree, proclamation, order, instruction, ordinance, or
regulation. In Angara v. Electoral Commission, this Court exhaustively
discussed this "moderating power" as part of the system of checks and
balances under the Constitution. In our fundamental law, the role of the Court
is to determine whether a branch of government has adhered to the specific
restrictions and limitations of the latter's power:
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual division in
our Constitution. Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is supreme within its own
sphere. But it does not follow from the fact that the three powers are to be
kept separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government. x
x x. And the judiciary in turn, with the Supreme Court as the final arbiter,
effectively checks the other departments in the exercise of its power to
determine the law, and hence to declare executive and legislative acts void if
violative of the Constitution.
xxxx
As any human production, our Constitution is of course lacking perfection
and perfectibility, but as much as it was within the power of our people,
acting through their delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under
a system of checks and balances, and subject to specific limitations and
restrictions provided in the said instrument. The Constitution sets forth in no
uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism
by which to direct the course of government along constitutional channels, for
then the distribution of powers would be mere verbiage, the bill of rights mere
expressions of sentiment, and the principles of good government mere
political apothegms. Certainly, the limitations and restrictions embodied in
our Constitution are real as they should be in any living constitution. x x x. In
our case, this moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of [the 1935] Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The Constitution
itself has provided for the instrumentality of the judiciary as the rational way.
And when the judiciary mediates to allocate constitutional boundaries, it does
not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and
sacred obligation assigned to it by the Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is termed
"judicial supremacy" which properly is the power of judicial review under the
Constitution. x x x x. (Emphases supplied)
The power of judicial review has since been strengthened in the 1987
Constitution. The scope of that power has been extended to the
determination of whether in matters traditionally considered to be within the
sphere of appreciation of another branch of government, an exercise of
discretion has been attended with grave abuse.97 The expansion of this
power has made the political question doctrine "no longer the insurmountable
obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review."98
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This moderating power, however, must be exercised carefully and only if it
cannot be completely avoided. We stress that our Constitution is so incisively
designed that it identifies the spheres of expertise within which the different
branches of government shall function and the questions of policy that they
shall resolve.99 Since the power of judicial review involves the delicate
exercise of examining the validity or constitutionality of an act of a coequal
branch of government, this Court must continually exercise restraint to avoid
the risk of supplanting the wisdom of the constitutionally appointed actor with
that of its own.
Even as we are left with no recourse but to bare our power to check an act of
a coequal branch of government - in this case the executive - we must abide
by the stringent requirements for the exercise of that power under the
Constitution. Demetria v. Alba101 and Francisco v. House of
Representatives102 cite the "pillars" of the limitations on the power of judicial
review as enunciated in the concurring opinion of U.S. Supreme Court
Justice Brandeis in Ashwander v. Tennessee Valley Authority.103 Francisco
redressed these "pillars" under the following categories:
1. That there be absolute necessity of deciding a case
2. That rules of constitutional law shall be formulated only as required by the
facts of the case
3. That judgment may not be sustained on some other ground
4. That there be actual injury sustained by the party by reason of the
operation of the statute
5. That the parties are not in estoppel
6. That the Court upholds the presumption of constitutionality
(Emphases supplied)
These are the specific safeguards laid down by the Court when it exercises
its power of judicial review.105 Guided by these pillars, it may invoke the
power only when the following four stringent requirements are satisfied: (a)
there is an actual case or controversy; (b) petitioners possess locus standi;
(c) the question of constitutionality is raised at the earliest opportunity; and
(d) the issue of constitutionality is the lis mota of the case.106 Of these four,
the first two conditions will be the focus of our discussion.
1. Petitioners have shown the presence of an actual case or
controversy.
The OSG maintains107 that there is no actual case or controversy that
exists, since the Senators have not been deprived of the opportunity to
invoke the privileges of the institution they are representing. It contends that
the nonparticipation of the Senators in the present petitions only confirms
that even they believe that EDCA is a binding executive agreement that does
not require their concurrence.
It must be emphasized that the Senate has already expressed its position
through SR 105. Through the Resolution, the Senate has taken a position
contrary to that of the OSG. As the body tasked to participate in foreign
affairs by ratifying treaties, its belief that EDCA infringes upon its
constitutional role indicates that an actual controversy - albeit brought to the
Court by non-Senators, exists.
Moreover, we cannot consider the sheer abstention of the Senators from the
present proceedings as basis for finding that there is no actual case or
controversy before us. We point out that the focus of this requirement is the
ripeness for adjudication of the matter at hand, as opposed to its being
merely conjectural or anticipatory.109 The case must involve a definite and
concrete issue involving real parties with conflicting legal rights and legal
claims admitting of specific relief through a decree conclusive in nature.110 It
should not equate with a mere request for an opinion or advice on what the
law would be upon an abstract, hypothetical, or contingent state of facts. As
explained in Angara v. Electoral Commission:
[The] power of judicial review is limited to actual cases and controversies to
be exercised after full opportunity of argument by the parties, and limited
further to the constitutional question raised or the very lis mota presented.
Any attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality
to legislative enactments, not only because the legislature is presumed to
abide by the Constitution but also because the judiciary in the determination
of actual cases and controversies must reflect the wisdom and justice of the
people as expressed through their representatives in the executive and
legislative departments of the government. (Emphases supplied)
We find that the matter before us involves an actual case or controversy that
is already ripe for adjudication. The Executive Department has already sent
an official confirmation to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with."113 By this exchange
of diplomatic notes, the Executive Department effectively performed the last
act required under Article XII(l) of EDCA before the agreement entered into
force. Section 25, Article XVIII of the Constitution, is clear that the presence
of foreign military forces in the country shall only be allowed by virtue of a
treaty concurred in by the Senate. Hence, the performance of an official act
by the Executive Department that led to the entry into force of an executive
agreement was sufficient to satisfy the actual case or controversy
requirement.
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2. While petitioners Saguisag et. al., do not have legal standing, they
nonetheless raise issues involving matters of transcendental
importance.
The question of locus standi or legal standing focuses on the determination
of whether those assailing the governmental act have the right of appearance
to bring the matter to the court for adjudication.114 They must show that they
have a personal and substantial interest in the case, such that they have
sustained or are in immediate danger of sustaining, some direct injury as a
consequence of the enforcement of the challenged governmental act.115
Here, "interest" in the question involved must be material - an interest that is
in issue and will be affected by the official act - as distinguished from being
merely incidental or general.116 Clearly, it would be insufficient to show that
the law or any governmental act is invalid, and that petitioners stand to suffer
in some indefinite way.117 They must show that they have a particular
interest in bringing the suit, and that they have been or are about to be
denied some right or privilege to which they are lawfully entitled, or that they
are about to be subjected to some burden or penalty by reason of the act
complained of.118 The reason why those who challenge the validity of a law
or an international agreement are required to allege the existence of a
personal stake in the outcome of the controversy is "to assure the concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions."119
The present petitions cannot qualify as citizens', taxpayers', or legislators'
suits; the Senate as a body has the requisite standing, but considering that it
has not formally filed a pleading to join the suit, as it merely conveyed to the
Supreme Court its sense that EDCA needs the Senate's concurrence to be
valid, petitioners continue to suffer from lack of standing.
In assailing the constitutionality of a governmental act, petitioners suing as
citizens may dodge the requirement of having to establish a direct and
personal interest if they show that the act affects a public right. In arguing
that they have legal standing, they claim that the case they have filed is a
concerned citizen's suit. But aside from general statements that the petitions
involve the protection of a public right, and that their constitutional rights as
citizens would be violated, they fail to make any specific assertion of a
particular public right that would be violated by the enforcement of EDCA.
For their failure to do so, the present petitions cannot be considered by the
Court as citizens' suits that would justify a disregard of the aforementioned
requirements.
In claiming that they have legal standing as taxpayers, petitioners aver that
the implementation of EDCA would result in the unlawful use of public funds.
They emphasize that Article X(1) refers to an appropriation of funds; and that
the agreement entails a waiver of the payment of taxes, fees, and rentals.
During the oral arguments, however, they admitted that the government had
not yet appropriated or actually disbursed public funds for the purpose of
implementing the agreement. The OSG, on the other hand, maintains that
petitioners cannot sue as taxpayers. Respondent explains that EDCA is
neither meant to be a tax measure, nor is it directed at the disbursement of
public funds.
A taxpayer's suit concerns a case in which the official act complained of
directly involves the illegal disbursement of public funds derived from
taxation. Here, those challenging the act must specifically show that they
have sufficient interest in preventing the illegal expenditure of public money,
and that they will sustain a direct injury as a result of the enforcement of the
assailed act. Applying that principle to this case, they must establish that
EDCA involves the exercise by Congress of its taxing or spending powers.
We agree with the OSG that the petitions cannot qualify as taxpayers' suits.
We emphasize that a taxpayers' suit contemplates a situation in which there
is already an appropriation or a disbursement of public funds.128 A reading
of Article X(l) of EDCA would show that there has been neither an
appropriation nor an authorization of disbursement of funds. The cited
provision reads:
All obligations under this Agreement are subject to the availability of
appropriated funds authorized for these purposes. (Emphases supplied)
This provision means that if the implementation of EDCA would require the
disbursement of public funds, the money must come from appropriated funds
that are specifically authorized for this purpose. Under the agreement, before
there can even be a disbursement of public funds, there must first be a
legislative action. Until and unless the Legislature appropriates funds for
EDCA, or unless petitioners can pinpoint a specific item in the current budget
that allows expenditure under the agreement, we cannot at this time rule that
there is in fact an appropriation or a disbursement of funds that would justify
the filing of a taxpayers' suit.
Petitioners Bayan et al. also claim that their co-petitioners who are party-list
representatives have the standing to challenge the act of the Executive
Department, especially if it impairs the constitutional prerogatives, powers,
and privileges of their office. While they admit that there is no incumbent
Senator who has taken part in the present petition, they nonetheless assert
that they also stand to sustain a derivative but substantial injury as
legislators. They argue that under the Constitution, legislative power is
vested in both the Senate and the House of Representatives; consequently,
it is the entire Legislative Department that has a voice in determining whether
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or not the presence of foreign military should be allowed. They maintain that
as members of the Legislature, they have the requisite personality to bring a
suit, especially when a constitutional issue is raised.
The OSG counters130 that petitioners do not have any legal standing to file
the suits concerning the lack of Senate concurrence in EDCA. Respondent
emphasizes that the power to concur in treaties and international agreements
is an "institutional prerogative" granted by the Constitution to the Senate.
Accordingly, the OSG argues that in case of an allegation of impairment of
that power, the injured party would be the Senate as an institution or any of
its incumbent members, as it is the Senate's constitutional function that is
allegedly being violated.
The legal standing of an institution of the Legislature or of any of its Members
has already been recognized by this Court in a number of cases. What is in
question here is the alleged impairment of the constitutional duties and
powers granted to, or the impermissible intrusion upon the domain of, the
Legislature or an institution thereof. In the case of suits initiated by the
legislators themselves, this Court has recognized their standing to question
the validity of any official action that they claim infringes the prerogatives,
powers, and privileges vested by the Constitution in their office. As aptly
explained by Justice Perfecto in Mabanag v. Lopez Vito:
Being members of Congress, they are even duty bound to see that the latter
act within the bounds of the Constitution which, as representatives of the
people, they should uphold, unless they are to commit a flagrant betrayal of
public trust. They are representatives of the sovereign people and it is their
sacred duty to see to it that the fundamental law embodying the will of the
sovereign people is not trampled upon. (Emphases supplied)
We emphasize that in a legislators' suit, those Members of Congress who are
challenging the official act have standing only to the extent that the alleged
violation impinges on their right to participate in the exercise of the powers of
the institution of which they are members. Legislators have the standing "to
maintain inviolate the prerogatives, powers, and privileges vested by the
Constitution in their office and are allowed to sue to question the validity of
any official action, which they claim infringes their prerogatives as
legislators." As legislators, they must clearly show that there was a direct
injury to their persons or the institution to which they belong.
As correctly argued by respondent, the power to concur in a treaty or an
international agreement is an institutional prerogative granted by the
Constitution to the Senate, not to the entire Legislature. In Pimentel v. Office
of the Executive Secretary, this Court did not recognize the standing of one
of the petitioners therein who was a member of the House of
Representatives. The petition in that case sought to compel the transmission
to the Senate for concurrence of the signed text of the Statute of the
International Criminal Court. Since that petition invoked the power of the
Senate to grant or withhold its concurrence in a treaty entered into by the
Executive Department, only then incumbent Senator Pimentel was allowed to
assert that authority of the Senate of which he was a member.
Therefore, none of the initial petitioners in the present controversy has the
standing to maintain the suits as legislators.
Nevertheless, this Court finds that there is basis for it to review the act of the
Executive for the following reasons.
In any case, petitioners raise issues involving matters of transcendental
importance.
Petitioners argue that the Court may set aside procedural technicalities, as
the present petition tackles issues that are of transcendental importance.
They point out that the matter before us is about the proper exercise of the
Executive Department's power to enter into international agreements in
relation to that of the Senate to concur in those agreements. They also assert
that EDCA would cause grave injustice, as well as irreparable violation of the
Constitution and of the Filipino people's rights.
The OSG, on the other hand, insists139 that petitioners cannot raise the
mere fact that the present petitions involve matters of transcendental
importance in order to cure their inability to comply with the constitutional
requirement of standing. Respondent bewails the overuse of "transcendental
importance" as an exception to the traditional requirements of constitutional
litigation. It stresses that one of the purposes of these requirements is to
protect the Supreme Court from unnecessary litigation of constitutional
questions.
In a number of cases, this Court has indeed taken a liberal stance towards
the requirement of legal standing, especially when paramount interest is
involved. Indeed, when those who challenge the official act are able to craft
an issue of transcendental significance to the people, the Court may exercise
its sound discretion and take cognizance of the suit. It may do so in spite of
the inability of the petitioners to show that they have been personally injured
by the operation of a law or any other government act.
While this Court has yet to thoroughly delineate the outer limits of this
doctrine, we emphasize that not every other case, however strong public
interest may be, can qualify as an issue of transcendental importance. Before
it can be impelled to brush aside the essential requisites for exercising its
190
power of judicial review, it must at the very least consider a number of
factors: (1) the character of the funds or other assets involved in the case; (2)
the presence of a clear case of disregard of a constitutional or statutory
prohibition by the public respondent agency or instrumentality of the
government; and (3) the lack of any other party that has a more direct and
specific interest in raising the present questions.
An exhaustive evaluation of the memoranda of the parties, together with the
oral arguments, shows that petitioners have presented serious constitutional
issues that provide ample justification for the Court to set aside the rule on
standing. The transcendental importance of the issues presented here is
rooted in the Constitution itself. Section 25, Article XVIII thereof, cannot be
any clearer: there is a much stricter mechanism required before foreign
military troops, facilities, or bases may be allowed in the country. The DFA
has already confirmed to the U.S. Embassy that "all internal requirements of
the Philippines x x x have already been complied with."142 It behooves the
Court in this instance to take a liberal stance towards the rule on standing
and to determine forthwith whether there was grave abuse of discretion on
the part of the Executive Department.
We therefore rule that this case is a proper subject for judicial review.
B. Whether the President may enter into an executive agreement on foreign
military bases, troops, or facilities
C. Whether the provisions under EDCA are consistent with the Constitution,
as well as with existing laws and treaties
Issues B and C shall be discussed together infra.
1. The role of the President as the executor of the law includes the duty
to defend the State, for which purpose he may use that power in the
conduct of foreign relations
Historically, the Philippines has mirrored the division of powers in the U.S.
government. When the Philippine government was still an agency of the
Congress of the U.S., it was as an agent entrusted with powers categorized
as executive, legislative, and judicial, and divided among these three great
branches.143 By this division, the law implied that the divided powers cannot
be exercised except by the department given the power.144
This divide continued throughout the different versions of the Philippine
Constitution and specifically vested the supreme executive power in the
Governor-General of the Philippines,145 a position inherited by the President
of the Philippines when the country attained independence. One of the
principal functions of the supreme executive is the responsibility for the
faithful execution of the laws as embodied by the oath of office.146 The oath
of the President prescribed by the 1987 Constitution reads thus:
I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill
my duties as President (or Vice-President or Acting President) of the
Philippines, preserve and defend its Constitution, execute its laws, do justice
to every man, and consecrate myself to the service of the Nation. So help me
God. (In case of affirmation, last sentence will be omitted.)147 (Emphases
supplied)
This Court has interpreted the faithful execution clause as an obligation
imposed on the President, and not a separate grant of power.148 Section 1
7, Article VII of the Constitution, expresses this duty in no uncertain terms
and includes it in the provision regarding the President's power of control
over the executive department, viz:
The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
The equivalent provisions in the next preceding Constitution did not explicitly
require this oath from the President. In the 1973 Constitution, for instance,
the provision simply gives the President control over the ministries.149 A
similar language, not in the form of the President's oath, was present in the
1935 Constitution, particularly in the enumeration of executive functions.150
By 1987, executive power was codified not only in the Constitution, but also
in the Administrative Code:
SECTION 1. Power of Control. - The President shall have control of all the
executive departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed. (Emphasis supplied)
Hence, the duty to faithfully execute the laws of the land is inherent in
executive power and is intimately related to the other executive functions.
These functions include the faithful execution of the law in autonomous
regions; the right to prosecute crimes; the implementation of transportation
projects; the duty to ensure compliance with treaties, executive agreements
and executive orders; the authority to deport undesirable aliens; the
conferment of national awards under the President's jurisdiction; and the
overall administration and control of the executive department.
These obligations are as broad as they sound, for a President cannot
function with crippled hands, but must be capable of securing the rule of law
within all territories of the Philippine Islands and be empowered to do so
within constitutional limits. Congress cannot, for instance, limit or take over
191
the President's power to adopt implementing rules and regulations for a law it
has enacted.159
More important, this mandate is self-executory by virtue of its being
inherently executive in nature. As Justice Antonio T. Carpio previously wrote,
[i]f the rules are issued by the President in implementation or execution of
self-executory constitutional powers vested in the President, the rule-making
power of the President is not a delegated legislative power. The most
important self-executory constitutional power of the President is the
President's constitutional duty and mandate to "ensure that the laws be
faithfully executed." The rule is that the President can execute the law
without any delegation of power from the legislature.
The import of this characteristic is that the manner of the President's
execution of the law, even if not expressly granted by the law, is justified by
necessity and limited only by law, since the President must "take necessary
and proper steps to carry into execution the law." Justice George Malcolm
states this principle in a grand manner:
The executive should be clothed with sufficient power to administer efficiently
the affairs of state. He should have complete control of the instrumentalities
through whom his responsibility is discharged. It is still true, as said by
Hamilton, that "A feeble executive implies a feeble execution of the
government. A feeble execution is but another phrase for a bad execution;
and a government ill executed, whatever it may be in theory, must be in
practice a bad government." The mistakes of State governments need not be
repeated here.
xxxx
Every other consideration to one side, this remains certain - The Congress of
the United States clearly intended that the Governor-General's power should
be commensurate with his responsibility. The Congress never intended that
the Governor-General should be saddled with the responsibility of
administering the government and of executing the laws but shorn of the
power to do so. The interests of the Philippines will be best served by strict
adherence to the basic principles of constitutional government.
In light of this constitutional duty, it is the President's prerogative to do
whatever is legal and necessary for Philippine defense interests. It is no
coincidence that the constitutional provision on the faithful execution clause
was followed by that on the President's commander-in-chief powers,164
which are specifically granted during extraordinary events of lawless
violence, invasion, or rebellion. And this duty of defending the country is
unceasing, even in times when there is no state of lawlesss violence,
invasion, or rebellion. At such times, the President has full powers to ensure
the faithful execution of the laws.
It would therefore be remiss for the President and repugnant to the faithful-
execution clause of the Constitution to do nothing when the call of the
moment requires increasing the military's defensive capabilities, which could
include forging alliances with states that hold a common interest with the
Philippines or bringing an international suit against an offending state.
The context drawn in the analysis above has been termed by Justice Arturo
D. Brion's Dissenting Opinion as the beginning of a "patent
misconception."165 His dissent argues that this approach taken in analyzing
the President's role as executor of the laws is preceded by the duty to
preserve and defend the Constitution, which was allegedly overlooked.166
In arguing against the approach, however, the dissent grossly failed to
appreciate the nuances of the analysis, if read holistically and in context. The
concept that the President cannot function with crippled hands and therefore
can disregard the need for Senate concurrence in treaties167 was never
expressed or implied. Rather, the appropriate reading of the preceding
analysis shows that the point being elucidated is the reality that the
President's duty to execute the laws and protect the Philippines is
inextricably interwoven with his foreign affairs powers, such that he must
resolve issues imbued with both concerns to the full extent of his powers,
subject only to the limits supplied by law. In other words, apart from an
expressly mandated limit, or an implied limit by virtue of incompatibility, the
manner of execution by the President must be given utmost deference. This
approach is not different from that taken by the Court in situations with fairly
similar contexts.
Thus, the analysis portrayed by the dissent does not give the President
authority to bypass constitutional safeguards and limits. In fact, it specifies
what these limitations are, how these limitations are triggered, how these
limitations function, and what can be done within the sphere of constitutional
duties and limitations of the President.
Justice Brion's dissent likewise misinterprets the analysis proffered when it
claims that the foreign relations power of the President should not be
interpreted in isolation.168 The analysis itself demonstrates how the foreign
affairs function, while mostly the President's, is shared in several instances,
namely in Section 2 of Article II on the conduct of war; Sections 20 and 21 of
Article VII on foreign loans, treaties, and international agreements; Sections
4(2) and 5(2)(a) of Article VIII on the judicial review of executive acts;
Sections 4 and 25 of Article XVIII on treaties and international agreements
192
entered into prior to the Constitution and on the presence of foreign military
troops, bases, or facilities.
In fact, the analysis devotes a whole subheading to the relationship between
the two major presidential functions and the role of the Senate in it.
This approach of giving utmost deference to presidential initiatives in respect
of foreign affairs is not novel to the Court. The President's act of treating
EDCA as an executive agreement is not the principal power being analyzed
as the Dissenting Opinion seems to suggest. Rather, the preliminary analysis
is in reference to the expansive power of foreign affairs. We have long
treated this power as something the Courts must not unduly restrict. As we
stated recently in Vinuya v. Romulo:
To be sure, not all cases implicating foreign relations present political
questions, and courts certainly possess the authority to construe or invalidate
treaties and executive agreements. However, the question whether the
Philippine government should espouse claims of its nationals against a
foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the
political branches. In this case, the Executive Department has already
decided that it is to the best interest of the country to waive all claims of its
nationals for reparations against Japan in the Treaty of Peace of 1951. The
wisdom of such decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export Corp., the US Supreme
Court held that "[t]he President is the sole organ of the nation in its external
relations, and its sole representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations,
embarrassment - perhaps serious embarrassment - is to be avoided and
success for our aims achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the international field must
often accord to the President a degree of discretion and freedom from
statutory restriction which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better opportunity of
knowing the conditions which prevail in foreign countries, and especially is
this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials ....
This ruling has been incorporated in our jurisprudence through Bavan v.
Executive Secretary and Pimentel v. Executive Secretary; its overreaching
principle was, perhaps, best articulated in (now Chief) Justice Puno's dissent
in Secretary of Justice v. Lantion:
. . . The conduct of foreign relations is full of complexities and consequences,
sometimes with life and death significance to the nation especially in times of
war. It can only be entrusted to that department of government which can act
on the basis of the best available information and can decide with
decisiveness .... It is also the President who possesses the most
comprehensive and the most confidential information about foreign countries
for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential role in foreign affairs is
dominant and the President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity, nay, validity of his
actions are adjudged under less stringent standards, lest their judicial
repudiation lead to breach of an international obligation, rupture of state
relations, forfeiture of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.169 (Emphases
supplied)
Understandably, this Court must view the instant case with the same
perspective and understanding, knowing full well the constitutional and legal
repercussions of any judicial overreach.
2. The plain meaning of the Constitution prohibits the entry of foreign
military bases, troops or facilities, except by way of a treaty concurred
in by the Senate - a clear limitation on the President's dual role as
defender of the State and as sole authority in foreign relations.
Despite the President's roles as defender of the State and sole authority in
foreign relations, the 1987 Constitution expressly limits his ability in instances
when it involves the entry of foreign military bases, troops or facilities. The
initial limitation is found in Section 21 of the provisions on the Executive
Department: "No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the Senate."
The specific limitation is given by Section 25 of the Transitory Provisions, the
full text of which reads as follows:
SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.
193
It is quite plain that the Transitory Provisions of the 1987 Constitution
intended to add to the basic requirements of a treaty under Section 21 of
Article VII. This means that both provisions must be read as additional
limitations to the President's overarching executive function in matters of
defense and foreign relations.
3. The President, however, may enter into an executive agreement on
foreign military bases, troops, or facilities, if (a) it is not the instrument
that allows the presence of foreign military bases, troops, or facilities;
or (b) it merely aims to implement an existing law or treaty.
Again we refer to Section 25, Article XVIII of the Constitution:
SECTION 25. After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America concerning
Military Bases, foreign military bases, troops, or facilities shall not be allowed
in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the
people in a national referendum held for that purpose, and recognized as a
treaty by the other contracting State. (Emphases supplied)
In view of this provision, petitioners argue170 that EDCA must be in the form
of a "treaty" duly concurred in by the Senate. They stress that the
Constitution is unambigous in mandating the transmission to the Senate of all
international agreements concluded after the expiration of the MBA in 1991 -
agreements that concern the presence of foreign military bases, troops, or
facilities in the country. Accordingly, petitioners maintain that the Executive
Department is not given the choice to conclude agreements like EDCA in the
form of an executive agreement.
This is also the view of the Senate, which, through a majority vote of 15 of its
members - with 1 against and 2 abstaining - says in SR 105171 that EDCA
must be submitted to the Senate in the form of a treaty for concurrence by at
least two-thirds of all its members.
The Senate cites two constitutional provisions (Article VI, Section 21 and
Article XVIII, Section 25) to support its position. Compared with the lone
constitutional provision that the Office of the Solicitor General (OSG) cites,
which is Article XVIII, Section 4(2), which includes the constitutionality of
"executive agreement(s)" among the cases subject to the Supreme Court's
power of judicial review, the Constitution clearly requires submission of
EDCA to the Senate. Two specific provisions versus one general provision
means that the specific provisions prevail. The term "executive agreement" is
"a term wandering alone in the Constitution, bereft of provenance and an
unidentified constitutional mystery."
The author of SR 105, Senator Miriam Defensor Santiago, upon interpellation
even added that the MDT, which the Executive claims to be partly
implemented through EDCA, is already obsolete.
There are two insurmountable obstacles to this Court's agreement with SR
105, as well as with the comment on interpellation made by Senator
Santiago.
First, the concept of "executive agreement" is so well-entrenched in this
Court's pronouncements on the powers of the President. When the Court
validated the concept of "executive agreement," it did so with full knowledge
of the Senate's role in concurring in treaties. It was aware of the
problematique of distinguishing when an international agreement needed
Senate concurrence for validity, and when it did not; and the Court continued
to validate the existence of "executive agreements" even after the 1987
Constitution.172 This follows a long line of similar decisions upholding the
power of the President to enter into an executive agreement.173
Second, the MDT has not been rendered obsolescent, considering that as
late as 2009,174 this Court continued to recognize its validity.
Third, to this Court, a plain textual reading of Article XIII, Section 25,
inevitably leads to the conclusion that it applies only to a proposed
agreement between our government and a foreign government, whereby
military bases, troops, or facilities of such foreign government would be
"allowed" or would "gain entry" Philippine territory.
Note that the provision "shall not be allowed" is a negative injunction. This
wording signifies that the President is not authorized by law to allow foreign
military bases, troops, or facilities to enter the Philippines, except under a
treaty concurred in by the Senate. Hence, the constitutionally restricted
authority pertains to the entry of the bases, troops, or facilities, and not to the
activities to be done after entry.
Under the principles of constitutional construction, of paramount
consideration is the plain meaning of the language expressed in the
Constitution, or the verba legis rule.175 It is presumed that the provisions
have been carefully crafted in order to express the objective it seeks to
attain.176 It is incumbent upon the Court to refrain from going beyond the
plain meaning of the words used in the Constitution. It is presumed that the
framers and the people meant what they said when they said it, and that this
understanding was reflected in the Constitution and understood by the
people in the way it was meant to be understood when the fundamental law
was ordained and promulgated.177 As this Court has often said:
194
We look to the language of the document itself in our search for its meaning.
We do not of course stop there, but that is where we begin. It is to be
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case
the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus,
these are the cases where the need for construction is reduced to a
minimum.178 (Emphases supplied)
It is only in those instances in which the constitutional provision is unclear,
ambiguous, or silent that further construction must be done to elicit its
meaning.179 In Ang Bagong Bayani-OFW v. Commission on Elections,180
we reiterated this guiding principle:
it [is] safer to construe the Constitution from what appears upon its face. The
proper interpretation therefore depends more on how it was understood by
the people adopting it than in the framers' understanding thereof. (Emphases
supplied)
The effect of this statement is surprisingly profound, for, if taken literally, the
phrase "shall not be allowed in the Philippines" plainly refers to the entry of
bases, troops, or facilities in the country. The Oxford English Dictionary
defines the word "allow" as a transitive verb that means "to permit, enable";
"to give consent to the occurrence of or relax restraint on (an action, event, or
activity)"; "to consent to the presence or attendance of (a person)"; and,
when with an adverbial of place, "to permit (a person or animal) to go, come,
or be in, out, near, etc."181 Black's Law Dictionary defines the term as one
that means "[t]o grant, approve, or permit."182
The verb "allow" is followed by the word "in," which is a preposition used to
indicate "place or position in space or anything having material extension:
Within the limits or bounds of, within (any place or thing)."183 That
something is the Philippines, which is the noun that follows.
It is evident that the constitutional restriction refers solely to the initial entry of
the foreign military bases, troops, or facilities. Once entry is authorized, the
subsequent acts are thereafter subject only to the limitations provided by the
rest of the Constitution and Philippine law, and not to the Section 25
requirement of validity through a treaty.
The VFA has already allowed the entry of troops in the Philippines. This
Court stated in Lim v. Executive Secretary:
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word "activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect
the nation's marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a "mutual anti-
terrorism advising, assisting and training exercise," falls under the umbrella
of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities -as opposed to combat itself-such
as the one subject of the instant petition, are indeed authorized.184
(Emphasis supplied)
Moreover, the Court indicated that the Constitution continues to govern the
conduct of foreign military troops in the Philippines,185 readily implying the
legality of their initial entry into the country.
The OSG emphasizes that EDCA can be in the form of an executive
agreement, since it merely involves "adjustments in detail" in the
implementation of the MDT and the VFA.186 It points out that there are
existing treaties between the Philippines and the U.S. that have already been
concurred in by the Philippine Senate and have thereby met the
requirements of the Constitution under Section 25. Because of the status of
these prior agreements, respondent emphasizes that EDCA need not be
transmitted to the Senate.
The aforecited Dissenting Opinion of Justice Brion disagrees with the
ponencia's application of verba legis construction to the words of Article
XVIII, Section 25.187 It claims that the provision is "neither plain, nor that
simple."188 To buttress its disagreement, the dissent states that the
provision refers to a historical incident, which is the expiration of the 1947
MBA.189 Accordingly, this position requires questioning the circumstances
that led to the historical event, and the meaning of the terms under Article
XVIII, Section 25.
195
This objection is quite strange. The construction technique of verba legis is
not inapplicable just because a provision has a specific historical context. In
fact, every provision of the Constitution has a specific historical context. The
purpose of constitutional and statutory construction is to set tiers of
interpretation to guide the Court as to how a particular provision functions.
Verba legis is of paramount consideration, but it is not the only consideration.
As this Court has often said:
We look to the language of the document itself in our search for its meaning.
We do not of course stop there, but that is where we begin. It is to be
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained. They are to be given their
ordinary meaning except where technical terms are employed in which case
the significance thus attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the rule of law to obtain
that it should ever be present in the people's consciousness, its language as
much as possible should be understood in the sense they have in common
use. What it says according to the text of the provision to be construed
compels acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say. Thus,
these are the cases where the need for construction is reduced to a
minimum.190 (Emphases supplied)
As applied, verba legis aids in construing the ordinary meaning of terms. In
this case, the phrase being construed is "shall not be allowed in the
Philippines" and not the preceding one referring to "the expiration in 1991 of
the Agreement between the Republic of the Philippines and the United
States of America concerning Military Bases, foreign military bases, troops,
or facilities." It is explicit in the wording of the provision itself that any
interpretation goes beyond the text itself and into the discussion of the
framers, the context of the Constitutional Commission's time of drafting, and
the history of the 1947 MBA. Without reference to these factors, a reader
would not understand those terms. However, for the phrase "shall not be
allowed in the Philippines," there is no need for such reference. The law is
clear. No less than the Senate understood this when it ratified the VFA.
4. The President may generally enter into executive agreements subject
to limitations defined by the Constitution and may be in furtherance of
a treaty already concurred in by the Senate.
We discuss in this section why the President can enter into executive
agreements.
It would be helpful to put into context the contested language found in Article
XVIII, Section 25. Its more exacting requirement was introduced because of
the previous experience of the country when its representatives felt
compelled to consent to the old MBA.191 They felt constrained to agree to
the MBA in fulfilment of one of the major conditions for the country to gain
independence from the U.S.192 As a result of that experience, a second
layer of consent for agreements that allow military bases, troops and facilities
in the country is now articulated in Article XVIII of our present Constitution.
This second layer of consent, however, cannot be interpreted in such a way
that we completely ignore the intent of our constitutional framers when they
provided for that additional layer, nor the vigorous statements of this Court
that affirm the continued existence of that class of international agreements
called "executive agreements."
The power of the President to enter into binding executive agreements
without Senate concurrence is already well-established in this jurisdiction.193
That power has been alluded to in our present and past Constitutions,194 in
various statutes,195 in Supreme Court decisions,196 and during the
deliberations of the Constitutional Commission.197 They cover a wide array
of subjects with varying scopes and purposes,198 including those that
involve the presence of foreign military forces in the country.199
As the sole organ of our foreign relations200 and the constitutionally
assigned chief architect of our foreign policy,201 the President is vested with
the exclusive power to conduct and manage the country's interface with other
states and governments. Being the principal representative of the
Philippines, the Chief Executive speaks and listens for the nation; initiates,
maintains, and develops diplomatic relations with other states and
governments; negotiates and enters into international agreements; promotes
trade, investments, tourism and other economic relations; and settles
international disputes with other states.202
As previously discussed, this constitutional mandate emanates from the
inherent power of the President to enter into agreements with other states,
including the prerogative to conclude binding executive agreements that do
not require further Senate concurrence. The existence of this presidential
power203 is so well-entrenched that Section 5(2)(a), Article VIII of the
Constitution, even provides for a check on its exercise. As expressed below,
executive agreements are among those official governmental acts that can
be the subject of this Court's power of judicial review:
(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the
law or the Rules of Court may provide, final judgments and orders of lower
courts in:
196
(a) All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation is in question. (Emphases
supplied)
In Commissioner of Customs v. Eastern Sea Trading, executive agreements
are defined as "international agreements embodying adjustments of detail
carrying out well-established national policies and traditions and those
involving arrangements of a more or less temporary nature."204 In Bayan
Muna v. Romulo, this Court further clarified that executive agreements can
cover a wide array of subjects that have various scopes and purposes.205
They are no longer limited to the traditional subjects that are usually covered
by executive agreements as identified in Eastern Sea Trading. The Court
thoroughly discussed this matter in the following manner:
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. x x x.
As may be noted, almost half a century has elapsed since the Court
rendered its decision in Eastern Sea Trading. Since then, the conduct of
foreign affairs has become more complex and the domain of international law
wider, as to include such subjects as human rights, the environment, and the
sea. In fact, in the US alone, the executive agreements executed by its
President from 1980 to 2000 covered subjects such as defense, trade,
scientific cooperation, aviation, atomic energy, environmental cooperation,
peace corps, arms limitation, and nuclear safety, among others. Surely, the
enumeration in Eastern Sea Trading cannot circumscribe the option of each
state on the matter of which the international agreement format would be
convenient to serve its best interest. As Francis Sayre said in his work
referred to earlier:
. . . It would be useless to undertake to discuss here the large variety of
executive agreements as such concluded from time to time. Hundreds of
executive agreements, other than those entered into under the trade-
agreement act, have been negotiated with foreign governments. . . . They
cover such subjects as the inspection of vessels, navigation dues, income
tax on shipping profits, the admission of civil air craft, custom matters and
commercial relations generally, international claims, postal matters, the
registration of trademarks and copyrights, etc .... (Emphases Supplied)
One of the distinguishing features of executive agreements is that their
validity and effectivity are not affected by a lack of Senate concurrence.206
This distinctive feature was recognized as early as in Eastern Sea Trading
(1961), viz:
Treaties are formal documents which require ratification with the approval of
two-thirds of the Senate. Executive agreements become binding through
executive action without the need of a vote by the Senate or by Congress.
xxxx
[T]he right of the Executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history we have entered into executive
agreements covering such subjects as commercial and consular relations,
most-favored-nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The
validity of these has never been seriously questioned by our courts.
(Emphases Supplied)
That notion was carried over to the present Constitution. In fact, the framers
specifically deliberated on whether the general term "international
agreement" included executive agreements, and whether it was necessary to
include an express proviso that would exclude executive agreements from
the requirement of Senate concurrence. After noted constitutionalist Fr.
Joaquin Bernas quoted the Court's ruling in Eastern Sea Trading, the
Constitutional Commission members ultimately decided that the term
"international agreements" as contemplated in Section 21, Article VII, does
not include executive agreements, and that a proviso is no longer needed.
Their discussion is reproduced below:
MS. AQUINO: Madam President, first I would like a clarification from the
Committee. We have retained the words "international agreement" which I
think is the correct judgment on the matter because an international
agreement is different from a treaty. A treaty is a contract between parties
which is in the nature of international agreement and also a municipal law in
the sense that the people are bound. So there is a conceptual difference.
However, I would like to be clarified if the international agreements include
executive agreements.
MR. CONCEPCION: That depends upon the parties. All parties to these
international negotiations stipulate the conditions which are necessary for the
agreement or whatever it may be to become valid or effective as regards the
parties.
MS. AQUINO: Would that depend on the parties or would that depend on the
nature of the executive agreement? According to common usage, there are
two types of executive agreement: one is purely proceeding from an
executive act which affects external relations independent of the legislative
and the other is an executive act in pursuance of legislative authorization.
The first kind might take the form of just conventions or exchanges of notes
197
or protocol while the other, which would be pursuant to the legislative
authorization, may be in the nature of commercial agreements.
MR. CONCEPCION: Executive agreements are generally made to implement
a treaty already enforced or to determine the details for the implementation of
the treaty. We are speaking of executive agreements, not international
agreements.
MS. AQUINO: I am in full agreement with that, except that it does not cover
the first kind of executive agreement which is just protocol or an exchange of
notes and this would be in the nature of reinforcement of claims of a citizen
against a country, for example.
MR. CONCEPCION: The Commissioner is free to require ratification for
validity insofar as the Philippines is concerned.
MS. AQUINO: It is my humble submission that we should provide, unless the
Committee explains to us otherwise, an explicit proviso which would except
executive agreements from the requirement of concurrence of two-thirds of
the Members of the Senate. Unless I am enlightened by the Committee I
propose that tentatively, the sentence should read. "No treaty or international
agreement EXCEPT EXECUTIVE AGREEMENTS shall be valid and
effective."
FR. BERNAS: I wonder if a quotation from the Supreme Court decision [in
Eastern Sea Trading] might help clarify this:
The right of the executive to enter into binding agreements without the
necessity of subsequent Congressional approval has been confirmed by long
usage. From the earliest days of our history, we have entered into executive
agreements covering such subjects as commercial and consular relations,
most favored nation rights, patent rights, trademark and copyright protection,
postal and navigation arrangements and the settlement of claims. The
validity of this has never been seriously questioned by our Courts.
Agreements with respect to the registration of trademarks have been
concluded by the executive of various countries under the Act of Congress of
March 3, 1881 (21 Stat. 502) . . . International agreements involving political
issues or changes of national policy and those involving international
agreements of a permanent character usually take the form of treaties. But
international agreements embodying adjustments of detail, carrying out well
established national policies and traditions and those involving arrangements
of a more or less temporary nature usually take the form of executive
agreements.
MR. ROMULO: Is the Commissioner, therefore, excluding the executive
agreements?
FR. BERNAS: What we are referring to, therefore, when we say international
agreements which need concurrence by at least two-thirds are those which
are permanent in nature.
MS. AQUINO: And it may include commercial agreements which are
executive agreements essentially but which are proceeding from the
authorization of Congress. If that is our understanding, then I am willing to
withdraw that amendment.
FR. BERNAS: If it is with prior authorization of Congress, then it does not
need subsequent concurrence by Congress.
MS. AQUINO: In that case, I am withdrawing my amendment.
MR. TINGSON: Madam President.
THE PRESIDENT: Is Commissioner Aquino satisfied?
MS. AQUINO: Yes. There is already an agreement among us on the
definition of "executive agreements" and that would make unnecessary any
explicit proviso on the matter.
xxx
MR. GUINGONA: I am not clear as to the meaning of "executive
agreements" because I heard that these executive agreements must rely on
treaties. In other words, there must first be treaties.
MR. CONCEPCION: No, I was speaking about the common use, as
executive agreements being the implementation of treaties, details of which
do not affect the sovereignty of the State.
MR. GUINGONA: But what about the matter of permanence, Madam
President? Would 99 years be considered permanent? What would be the
measure of permanency? I do not conceive of a treaty that is going to be
forever, so there must be some kind of a time limit.
MR. CONCEPCION: I suppose the Commissioner's question is whether this
type of agreement should be included in a provision of the Constitution
requiring the concurrence of Congress.
198
MR. GUINGONA: It depends on the concept of the executive agreement of
which I am not clear. If the executive agreement partakes of the nature of a
treaty, then it should also be included.
MR. CONCEPCION: Whether it partakes or not of the nature of a treaty, it is
within the power of the Constitutional Commission to require that.
MR. GUINGONA: Yes. That is why I am trying to clarify whether the words
"international agreements" would include executive agreements.
MR. CONCEPCION: No, not necessarily; generally no.
xxx
MR. ROMULO: I wish to be recognized first. I have only one question. Do we
take it, therefore, that as far as the Committee is concerned, the term
"international agreements" does not include the term "executive agreements"
as read by the Commissioner in that text?
FR. BERNAS: Yes. (Emphases Supplied)
The inapplicability to executive agreements of the requirements under
Section 21 was again recognized in Bayan v. Zamora and in Bayan Muna v.
Romulo. These cases, both decided under the aegis of the present
Constitution, quoted Eastern Sea Trading in reiterating that executive
agreements are valid and binding even without the concurrence of the
Senate.
Executive agreements may dispense with the requirement of Senate
concurrence because of the legal mandate with which they are concluded.
As culled from the afore-quoted deliberations of the Constitutional
Commission, past Supreme Court Decisions, and works of noted
scholars,208 executive agreements merely involve arrangements on the
implementation of existing policies, rules, laws, or agreements. They are
concluded (1) to adjust the details of a treaty; (2) pursuant to or upon
confirmation by an act of the Legislature; or (3) in the exercise of the
President's independent powers under the Constitution.211 The raison d'etre
of executive agreements hinges on prior constitutional or legislative
authorizations.
The special nature of an executive agreement is not just a domestic variation
in international agreements. International practice has accepted the use of
various forms and designations of international agreements, ranging from the
traditional notion of a treaty - which connotes a formal, solemn instrument - to
engagements concluded in modem, simplified forms that no longer
necessitate ratification. An international agreement may take different forms:
treaty, act, protocol, agreement, concordat, compromis d'arbitrage,
convention, covenant, declaration, exchange of notes, statute, pact, charter,
agreed minute, memorandum of agreement, modus vivendi, or some other
form. Consequently, under international law, the distinction between a treaty
and an international agreement or even an executive agreement is irrelevant
for purposes of determining international rights and obligations.
However, this principle does not mean that the domestic law distinguishing
treaties, international agreements, and executive agreements is relegated to
a mere variation in form, or that the constitutional requirement of Senate
concurrence is demoted to an optional constitutional directive. There remain
two very important features that distinguish treaties from executive
agreements and translate them into terms of art in the domestic setting.
First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of
these precedents puts the validity and effectivity of executive agreements
under serious question for the main function of the Executive is to enforce
the Constitution and the laws enacted by the Legislature, not to defeat or
interfere in the performance of these rules. In turn, executive agreements
cannot create new international obligations that are not expressly allowed or
reasonably implied in the law they purport to implement.
Second, treaties are, by their very nature, considered superior to executive
agreements. Treaties are products of the acts of the Executive and the
Senate unlike executive agreements, which are solely executive actions.
Because of legislative participation through the Senate, a treaty is regarded
as being on the same level as a statute. If there is an irreconcilable conflict, a
later law or treaty takes precedence over one that is prior. An executive
agreement is treated differently. Executive agreements that are inconsistent
with either a law or a treaty are considered ineffective.219 Both types of
international agreement are nevertheless subject to the supremacy of the
Constitution.
This rule does not imply, though, that the President is given carte blanche to
exercise this discretion. Although the Chief Executive wields the exclusive
authority to conduct our foreign relations, this power must still be exercised
within the context and the parameters set by the Constitution, as well as by
existing domestic and international laws. There are constitutional provisions
that restrict or limit the President's prerogative in concluding international
agreements, such as those that involve the following:
a. The policy of freedom from nuclear weapons within Philippine territory
199
b. The fixing of tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts, which must be pursuant to the authority
granted by Congress
c. The grant of any tax exemption, which must be pursuant to a law
concurred in by a majority of all the Members of Congress
d. The contracting or guaranteeing, on behalf of the Philippines, of foreign
loans that must be previously concurred in by the Monetary Board
e. The authorization of the presence of foreign military bases, troops, or
facilities in the country must be in the form of a treaty duly concurred in by
the Senate.
f. For agreements that do not fall under paragraph 5, the concurrence of the
Senate is required, should the form of the government chosen be a treaty.
5. The President had the choice to enter into EDCA by way of an
executive agreement or a treaty.
No court can tell the President to desist from choosing an executive
agreement over a treaty to embody an international agreement, unless the
case falls squarely within Article VIII, Section 25.
As can be gleaned from the debates among the members of the
Constitutional Commission, they were aware that legally binding international
agreements were being entered into by countries in forms other than a treaty.
At the same time, it is clear that they were also keen to preserve the concept
of "executive agreements" and the right of the President to enter into such
agreements.
What we can glean from the discussions of the Constitutional Commissioners
is that they understood the following realities:
1. Treaties, international agreements, and executive agreements are all
constitutional manifestations of the conduct of foreign affairs with their
distinct legal characteristics.
a. Treaties are formal contracts between the Philippines and other States-
parties, which are in the nature of international agreements, and also of
municipal laws in the sense of their binding nature.
b. International agreements are similar instruments, the provisions of which
may require the ratification of a designated number of parties thereto. These
agreements involving political issues or changes in national policy, as well as
those involving international agreements of a permanent character, usually
take the form of treaties. They may also include commercial agreements,
which are executive agreements essentially, but which proceed from
previous authorization by Congress, thus dispensing with the requirement of
concurrence by the Senate.
c. Executive agreements are generally intended to implement a treaty
already enforced or to determine the details of the implementation thereof
that do not affect the sovereignty of the State.
2. Treaties and international agreements that cannot be mere executive
agreements must, by constitutional decree, be concurred in by at least two-
thirds of the Senate.
3. However, an agreement - the subject of which is the entry of foreign
military troops, bases, or facilities - is particularly restricted. The
requirements are that it be in the form of a treaty concurred in by the Senate;
that when Congress so requires, it be ratified by a majority of the votes cast
by the people in a national referendum held for that purpose; and that it be
recognized as a treaty by the other contracting State.
4. Thus, executive agreements can continue to exist as a species of
international agreements.
That is why our Court has ruled the way it has in several cases.
In Bayan Muna v. Romulo, we ruled that the President acted within the scope
of her constitutional authority and discretion when she chose to enter into the
RP-U.S. Non-Surrender Agreement in the form of an executive agreement,
instead of a treaty, and in ratifying the agreement without Senate
concurrence. The Court en banc discussed this intrinsic presidential
prerogative as follows:
Petitioner parlays the notion that the Agreement is of dubious validity,
partaking as it does of the nature of a treaty; hence, it must be duly
concurred in by the Senate. x x x x. Pressing its point, petitioner submits that
the subject of the Agreement does not fall under any of the subject-
categories that xx x may be covered by an executive agreement, such as
commercial/consular relations, most-favored nation rights, patent rights,
trademark and copyright protection, postal and navigation arrangements and
settlement of claims.
The categorization of subject matters that may be covered by international
agreements mentioned in Eastern Sea Trading is not cast in stone. There are
no hard and fast rules on the propriety of entering, on a given subject, into a
treaty or an executive agreement as an instrument of international relations.
The primary consideration in the choice of the form of agreement is the
parties' intent and desire to craft an international agreement in the form they
200
so wish to further their respective interests. Verily, the matter of form takes a
back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties in either
international agreement each labor under the pacta sunt servanda principle.
xxxx
But over and above the foregoing considerations is the fact that - save for the
situation and matters contemplated in Sec. 25, Art. XVIII of the Constitution -
when a treaty is required, the Constitution does not classify any subject, like
that involving political issues, to be in the form of, and ratified as, a treaty.
What the Constitution merely prescribes is that treaties need the concurrence
of the Senate by a vote defined therein to complete the ratification process.
xxxx
x x x. As the President wields vast powers and influence, her conduct in the
external affairs of the nation is, as Bayan would put it, "executive altogether."
The right of the President to enter into or ratify binding executive agreements
has been confirmed by long practice.
In thus agreeing to conclude the Agreement thru E/N BF0-028-03, then
President Gloria Macapagal-Arroyo, represented by the Secretary of Foreign
Affairs, acted within the scope of the authority and discretion vested in her by
the Constitution. At the end of the day, the President - by ratifying, thru her
deputies, the non-surrender agreement - did nothing more than discharge a
constitutional duty and exercise a prerogative that pertains to her office.
(Emphases supplied)
Indeed, in the field of external affairs, the President must be given a larger
measure of authority and wider discretion, subject only to the least amount of
checks and restrictions under the Constitution.229 The rationale behind this
power and discretion was recognized by the Court in Vinuya v. Executive
Secretary, cited earlier.230
Section 9 of Executive Order No. 459, or the Guidelines in the Negotiation of
International Agreements and its Ratification, thus, correctly reflected the
inherent powers of the President when it stated that the DFA "shall determine
whether an agreement is an executive agreement or a treaty."
Accordingly, in the exercise of its power of judicial review, the Court does not
look into whether an international agreement should be in the form of a treaty
or an executive agreement, save in cases in which the Constitution or a
statute requires otherwise. Rather, in view of the vast constitutional powers
and prerogatives granted to the President in the field of foreign affairs, the
task of the Court is to determine whether the international agreement is
consistent with the applicable limitations.
6. Executive agreements may cover the matter of foreign military forces
if it merely involves detail adjustments.
The practice of resorting to executive agreements in adjusting the details of a
law or a treaty that already deals with the presence of foreign military forces
is not at all unusual in this jurisdiction. In fact, the Court has already implicitly
acknowledged this practice in Lim v. Executive Secretary.231 In that case,
the Court was asked to scrutinize the constitutionality of the Terms of
Reference of the Balikatan 02-1 joint military exercises, which sought to
implement the VFA. Concluded in the form of an executive agreement, the
Terms of Reference detailed the coverage of the term "activities" mentioned
in the treaty and settled the matters pertaining to the construction of
temporary structures for the U.S. troops during the activities; the duration and
location of the exercises; the number of participants; and the extent of and
limitations on the activities of the U.S. forces. The Court upheld the Terms of
Reference as being consistent with the VFA. It no longer took issue with the
fact that the Balikatan Terms of Reference was not in the form of a treaty
concurred in by the Senate, even if it dealt with the regulation of the activities
of foreign military forces on Philippine territory.
In Nicolas v. Romulo, the Court again impliedly affirmed the use of an
executive agreement in an attempt to adjust the details of a provision of the
VFA. The Philippines and the U.S. entered into the Romulo-Kenney
Agreement, which undertook to clarify the detention of a U.S. Armed Forces
member, whose case was pending appeal after his conviction by a trial court
for the crime of rape. In testing the validity of the latter agreement, the Court
precisely alluded to one of the inherent limitations of an executive
agreement: it cannot go beyond the terms of the treaty it purports to
implement. It was eventually ruled that the Romulo-Kenney Agreement was
"not in accord" with the VFA, since the former was squarely inconsistent with
a provision in the treaty requiring that the detention be "by Philippine
authorities." Consequently, the Court ordered the Secretary of Foreign Affairs
to comply with the VFA and "forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under
Philippine authorities as provided in Art. V, Sec. 10 of the VFA. "233
Culling from the foregoing discussions, we reiterate the following
pronouncements to guide us in resolving the present controversy:
1. Section 25, Article XVIII of the Constitution, contains stringent
requirements that must be fulfilled by the international agreement allowing
the presence of foreign military bases, troops, or facilities in the Philippines:
(a) the agreement must be in the form of a treaty, and (b) it must be duly
concurred in by the Senate.
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2. If the agreement is not covered by the above situation, then the President
may choose the form of the agreement (i.e., either an executive agreement
or a treaty), provided that the agreement dealing with foreign military bases,
troops, or facilities is not the principal agreement that first allows their entry
or presence in the Philippines.
3. The executive agreement must not go beyond the parameters, limitations,
and standards set by the law and/or treaty that the former purports to
implement; and must not unduly expand the international obligation expressly
mentioned or necessarily implied in the law or treaty.
4. The executive agreement must be consistent with the Constitution, as well
as with existing laws and treaties.
In light of the President's choice to enter into EDCA in the form of an
executive agreement, respondents carry the burden of proving that it is a
mere implementation of existing laws and treaties concurred in by the
Senate. EDCA must thus be carefully dissected to ascertain if it remains
within the legal parameters of a valid executive agreement.
7. EDCA is consistent with the content, purpose, and framework of the
MDT and the VFA
The starting point of our analysis is the rule that "an executive agreement xx
x may not be used to amend a treaty."234 In Lim v. Executive Secretary and
in Nicolas v. Romulo, the Court approached the question of the validity of
executive agreements by comparing them with the general framework and
the specific provisions of the treaties they seek to implement.
In Lim, the Terms of Reference of the joint military exercises was scrutinized
by studying "the framework of the treaty antecedents to which the Philippines
bound itself,"235 i.e., the MDT and the VFA. The Court proceeded to
examine the extent of the term "activities" as contemplated in Articles 1236
and II237 of the VFA. It later on found that the term "activities" was
deliberately left undefined and ambiguous in order to permit "a wide scope of
undertakings subject only to the approval of the Philippine government"238
and thereby allow the parties "a certain leeway in negotiation."239 The Court
eventually ruled that the Terms of Reference fell within the sanctioned or
allowable activities, especially in the context of the VFA and the MDT.
The Court applied the same approach to Nicolas v. Romulo. It studied the
provisions of the VFA on custody and detention to ascertain the validity of the
Romulo-Kenney Agreement.240 It eventually found that the two international
agreements were not in accord, since the Romulo-Kenney Agreement had
stipulated that U.S. military personnel shall be detained at the U.S. Embassy
Compound and guarded by U.S. military personnel, instead of by Philippine
authorities. According to the Court, the parties "recognized the difference
between custody during the trial and detention after conviction."241 Pursuant
to Article V(6) of the VFA, the custody of a U.S. military personnel resides
with U.S. military authorities during trial. Once there is a finding of guilt,
Article V(l0) requires that the confinement or detention be "by Philippine
authorities."
Justice Marvic M.V.F. Leonen's Dissenting Opinion posits that EDCA
"substantially modifies or amends the VFA"242 and follows with an
enumeration of the differences between EDCA and the VFA. While these
arguments will be rebutted more fully further on, an initial answer can already
be given to each of the concerns raised by his dissent.
The first difference emphasized is that EDCA does not only regulate visits as
the VFA does, but allows temporary stationing on a rotational basis of U.S.
military personnel and their contractors in physical locations with permanent
facilities and pre-positioned military materiel.
This argument does not take into account that these permanent facilities,
while built by U.S. forces, are to be owned by the Philippines once
constructed.243 Even the VFA allowed construction for the benefit of U.S.
forces during their temporary visits.
The second difference stated by the dissent is that EDCA allows the
prepositioning of military materiel, which can include various types of
warships, fighter planes, bombers, and vessels, as well as land and
amphibious vehicles and their corresponding ammunition.
However, the VFA clearly allows the same kind of equipment, vehicles,
vessels, and aircraft to be brought into the country. Articles VII and VIII of the
VFA contemplates that U.S. equipment, materials, supplies, and other
property are imported into or acquired in the Philippines by or on behalf of
the U.S. Armed Forces; as are vehicles, vessels, and aircraft operated by or
for U.S. forces in connection with activities under the VFA. These provisions
likewise provide for the waiver of the specific duties, taxes, charges, and fees
that correspond to these equipment.
The third difference adverted to by the Justice Leonen's dissent is that the
VFA contemplates the entry of troops for training exercises, whereas EDCA
allows the use of territory for launching military and paramilitary operations
conducted in other states.245 The dissent of Justice Teresita J. Leonardo-De
Castro also notes that VFA was intended for non-combat activides only,
whereas the entry and activities of U.S. forces into Agreed Locations were
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borne of military necessity or had a martial character, and were therefore not
contemplated by the VFA.
This Court's jurisprudence however established in no uncertain terms that
combat-related activities, as opposed to actual combat, were allowed under
the MDT and VFA, viz:
Both the history and intent of the Mutual Defense Treaty and the VFA
support the conclusion that combat-related activities as opposed to combat
itself such as the one subject of the instant petition, are indeed
authorized.247
Hence, even if EDCA was borne of military necessity, it cannot be said to
have strayed from the intent of the VFA since EDCA's combat-related
components are allowed under the treaty.
Moreover, both the VFA and EDCA are silent on what these activities
actually are. Both the VFA and EDCA deal with the presence of U.S. forces
within the Philippines, but make no mention of being platforms for activity
beyond Philippine territory. While it may be that, as applied, military
operations under either the VFA or EDCA would be carried out in the future
the scope of judicial review does not cover potential breaches of discretion
but only actual occurrences or blatantly illegal provisions. Hence, we cannot
invalidate EDCA on the basis of the potentially abusive use of its provisions.
The fourth difference is that EDCA supposedly introduces a new concept not
contemplated in the VFA or the MDT: Agreed Locations, Contractors, Pre-
positioning, and Operational Control.248
As previously mentioned, these points shall be addressed fully and
individually in the latter analysis of EDCA's provisions. However, it must
already be clarified that the terms and details used by an implementing
agreement need not be found in the mother treaty. They must be sourced
from the authority derived from the treaty, but are not necessarily expressed
word-for-word in the mother treaty. This concern shall be further elucidated in
this Decision.
The fifth difference highlighted by the Dissenting Opinion is that the VFA
does not have provisions that may be construed as a restriction on or
modification of obligations found in existing statues, including the jurisdiction
of courts, local autonomy, and taxation. Implied in this argument is that
EDCA contains such restrictions or modifications.249
This last argument cannot be accepted in view of the clear provisions of
EDCA. Both the VFA and EDCA ensure Philippine jurisdiction in all instances
contemplated by both agreements, with the exception of those outlined by
the VFA in Articles III-VI. In the VFA, taxes are clearly waived whereas in
EDCA, taxes are assumed by the government as will be discussed later on.
This fact does not, therefore, produce a diminution of jurisdiction on the part
of the Philippines, but rather a recognition of sovereignty and the rights that
attend it, some of which may be waived as in the cases under Articles III-VI
of the VFA.
Taking off from these concerns, the provisions of EDCA must be compared
with those of the MDT and the VFA, which are the two treaties from which
EDCA allegedly draws its validity.
"Authorized presence" under the VFA versus "authorized activities" under
EDCA: (1) U.S. personnel and (2) U.S. contractors
The OSG argues250 that EDCA merely details existing policies under the
MDT and the VFA. It explains that EDCA articulates the principle of
defensive preparation embodied in Article II of the MDT; and seeks to
enhance the defensive, strategic, and technological capabilities of both
parties pursuant to the objective of the treaty to strengthen those capabilities
to prevent or resist a possible armed attack. Respondent also points out that
EDCA simply implements Article I of the VFA, which already allows the entry
of U.S. troops and personnel into the country. Respondent stresses this
Court's recognition in Lim v. Executive Secretary that U.S. troops and
personnel are authorized to conduct activities that promote the goal of
maintaining and developing their defense capability.
Petitioners contest251 the assertion that the provisions of EDCA merely
implement the MDT. According to them, the treaty does not specifically
authorize the entry of U.S. troops in the country in order to maintain and
develop the individual and collective capacities of both the Philippines and
the U.S. to resist an armed attack. They emphasize that the treaty was
concluded at a time when there was as yet no specific constitutional
prohibition on the presence of foreign military forces in the country.
Petitioners also challenge the argument that EDCA simply implements the
VFA. They assert that the agreement covers only short-term or temporary
visits of U.S. troops "from time to time" for the specific purpose of combined
military exercises with their Filipino counterparts. They stress that, in
contrast, U.S. troops are allowed under EDCA to perform activities beyond
combined military exercises, such as those enumerated in Articles 111(1)
and IV(4) thereof. Furthermore, there is some degree of permanence in the
presence of U.S. troops in the country, since the effectivity of EDCA is
continuous until terminated. They proceed to argue that while troops have a
"rotational" presence, this scheme in fact fosters their permanent presence.
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a. Admission of U.S. military and civilian personnel into Philippine territory is
already allowed under the VFA
We shall first deal with the recognition under EDCA of the presence in the
country of three distinct classes of individuals who will be conducting different
types of activities within the Agreed Locations: (1) U.S. military personnel; (2)
U.S. civilian personnel; and (3) U.S. contractors. The agreement refers to
them as follows:
"United States personnel" means United States military and civilian
personnel temporarily in the territory of the Philippines in connection with
activities approved by the Philippines, as those terms are defined in the VFA.
"United States forces" means the entity comprising United States personnel
and all property, equipment, and materiel of the United States Armed Forces
present in the territory of the Philippines.
"United States contractors" means companies and firms, and their
employees, under contract or subcontract to or on behalf of the United States
Department of Defense. United States contractors are not included as part of
the definition of United States personnel in this Agreement, including within
the context of the VFA.
United States forces may contract for any materiel, supplies, equipment, and
services (including construction) to be furnished or undertaken in the territory
of the Philippines without restriction as to choice of contractor, supplier, or
person who provides such materiel, supplies, equipment, or services. Such
contracts shall be solicited, awarded, and administered in accordance with
the laws and regulations of the United States.255 (Emphases Supplied)
A thorough evaluation of how EDCA is phrased clarities that the agreement
does not deal with the entry into the country of U.S. personnel and
contractors per se. While Articles I(l)(b)256 and II(4)257 speak of "the right to
access and use" the Agreed Locations, their wordings indicate the
presumption that these groups have already been allowed entry into
Philippine territory, for which, unlike the VFA, EDCA has no specific
provision. Instead, Article II of the latter simply alludes to the VFA in
describing U.S. personnel, a term defined under Article I of the treaty as
follows:
As used in this Agreement, "United States personnel" means United States
military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government. Within this definition:
1. The term "military personnel" refers to military members of the United
States Army, Navy, Marine Corps, Air Force, and Coast Guard.
2. The term "civilian personnel" refers to individuals who are neither nationals
of nor ordinarily resident in the Philippines and who are employed by the
United States armed forces or who are accompanying the United States
armed forces, such as employees of the American Red Cross and the United
Services Organization.
Article II of EDCA must then be read with Article III of the VFA, which
provides for the entry accommodations to be accorded to U.S. military and
civilian personnel:
1. The Government of the Philippines shall facilitate the admission of United
States personnel and their departure from the Philippines in connection with
activities covered by this agreement.
2. United States military personnel shall be exempt from passport and visa
regulations upon entering and departing the Philippines.
3. The following documents only, which shall be required in respect of United
States military personnel who enter the Philippines; xx xx.
4. United States civilian personnel shall be exempt from visa requirements
but shall present, upon demand, valid passports upon entry and departure of
the Philippines. (Emphases Supplied)
By virtue of Articles I and III of the VFA, the Philippines already allows U.S.
military and civilian personnel to be "temporarily in the Philippines," so long
as their presence is "in connection with activities approved by the Philippine
Government." The Philippines, through Article III, even guarantees that it
shall facilitate the admission of U.S. personnel into the country and grant
exemptions from passport and visa regulations. The VFA does not even limit
their temporary presence to specific locations.
Based on the above provisions, the admission and presence of U.S. military
and civilian personnel in Philippine territory are already allowed under the
VFA, the treaty supposedly being implemented by EDCA. What EDCA has
effectively done, in fact, is merely provide the mechanism to identify the
locations in which U.S. personnel may perform allowed activities pursuant to
the VFA. As the implementing agreement, it regulates and limits the
presence of U.S. personnel in the country.
b. EDCA does not provide the legal basis for admission of U.S. contractors
into Philippine territory; their entry must be sourced from extraneous
Philippine statutes and regulations for the admission of alien employees or
business persons.
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Of the three aforementioned classes of individuals who will be conducting
certain activities within the Agreed Locations, we note that only U.S.
contractors are not explicitly mentioned in the VFA. This does not mean,
though, that the recognition of their presence under EDCA is ipso facto an
amendment of the treaty, and that there must be Senate concurrence before
they are allowed to enter the country.
Nowhere in EDCA are U.S. contractors guaranteed immediate admission into
the Philippines. Articles III and IV, in fact, merely grant them the right of
access to, and the authority to conduct certain activities within the Agreed
Locations. Since Article II(3) of EDCA specifically leaves out U.S. contractors
from the coverage of the VFA, they shall not be granted the same entry
accommodations and privileges as those enjoyed by U.S. military and civilian
personnel under the VFA.
Consequently, it is neither mandatory nor obligatory on the part of the
Philippines to admit U.S. contractors into the country.259 We emphasize that
the admission of aliens into Philippine territory is "a matter of pure permission
and simple tolerance which creates no obligation on the part of the
government to permit them to stay."260 Unlike U.S. personnel who are
accorded entry accommodations, U.S. contractors are subject to Philippine
immigration laws.261 The latter must comply with our visa and passport
regulations262 and prove that they are not subject to exclusion under any
provision of Philippine immigration laws.263 The President may also deny
them entry pursuant to his absolute and unqualified power to prohibit or
prevent the admission of aliens whose presence in the country would be
inimical to public interest.264
In the same vein, the President may exercise the plenary power to expel or
deport U.S. contractors265 as may be necessitated by national security,
public safety, public health, public morals, and national interest.266 They
may also be deported if they are found to be illegal or undesirable aliens
pursuant to the Philippine Immigration Act267 and the Data Privacy Act.268
In contrast, Article 111(5) of the VFA requires a request for removal from the
Philippine government before a member of the U.S. personnel may be
"dispos[ed] xx x outside of the Philippines."
c. Authorized activities of U.S. military and civilian personnel within Philippine
territory are in furtherance of the MDT and the VFA
We begin our analysis by quoting the relevant sections of the MDT and the
VFA that pertain to the activities in which U.S. military and civilian personnel
may engage:
MUTUAL DEFENSE TREATY
Article II
In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop
their individual and collective capacity to resist armed attack.
Article III
The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and
whenever in the opinion of either of them the territorial integrity, political
independence or security of either of the Parties is threatened by external
armed attack in the Pacific.
VISITING FORCES AGREEMENT
Preamble
xxx
Reaffirming their obligations under the Mutual Defense Treaty of August 30,
1951;
Noting that from time to time elements of the United States armed forces
may visit the Republic of the Philippines;
Considering that cooperation between the United States and the Republic of
the Philippines promotes their common security interests;
xxx
Article I - Definitions
As used in this Agreement, "United States personnel" means United States
military and civilian personnel temporarily in the Philippines in connection
with activities approved by the Philippine Government. Within this definition:
xx x
Article II - Respect for Law
It is the duty of United States personnel to respect the laws of the Republic of
the Philippines and to abstain from any activity inconsistent with the spirit of
this agreement, and, in particular, from any political activity in the Philippines.
The Government of the United States shall take all measures within its
authority to ensure that this is done.
Article VII - Importation and Exportation
1. United States Government equipment, materials, supplies, and other
property imported into or acquired in the Philippines by or on behalf of the
United States armed forces in connection with activities to which this
agreement applies, shall be free of all Philippine duties, taxes and other
similar charges. Title to such property shall remain with the United States,
205
which may remove such property from the Philippines at any time, free from
export duties, taxes, and other similar charges. x x x.
Article VIII - Movement of Vessels and Aircraft
1. Aircraft operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines in
accordance with procedures stipulated in implementing arrangements.
2. Vessels operated by or for the United States armed forces may enter the
Philippines upon approval of the Government of the Philippines. The
movement of vessels shall be in accordance with international custom and
practice governing such vessels, and such agreed implementing
arrangements as necessary. x x x (Emphases Supplied)
Manifest in these provisions is the abundance of references to the creation of
further "implementing arrangements" including the identification of "activities
[to be] approved by the Philippine Government." To determine the
parameters of these implementing arrangements and activities, we referred
to the content, purpose, and framework of the MDT and the VFA.
By its very language, the MDT contemplates a situation in which both
countries shall engage in joint activities, so that they can maintain and
develop their defense capabilities. The wording itself evidently invites a
reasonable construction that the joint activities shall involve joint military
trainings, maneuvers, and exercises. Both the interpretation and the
subsequent practice of the parties show that the MDT independently allows
joint military exercises in the country. Lim v. Executive Secretary and Nicolas
v. Romulo recognized that Balikatan exercises, which are activities that seek
to enhance and develop the strategic and technological capabilities of the
parties to resist an armed attack, "fall squarely under the provisions of the
RP-US MDT." In Lim, the Court especially noted that the Philippines and the
U.S. continued to conduct joint military exercises even after the expiration of
the MBA and even before the conclusion of the VFA.274 These activities
presumably related to the Status of Forces Agreement, in which the parties
agreed on the status to be accorded to U.S. military and civilian personnel
while conducting activities in the Philippines in relation to the MDT.
Further, it can be logically inferred from Article V of the MDT that these joint
activities may be conducted on Philippine or on U.S. soil. The article
expressly provides that the term armed attack includes "an armed attack on
the metropolitan territory of either of the Parties, or on the island territories
under its jurisdiction in the Pacific or on its armed forces, public vessels or
aircraft in the Pacific." Surely, in maintaining and developing our defense
capabilities, an assessment or training will need to be performed, separately
and jointly by self-help and mutual aid, in the territories of the contracting
parties. It is reasonable to conclude that the assessment of defense
capabilities would entail understanding the terrain, wind flow patterns, and
other environmental factors unique to the Philippines.
It would also be reasonable to conclude that a simulation of how to respond
to attacks in vulnerable areas would be part of the training of the parties to
maintain and develop their capacity to resist an actual armed attack and to
test and validate the defense plan of the Philippines. It is likewise reasonable
to imagine that part of the training would involve an analysis of the effect of
the weapons that may be used and how to be prepared for the eventuality.
This Court recognizes that all of this may require training in the area where
an armed attack might be directed at the Philippine territory.
The provisions of the MDT must then be read in conjunction with those of the
VFA.
Article I of the VFA indicates that the presence of U.S. military and civilian
personnel in the Philippines is "in connection with activities approved by the
Philippine Government." While the treaty does not expressly enumerate or
detail the nature of activities of U.S. troops in the country, its Preamble
makes explicit references to the reaffirmation of the obligations of both
countries under the MDT. These obligations include the strengthening of
international and regional security in the Pacific area and the promotion of
common security interests.
The Court has already settled in Lim v. Executive Secretary that the phrase
"activities approved by the Philippine Government" under Article I of the VFA
was intended to be ambiguous in order to afford the parties flexibility to
adjust the details of the purpose of the visit of U.S. personnel.276 In ruling
that the Terms of Reference for the Balikatan Exercises in 2002 fell within the
context of the treaty, this Court explained:
After studied reflection, it appeared farfetched that the ambiguity surrounding
the meaning of the word "activities" arose from accident. In our view, it was
deliberately made that way to give both parties a certain leeway in
negotiation. In this manner, visiting US forces may sojourn in Philippine
territory for purposes other than military. As conceived, the joint exercises
may include training on new techniques of patrol and surveillance to protect
the nation's marine resources, sea search-and-rescue operations to assist
vessels in distress, disaster relief operations, civic action projects such as the
building of school houses, medical and humanitarian missions, and the like.
Under these auspices, the VFA gives legitimacy to the current Balikatan
exercises. It is only logical to assume that "Balikatan 02-1," a "mutual anti-
terrorism advising, assisting and training exercise," falls under the umbrella
206
of sanctioned or allowable activities in the context of the agreement. Both the
history and intent of the Mutual Defense Treaty and the VFA support the
conclusion that combat-related activities - as opposed to combat itself- such
as the one subject of the instant petition, are indeed authorized. (Emphases
Supplied)
The joint report of the Senate committees on foreign relations and on
national defense and security further explains the wide range and variety of
activities contemplated in the VFA, and how these activities shall be
identified:
These joint exercises envisioned in the VFA are not limited to combat-related
activities; they have a wide range and variety. They include exercises that
will reinforce the AFP's ability to acquire new techniques of patrol and
surveillance to protect the country's maritime resources; sea-search and
rescue operations to assist ships in distress; and disaster-relief operations to
aid the civilian victims of natural calamities, such as earthquakes, typhoons
and tidal waves.
xxxx
Joint activities under the VFA will include combat maneuvers; training in
aircraft maintenance and equipment repair; civic-action projects; and
consultations and meetings of the Philippine-U.S. Mutual Defense Board. It is
at the level of the Mutual Defense Board-which is headed jointly by the Chief
of Staff of the AFP and the Commander in Chief of the U.S. Pacific
Command-that the VFA exercises are planned. Final approval of any activity
involving U.S. forces is, however, invariably given by the Philippine
Government.
xxxx
Siazon clarified that it is not the VFA by itself that determines what activities
will be conducted between the armed forces of the U.S. and the Philippines.
The VFA regulates and provides the legal framework for the presence,
conduct and legal status of U.S. personnel while they are in the country for
visits, joint exercises and other related activities. (Emphases Supplied)
What can be gleaned from the provisions of the VFA, the joint report of the
Senate committees on foreign relations and on national defense and
security, and the ruling of this Court in Lim is that the "activities" referred to in
the treaty are meant to be specified and identified infurther agreements.
EDCA is one such agreement.
EDCA seeks to be an instrument that enumerates the Philippine-approved
activities of U.S. personnel referred to in the VFA. EDCA allows U.S. military
and civilian personnel to perform "activities approved by the Philippines, as
those terms are defined in the VFA" and clarifies that these activities include
those conducted within the Agreed Locations:
1. Security cooperation exercises; joint and combined training activities;
humanitarian assistance and disaster relief activities; and such other
activities as may be agreed upon by the Parties
2. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces
and materiel; and such other activities as the Parties may agree
3. Exercise of operational control over the Agreed Locations for construction
activities and other types of activity, including alterations and improvements
thereof
4. Exercise of all rights and authorities within the Agreed Locations that are
necessary for their operational control or defense, including the adoption of
apfropriate measures to protect U.S. forces and contractors
5. Use of water, electricity, and other public utilities
6. Operation of their own telecommunication systems, including the utilization
of such means and services as are required to ensure the full ability to
operate telecommunication systems, as well as the use of the necessary
radio spectrum allocated for this purpose284
According to Article I of EDCA, one of the purposes of these activities is to
maintain and develop, jointly and by mutual aid, the individual and collective
capacities of both countries to resist an armed attack. It further states that the
activities are in furtherance of the MDT and within the context of the VFA.
We note that these planned activities are very similar to those under the
Terms of Reference285 mentioned in Lim. Both EDCA and the Terms of
Reference authorize the U.S. to perform the following: (a) participate in
training exercises; (b) retain command over their forces; (c) establish
temporary structures in the country; (d) share in the use of their respective
resources, equipment and other assets; and (e) exercise their right to self-
defense. We quote the relevant portion of the Terms and Conditions as
follows:
I. POLICY LEVEL
xxxx
207
No permanent US basing and support facilities shall be established.
Temporary structures such as those for troop billeting, classroom instruction
and messing may be set up for use by RP and US Forces during the
Exercise.
The Exercise shall be implemented jointly by RP and US Exercise Co-
Directors under the authority of the Chief of Staff, AFP. In no instance will US
Forces operate independently during field training exercises (FTX). AFP and
US Unit Commanders will retain command over their respective forces under
the overall authority of the Exercise Co-Directors. RP and US participants
shall comply with operational instructions of the AFP during the FTX.
The exercise shall be conducted and completed within a period of not more
than six months, with the projected participation of 660 US personnel and
3,800 RP Forces. The Chief of Staff, AFP shall direct the Exercise Co-
Directors to wind up and terminate the Exercise and other activities within the
six month Exercise period.
The Exercise is a mutual counter-terrorism advising, assisting and training
Exercise relative to Philippine efforts against the ASG, and will be conducted
on the Island of Basilan. Further advising, assisting and training exercises
shall be conducted in Malagutay and the Zamboanga area. Related activities
in Cebu will be for support of the Exercise.
xx xx.
US exercise participants shall not engage in combat, without prejudice to
their right of self-defense.
These terms of Reference are for purposes of this Exercise only and do not
create additional legal obligations between the US Government and the
Republic of the Philippines.
II. EXERCISE LEVEL
1. TRAINING
a. The Exercise shall involve the conduct of mutual military assisting,
advising and training of RP and US Forces with the primary objective of
enhancing the operational capabilities of both forces to combat terrorism.
b. At no time shall US Forces operate independently within RP territory.
c. Flight plans of all aircraft involved in the exercise will comply with the local
air traffic regulations.
2. ADMINISTRATION & LOGISTICS
xxxx
a. RP and US participating forces may share, in accordance with their
respective laws and regulations, in the use of their resources, equipment and
other assets. They will use their respective logistics channels. x x x.
(Emphases Supplied)
After a thorough examination of the content, purpose, and framework of the
MDT and the VFA, we find that EDCA has remained within the parameters
set in these two treaties. Just like the Terms of Reference mentioned in Lim,
mere adjustments in detail to implement the MDT and the VFA can be in the
form of executive agreements.
Petitioners assert that the duration of the activities mentioned in EDCA is no
longer consistent with the temporary nature of the visits as contemplated in
the VFA. They point out that Article XII(4) of EDCA has an initial term of 10
years, a term automatically renewed unless the Philippines or the U.S.
terminates the agreement. According to petitioners, such length of time
already has a badge of permanency.
In connection with this, Justice Teresita J. Leonardo-De Castro likewise
argues in her Concurring and Dissenting Opinion that the VFA contemplated
mere temporary visits from U.S. forces, whereas EDCA allows an unlimited
period for U.S. forces to stay in the Philippines.
However, the provisions of EDCA directly contradict this argument by limiting
itself to 10 years of effectivity. Although this term is automatically renewed,
the process for terminating the agreement is unilateral and the right to do so
automatically accrues at the end of the 10 year period. Clearly, this method
does not create a permanent obligation.
Drawing on the reasoning in Lim, we also believe that it could not have been
by chance that the VFA does not include a maximum time limit with respect
to the presence of U.S. personnel in the country. We construe this lack of
specificity as a deliberate effort on the part of the Philippine and the U.S.
governments to leave out this aspect and reserve it for the "adjustment in
detail" stage of the implementation of the treaty. We interpret the
subsequent, unconditional concurrence of the Senate in the entire text of the
VFA as an implicit grant to the President of a margin of appreciation in
determining the duration of the "temporary" presence of U.S. personnel in the
country.
Justice Brion's dissent argues that the presence of U.S. forces under EDCA
is "more permanent" in nature.289 However, this argument has not taken
root by virtue of a simple glance at its provisions on the effectivity period.
EDCA does not grant permanent bases, but rather temporary rotational
access to facilities for efficiency. As Professor Aileen S.P. Baviera notes:
208
The new EDCA would grant American troops, ships and planes rotational
access to facilities of the Armed Forces of the Philippines – but not
permanent bases which are prohibited under the Philippine Constitution -
with the result of reducing response time should an external threat from a
common adversary crystallize.290
EDCA is far from being permanent in nature compared to the practice of
states as shown in other defense cooperation agreements. For example,
Article XIV(l) of the U.S.-Romania defense agreement provides the following:
This Agreement is concluded for an indefinite period and shall enter into
force in accordance with the internal laws of each Party x x x. (emphasis
supplied)
Likewise, Article 36(2) of the US-Poland Status of Forces Agreement reads:
This Agreement has been concluded for an indefinite period of time. It may
be terminated by written notification by either Party and in that event it
terminates 2 years after the receipt of the notification. (emphasis supplied)
Section VIII of US.-Denmark Mutual Support Agreement similarly provides:
8.1 This Agreement, which consists of a Preamble, SECTIONs I-VIII, and
Annexes A and B, shall become effective on the date of the last signature
affixed below and shall remain in force until terminated by the Parties,
provided that it may be terminated by either Party upon 180 days written
notice of its intention to do so to the other Party. (emphasis supplied)
On the other hand, Article XXI(3) of the US.-Australia Force Posture
Agreement provides a longer initial term:
3. This Agreement shall have an initial term of 25 years and thereafter shall
continue in force, but may be terminated by either Party at any time upon one
year's written notice to the other Party through diplomatic channels.
(emphasis supplied)
The phrasing in EDCA is similar to that in the U.S.-Australia treaty but with a
term less than half of that is provided in the latter agreement. This means
that EDCA merely follows the practice of other states in not specifying a non-
extendible maximum term. This practice, however, does not automatically
grant a badge of permanency to its terms. Article XII(4) of EDCA provides
very clearly, in fact, that its effectivity is for an initial term of 10 years, which
is far shorter than the terms of effectivity between the U.S. and other states.
It is simply illogical to conclude that the initial, extendible term of 10 years
somehow gives EDCA provisions a permanent character.
The reasoning behind this interpretation is rooted in the constitutional role of
the President who, as Commander-in-Chief of our armed forces, is the
principal strategist of the nation and, as such, duty-bound to defend our
national sovereignty and territorial integrity;291 who, as chief architect of our
foreign relations, is the head policymaker tasked to assess, ensure, and
protect our national security and interests;292 who holds the most
comprehensive and most confidential information about foreign countries293
that may affect how we conduct our external affairs; and who has
unrestricted access to highly classified military intelligence data294 that may
threaten the life of the nation. Thus, if after a geopolitical prognosis of
situations affecting the country, a belief is engendered that a much longer
period of military training is needed, the President must be given ample
discretion to adopt necessary measures including the flexibility to set an
extended timetable.
Due to the sensitivity and often strict confidentiality of these concerns, we
acknowledge that the President may not always be able to candidly and
openly discuss the complete situation being faced by the nation. The Chief
Executive's hands must not be unduly tied, especially if the situation calls for
crafting programs and setting timelines for approved activities. These
activities may be necessary for maintaining and developing our capacity to
resist an armed attack, ensuring our national sovereignty and territorial
integrity, and securing our national interests. If the Senate decides that the
President is in the best position to define in operational terms the meaning of
temporary in relation to the visits, considered individually or in their totality,
the Court must respect that policy decision. If the Senate feels that there is
no need to set a time limit to these visits, neither should we.
Evidently, the fact that the VFA does not provide specificity in regard to the
extent of the "temporary" nature of the visits of U.S. personnel does not
suggest that the duration to which the President may agree is unlimited.
Instead, the boundaries of the meaning of the term temporary in Article I of
the treaty must be measured depending on the purpose of each visit or
activity. That purpose must be analyzed on a case-by-case basis depending
on the factual circumstances surrounding the conclusion of the implementing
agreement. While the validity of the President's actions will be judged under
less stringent standards, the power of this Court to determine whether there
was grave abuse of discretion remains unimpaired.
d. Authorized activities performed by US. contractors within Philippine
territory - who were legitimately permitted to enter the country independent of
EDCA - are subject to relevant Philippine statutes and regulations and must
be consistent with the MDT and the VFA
209
Petitioners also raise296 concerns about the U.S. government's purported
practice of hiring private security contractors in other countries. They claim
that these contractors - one of which has already been operating in
Mindanao since 2004 - have been implicated in incidents or scandals in other
parts of the globe involving rendition, torture and other human rights
violations. They also assert that these contractors employ paramilitary forces
in other countries where they are operating.
Under Articles III and IV of EDCA, U.S. contractors are authorized to perform
only the following activities:
1. Training; transit; support and related activities; refueling of aircraft;
bunkering of vessels; temporary maintenance of vehicles, vessels, and
aircraft; temporary accommodation of personnel; communications;
prepositioning of equipment, supplies, and materiel; deployment of forces
and materiel; and such other activities as the Parties may agree297
2. Prepositioning and storage of defense equipment, supplies, and materiel,
including delivery, management, inspection, use, maintenance, and removal
of such equipment, supplies and materiel298
3. Carrying out of matters in accordance with, and to the extent permissible
under, U.S. laws, regulations, and policies299
EDCA requires that all activities within Philippine territory be in accordance
with Philippine law. This means that certain privileges denied to aliens are
likewise denied to foreign military contractors. Relevantly, providing
security300 and carrying, owning, and possessing firearms301 are illegal for
foreign civilians.
The laws in place already address issues regarding the regulation of
contractors. In the 2015 Foreign Investment Negative list,302 the Executive
Department has already identified corporations that have equity restrictions
in Philippine jurisdiction. Of note is No. 5 on the list - private security
agencies that cannot have any foreign equity by virtue of Section 4 of
Republic Act No. 5487;303 and No. 15, which regulates contracts for the
construction of defense-related structures based on Commonwealth Act No.
541.
Hence, any other entity brought into the Philippines by virtue of EDCA must
subscribe to corporate and civil requirements imposed by the law, depending
on the entity's corporate structure and the nature of its business.
That Philippine laws extraneous to EDCA shall govern the regulation of the
activities of U.S. contractors has been clear even to some of the present
members of the Senate.
For instance, in 2012, a U.S. Navy contractor, the Glenn Marine, was
accused of spilling fuel in the waters off Manila Bay.304 The Senate
Committee on Foreign Relations and the Senate Committee on Environment
and Natural Resources chairperson claimed environmental and procedural
violations by the contractor.305 The U.S. Navy investigated the contractor
and promised stricter guidelines to be imposed upon its contractors.306 The
statement attributed to Commander Ron Steiner of the public affairs office of
the U.S. Navy's 7th Fleet - that U.S. Navy contractors are bound by
Philippine laws - is of particular relevance. The statement acknowledges not
just the presence of the contractors, but also the U.S. position that these
contractors are bound by the local laws of their host state. This stance was
echoed by other U.S. Navy representatives.307
This incident simply shows that the Senate was well aware of the presence
of U.S. contractors for the purpose of fulfilling the terms of the VFA. That they
are bound by Philippine law is clear to all, even to the U.S.
As applied to EDCA, even when U.S. contractors are granted access to the
Agreed Locations, all their activities must be consistent with Philippine laws
and regulations and pursuant to the MDT and the VFA.
While we recognize the concerns of petitioners, they do not give the Court
enough justification to strike down EDCA. In Lim v. Executive Secretary, we
have already explained that we cannot take judicial notice of claims aired in
news reports, "not because of any issue as to their truth, accuracy, or
impartiality, but for the simple reason that facts must be established in
accordance with the rules of evidence."308 What is more, we cannot move
one step ahead and speculate that the alleged illegal activities of these
contractors in other countries would take place in the Philippines with
certainty. As can be seen from the above discussion, making sure that U.S.
contractors comply with Philippine laws is a function of law enforcement.
EDCA does not stand in the way of law enforcement.
Nevertheless, we emphasize that U.S. contractors are explicitly excluded
from the coverage of the VFA. As visiting aliens, their entry, presence, and
activities are subject to all laws and treaties applicable within the Philippine
territory. They may be refused entry or expelled from the country if they
engage in illegal or undesirable activities. There is nothing that prevents
them from being detained in the country or being subject to the jurisdiction of
our courts. Our penal laws,309 labor laws,310 and immigrations laws311
apply to them and therefore limit their activities here. Until and unless there is
210
another law or treaty that specifically deals with their entry and activities, their
presence in the country is subject to unqualified Philippine jurisdiction.
EDCA does not allow the presence of U.S.-owned or -controlled military
facilities and bases in the Philippines
Petitioners Saguisag et al. claim that EDCA permits the establishment of
U.S. military bases through the "euphemistically" termed "Agreed Locations.
"312 Alluding to the definition of this term in Article II(4) of EDCA, they point
out that these locations are actually military bases, as the definition refers to
facilities and areas to which U.S. military forces have access for a variety of
purposes. Petitioners claim that there are several badges of exclusivity in the
use of the Agreed Locations by U.S. forces. First, Article V(2) of EDCA
alludes to a "return" of these areas once they are no longer needed by U.S.
forces, indicating that there would be some transfer of use. Second, Article
IV(4) ofEDCA talks about American forces' unimpeded access to the Agreed
Locations for all matters relating to the prepositioning and storage of U.S.
military equipment, supplies, and materiel. Third, Article VII of EDCA
authorizes U.S. forces to use public utilities and to operate their own
telecommunications system.
a. Preliminary point on badges of exclusivity
As a preliminary observation, petitioners have cherry-picked provisions of
EDCA by presenting so-called "badges of exclusivity," despite the presence
of contrary provisions within the text of the agreement itself.
First, they clarify the word "return" in Article V(2) of EDCA. However, the use
of the word "return" is within the context of a lengthy provision. The provision
as a whole reads as follows:
The United States shall return to the Philippines any Agreed Locations, or
any portion thereof, including non-relocatable structures and assemblies
constructed, modified, or improved by the United States, once no longer
required by United States forces for activities under this Agreement. The
Parties or the Designated Authorities shall consult regarding the terms of
return of any Agreed Locations, including possible compensation for
improvements or construction.
The context of use is "required by United States forces for activities under
this Agreement." Therefore, the return of an Agreed Location would be within
the parameters of an activity that the Mutual Defense Board (MDB) and the
Security Engagement Board (SEB) would authorize. Thus, possession by the
U.S. prior to its return of the Agreed Location would be based on the
authority given to it by a joint body co-chaired by the "AFP Chief of Staff and
Commander, U.S. PACOM with representatives from the Philippines'
Department of National Defense and Department of Foreign Affairs sitting as
members."313 The terms shall be negotiated by both the Philippines and the
U.S., or through their Designated Authorities. This provision, seen as a
whole, contradicts petitioners' interpretation of the return as a "badge of
exclusivity." In fact, it shows the cooperation and partnership aspect of EDCA
in full bloom.
Second, the term "unimpeded access" must likewise be viewed from a
contextual perspective. Article IV(4) states that U.S. forces and U.S.
contractors shall have "unimpeded access to Agreed Locations for all matters
relating to the prepositioning and storage of defense equipment, supplies,
and materiel, including delivery, management, inspection, use, maintenance,
and removal of such equipment, supplies and materiel."
At the beginning of Article IV, EDCA states that the Philippines gives the U.S.
the authority to bring in these equipment, supplies, and materiel through the
MDB and SEB security mechanism. These items are owned by the U.S.,314
are exclusively for the use of the U.S.315 and, after going through the joint
consent mechanisms of the MDB and the SEB, are within the control of the
U.S.316 More importantly, before these items are considered prepositioned,
they must have gone through the process of prior authorization by the MDB
and the SEB and given proper notification to the AFP.317
Therefore, this "unimpeded access" to the Agreed Locations is a necessary
adjunct to the ownership, use, and control of the U.S. over its own
equipment, supplies, and materiel and must have first been allowed by the
joint mechanisms in play between the two states since the time of the MDT
and the VFA. It is not the use of the Agreed Locations that is exclusive per
se; it is mere access to items in order to exercise the rights of ownership
granted by virtue of the Philippine Civil Code.318
As for the view that EDCA authorizes U.S. forces to use public utilities and to
operate their own telecommunications system, it will be met and answered in
part D, infra.
Petitioners also point out319 that EDCA is strongly reminiscent of and in fact
bears a one-to-one correspondence with the provisions of the 1947 MBA.
They assert that both agreements (a) allow similar activities within the area;
(b) provide for the same "species of ownership" over facilities; and (c) grant
operational control over the entire area. Finally, they argue320 that EDCA is
in fact an implementation of the new defense policy of the U.S. According to
them, this policy was not what was originally intended either by the MDT or
by the VFA.
On these points, the Court is not persuaded.
211
The similar activities cited by petitioners321 simply show that under the MBA, First, in the 1947 MBA, the U.S. retained all rights of jurisdiction in and over
the U.S. had the right to construct, operate, maintain, utilize, occupy, Philippine territory occupied by American bases. In contrast, the U.S. under
garrison, and control the bases. The so-called parallel provisions of EDCA EDCA does not enjoy any such right over any part of the Philippines in which
allow only operational control over the Agreed Locations specifically for its forces or equipment may be found. Below is a comparative table between
construction activities. They do not allow the overarching power to operate, the old treaty and EDCA:
maintain, utilize, occupy, garrison, and control a base with full discretion.
EDCA in fact limits the rights of the U.S. in respect of every activity, including 1947 MBA/ 1946 Treaty of EDCA
construction, by giving the MDB and the SEB the power to determine the General Relations
details of all activities such as, but not limited to, operation, maintenance, 1947 MBA, Art. I(1): EDCA, preamble:
utility, occupancy, garrisoning, and control.322
The Government of the Republic of Affirming that the Parties share an
The "species of ownership" on the other hand, is distinguished by the nature the Philippines (hereinafter understanding for the United
of the property. For immovable property constructed or developed by the referred to as the States not to establish a
U.S., EDCA expresses that ownership will automatically be vested to the Philippines) grants to the permanent military presence or
Philippines.323 On the other hand, for movable properties brought into the Government of the United base in the territory of the
Philippines by the U.S., EDCA provides that ownership is retained by the States of America (hereinafter Philippines;
latter. In contrast, the MBA dictates that the U.S. retains ownership over referred to as the United States)
immovable and movable properties. the right to retain the use of the xxxx
bases in the Philippines listed in
To our mind, both EDCA and the MBA simply incorporate what is already the Annex A attached hereto. Recognizing that all United States
law of the land in the Philippines. The Civil Code's provisions on ownership, access to and use of facilities and
as applied, grant the owner of a movable property full rights over that 1947 MBA, Art. XVII(2): areas will be at the invitation of
property, even if located in another person's property.324 the Philippines and with full
All buildings and respect for the Philippine
The parallelism, however, ends when the situation involves facilities that can structures which are erected by Constitution and Philippine laws;
be considered immovable. Under the MBA, the U.S. retains ownership if it the United States in the bases
paid for the facility.325 Under EDCA, an immovable is owned by the shall be the property of the United xxxx
Philippines, even if built completely on the back of U.S. funding.326 This is States and may be removed by
consistent with the constitutional prohibition on foreign land ownership.327 it before the expiration of this EDCA, Art. II(4):
Agreement or the earlier
Despite the apparent similarity, the ownership of property is but a part of a relinquishment of the base on which
the structures are situated. There "Agreed
larger whole that must be considered before the constitutional restriction is Locations" means facilities and
violated. Thus, petitioners' points on operational control will be given more shall be no obligation on the part of
the Philippines or of the United areas that are provided by the
attention in the discussion below. The arguments on policy are, however, Government of the
States to rebuild or repair any
outside the scope of judicial review and will not be discussed Philippines through the AFP and
destruction or damage inflicted from
any cause whatsoever on any of the that United States forces, United
Moreover, a direct comparison of the MBA and EDCA will result in several said buildings or structures owned States contractors, and others as
important distinctions that would allay suspicion that EDCA is but a disguised or used by the United States in the mutually agreed, shall have the
version of the MBA. bases. x x x x. right to access and use pursuant to
this Agreement. Such Agreed
b. There are substantial matters that the US. cannot do under EDCA, Locations may be listed in an annex
1946 Treaty of Gen. Relations,
but which it was authorized to do under the 1947 MBA to be appended to this Agreement,
Art. I: and may be further described in
The Philippine experience with U.S. military bases under the 1947 MBA is implementing arrangements.
The United States of America
simply not possible under EDCA for a number of important reasons.

212
agrees to withdraw and surrender,
and does hereby withdraw and
surrender, all rights of
possession, supervision,
jurisdiction, control or
sovereignty existing and exercised
by the United States of America in
and over the territory and the
people of the Philippine
Islands, except the use of such
bases, necessary appurtenances
to such bases, and the rights
incident thereto, as the United
States of America, by agreement
with the Republic of the Philippines
may deem necessary to retain for
the mutual protection of the
Republic of the Philippines and of
the United States of America. x x x.
Second, in the bases agreement, the U.S. and the Philippines were visibly
not on equal footing when it came to deciding whether to expand or to
increase the number of bases, as the Philippines may be compelled to
negotiate with the U.S. the moment the latter requested an expansion of the
existing bases or to acquire additional bases. In EDCA, U.S. access is purely
at the invitation of the Philippines.
1947 MBA/ 1946 Treaty of
General Relations
1947 MBA, Art.I(3):
The Philippines agree to enter
into negotiations with the United
States at the latter's request, to
permit the United States to expand
such bases, to exchange such
bases for other bases, to acquire
additional bases, or relinquish
rights to bases, as any of such
exigencies may be required by
EDCA, Art. V:
1. The Philippines shall retain
ownership of and title to Agreed
Locations.
xxxx
4. All buildings, non-relocatable
structures, and assemblies
affixed to the land in the Agreed
Locations, including ones altered
or improved by United States
forces, remain the property of the
Philippines. Permanent buildings
constructed by United States forces
become the property of the
Philippines, once constructed, but
shall be used by United States
forces until no longer required by
United States forces.
EDCA
EDCA, preamble:
Recognizing that all United States
access to and use of facilities and
areas will be at the invitation of
the Philippines and with full
respect for the Philippine
Constitution and Philippine laws;
military necessity. xxxx
1946 Treaty of Gen. Relations, EDCA. Art. II(4):
Art. I:
"Agreed
The United States of Locations" means facilities and
America agrees to withdraw and areas that are provided by the
surrender, and does hereby Government of the
withdraw and surrender, all rights Philippines through the AFP and
of possession, supervision, that United States forces, United
jurisdiction, control or States contractors, and others as
sovereignty existing and exercised mutually agreed, shall have the
by the United States of America in right to access and use pursuant to
and over the territory and the this Agreement. Such Agreed
people of the Philippine Locations may be listed in an annex
Islands, except the use of such to be appended to this Agreement,
bases, necessary appurtenances to and may be further described in
such bases, and the rights incident implementing arrangements.
thereto, as the United States of
America, by agreement with the
Republic of the Philippines may
deem necessary to retain for the
mutual protection of the Republic of
the Philippines and of the United
States of America. x x x.
Third, in EDCA, the Philippines is- guaranteed access over the entire area of
the Agreed Locations. On the other hand, given that the U.S. had complete
control over its military bases under the 1947 MBA, the treaty did not provide
for any express recognition of the right of access of Philippine authorities.
Without that provision and in light of the retention of U.S. sovereignty over
the old military bases, the U.S. could effectively prevent Philippine authorities
from entering those bases.
1947 MBA EDCA
No equivalent provision. EDCA, Art. III(5):
The Philippine Designated
Authority and its authorized
representative shall have access
to the entire area of the Agreed
Locations. Such access shall be
provided promptly consistent with
operational safety and security
213
 Fifth, the U.S. under the bases agreement was given the authority to use
requirements in accordance with Philippine territory for additional staging areas, bombing and gunnery ranges.
agreed procedures developed by No such right is given under EDCA, as seen below:
the Parties.
1947 MBA EDCA
Fourth, in the bases agreement, the U.S. retained the right, power, and 1947 MBA, Art. VI: EDCA, Art. III(1):
authority over the establishment, use, operation, defense, and control of
military bases, including the limits of territorial waters and air space adjacent The United States shall, subject With consideration of the views of
to or in the vicinity of those bases. The only standard used in determining the to previous agreement with the the Parties,
extent of its control was military necessity. On the other hand, there is no Philippines, have the right to use the Philippines hereby authorizes a
such grant of power or authority under EDCA. It merely allows the U.S. to land and coastal sea areas of nd agrees that United States forces,
exercise operational control over the construction of Philippine-owned appropriate size and location for United States contractors, and
structures and facilities: periodic maneuvers, for vehicles, vessels, and aircraft
additional staging areas, operated by or for United States
1947 MBA EDCA bombing and gunnery ranges, forces may conduct the following
1947 MBA, Art.I(2): EDCA, Art. III(4): and for such intermediate activities with respect to Agreed
airfields as may be required for Locations: training; transit; support
safe and efficient air operations. and related activities; refueling of
The Philippines agrees to permit The Philippines hereby grants to Operations in such areas shall be aircraft; bunkering of vessels;
the United States, upon notice to the United States, through carried on with due regard and temporary maintenance of vehicles,
the Philippines, to use such of bilateral security safeguards for the public safety. vessels, and aircraft; temporary
those bases listed in Annex B as mechanisms, such as the MDB and accommodation of personnel;
the United States determines to SEB, operational
1947 MBA, Art.I(2): communications; prepositioning of
be required by military control of Agreed equipment, supplies, and materiel;
necessity. Locations for construction deploying forces and materiel; and
activities and authority to underta The Philippines agrees to permit
such other activities as the Parties
1947 MBA, Art. III(1): ke such activities on, and make the United States, upon notice to
may agree.
alterations and improvements to, the Philippines, to use such of
Agreed Locations. United States those bases listed in Annex B as
It is mutually agreed that
forces shall consult on issues the United States determines to
the United States shall have
regarding such construction, be required by military
the rights, power and authority
alterations, and necessity.
within the bases which
improvements based on the
are necessary for the
Parties' shared intent that the Sixth, under the MBA, the U.S. was given the right, power, and authority to
establishment, use, operation
technical requirements and control and prohibit the movement and operation of all types of vehicles
and defense thereof or
construction standards of any such within the vicinity of the bases. The U.S. does not have any right, power, or
appropriate for the control
projects undertaken by or on behalf authority to do so under EDCA.
thereof and all the rights, power
of United States forces should be
and authority within the limits of
consistent with the requirements and 1947 MBA EDCA
territorial waters and air space
standards of both Parties. 1947 MBA, Art. 111(2)(c) No equivalent provision.
adjacent to, or in the vicinity of,
the bases which are necessary to
provide access to them, or Such rights, power and authority
appropriate for their control. shall include, inter alia, the right,
power and authority: x x x x to
control (including the right to
prohibit) in so far as may be

214
required for the efficient operation United States military forces any assist in facilitating transit or
and safety of the bases, and within and all public utilities, other temporary access by United
the limits of military services and facilities, airfields, States forces to public land and
necessity, anchorages, moorings, ports, harbors, roads, highways, facilities (including roads, ports, and
landings, takeoffs, movements railroads, bridges, viaducts, canals, airfields), including those owned or
and operation of ships and water- lakes, rivers and streams in the controlled by local governments,
borne craft, aircraft and other Philippines under conditions no and to other land and facilities
vehicles on water, in the air or on less favorable than those that (including roads, ports, and
land comprising may be applicable from time to airfields).
time to the military forces of the
Seventh,  under EDCA, the U.S. is merely given temporary access to land Philippines.
and facilities (including roads, ports, and airfields). On the other hand, the old
treaty gave the U.S. the right to improve and deepen the harbors, channels, Ninth, under EDCA, the U.S. no longer has the right, power, and authority to
entrances, and anchorages; and to construct or maintain necessary roads construct, install, maintain, and employ any type of facility, weapon,
and bridges that would afford it access to its military bases. substance, device, vessel or vehicle, or system unlike in the old treaty. EDCA
merely grants the U.S., through bilateral security mechanisms, the authority
1947 MBA EDCA to undertake construction, alteration, or improvements on the Philippine-
1947 MBA, Art. III(2)(b): EDCA, Art. III(2): owned Agreed Locations.

Such rights, power and authority When requested, the Designated 1947 MBA EDCA
shall include, inter alia, the right, Authority of the Philippines shall 1947 MBA, Art. III(2)(e): EDCA, Art. III(4):
power and authority: x x x x to assist in facilitating transit or
improve and deepen the harbors, temporary access by United Such rights, power and authority The Philippines hereby grants to
channels, entrances and States forces to public land and shall include, inter alia, the right, the United States, through
anchorages, and to construct or facilities (including roads, ports, and power and authority: x x x x bilateral security mechanisms,
maintain necessary roads and airfields), including those owned or to construct, install, maintain, such as the MDB and SEB,
bridges affording access to the controlled by local governments, and employ on any base any operational control of Agreed
bases. and to other land and facilities type of facilities, weapons, Locations for construction activities
(including roads, ports, and substance, device, vessel or and authority to undertake such
airfields). vehicle on or under the ground, in activities on, and make
the air or on or under the water that alterations and improvements to,
Eighth,  in the 1947 MBA, the U.S. was granted the automatic right to use may be requisite or appropriate, Agreed Locations. United States
any and all public utilities, services and facilities, airfields, ports, harbors, including meteorological systems, forces shall consult on issues
roads, highways, railroads, bridges, viaducts, canals, lakes, rivers, and aerial and water navigation lights, regarding such construction,
streams in the Philippines in the same manner that Philippine military forces radio and radar apparatus and alterations, and improvements
enjoyed that right. No such arrangement appears in EDCA. In fact, it merely electronic devices, of any desired based on the Parties' shared intent
extends to U.S. forces temporary access to public land and facilities when power, type of emission and that the technical requirements and
requested: frequency. construction standards of any such
projects undertaken by or on behalf
of United States forces should be
1947 MBA EDCA
consistent with the requirements
1947 MBA, Art. VII: EDCA, Art. III(2): and standards of both Parties.

It is mutually agreed that the United When requested, the Designated

States may employ and use for Authority of the Philippines shall

215
Tenth,  EDCA does not allow the U.S. to acquire, by condemnation or
expropriation proceedings, real property belonging to any private person. The States shall have the right to personnel" means United
old military bases agreement gave this right to the U.S. as seen below: bring into the States military and civilian
Philippines members of the United personnel temporarily in the
1947 MBA EDCA States military forces and territory of the Philippines in
1947 MBA, Art. XXII(l): No equivalent provision. the United States nationals connection with activities approved
employed by or under a contract by the Philippines, as those terms
Whenever it is necessary with the United States together are defined in the VFA.
to acquire by with their families, and technical
personnel of other x xx x
nationalities (not being persons
condemnation or expropriation
excluded by the laws of the
proceedings real property 3. "United States
Philippines) in connection with the
belonging to any private contractors" means companies
construction, maintenance, or
persons, associations or and firms, and their employees,
operation of the bases. The United
corporations located in bases under contract or subcontract to or
States shall make suitable
named in Annex A and Annex B in on behalf of the United States
arrangements so that such persons
order to carry out the purposes of Department of Defense. United
may be readily identified and their
this Agreement, the Philippines will States contractors are not
status established when necessary
institute and prosecute such included as part of
by the Philippine authorities. Such
condemnation or expropriation the definition of United States
persons, other than members of the
proceedings in accordance with the personnel in this
United States armed forces in
laws of the Philippines. The United Agreement, including within the
uniform, shall present their travel
States agrees to reimburse the context of the VFA.
documents to the appropriate
Philippines for all the reasonable
Philippine authorities for visas, it
expenses, damages and costs  
being understood that no objection
therebv incurred, including the
will be made to their travel to the
value of the property as determined
Philippines as non-immigrants.
by the Court. In addition, subject to
the mutual agreement of the two
Governments, the United States will Twelfth,  EDCA does not allow the U.S. to exercise jurisdiction over any
reimburse the Philippines for the offense committed by any person within the Agreed Locations, unlike in the
reasonable costs of transportation former military bases:
and removal of any occupants
displaced or ejected by reason of 1947 MBA EDCA
the condemnation or expropriation. 1947 MBA, Art. XIII(l)(a): No equivalent provision.

Eleventh, EDCA does not allow the U.S. to unilaterally bring into the country The Philippines consents that
non-Philippine nationals who are under its employ, together with their the United
families, in connection with the construction, maintenance, or operation of the
bases. EDCA strictly adheres to the limits under the VFA. States shall have the right to
exercise jurisdiction over the
1947 MBA EDCA following offenses: (a) Any
1947 MBA, Art. XI(l): EDCA, Art. II: offense committed by any
person within any base except
It is mutually agreed that the United 1. "United States where the offender and offended

216
parties are both Philippine citizens this end.
(not members of the armed forces
of the United States on active duty) In sum, EDCA is a far cry from a basing agreement as was understood by
or the offense is against the security the people at the time that the 1987 Constitution was adopted.
of the Philippines.
Nevertheless, a comprehensive review of what the Constitution means by
Thirteenth,  EDCA does not allow the U.S. to operate military post exchange "foreign military bases" and "facilities" is required before EDCA can be
(PX) facilities, which is free of customs duties and taxes, unlike what the deemed to have passed judicial scrutiny.
expired MBA expressly allowed. Parenthetically, the PX store has become
the cultural icon of U.S. military presence in the country. c. The meaning of military facilities and bases
An appreciation of what a military base is, as understood by the Filipino
1947 MBA EDCA people in 1987, would be vital in determining whether EDCA breached the
1947 MBA, Art. XVIII(l): No equivalent provision. constitutional restriction.

It is mutually agreed that the United Prior to the drafting of the 1987 Constitution, the last definition of "military
States base" was provided under Presidential Decree No. (PD) 1227.328 Unlawful
entry into a military base is punishable under the decree as supported by
shall have the right to establish on Article 281 of the Revised Penal Code, which itself prohibits the act of
bases, free of all licenses; fees; trespass.
sales, excise or other taxes, or
imposts; Government Section 2 of the law defines the term in this manner: "'[M]ilitary base' as used
agencies, including concessions, in this decree means any military, air, naval, or coast guard reservation,
such as sales commissaries base, fort, camp, arsenal, yard, station, or installation in the Philippines."
and post exchanges; messes and
social clubs, for the exclusive use Commissioner Tadeo, in presenting his objections to U.S. presence in the
of the United States military Philippines before the 1986 Constitutional Commission, listed the areas that
forces and authorized civilian he considered as military bases:
personnel and their families. The
merchandise or services sold or 1,000 hectares Camp O'Donnel
dispensed by such agencies shall 20,000 hectares Crow Valley Weapon's Range
be free of all taxes, duties and 55,000 hectares Clark Air Base
inspection by the Philippine 150 hectares Wallace Air Station
authorities. Administrative 400 hectares John Hay Air Station
measures shall be taken by the
15,000 hectares Subic Naval Base
appropriate authorities of the United
1,000 hectares San Miguel Naval Communication
States to prevent the resale of
750 hectares Radio Transmitter in Capas, Tarlac
goods which are sold under the
provisions of this Article to persons 900 hectares Radio Bigot Annex at Bamban, Tarlac
not entitled to buy goods at such
agencies and, generally, to prevent The Bases Conversion and Development Act of 1992 described its coverage
abuse of the privileges granted in its Declaration of Policies:
under this Article. There shall be
cooperation between such Sec. 2. Declaration of Policies. - It is hereby declared the policy of the
authorities and the Philippines to Government to accelerate the sound and balanced conversion into

217
alternative productive uses of the Clark and Subic military reservations and
their extensions (John Hay Station, Wallace Air Station, O'Donnell
Transmitter Station, San Miguel Naval Communications Station and Capas
Relay Station), to raise funds by the sale of portions of Metro Manila military
camps, and to apply said funds as provided herein for the development and
conversion to productive civilian use of the lands covered under the 194 7
Military Bases Agreement between the Philippines and the United States of
America, as amended.330
The result of the debates and subsequent voting is Section 25, Article XVIII
of the Constitution, which specifically restricts, among others, foreign military
facilities or bases. At the time of its crafting of the Constitution, the 1986
Constitutional Commission had a clear idea of what exactly it was restricting.
While the term "facilities and bases" was left undefined, its point of reference
was clearly those areas covered by the 1947 MBA as amended.
Notably, nearly 30 years have passed since then, and the ever-evolving
world of military technology and geopolitics has surpassed the understanding
of the Philippine people in 1986. The last direct military action of the U.S. in
the region was the use of Subic base as the staging ground for Desert Shield
and Desert Storm during the Gulf War.331 In 1991, the Philippine Senate
rejected the successor treaty of the 1947 MBA that would have allowed the
continuation of U.S. bases in the Philippines.
Henceforth, any proposed entry of U.S. forces into the Philippines had to
evolve likewise, taking into consideration the subsisting agreements between
both parties, the rejection of the 1991 proposal, and a concrete
understanding of what was constitutionally restricted. This trend birthed the
VFA which, as discussed, has already been upheld by this Court.
The latest agreement is EDCA, which proposes a novel concept termed
"Agreed Locations."
By definition, Agreed Locations are facilities and areas that are provided by
the Government of the Philippines through the AFP and that United States
forces, United States contractors, and others as mutually agreed, shall have
the right to access and use pursuant to this Agreement. Such Agreed
Locations may be listed in an annex to be appended to this Agreement, and
may be further described in implementing arrangements.332
Preliminarily, respondent already claims that the proviso that the Philippines
shall retain ownership of and title to the Agreed Locations means that EDCA
is "consistent with Article II of the VFA which recognizes Philippine
sovereignty and jurisdiction over locations within Philippine territory.333
By this interpretation, respondent acknowledges that the contention of
petitioners springs from an understanding that the Agreed Locations merely
circumvent the constitutional restrictions. Framed differently, the bone of
contention is whether the Agreed Locations are, from a legal perspective,
foreign military facilities or bases. This legal framework triggers Section 25,
Article XVIII, and makes Senate concurrence a sine qua non.
Article III of EDCA provides for Agreed Locations, in which the U.S. is
authorized by the Philippines to "conduct the following activities: "training;
transit; support and related activities; refueling of aircraft; bunkering of
vessels; temporary maintenance of vehicles, vessels and aircraft; temporary
accommodation of personnel; communications; prepositioning of equipment,
supplies and materiel; deploying forces and materiel; and such other
activities as the Parties may agree."
This creation of EDCA must then be tested against a proper interpretation of
the Section 25 restriction.
d. Reasons for the constitutional requirements and legal standards for
constitutionally compatible military bases and facilities
Section 25 does not define what is meant by a "foreign military facility or
base." While it specifically alludes to U.S. military facilities and bases that
existed during the framing of the Constitution, the provision was clearly
meant to apply to those bases existing at the time and to any future facility or
base. The basis for the restriction must first be deduced from the spirit of the
law, in order to set a standard for the application of its text, given the
particular historical events preceding the agreement.
Once more, we must look to the 1986 Constitutional Commissioners to
glean, from their collective wisdom, the intent of Section 25. Their speeches
are rich with history and wisdom and present a clear picture of what they
considered in the crafting the provision.
SPEECH OF COMMISSIONER REGALADO
xxxx
We have been regaled here by those who favor the adoption of the anti-
bases provisions with what purports to be an objective presentation of the
historical background of the military bases in the Philippines. Care appears,
however, to have been taken to underscore the inequity in their inception as
well as their implementation, as to seriously reflect on the supposed
objectivity of the report. Pronouncements of military and civilian officials
shortly after World War II are quoted in support of the proposition on
218
neutrality; regrettably, the implication is that the same remains valid today, as
if the world and international activity stood still for the last 40 years.
We have been given inspired lectures on the effect of the presence of the
military bases on our sovereignty - whether in its legal or political sense is not
clear - and the theory that any country with foreign bases in its territory
cannot claim to be fully sovereign or completely independent. I was not
aware that the concepts of sovereignty and independence have now
assumed the totality principle, such that a willing assumption of some
delimitations in the exercise of some aspects thereof would put that State in
a lower bracket of nationhood.
xxxx
We have been receiving a continuous influx of materials on the pros and
cons on the advisability of having military bases within our shores. Most of us
who, only about three months ago, were just mulling the prospects of these
varying contentions are now expected, like armchair generals, to decide not
only on the geopolitical aspects and contingent implications of the military
bases but also on their political, social, economic and cultural impact on our
national life. We are asked to answer a plethora of questions, such as: 1)
whether the bases are magnets of nuclear attack or are deterrents to such
attack; 2) whether an alliance or mutual defense treaty is a derogation of our
national sovereignty; 3) whether criticism of us by Russia, Vietnam and North
Korea is outweighed by the support for us of the ASEAN countries, the
United States, South Korea, Taiwan, Australia and New Zealand; and 4)
whether the social, moral and legal problems spawned by the military bases
and their operations can be compensated by the economic benefits outlined
in papers which have been furnished recently to all of us.335
xxxx
Of course, one side of persuasion has submitted categorical, unequivocal
and forceful assertions of their positions. They are entitled to the luxury of the
absolutes. We are urged now to adopt the proposed declaration as a
"golden," "unique" and "last" opportunity for Filipinos to assert their sovereign
rights. Unfortunately, I have never been enchanted by superlatives, much
less for the applause of the moment or the ovation of the hour. Nor do I look
forward to any glorious summer after a winter of political discontent. Hence, if
I may join Commissioner Laurel, I also invoke a caveat not only against the
tyranny of labels but also the tyranny of slogans.
xxxx
SPEECH OF COMMISSIONER SUAREZ
MR. SUAREZ: Thank you, Madam President.
I am quite satisfied that the crucial issues involved in the resolution of the
problem of the removal of foreign bases from the Philippines have been
adequately treated by previous speakers. Let me, therefore, just recapitulate
the arguments adduced in favor of a foreign bases-free Philippines:
1. That every nation should be free to shape its own destiny without outside
interference;
2. That no lasting peace and no true sovereignty would ever be achieved so
long as there are foreign military forces in our country;
3. That the presence of foreign military bases deprives us of the very
substance of national sovereignty and this is a constant source of national
embarrassment and an insult to our national dignity and selfrespect as a
nation;
4. That these foreign military bases unnecessarily expose our country to
devastating nuclear attacks;
5. That these foreign military bases create social problems and are designed
to perpetuate the strangle-hold of United States interests in our national
economy and development;
6. That the extraterritorial rights enjoyed by these foreign bases operate to
deprive our country of jurisdiction over civil and criminal offenses committed
within our own national territory and against Filipinos;
7. That the bases agreements are colonial impositions and dictations upon
our helpless country; and
8. That on the legal viewpoint and in the ultimate analysis, all the bases
agreements are null and void ab initio, especially because they did not count
the sovereign consent and will of the Filipino people.338
xxxx
In the real sense, Madam President, if we in the Commission could
accommodate the provisions I have cited, what is our objection to include in
our Constitution a matter as priceless as the nationalist values we cherish? A
matter of the gravest concern for the safety and survival of this nation indeed
deserves a place in our Constitution.
xxxx
x x x Why should we bargain away our dignity and our self-respect as a
nation and the future of generations to come with thirty pieces of silver?339
SPEECH OF COMMISSIONER BENNAGEN340
219

xxxx
The underlying principle of military bases and nuclear weapons wherever
they are found and whoever owns them is that those are for killing people or
for terrorizing humanity. This objective by itself at any point in history is
morally repugnant. This alone is reason enough for us to constitutionalize the
ban on foreign military bases and on nuclear weapons.341
SPEECH OF COMMISSIONER BACANI342
xxxx
x x x Hence, the remedy to prostitution does not seem to be primarily to
remove the bases because even if the bases are removed, the girls mired in
poverty will look for their clientele elsewhere. The remedy to the problem of
prostitution lies primarily elsewhere - in an alert and concerned citizenry, a
healthy economy and a sound education in values.343
SPEECH OF COMMISSIONER JAMIR
xxxx
One of the reasons advanced against the maintenance of foreign military
bases here is that they impair portions of our sovereignty. While I agree that
our country's sovereignty should not be impaired, I also hold the view that
there are times when it is necessary to do so according to the imperatives of
national interest. There are precedents to this effect. Thus, during World War
II, England leased its bases in the West Indies and in Bermuda for 99 years
to the United States for its use as naval and air bases. It was done in
consideration of 50 overaged destroyers which the United States gave to
England for its use in the Battle of the Atlantic.
A few years ago, England gave the Island of Diego Garcia to the United
States for the latter's use as a naval base in the Indian Ocean. About the
same time, the United States obtained bases in Spain, Egypt and Israel. In
doing so, these countries, in effect, contributed to the launching of a
preventive defense posture against possible trouble in the Middle East and in
the Indian Ocean for their own protection.
SPEECH OF COMMISSIONER TINGSON
xxxx
In the case of the Philippines and the other Southeast Asian nations, the
presence of American troops in the country is a projection of America's
security interest. Enrile said that nonetheless, they also serve, although in an
incidental and secondary way, the security interest of the Republic of the
Philippines and the region. Yes, of course, Mr. Enrile also echoes the
sentiments of most of us in this Commission, namely: It is ideal for us as an
independent and sovereign nation to ultimately abrogate the RP-US military
treaty and, at the right time, build our own air and naval might.
xxxx
Allow me to say in summation that I am for the retention of American military
bases in the Philippines provided that such an extension from one period to
another shall be concluded upon concurrence of the parties, and such
extension shall be based on justice, the historical amity of the people of the
Philippines and the United States and their common defense interest.
SPEECH OF COMMISSIONER ALONTO
xxxx
Madam President, sometime ago after this Commission started with this task
of framing a constitution, I read a statement of President Aquino to the effect
that she is for the removal of the U.S. military bases in this country but that
the removal of the U.S. military bases should not be done just to give way to
other foreign bases. Today, there are two world superpowers, both vying to
control any and all countries which have importance to their strategy for
world domination. The Philippines is one such country.
Madam President, I submit that I am one of those ready to completely
remove any vestiges of the days of enslavement, but not prepared to erase
them if to do so would merely leave a vacuum to be occupied by a far worse
type.
SPEECH OF COMMISSIONER GASCON351
xxxx
Let us consider the situation of peace in our world today. Consider our
brethren in the Middle East, in Indo-China, Central America, in South Africa -
there has been escalation of war in some of these areas because of foreign
intervention which views these conflicts through the narrow prism of the East-
West conflict. The United States bases have been used as springboards for
intervention in some of these conflicts. We should not allow ourselves to be
party to the warlike mentality of these foreign interventionists. We must
always be on the side of peace – this means that we should not always rely
on military solution.
xxx
x x x The United States bases, therefore, are springboards for intervention in
our own internal affairs and in the affairs of other nations in this region.
xxxx
220
Thus, I firmly believe that a self-respecting nation should safeguard its
fundamental freedoms which should logically be declared in black and white
in our fundamental law of the land - the Constitution. Let us express our
desire for national sovereignty so we may be able to achieve national self-
determination. Let us express our desire for neutrality so that we may be able
to follow active nonaligned independent foreign policies. Let us express our
desire for peace and a nuclear-free zone so we may be able to pursue a
healthy and tranquil existence, to have peace that is autonomous and not
imposed.
xxxx
SPEECH OF COMMISSIONER TADEO
Para sa magbubukid, ano ha ang kahulugan ng U.S. military bases? Para sa
magbubukid, ang kahulugan nito ay pagkaalipin. Para sa magbubukid, ang
pananatili ng U.S. military bases ay tinik sa dibdib ng sambayanang
Pilipinong patuloy na nakabaon. Para sa sambayanang magbubukid, ang
ibig sabihin ng U.S. military bases ay batong pabigat na patuloy na
pinapasan ng sambayanang Pilipino. Para sa sambayanang magbubukid,
ang pananatili ng U.S. military bases ay isang nagdudumilat na katotohanan
ng patuloy na paggahasa ng imperyalistang Estados Unidos sa ating Inang
Bayan - economically, politically and culturally. Para sa sambayanang
magbubukid ang U.S. military bases ay kasingkahulugan ng nuclear weapon
- ang kahulugan ay magneto ng isang nuclear war. Para sa sambayanang
magbubukid, ang kahulugan ng U.S. military bases ay isang salot.
SPEECH OF COMMISSIONER QUESADA
xxxx
The drift in the voting on issues related to freeing ourselves from the
instruments of domination and subservience has clearly been defined these
past weeks.
xxxx
So for the record, Mr. Presiding Officer, I would like to declare my support for
the committee's position to enshrine in the Constitution a fundamental
principle forbidding foreign military bases, troops or facilities in any part of the
Philippine territory as a clear and concrete manifestation of our inherent right
to national self-determination, independence and sovereignty.
Mr. Presiding Officer, I would like to relate now these attributes of genuine
nationhood to the social cost of allowing foreign countries to maintain military
bases in our country. Previous speakers have dwelt on this subject, either to
highlight its importance in relation to the other issues or to gloss over its
significance and !llake this a part of future negotiations.
xxxx
Mr. Presiding Officer, I feel that banning foreign military bases is one of the
solutions and is the response of the Filipino people against this condition and
other conditions that have already been clearly and emphatically discussed
in past deliberations. The deletion, therefore, of Section 3 in the Constitution
we are drafting will have the following implications:
First, the failure of the Constitutional Commission to decisively respond to the
continuing violation of our territorial integrity via the military bases agreement
which permits the retention of U.S. facilities within the Philippine soil over
which our authorities have no exclusive jurisdiction contrary to the accepted
definition of the exercise of sovereignty.
Second, consent by this forum, this Constitutional Commission, to an
exception in the application of a provision in the Bill of Rights that we have
just drafted regarding equal application of the laws of the land to all
inhabitants, permanent or otherwise, within its territorial boundaries.
Third, the continued exercise by the United States of extraterritoriality despite
the condemnations of such practice by the world community of nations in the
light of overwhelming international approval of eradicating all vestiges of
colonialism.
xxxx
Sixth, the deification of a new concept called pragmatic sovereignty, in the
hope that such can be wielded to force the United States government to
concede to better terms and conditions concerning the military bases
agreement, including the transfer of complete control to the Philippine
government of the U.S. facilities, while in the meantime we have to suffer all
existing indignities and disrespect towards our rights as a sovereign nation.
xxxx
Eighth, the utter failure of this forum to view the issue of foreign military
bases as essentially a question of sovereignty which does not require in-
depth studies or analyses and which this forum has, as a constituent
assembly drafting a constitution, the expertise and capacity to decide on
except that it lacks the political will that brought it to existence and now
engages in an elaborate scheme of buck-passing.
xxxx
Without any doubt we can establish a new social order in our country, if we
reclaim, restore, uphold and defend our national sovereignty. National
sovereignty is what the military bases issue is all about. It is only the
sovereign people exercising their national sovereignty who can design an
independent course and take full control of their national destiny.
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SPEECH OF COMMISSIONER P ADILLA
xxxx
Mr. Presiding Officer, in advocating the majority committee report, specifically
Sections 3 and 4 on neutrality, nuclear and bases-free country, some views
stress sovereignty of the Republic and even invoke survival of the Filipino
nation and people.
REBUTTAL OF COMMISSIONER NOLLEDO
xxxx
The anachronistic and ephemeral arguments against the provisions of the
committee report to dismantle the American bases after 1991 only show the
urgent need to free our country from the entangling alliance with any power
bloc.
xxxx
xx x Mr. Presiding Officer, it is not necessary for us to possess expertise to
know that the so-called RP-US Bases Agreement will expire in 1991, that it
infringes on our sovereignty and jurisdiction as well as national dignity and
honor, that it goes against the UN policy of disarmament and that it
constitutes unjust intervention in our internal affairs.364 (Emphases
Supplied)
The Constitutional Commission eventually agreed to allow foreign military
bases, troops, or facilities, subject to the provisions of Section 25. It is thus
important to read its discussions carefully. From these discussions, we can
deduce three legal standards that were articulated by the Constitutional
Commission Members. These are characteristics of any agreement that the
country, and by extension this Court, must ensure are observed. We can
thereby determine whether a military base or facility in the Philippines, which
houses or is accessed by foreign military troops, is foreign or remains a
Philippine military base or facility. The legal standards we find applicable are:
independence from foreign control, sovereignty and applicable law, and
national security and territorial integrity.
i. First standard: independence from foreign control
Very clearly, much of the opposition to the U.S. bases at the time of the
Constitution's drafting was aimed at asserting Philippine independence from
the U.S., as well as control over our country's territory and military.
Under the Civil Code, there are several aspects of control exercised over
property.
Property is classified as private or public.365 It is public if "intended for public
use, such as roads, canals, rivers, torrents, ports and bridges constructed by
the State, banks, shores, roadsteads, and others of similar character[,]" or
"[t]hose which belong to the State, without being for public use, and are
intended for some public service or for the development of the national
wealth. "
Quite clearly, the Agreed Locations are contained within a property for public
use, be it within a government military camp or property that belongs to the
Philippines
Once ownership is established, then the rights of ownership flow freely.
Article 428 of the Civil Code provides that "[t]he owner has the right to enjoy
and dispose of a thing, without other limitations than those established by
law." Moreover, the owner "has also a right of action against the holder and
possessor of the thing in order to recover it."
Philippine civil law therefore accords very strong rights to the owner of
property, even against those who hold the property. Possession, after all,
merely raises a disputable presumption of ownership, which can be
contested through normal judicial processes.
In this case, EDCA explicitly provides that ownership of the Agreed Locations
remains with the Philippine govemment.368 What U.S. personnel have a
right to, pending mutual agreement, is access to and use of these locations.
The right of the owner of the property to allow access and use is consistent
with the Civil Code, since the owner may dispose of the property in whatever
way deemed fit, subject to the limits of the law. So long as the right of
ownership itself is not transferred, then whatever rights are transmitted by
agreement does not completely divest the owner of the rights over the
property, but may only limit them in accordance with law.
Hence, even control over the property is something that an owner may
transmit freely. This act does not translate into the full transfer of ownership,
but only of certain rights. In Roman Catholic Apostolic Administrator of
Davao, Inc. v. Land Registration Commission, we stated that the
constitutional proscription on property ownership is not violated despite the
foreign national's control over the property.370
EDCA, in respect of its provisions on Agreed Locations, is essentially a
contract of use and access. Under its pertinent provisions, it is the
Designated Authority of the Philippines that shall, when requested, assist in
facilitating transit or access to public land and facilities.371 The activities
carried out within these locations are subject to agreement as authorized by
the Philippine govemment.372 Granting the U.S. operational control over
these locations is likewise subject to EDCA' s security mechanisms, which
are bilateral procedures involving Philippine consent and cooperation.373
Finally, the Philippine Designated Authority or a duly designated
representative is given access to the Agreed Locations.374
222

To our mind, these provisions do not raise the spectre of U.S. control, which
was so feared by the Constitutional Commission. In fact, they seem to have
been the product of deliberate negotiation from the point of view of the
Philippine government, which balanced constitutional restrictions on foreign
military bases and facilities against the security needs of the country. In the
1947 MBA, the U.S. forces had "the right, power and authority x x x to
construct (including dredging and filling), operate, maintain, utilize, occupy,
garrison and control the bases."375 No similarly explicit provision is present
in EDCA.
Nevertheless, the threshold for allowing the presence of foreign military
facilities and bases has been raised by the present Constitution. Section 25
is explicit that foreign military bases, troops, or facilities shall not be allowed
in the Philippines, except under a treaty duly concurred in by the Senate.
Merely stating that the Philippines would retain ownership would do violence
to the constitutional requirement if the Agreed Locations were simply to
become a less obvious manifestation of the U.S. bases that were rejected in
1991.
When debates took place over the military provisions of the Constitution, the
committee rejected a specific provision proposed by Commissioner
Sarmiento. The discussion illuminates and provides context to the 1986
Constitutional Commission's vision of control and independence from the
U.S., to wit:
MR. SARMIENTO: Madam President, my proposed amendment reads as
follows: "THE STATE SHALL ESTABLISH AND MAINTAIN AN
INDEPENDENT AND SELF-RELIANT ARMED FORCES OF THE
PHILIPPINES." Allow me to briefly explain, Madam President. The Armed
Forces of the Philippines is a vital component of Philippine society depending
upon its training, orientation and support. It will either be the people's
protector or a staunch supporter of a usurper or tyrant, local and foreign
interest. The Armed Forces of the Philippines' past and recent experience
shows it has never been independent and self-reliant. Facts, data and
statistics will show that it has been substantially dependent upon a foreign
power. In March 1968, Congressman Barbero, himself a member of the
Armed Forces of the Philippines, revealed top secret documents showing
what he described as U.S. dictation over the affairs of the Armed Forces of
the Philippines. He showed that under existing arrangements, the United
States unilaterally determines not only the types and quantity of arms and
equipments that our armed forces would have, but also the time when these
items are to be made available to us. It is clear, as he pointed out, that the
composition, capability and schedule of development of the Armed Forces of
the Philippines is under the effective control of the U.S. government.376
(Emphases supplied)
Commissioner Sarmiento proposed a motherhood statement in the 1987
Constitution that would assert "independent" and "self-reliant" armed forces.
This proposal was rejected by the committee, however. As Commissioner De
Castro asserted, the involvement of the Philippine military with the U.S. did
not, by itself, rob the Philippines of its real independence. He made reference
to the context of the times: that the limited resources of the Philippines and
the current insurgency at that time necessitated a strong military relationship
with the U.S. He said that the U.S. would not in any way control the
Philippine military despite this relationship and the fact that the former would
furnish military hardware or extend military assistance and training to our
military. Rather, he claimed that the proposal was in compliance with the
treaties between the two states.
MR. DE CASTRO: If the Commissioner will take note of my speech on U.S.
military bases on 12 September 1986, I spoke on the selfreliance policy of
the armed forces. However, due to very limited resources, the only thing we
could do is manufacture small arms ammunition. We cannot blame the
armed forces. We have to blame the whole Republic of the Philippines for
failure to provide the necessary funds to make the Philippine Armed Forces
self-reliant. Indeed that is a beautiful dream. And I would like it that way. But
as of this time, fighting an insurgency case, a rebellion in our country -
insurgency - and with very limited funds and very limited number of men, it
will be quite impossible for the Philippines to appropriate the necessary funds
therefor. However, if we say that the U.S. government is furnishing us the
military hardware, it is not control of our armed forces or of our government.
It is in compliance with the Mutual Defense Treaty. It is under the military
assistance program that it becomes the responsibility of the United States to
furnish us the necessary hardware in connection with the military bases
agreement. Please be informed that there are three (3) treaties connected
with the military bases agreement; namely: the RP-US Military Bases
Agreement, the Mutual Defense Treaty and the Military Assistance Program.
My dear Commissioner, when we enter into a treaty and we are furnished the
military hardware pursuant to that treaty, it is not in control of our armed
forces nor control of our government. True indeed, we have military officers
trained in the U.S. armed forces school. This is part of our Military Assistance
Program, but it does not mean that the minds of our military officers are for
the U.S. government, no. I am one of those who took four courses in the
United States schools, but I assure you, my mind is for the Filipino people.
Also, while we are sending military officers to train or to study in U.S. military
schools, we are also sending our officers to study in other military schools
such as in Australia, England and in Paris. So, it does not mean that when
223
we send military officers to United States schools or to other military schools,
we will be under the control of that country. We also have foreign officers in
our schools, we in the Command and General Staff College in Fort Bonifacio
and in our National Defense College, also in Fort Bonifacio.377 (Emphases
supplied)
This logic was accepted in Tañada v. Angara, in which the Court ruled that
independence does not mean the absence of foreign participation:
Furthermore, the constitutional policy of a "self-reliant and independent
national economy" 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.378 (Emphases supplied)
The heart of the constitutional restriction on foreign military facilities and
bases is therefore the assertion of independence from the U.S. and other
foreign powers, as independence is exhibited by the degree of foreign control
exerted over these areas.1âwphi1 The essence of that independence is self-
governance and self-control.379 Independence itself is "[t]he state or
condition of being free from dependence, subjection, or control. "380
Petitioners assert that EDCA provides the U.S. extensive control and
authority over Philippine facilities and locations, such that the agreement
effectively violates Section 25 of the 1987 Constitution.381
Under Article VI(3) of EDCA, U.S. forces are authorized to act as necessary
for "operational control and defense." The term "operational control" has led
petitioners to regard U.S. control over the Agreed Locations as unqualified
and, therefore, total.382 Petitioners contend that the word "their" refers to the
subject "Agreed Locations."
This argument misreads the text, which is quoted below:
United States forces are authorized to exercise all rights and authorities
within Agreed Locations that are necessary for their operational control or
defense, including taking appropriate measure to protect United States
forces and United States contractors. The United States should coordinate
such measures with appropriate authorities of the Philippines.
A basic textual construction would show that the word "their," as understood
above, is a possessive pronoun for the subject "they," a third-person
personal pronoun in plural form. Thus, "their" cannot be used for a non-
personal subject such as "Agreed Locations." The simple grammatical
conclusion is that "their" refers to the previous third-person plural noun,
which is "United States forces." This conclusion is in line with the definition of
operational control.
a. U.S. operational control as the exercise of authority over U.S.
personnel, and not over the Agreed Locations
Operational control, as cited by both petitioner and respondents, is a military
term referring to
[t]he authority to perform those functions of command over subordinate
forces involving organizing and employing commands and forces, assigning
tasks, designating objective, and giving authoritative direction necessary to
accomplish the mission.383
At times, though, operational control can mean something slightly different. In
JUSMAG Philippines v. National Labor Relations Commission, the
Memorandum of Agreement between the AFP and JUSMAG Philippines
defined the term as follows:384
The term "Operational Control" includes, but is not limited to, all personnel
administrative actions, such as: hiring recommendations; firing
recommendations; position classification; discipline; nomination and approval
of incentive awards; and payroll computation.
Clearly, traditional standards define "operational control" as personnel
control. Philippine law, for instance, deems operational control as one
exercised by police officers and civilian authorities over their subordinates
and is distinct from the administrative control that they also exercise over
police subordinates.385 Similarly, a municipal mayor exercises operational
control over the police within the municipal government,386 just as city
mayor possesses the same power over the police within the city
government.387
Thus, the legal concept of operational control involves authority over
personnel in a commander-subordinate relationship and does not include
control over the Agreed Locations in this particular case. Though not
224
necessarily stated in EDCA provisions, this interpretation is readily implied by
the reference to the taking of "appropriate measures to protect United States
forces and United States contractors."
It is but logical, even necessary, for the U.S. to have operational control over
its own forces, in much the same way that the Philippines exercises
operational control over its own units.
For actual operations, EDCA is clear that any activity must be planned and
pre-approved by the MDB-SEB.388 This provision evinces the partnership
aspect of EDCA, such that both stakeholders have a say on how its
provisions should be put into effect.
b. Operational control vis-à-vis effective command and control
Petitioners assert that beyond the concept of operational control over
personnel, qualifying access to the Agreed Locations by the Philippine
Designated Authority with the phrase "consistent with operational safety and
security requirements in accordance with agreed procedures developed by
the Parties" leads to the conclusion that the U.S. exercises effective control
over the Agreed Locations.389 They claim that if the Philippines exercises
possession of and control over a given area, its representative should not
have to be authorized by a special provision.
For these reasons, petitioners argue that the "operational control" in EDCA is
the "effective command and control" in the 1947 MBA. In their Memorandum,
they distinguish effective command and control from operational control in
U.S. parlance. Citing the Doctrine for the Armed Forces of the United States,
Joint Publication 1, "command and control (C2)" is defined as "the exercise
of authority and direction by a properly designated commander over
assigned and attached forces in the accomplishment of the mission x x x."
Operational control, on the other hand, refers to "[t]hose functions of
command over assigned forces involving the composition of subordinate
forces, the assignment of tasks, the designation of objectives, the overall
control of assigned resources, and the full authoritative direction necessary
to accomplish the mission."
Two things demonstrate the errors in petitioners' line of argument.
Firstly, the phrase "consistent with operational safety and security
requirements in accordance with agreed procedures developed by the
Parties" does not add any qualification beyond that which is already imposed
by existing treaties. To recall, EDCA is based upon prior treaties, namely the
VFA and the MDT. Treaties are in themselves contracts from which rights
and obligations may be claimed or waived. In this particular case, the
Philippines has already agreed to abide by the security mechanisms that
have long been in place between the U.S. and the Philippines based on the
implementation of their treaty relations.
Secondly, the full document cited by petitioners contradicts the equation of
"operational control" with "effective command and control," since it defines
the terms quite differently, viz:
Command and control encompasses the exercise of authority, responsibility,
and direction by a commander over assigned and attached forces to
accomplish the mission. Command at all levels is the art of motivating and
directing people and organizations into action to accomplish missions.
Control is inherent in command. To control is to manage and direct forces
and functions consistent with a commander's command authority. Control of
forces and functions helps commanders and staffs compute requirements,
allocate means, and integrate efforts. Mission command is the preferred
method of exercising C2. A complete discussion of tenets, organization, and
processes for effective C2 is provided in Section B, "Command and Control
of Joint Forces," of Chapter V "Joint Command and Control."
Operational control is defined thus:
OPCON is able to be delegated from a lesser authority than COCOM. It is
the authority to perform those functions of command over subordinate forces
involving organizing and employing commands and forces, assigning tasks,
designating objectives, and giving authoritative direction over all aspects of
military operations and joint training necessary to accomplish the mission. It
should be delegated to and exercised by the commanders of subordinate
organizations; normally, this authority is exercised through subordinate JFCs,
Service, and/or functional component commanders. OPCON provides
authority to organize and employ commands and forces as the commander
considers necessary to accomplish assigned missions. It does not include
authoritative direction for logistics or matters of administration, discipline,
internal organization, or unit training. These elements of COCOM must be
specifically delegated by the CCDR. OPCON does include the authority to
delineate functional responsibilities and operational areas of subordinate
JFCs.
Operational control is therefore the delegable aspect of combatant
command, while command and control is the overall power and responsibility
exercised by the commander with reference to a mission. Operational control
is a narrower power and must be given, while command and control is
plenary and vested in a commander. Operational control does not include the
planning, programming, budgeting, and execution process input; the
assignment of subordinate commanders; the building of relationships with
Department of Defense agencies; or the directive authority for logistics,
225
whereas these factors are included in the concept of command and
control.400
This distinction, found in the same document cited by petitioners, destroys
the very foundation of the arguments they have built: that EDCA is the same
as the MBA.
c. Limited operational control over the Agreed Locations only for
construction activitites
As petitioners assert, EDCA indeed contains a specific provision that gives to
the U.S. operational control within the Agreed Locations during construction
activities. This exercise of operational control is premised upon the approval
by the MDB and the SEB of the construction activity through consultation and
mutual agreement on the requirements and standards of the construction,
alteration, or improvement.
Despite this grant of operational control to the U.S., it must be emphasized
that the grant is only for construction activities. The narrow and limited
instance wherein the U.S. is given operational control within an Agreed
Location cannot be equated with foreign military control, which is so abhorred
by the Constitution.
The clear import of the provision is that in the absence of construction
activities, operational control over the Agreed Location is vested in the
Philippine authorities. This meaning is implicit in the specific grant of
operational control only during construction activities. The principle of
constitutional construction, "expressio unius est exclusio alterius," means the
failure to mention the thing becomes the ground for inferring that it was
deliberately excluded.403 Following this construction, since EDCA mentions
the existence of U.S. operational control over the Agreed Locations for
construction activities, then it is quite logical to conclude that it is not
exercised over other activities.
Limited control does not violate the Constitution. The fear of the
commissioners was total control, to the point that the foreign military forces
might dictate the terms of their acts within the Philippines.404 More
important, limited control does not mean an abdication or derogation of
Philippine sovereignty and legal jurisdiction over the Agreed Locations. It is
more akin to the extension of diplomatic courtesies and rights to diplomatic
agents, which is a waiver of control on a limited scale and subject to the
terms of the treaty.
This point leads us to the second standard envisioned by the framers of the
Constitution: that the Philippines must retain sovereignty and jurisdiction over
its territory.
ii. Second standard: Philippine sovereignty and applicable law
EDCA states in its Preamble the "understanding for the United States not to
establish a permanent military presence or base in the territory of the
Philippines." Further on, it likewise states the recognition that "all United
States access to and use of facilities and areas will be at the invitation of the
Philippines and with full respect for the Philippine Constitution and Philippine
laws."
The sensitivity of EDCA provisions to the laws of the Philippines must be
seen in light of Philippine sovereignty and jurisdiction over the Agreed
Locations.
Sovereignty is the possession of sovereign power,406 while jurisdiction is the
conferment by law of power and authority to apply the law.407 Article I of the
1987 Constitution states:
The national territory comprises the Philippine archipelago, with all the
islands and waters embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea, the seabed, the subsoil, the
insular shelves, and other submarine areas. The waters around, between,
and connecting the islands of the archipelago, regardless of their breadth
and dimensions, form part of the internal waters of the Philippines.
(Emphasis supplied)
From the text of EDCA itself, Agreed Locations are territories of the
Philippines that the U.S. forces are allowed to access and use.408 By
withholding ownership of these areas and retaining unrestricted access to
them, the government asserts sovereignty over its territory. That sovereignty
exists so long as the Filipino people exist.409
Significantly, the Philippines retains primary responsibility for security with
respect to the Agreed Locations.410 Hence, Philippine law remains in force
therein, and it cannot be said that jurisdiction has been transferred to the
U.S. Even the previously discussed necessary measures for operational
control and defense over U.S. forces must be coordinated with Philippine
authorities.
Jurisprudence bears out the fact that even under the former legal regime of
the MBA, Philippine laws continue to be in force within the bases.412 The
226
difference between then and now is that EDCA retains the primary
jurisdiction of the Philippines over the security of the Agreed Locations, an
important provision that gives it actual control over those locations.
Previously, it was the provost marshal of the U.S. who kept the peace and
enforced Philippine law in the bases. In this instance, Philippine forces act as
peace officers, in stark contrast to the 1947 MBA provisions on jurisdiction.
iii. Third standard: must respect national security and territorial
integrity
The last standard this Court must set is that the EDCA provisions on the
Agreed Locations must not impair or threaten the national security and
territorial integrity of the Philippines.
This Court acknowledged in Bayan v. Zamora that the evolution of
technology has essentially rendered the prior notion of permanent military
bases obsolete.
Moreover, military bases established within the territory of another state is no
longer viable because of the alternatives offered by new means and
weapons of warfare such as nuclear weapons, guided missiles as well as
huge sea vessels that can stay afloat in the sea even for months and years
without returning to their home country. These military warships are actually
used as substitutes for a land-home base not only of military aircraft but also
of military personnel and facilities. Besides, vessels are mobile as compared
to a land-based military headquarters.414
The VFA serves as the basis for the entry of U.S. troops in a limited scope. It
does not allow, for instance, the re-establishment of the Subic military base
or the Clark Air Field as U.S. military reservations. In this context, therefore,
this Court has interpreted the restrictions on foreign bases, troops, or
facilities as three independent restrictions. In accord with this interpretation,
each restriction must have its own qualification.
Petitioners quote from the website http://en.wikipedia.org to define what a
military base is.415 While the source is not authoritative, petitioners make
the point that the Agreed Locations, by granting access and use to U.S.
forces and contractors, are U.S. bases under a different name.416 More
important, they claim that the Agreed Locations invite instances of attack on
the Philippines from enemies of the U.S.417
We believe that the raised fear of an attack on the Philippines is not in the
realm of law, but of politics and policy. At the very least, we can say that
under international law, EDCA does not provide a legal basis for a justified
attack on the Philippines.
In the first place, international law disallows any attack on the Agreed
Locations simply because of the presence of U.S. personnel. Article 2(4) of
the United Nations Charter states that "All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations."418 Any unlawful
attack on the Philippines breaches the treaty, and triggers Article 51 of the
same charter, which guarantees the inherent right of individual or collective
self-defence.
Moreover, even if the lawfulness of the attack were not in question,
international humanitarian law standards prevent participants in an armed
conflict from targeting non-participants. International humanitarian law, which
is the branch of international law applicable to armed conflict, expressly limits
allowable military conduct exhibited by forces of a participant in an armed
conflict.419 Under this legal regime, participants to an armed conflict are held
to specific standards of conduct that require them to distinguish between
combatants and non-combatants,420 as embodied by the Geneva
Conventions and their Additional Protocols.421
Corollary to this point, Professor John Woodcliffe, professor of international
law at the University of Leicester, noted that there is no legal consensus for
what constitutes a base, as opposed to other terms such as "facilities" or
"installation."422 In strategic literature, "base" is defined as an installation
"over which the user State has a right to exclusive control in an extraterritorial
sense."423 Since this definition would exclude most foreign military
installations, a more important distinction must be made.
For Woodcliffe, a type of installation excluded from the definition of "base" is
one that does not fulfill a combat role. He cites an example of the use of the
territory of a state for training purposes, such as to obtain experience in local
geography and climactic conditions or to carry out joint exercises. Another
example given is an advanced communications technology installation for
purposes of information gathering and communication. Unsurprisingly, he
deems these non-combat uses as borderline situations that would be
excluded from the functional understanding of military bases and
installations.
By virtue of this ambiguity, the laws of war dictate that the status of a building
or person is presumed to be protected, unless proven otherwise. Moreover,
the principle of distinction requires combatants in an armed conflict to
distinguish between lawful targets and protected targets. In an actual armed
conflict between the U.S. and a third state, the Agreed Locations cannot be
considered U.S. territory, since ownership of territory even in times of armed
conflict does not change.
227

Hence, any armed attack by forces of a third state against an Agreed
Location can only be legitimate under international humanitarian law if it is
against a bona fide U.S. military base, facility, or installation that directly
contributes to the military effort of the U.S. Moreover, the third state's forces
must take all measures to ensure that they have complied with the principle
of distinction (between combatants and non-combatants).
There is, then, ample legal protection for the Philippines under international
law that would ensure its territorial integrity and national security in the event
an Agreed Location is subjected to attack. As EDCA stands, it does not
create the situation so feared by petitioners - one in which the Philippines,
while not participating in an armed conflict, would be legitimately targeted by
an enemy of the U.S.
In the second place, this is a policy question about the wisdom of allowing
the presence of U.S. personnel within our territory and is therefore outside
the scope of judicial review.
Evidently, the concept of giving foreign troops access to "agreed" locations,
areas, or facilities within the military base of another sovereign state is
nothing new on the international plane. In fact, this arrangement has been
used as the framework for several defense cooperation agreements, such as
in the following:
1. 2006 U.S.-Bulgaria Defense Cooperation Agreement432
2. 2009 U.S.-Colombia Defense Cooperation Agreement433
3. 2009 U.S.-Poland Status of Forces Agreement434
4. 2014 U.S.-Australia Force Posture Agreement435
5. 2014 U.S.-Afghanistan Security and Defense Cooperation Agreement436
In all of these arrangements, the host state grants U.S. forces access to their
military bases.437 That access is without rental or similar costs to the
U.S.438 Further, U.S. forces are allowed to undertake construction activities
in, and make alterations and improvements to, the agreed locations, facilities,
or areas. As in EDCA, the host states retain ownership and jurisdiction over
the said bases.
In fact, some of the host states in these agreements give specific military-
related rights to the U.S. For example, under Article IV(l) of the US.-Bulgaria
Defense Cooperation Agreement, "the United States forces x x x are
authorized access to and may use agreed facilities and areas x x x for
staging and deploying of forces and materiel, with the purpose of conducting
x x x contingency operations and other missions, including those undertaken
in the framework of the North Atlantic Treaty." In some of these agreements,
host countries allow U.S. forces to construct facilities for the latter’s exclusive
use.
Troop billeting, including construction of temporary structures, is nothing
new. In Lim v. Executive Secretary, the Court already upheld the Terms of
Reference of Balikatan 02-1, which authorized U.S. forces to set up
"[t]emporary structures such as those for troop billeting, classroom instruction
and messing x x x during the Exercise." Similar provisions are also in the
Mutual Logistics Support Agreement of 2002 and 2007, which are essentially
executive agreements that implement the VFA, the MDT, and the 1953
Military Assistance Agreement. These executive agreements similarly tackle
the "reciprocal provision of logistic support, supplies, and services,"442
which include "[b ]illeting, x x x operations support (and construction and use
of temporary structures incident to operations support), training services, x x
x storage services, x x x during an approved activity." These logistic supplies,
support, and services include temporary use of "nonlethal items of military
equipment which are not designated as significant military equipment on the
U.S. Munitions List, during an approved activity."The first Mutual Logistics
Support Agreement has lapsed, while the second one has been extended
until 2017 without any formal objection before this Court from the Senate or
any of its members.
The provisions in EDCA dealing with Agreed Locations are analogous to
those in the aforementioned executive agreements. Instead of authorizing
the building of temporary structures as previous agreements have done,
EDCA authorizes the U.S. to build permanent structures or alter or improve
existing ones for, and to be owned by, the Philippines. EDCA is clear that the
Philippines retains ownership of altered or improved facilities and newly
constructed permanent or non-relocatable structures. Under EDCA, U.S.
forces will also be allowed to use facilities and areas for "training; x x x;
support and related activities; x x x; temporary accommodation of personnel;
communications" and agreed activities.
Concerns on national security problems that arise from foreign military
equipment being present in the Philippines must likewise be contextualized.
Most significantly, the VFA already authorizes the presence of U.S. military
equipment in the country. Article VII of the VFA already authorizes the U.S.
to import into or acquire in the Philippines "equipment, materials, supplies,
and other property" that will be used "in connection with activities"
contemplated therein. The same section also recognizes that "[t]itle to such
property shall remain" with the US and that they have the discretion to
"remove such property from the Philippines at any time."
There is nothing novel, either, in the EDCA provision on the prepositioning
and storing of "defense equipment, supplies, and materiel,"448 since these
are sanctioned in the VFA. In fact, the two countries have already entered
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into various implementing agreements in the past that are comparable to the
present one. The Balikatan 02-1 Terms of Reference mentioned in Lim v.
Executive Secretary specifically recognizes that Philippine and U.S. forces
"may share x x x in the use of their resources, equipment and other assets."
Both the 2002 and 2007 Mutual Logistics Support Agreements speak of the
provision of support and services, including the "construction and use of
temporary structures incident to operations support" and "storage services"
during approved activities. These logistic supplies, support, and services
include the "temporary use of x x x nonlethal items of military equipment
which are not designated as significant military equipment on the U.S.
Munitions List, during an approved activity." Those activities include
"combined exercises and training, operations and other deployments" and
"cooperative efforts, such as humanitarian assistance, disaster relief and
rescue operations, and maritime anti-pollution operations" within or outside
Philippine territory. Under EDCA, the equipment, supplies, and materiel that
will be prepositioned at Agreed Locations include "humanitarian assistance
and disaster relief equipment, supplies, and materiel. " Nuclear weapons are
specifically excluded from the materiel that will be prepositioned.
Therefore, there is no basis to invalidate EDCA on fears that it increases the
threat to our national security. If anything, EDCA increases the likelihood
that, in an event requiring a defensive response, the Philippines will be
prepared alongside the U.S. to defend its islands and insure its territorial
integrity pursuant to a relationship built on the MDT and VFA.
8. Others issues and concerns raised
A point was raised during the oral arguments that the language of the MDT
only refers to mutual help and defense in the Pacific area.453 We believe
that any discussion of the activities to be undertaken under EDCA vis-a-vis
the defense of areas beyond the Pacific is premature. We note that a proper
petition on that issue must be filed before we rule thereon. We also note that
none of the petitions or memoranda has attempted to discuss this issue,
except only to theorize that the U.S. will not come to our aid in the event of
an attack outside of the Pacific. This is a matter of policy and is beyond the
scope of this judicial review.
In reference to the issue on telecommunications, suffice it to say that the
initial impression of the facility adverted to does appear to be one of those
that require a public franchise by way of congressional action under Section
11, Article XII of the Constitution. As respondents submit, however, the
system referred to in the agreement does not provide telecommunications
services to the public for compensation.454 It is clear from Article VIl(2) of
EDCA that the telecommunication system is solely for the use of the U.S.
and not the public in general, and that this system will not interfere with that
which local operators use. Consequently, a public franchise is no longer
necessary.
Additionally, the charge that EDCA allows nuclear weapons within Philippine
territory is entirely speculative. It is noteworthy that the agreement in fact
specifies that the prepositioned materiel shall not include nuclear
weapons.455 Petitioners argue that only prepositioned nuclear weapons are
prohibited by EDCA; and that, therefore, the U.S. would insidiously bring
nuclear weapons to Philippine territory. The general prohibition on nuclear
weapons, whether prepositioned or not, is already expressed in the 1987
Constitution.457 It would be unnecessary or superfluous to include all
prohibitions already in the Constitution or in the law through a document like
EDCA.
Finally, petitioners allege that EDCA creates a tax exemption, which under
the law must originate from Congress. This allegation ignores jurisprudence
on the government's assumption of tax liability. EDCA simply states that the
taxes on the use of water, electricity, and public utilities are for the account of
the Philippine Government.458 This provision creates a situation in which a
contracting party assumes the tax liability of the other.459 In National Power
Corporation v. Province of Quezon, we distinguished between enforceable
and unenforceable stipulations on the assumption of tax liability. Afterwards,
we concluded that an enforceable assumption of tax liability requires the
party assuming the liability to have actual interest in the property taxed.460
This rule applies to EDCA, since the Philippine Government stands to benefit
not only from the structures to be built thereon or improved, but also from the
joint training with U.S. forces, disaster preparation, and the preferential use
of Philippine suppliers.461 Hence, the provision on the assumption of tax
liability does not constitute a tax exemption as petitioners have posited.
Additional issues were raised by petitioners, all relating principally to
provisions already sufficiently addressed above. This Court takes this
occasion to emphasize that the agreement has been construed herein as to
absolutely disauthorize the violation of the Constitution or any applicable
statute. On the contrary, the applicability of Philippine law is explicit in EDCA.
EPILOGUE
The fear that EDCA is a reincarnation of the U.S. bases so zealously
protested by noted personalities in Philippine history arises not so much from
xenophobia, but from a genuine desire for self-determination, nationalism,
and above all a commitment to ensure the independence of the Philippine
Republic from any foreign domination.
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Mere fears, however, cannot curtail the exercise by the President of the SO ORDERED.
Philippines of his Constitutional prerogatives in respect of foreign affairs.
They cannot cripple him when he deems that additional security measures
are made necessary by the times. As it stands, the Philippines through the
Department of Foreign Affairs has filed several diplomatic protests against
the actions of the People's Republic of China in the West Philippine Sea;462
initiated arbitration against that country under the United Nations Convention
on the Law of the Sea; is in the process of negotiations with the Moro Islamic
Liberation Front for peace in Southern Philippines, which is the subject of a
current case before this Court; and faces increasing incidents of kidnappings
of Filipinos and foreigners allegedly by the Abu Sayyaf or the New People's
Army. The Philippine military is conducting reforms that seek to ensure the
security and safety of the nation in the years to come. In the future, the
Philippines must navigate a world in which armed forces fight with increasing
sophistication in both strategy and technology, while employing asymmetric
warfare and remote weapons.

Additionally, our country is fighting a most terrifying enemy: the backlash of

Mother Nature. The Philippines is one of the countries most directly affected
and damaged by climate change. It is no coincidence that the record-setting
tropical cyclone Yolanda (internationally named Haiyan), one of the most
devastating forces of nature the world has ever seen hit the Philippines on 8
November 2013 and killed at least 6,000 people. This necessitated a
massive rehabilitation project. In the aftermath, the U.S. military was among
the first to extend help and support to the Philippines.

That calamity brought out the best in the Filipinos as thousands upon
thousands volunteered their help, their wealth, and their prayers to those
affected. It also brought to the fore the value of having friends in the
international community.

In order to keep the peace in its archipelago in this region of the world, and to
sustain itself at the same time against the destructive forces of nature, the
Philippines will need friends. Who they are, and what form the friendships will
take, are for the President to decide. The only restriction is what the
Constitution itself expressly prohibits. It appears that this overarching
concern for balancing constitutional requirements against the dictates of
necessity was what led to EDCA.

As it is, EDCA is not constitutionally infirm. As an executive agreement, it

remains consistent with existing laws and treaties that it purports to
implement.

WHEREFORE, we hereby DISMISS the petitions.

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G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner, vs. JUAN RUIZ, respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine
Independent Church, seeks the issuance from this court of a writ of
prohibition to prevent the respondent Director of Posts from issuing and
selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in
the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of
what he considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent
publicly announced having sent to the United States the designs of the
postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border
design. The stamps are blue, green, brown, cardinal red, violet and orange, 1
inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50
centavos." The said stamps were actually issued and sold though the greater
part thereof, to this day, remains unsold. The further sale of the stamps is
sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper
legal remedy in the instant case, although he admits that the writ may
properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of
other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . .
inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516
and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution is
a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person
whose acts are without or in excess of his authority. Not infrequently, "the
writ is granted, where it is necessary for the orderly administration of justice,
or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian, institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary
is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of church and
state in the early stages of our constitutional development; it was inserted in
the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions of the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act
of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers
of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious
toleration.
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Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines
and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec.
344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned
to the armed forces or to any penal institution, orphanage or leprosarium 9
sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code).
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conclusive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the
Philippine Legislature. This Act is as follows:
No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND
PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN
THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE
COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW
DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines
in Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and
made immediately available out of any funds in the Insular Treasury not
otherwise appropriated, for the costs of plates and printing of postage stamps
with new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or
any portion of the amount herein appropriated in the manner indicated and
as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for
the costs of plates and printing of postage stamps with new designs and
other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as
may be deemed advantageous to the Government". The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President of the Philippines in a letter dated September 1,
1936, made part of the respondent's memorandum as Exhibit A. The
respondent alleges that the Government of the Philippines would suffer
losses if the writ prayed for is granted. He estimates the revenue to be
derived from the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the
Director of Posts is the discretionary power to determine when the issuance
of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize
the violation of the Constitution. It does not authorize the appropriation, use
or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of international
232
importance "to give publicity to the Philippines and its people" (Letter of the
Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains a map of
the Philippines and the location of the City of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937."
What is emphasized is not the Eucharistic Congress itself but Manila, the
capital of the Philippines, as the seat of that congress. It is obvious that while
the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere incidental results
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168.)

We are much impressed with the vehement appeal of counsel for the
petitioner to maintain inviolate the complete separation of church and state
and curb any attempt to infringe by indirection a constitutional inhibition.
Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political
development nothing is done by the Government or its officials that may lead
to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we have come to
the conclusion that there has been no constitutional infraction in the case at
bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage
stamps in question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting
aside the official act assailed as coming within a constitutional inhibition.

The petition for a writ of prohibition is hereby denied, without pronouncement

as to costs. So ordered.

233